On May 13, 2026, the Departments of Labor, Treasury, and Health and Human Services (collectively, the “Departments”) issued a proposed rule that aims to expand access to fertility benefits. The proposed rule, which was issued in response to Executive Order 14216 and follows DOL guidance that we discussed in our November 5, 2025 Benefits Update, would create a new category of limited excepted benefit that is generally exempt from most requirements that apply to other group health plan coverage. Comments on the proposed rule are due by July 13, 2026.
Excepted Benefits
As background, excepted benefits are a category of benefit arrangements that are exempt from many of the portability, market reform, and related requirements that otherwise govern group health coverage under the Affordable Care Act (“ACA”), Mental Health Parity and Addiction Equity Act, and other federal laws. To qualify for the exemption, benefits must be provided under a separate insurance policy or not be an integral part of a group health plan. For example, plans commonly offer vision and adult dental benefits on an excepted benefit basis and consequently may impose lifetime or annual limits on those benefits that otherwise would be prohibited under the ACA.
Key Provisions
The proposed rule would permit, but not require, plans to offer coverage on a limited excepted benefit basis for the diagnosis, mitigation, and treatment of infertility or infertility-related reproductive health conditions provided by medical professionals authorized under applicable law. Participants generally would not be required to enroll in the employer’s group health plan coverage in order to enroll in limited excepted benefit fertility coverage. Fertility benefits offered by a plan would be considered limited excepted benefits if the following requirements are met:
- substantially all the covered items or services covered under the fertility benefit relate to the diagnosis, mitigation, or treatment of infertility, or infertility-related reproductive health conditions, and substantially all such services are furnished by licensed or otherwise authorized medical professionals;
- the fertility benefits are either provided for under a separate insurance policy, or are not integral to the plan, which means that a participant may enroll separately in the group health plan and the fertility benefits or decline to participate in either or both options for the plan year;
- the combined lifetime maximum for fertility benefits cannot exceed $120,000 for participants and the participant’s beneficiaries, with indexing for inflation for plan years beginning after 2028; and
- in offering the fertility benefits, plans must meet the notice requirements described below.
To meet the notice requirement under the proposed rule, plans would have to provide participants and beneficiaries with written notice that can be understood by the average participant and includes a summary of the services covered by the fertility benefit and limitations of the coverage. Plans must provide the notice no later than the date on which the participant or beneficiary is eligible to enroll in coverage and annually thereafter, as well as upon request of the participant or beneficiary.
Please contact Slevin & Hart for more information about how the proposed rule may affect your plan.
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