Trump Administration Proposes Rule to Expand Access to Fertility Benefits: What IVF Providers, Investors, and Employers Need to Know

On May 10, 2026, the U.S. Department of Labor (DOL), Department of Health and Human Services (HHS), and Department of the Treasury jointly announced a proposed rule that would create a new category of limited excepted benefits permitting employers to offer fertility benefits directly to employees. The Notice of Proposed Rulemaking was published in the Federal Register on May 13, 2026. The proposed rule is open for comment through July 13, 2026, and, as drafted, is set to go into effect on January 1, 2027.

The proposed rule follows a February 2025 executive order seeking to ensure reliable access to in vitro fertilization (IVF) treatment by easing statutory and regulatory requirements and making IVF drastically more affordable. The executive order directed relevant agencies to identify ways to protect IVF access and reduce out-of-pocket costs for patients.

Currently, employers that want to offer fertility benefits outside of their primary major medical plan must comply with complex federal requirements, from preparing plan documents to navigating tax consequences. Excepted benefits, on the other hand, are generally exempt from many market requirements under a slew of laws and regulations, including, but not limited to, the Health Insurance Portability and Accountability Act, the Patient Protection and Affordable Care Act, and the No Surprises Act. Classifying fertility benefits as limited excepted benefits would therefore enable employers to expand access to these benefits to their employees outside of their group-sponsored health plan.

The Proposed Excepted Fertility Benefits

To qualify as a limited excepted benefit under the proposed rule, the fertility benefit must be limited such that “substantially all” fertility coverage must be for the diagnosis, mitigation, or treatment of infertility or related reproductive health conditions and must be provided by medical professionals authorized to practice under applicable law. These benefits can include medically appropriate care to address infertility-related health concerns to address the underlying medical causes leading to infertility. The proposed rule includes a wide array of examples of coverage that may be included as part of the fertility benefit, including diagnostic services, fertility education and medical management, surgical procedures, medications, counseling, and assisted reproductive technology, including IVF. Notably, the proposed rule does not intend the excepted fertility benefit to include coverage for abortion or abortion-related services.

Benefits must be capped at a combined lifetime maximum of up to $120,000 for the participant and beneficiaries combined, indexed for inflation. The cap is intended to provide employers and insurers with cost predictability while still enabling participants to access meaningful fertility care.

For an employer-sponsored fertility benefit to qualify as an excepted benefit under the proposed rule, the benefit must be provided under a separate insurance policy, certificate, or contract from the major medical plan offered or must “not be an integral part” of the employer-sponsored group health plan. This generally means that only individuals who are eligible to participate in their employer-sponsored group health plan can take advantage of the limited excepted benefit fertility benefit, though these individuals do not need to enroll in the group health plan to avail themselves of the fertility coverage.

Implications for IVF Providers and Investors

The proposed rule has significant implications for participants in the fertility care industry, including providers of clinical services and investors in the fertility care sector.

The proposed rule acknowledges that employers commonly provide fertility benefits in the group market through specialty vendors and anticipates that employers would utilize the new excepted fertility benefits pathway to expand fertility coverage offerings. If finalized, the proposed rule would lower barriers for employers to offer fertility benefits, thereby increasing the insured demand for fertility services and potentially expanding the commercial market for such services, including for specialty fertility benefit vendors and administrators.

Implications for Employers and Group Health Plan Sponsors

For employers considering whether to offer fertility benefits or to restructure existing benefits, the proposed rule presents both a new opportunity and a new set of compliance obligations.

The proposed rule does not mandate that employers offer fertility benefits. Rather, it creates an optional pathway intended to make offering fertility coverage simpler by reducing compliance complexities. This means that employers offering a properly structured excepted fertility benefit would not need to comply with certain mandates that apply to primary group health plan coverage.

Separate from compliance, employers should consider how offering or declining to offer excepted fertility benefits may affect talent recruitment and retention in a competitive labor market where fertility benefits have become an increasingly prominent benefit offering. In addition, employers who are offering, or are now considering offering, fertility benefits to their employees should consider how they are offering such coverage to maximize the tax advantages to their employees (i.e., through an excepted health benefit reimbursement arrangement).

State Fertility Insurance Mandates

Many states have undertaken their own efforts to expand access in this area, particularly through insurance mandates requiring qualifying health policies to cover fertility benefits. Approximately 19 states require at least some policies to cover IVF, with the scope of both the benefit and the affected plans varying from state to state. Notably, California’s SB 729 took effect on January 1, 2026, requiring large group health plans in the state (those covering 100 or more employees) to cover up to three egg retrievals and unlimited embryo transfers. According to legislative analysis, approximately nine million enrollees are covered by policies subject to SB 729’s mandate. Legislative efforts like SB 729 further increase the insured demand for fertility services.

Conclusion

During the comment period for the proposed rule, members of the public including affected industries, advocacy groups, employers, providers, and individuals may submit written comments to the agency. The comment period closes on July 13, 2026.

After the comment period closes, the DOL, HHS, and Treasury must review and consider all comments received before issuing a final rule. The final rule must include a response to significant comments and may differ materially from the proposed rule. As stated above, the proposed rule as drafted becomes effective for plan years beginning on or after January 1, 2027, though this date could change in response to comments and is not binding until finalized. While no action is required until the proposed rule is finalized, employers and benefit vendors may wish to begin assessing how they would design a compliant excepted fertility benefit program.

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The Goodwin Healthcare team will continue to monitor the proposed rule and any plans for implementation. For more information on the issues discussed in this alert, please contact the authors, reach out to Goodwin’s Healthcare Regulatory and Compliance or the ERISA & Executive Compensation groups, or contact the Goodwin lawyer whom you typically consult.

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