New Proposed Rules Would Allow Employers to Offer Fertility Benefits as "Excepted Benefits" Outside Their Major Medical Plans

On May 13, 2026, the Departments of Treasury, Labor, and Health and Human Services jointly published proposed regulations that would establish a new category of "limited excepted benefits" for fertility-related coverage under Employee Retirement Income Security Act of 1974 (ERISA), the Internal Revenue Code, and the Public Health Service Act. If finalized, these rules would create a streamlined pathway for employers to offer separate fertility coverage (on an insured or self-insured basis) to employees who are not otherwise enrolled in the employer’s primary group health plan. The fertility “excepted benefits” would be generally exempt from Affordable Care Act's mandates (such as requirements to cover certain preventive care services), HIPAA portability rules, the No Surprises Act, and certain other federal mandates that apply to traditional group health plans. If finalized, the regulations would be effective for plan years beginning on or after January 1, 2027.