Legislative lowdown: Trump administration proposes new category for fertility benefits

Several federal agencies recently proposed a rule to create a new category of benefits for certain types of fertility treatments. The proposal, part of the Trump administration’s push to boost in-vitro fertilization (IVF) access, is intended to encourage more employers to add such treatments to their benefits offerings.

“President Trump is committed to expanding access to fertility benefits so that more American families can have children, building on his longstanding efforts to support family formation and stability,” Acting Labor Secretary Keith Sonderling said in a May 10 statement.

The proposed rule, which was issued by the Departments of Labor, Health and Human Services, and Treasury, would support a pathway for employers to cover fertility as a “limited excepted benefit.” Such benefits are exempted from requirements under laws like the Affordable Care Act and the Health Insurance Portability and Accountability Act, and thus considered less onerous from a compliance standpoint.

How fertility benefits could be offered under this rule. Federal law already allows employers to provide a number of benefits as “excepted benefits.” Programs like dental and vision insurance, long-term care, and workers’ compensation commonly fall under this category.

The draft rule proposes requirements similar to those that employers must already fulfill if they want to offer other types of excepted benefits. Per the proposal, businesses may cover fertility services provided the benefits:

• Are “substantially all” for the “diagnosis, mitigation, or treatment of infertility or infertility-related reproductive health conditions,” as well as “provided by medical professionals authorized to practice under applicable law.”
• Are “capped at a combined lifetime maximum of up to $120,000 for the participant and their beneficiaries.” This threshold will be indexed for inflation for plan years beginning in 2028.
• Are subject to a notice from the employer “that clearly describes the coverage and meets other specified requirements.”

What’s new? While fertility wasn’t previously cited as an excepted benefit by the federal government, some companies were already working with employers to provide similar stand-alone benefits prior to these White House actions, HR Brew previously reported.

Nearly one-half (47%) of large employers covered IVF services in their largest medical plan as of 2024, according to consulting firm Mercer. Though stand-alone or carve-out benefits are simpler to offer, employers may choose to offer IVF as part of a group health plan because the care tends to be “cross-cutting,” and merits a more comprehensive package, Katie Keith, director of Georgetown Law’s Center for Health Policy and the Law, previously told HR Brew.

The push to encourage more employers to cover fertility benefits is welcome, but additional steps should be taken to support the entire patient journey, Danielle Melfi, CEO of RESOLVE, the national infertility association, said in an emailed statement. “While this proposed rule provides a pathway for employers to expand fertility care coverage, it doesn’t guarantee that patients have access to the full care and protections they need throughout their treatment journey,” she said.