On Thursday, October16, 2025, federal agencies published new FAQs Part 72 granting additional flexibility for employers with respect to fertility benefits as follows:
- Ability to sponsor stand-alone,specified disease insurance for infertility;
- An employee assistance plan (EAP) can include coaching and navigator service to guide employees and dependents through their infertility service options; and
- A reminder of the availability of excepted benefit health reimbursement arrangements (EBHRAs) which can reimburse§213(d) medical expenses, including fertility costs, even for employees not enrolled in the employer’s medical plan.
The Trump Administration also announced a new partnership to obtain most favored nation pricing for fertility medication from EMD Serono, as a hopeful catalyst that leads to other decreases in fertility care costs.
Applies To: Employers interested in expanding fertility benefit options beyond what is included in the medical plan, including benefits for employees not enrolled in the medical plan.
Go Deeper:
Federal regulators at the Department of Labor (DOL), Treasury, and Health and Human Services (HHS)jointly published updated guidance in Affordable Care Act (ACA) FAQs Part 72 to equip employers with ways to expand their fertility benefits beyond what their medical plan might cover today, and to extend benefits to those not enrolled in the medical plan.
Stand-Alone, Specified Disease Insurance for Infertility
For now, the main flexibility focuses on allowing fertility benefits as “a specified disease or illness insurance policy that covers benefits related to infertility as a type of independent, non-coordinated excepted benefit.” These types of policies cannot be self-insured and cannot coordinate with the medical plan, but can be offered on a stand-alone basis even for employees not eligible for the medical plan.They are also compatible with health savings accounts (HSAs).
The Departments acknowledge this fits within the rules that exist today but might be a bit limiting, so they are open to proposing additional flexibility in future rulemaking. One angle is to perhaps propose a rule to allow excepted fertility benefits similar to the rules that treat dental, vision, limited wrap-around,and employee assistance plans (EAPs) as excepted benefits. Another proposal might be to allow fertility benefits as supplemental, excepted health coverage with an increase to the 15% price cap from 2007 guidance.
EAP Can Provide Infertility Coaching and Navigator Services
EAPs are another type of excepted benefit. The general rule is they must be fully paid for by the employer, cannot impose cost-sharing to the participant, cannot coordinate with the medical plan, and cannot provide significant medical care. FAQs Part 72 clarify that an EAP could include coaching and navigator services to help employees andtheir dependents understand their fertility options.
Excepted Benefit Health Reimbursement Arrangement (EBHRA) Reminder
The FAQs also remind employers that they can extend an EBHRA to anyone eligible for the medical plan, even if they waive the medical plan. This benefit can reimburse up to$2,150 ($2,200 in 2026) for any valid §213(d) out-of-pocket medical care expense (with some restrictions/exclusions for certain insurance premiums). These arrangements could be used to provide tax-favored employer reimbursement of fertility costs that meet the §213(d) definition of medical care. A broad range of fertility treatments qualify, including in-vitro fertilization for the employee, spouse, and dependents, but expenses for third party donors or surrogates do not qualify as explained in IRS Publication 502.
Most Favored Nation (MFN) Pricing of Fertility Medication
The Trump Administration also announced striking a deal for the fertility medication, GONAL-F, and a commitment from the manufacturer, EMD Serono, to build a facility in the U.S. for its manufacturing. Their announcement also outlined future goals to further bring down the costs of fertility care in the U.S.
Penalties for Non-Compliance:
Employers must be careful when sponsoring benefits that provide or reimburse medical care, as that typically creates a group health plan subject to several federal laws. The excepted benefits outlined in the FAQ Part 72 are designed to guide employers to perhaps offer additional benefits beyond what the medical plan covers and to offer these additional benefits to employees not enrolled in the medical plan without triggering hefty penalties. Done incorrectly, the employer can expect to pay $100 per person per day for a non-compliant plan that violates Affordable Care Act rules.
Practical Impact to Employers:
With the current administration's focus on expanding access and reducing costs for fertility benefits, additional rulemaking is likely in the near future. This new guidance more explicitly allows employers to provide excepted benefits for fertility beyond what their medical plan covers today, and offer them to more employees than just those on the medical plan. These options are still considered group health plans subject to federal laws like ERISA, COBRA, and others, but are excepted benefits under some laws like the Affordable Care Act and HIPAA special enrollment rights.