News

(November 4, 2025) The Department of Labor, Department of Health and Human Services, and the Internal Revenue Service (IRS) (collectively, the “Agencies”) recently released FAQs about Implementation of the Affordable Care Act Part 72, which clarifies the existing categories of excepted benefits employers can use to offer fertility benefits, including independent, noncoordinated excepted benefits and limited excepted benefits. These actions were a response to an executive order released by President Trump earlier this year seeking policy recommendations to protect in vitro fertilization (IVF) access and to reduce out-of-pocket and health plan costs for IVF treatment.

The Agencies also announced that they intend to propose notice and comment rulemaking to provide additional ways that certain fertility benefits may be offered as a limited excepted benefit if certain conditions are met and are considering whether to modify the standards under which supplemental health insurance coverage provided by a group health plan, including a supplemental benefit for fertility coverage, will be considered to satisfy the conditions for being an excepted benefit.

Background

Excepted benefits may provide health care coverage but are exempt from the ACA’s market reforms, including the prohibition on lifetime and annual dollar limits and the preexisting conditions exclusions, as well as certain HIPAA requirements, such as special enrollment rights.

1. Excepted benefits generally fall into four categories: Benefits that are non-health benefits, which include automobile insurance, workers’ compensation, and similar benefits;
2. Limited excepted benefits, including, among other benefits, limited scope dental or vision insurance and certain HRAs;
3. Independent, noncoordinated excepted benefits
4. Supplemental excepted benefits, such as supplemental Medicare coverage  

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