ACA Implementation FAQs Part 72 Address Expanding Access to In Vitro Fertilization

Published October 17, 2025

The Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (collectively, the Departments) released Affordable Care Act (ACA) Implementation Frequently Asked Questions (FAQs) Part 72 clarifying existing categories of excepted benefits that employers can use to offer fertility benefits, including fertility treatment through a specified disease or illness policy, or offering reimbursement for those services through an excepted benefits health reimbursement arrangement.

One set of FAQs address questions on independent, noncoordinated excepted benefits in the group market. These benefits are excepted from the requirements of title XXVII of the PHS Act, part 7 of ERISA, and chapter 100 of the Code only if certain conditions are met.

Questions address whether:
  • An employer may offer fertility benefits as an independent, noncoordinated excepted benefit;
  • Participants and beneficiaries must enroll in the employer's traditional group health plan in order for the specified disease or illness policy to qualify as an excepted benefit if an employer offers a traditional group health plan and a specified disease or illness policy that covers fertility benefits;
  • Specified disease or illness coverage, such as coverage only for infertility, can be self-funded by the employer and qualify as an independent coordinated excepted benefit; and
  • If an individual who is enrolled in fertility benefit coverage provided as an independent, noncoordinated excepted benefit can be permitted to contribute to a health savings account (HSA).
The other set of FAQs address limited excepted benefits. Limited excepted benefits are excepted if they are provided under a separate policy, certificate, or contract of insurance, or are otherwise not an integral part of a group health plan. These excepted benefit health reimbursement arrangements (HRAs) qualify as limited excepted benefits if they satisfy certain conditions.

Specifically, the FAQs address whether:
  • An employer plan sponsor may offer an excepted benefit HRA that reimburses an employee's out-of-pocket costs with respect to fertility benefits under existing regulations; and
  • An employer may offer benefits for coaching and navigator services to help employees and their dependents understand their fertility options under an employee assistance program (EAP) that qualifies as a limited excepted benefit.
The Departments also:
  • Intend to propose rulemaking aimed at providing additional ways that certain fertility benefits may be offered as a limited excepted benefit, 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.