By: HUB’s EB Compliance Team

On October 16, 2025, the Departments of Labor, Health and Human Services and the Treasury jointly issued FAQ Part 72, providing important clarifications on how employers can offer fertility benefits. The FAQs were written in response to Executive Order 14216 which directed policy recommendations to expand access to in vitro fertilization (IVF).

Background on Excepted Benefits

The Affordable Care Act (ACA) generally mandates group health plans to comply with various requirements, including the prohibition on annual dollar limits and the requirement to cover preventive services without cost-sharing. However, certain types of coverage known as "excepted benefits" are exempt from these requirements. These include independent, noncoordinated benefits for specific diseases, hospital indemnity insurance, excepted benefit health reimbursement arrangements and employee assistance programs.

Independent, Noncoordinated Excepted Benefits for Fertility Coverage

The guidance confirms that employers may offer fertility benefits as an independent, noncoordinated excepted benefit if certain conditions are met. Under this structure, fertility coverage may qualify as a specified disease or illness policy, similar to a cancer-only policy.

To qualify, the benefit must meet three requirements:

  • There can be no coordination between the fertility benefit and any other group health plan maintained by the same plan sponsor.
  • The benefits must be paid with respect to an event without regard to whether benefits are provided under any other group health plan and
  • Benefits under any health insurance coverage maintained by the same plan sponsor must be provided under a separate policy, certificate or contract of insurance.

Importantly, participants are not required to enroll in the employer's traditional group health plan to be eligible for the excepted benefit. Employees may decline traditional coverage and still participate in a fertility benefit offered as an independent, noncoordinated excepted benefit.

The guidance confirms that specified disease or illness coverage cannot be self-funded by an employer and still qualify as an independent, noncoordinated excepted benefit. This is because a self-funded plan would not be maintained in a separate policy, certificate, or contract of insurance.

Because these policies are specified disease or illness polices, individuals covered by such policies would remain eligible to contribute to a health savings account (assuming they were otherwise eligible).

Use of Excepted Benefit Health Reimbursement Arrangement (EBHRA)

FAQ Part 72 also clarifies how EBHRAs can be used to provide fertility benefits, allowing a self-funded alternative.

Among other requirements, EBHRAs can reimburse employees for certain benefits including COBRA premiums (but not other major insurance premiums) and cost-sharing for eligible medical expenses. Additionally, the employer must offer nonexcepted, non-account-based group health plan coverage (although EBHRA participants don’t have to take it), and reimbursements under the EBHRA must be limited to $2,150 per year (for 2025).

The FAQs confirm that employers may offer excepted benefit HRAs that reimburse employees out of pocket costs that are qualified medical expenses related to fertility benefits.

Employee Assistance Program (EAP) Permitted Services

The FAQs also confirm that an EAP may provide coaching and navigator services to help individuals understand their options for fertility benefits. However, consistent with existing EAP guidance, the EAP would not be a limited excepted benefit if it offers any fertility benefits that are considered significant medical care benefits. Further, the EAP cannot coordinate with the group health plan, cannot require a premium to be paid by the employee and cannot have any cost sharing.

Key Takeaways

FAQ Part 72 provides employers with new flexibility to offer fertility benefits outside of their traditional group health plans, either by offering a separate fertility-specific policy or through an EBHRA. Employers may also provide limited fertility-related coaching and navigator services through an EAP, provided the conditions of an excepted benefit EAP are met. Employers exploring these options should work with their legal and benefits advisors to ensure compliance with the applicable requirements.

If you have any questions, please contact your HUB Advisor. View more compliance articles in our Compliance Directory.

NOTICE OF DISCLAIMER

Neither HUB International Limited nor any of its affiliated companies is a law or accounting firm, and therefore, they cannot provide legal or tax advice. The information herein is provided for general information only and is not intended to constitute legal or tax advice as to an organization’s or individual's specific circumstances. It is based on HUB International's understanding of the law as it exists on the date of this publication. Subsequent developments may result in this information becoming outdated or incorrect, and HUB International does not have an obligation to update this information. You should consult an attorney, accountant or other legal or tax professional regarding the application of the general information provided here to your organization’s specific situation in light of your or your organization’s particular needs.