Trump’s Expanded IVF Promise Envisions Flexibility for Employers

The Department of Labor is poised to encourage employers to offer standalone insurance for in-vitro fertilization by expanding exemptions to certain legal requirements in the Trump administration’s first major regulatory step toward making fertility treatments less expensive.

The move is meant to make good on President Donald Trump’s repeated vow to make fertility care—including IVF, donor eggs, and certain medications, which typically cost thousands of dollars per treatment—more accessible. However, attorneys warn the coming changes may not address the affordability and accessibility issues that have long made such care out of reach for many.

“I have not seen a lot of employers clamoring for this type of product that I think the Department of Labor is thinking about assisting,” said Heather Stone Fletcher, an attorney with Epstein Becker Green. “The other important thing, aside from the health coverage questions, is the cost of the treatments and I see that as the real barrier to access here.”

The DOL last week released a road-map for companies to offer fertility health benefits for employees using existing regulations, promising new regulations to continue making the process easier.

Coverage for these treatments has become more and more popular among large companies, but management-side attorneys say many questions remain about how it can be offered in a way that’s useful for employees without being cost prohibitive for their employers.

According to the International Foundation of Employee Benefit Plans, 42% of employers offer overall fertility benefits which is up from only 30% in 2020.

According to a White House fact sheet released last week, smaller employers are less likely to offer fertility coverage. Around 70% of large companies cover IVF.

Regulations Road-map

The DOL plans to issue regulations expanding how employers can offer fertility care as limited excepted benefits, which are not subject to the Affordable Care Act’s bans on coverage limits or requirement of coverage of dependents until they turn 26 years old.

Allison Fepelstein, an attorney at Morgan, Lewis & Bockius, said many employers won’t offer fertility treatments if they can’t put some kind of cap on it.

“IVF is very costly and people can go through rounds and rounds and not be successful,” she said. “At a certain point, if the company is paying for this out of their general assets, it’s going to want to reduce its exposure by including a dollar limit on the benefit.”

The solution to this problem has traditionally been offering treatments through a reimbursement plan that allows payments of up to $2,150 per year, Fepelstein said. A single IVF cycle runs between $14,000 and $20,000 on average, according to ARC Fertility.

The DOL’s guidance last week said employers can offer a standalone fertility benefit as long as it’s provided under a separate policy from their traditional health care plans and there’s no coordination between the plans on what’s covered or exempted from each. It also clarified that health reimbursement accounts categorized as excepted benefits can be used to repay employees for out-of-pocket fertility expenses.

The DOL’s shift could reassure larger employers worried about the added cost of expanding benefit packages to offer these more-limited coverage plans, Fletcher said.

“Small employers are still struggling to provide any type of major medical coverage so I have a hard time seeing this make a big difference,” she said.

Possible New Exceptions

The DOL is likely to expand the excepted benefits category with new regulations to include fertility treatments, giving employers the ability to place limits on the amount of coverage and also offer plans that are attractive enough for workers to enroll in, attorneys say. Benefits plans for vision and dental treatments underwent a similar transition more than a decade ago.

“There’s definitely a way to amend the current regulations to provide some additional flexibility for large employers that want to provide this benefit,” Fepelstein said.

Even if the DOL expands the excepted category, companies will still have plenty of compliance obligations under the Employee Retirement Income Security Act.

According to Kathryn Bjornstad Amin, a principal attorney at Groom Law Group, employers will have to retain documentation of their health care plans, offer a continuation of coverage under COBRA, and complete all of their other duties to stay within the bounds of the law.

ERISA also holds employer plans liable if they fail at their fiduciary duties under the law, presenting litigation risks.

Other Barriers, Questions Remaining

DOL’s regulations are only one piece in the puzzle to widening access to the costly treatments.

Trump earlier in October announced a deal with Germany’s Merck KGaA to cut the price of its fertility medicines in exchange for relief from threatened tariffs.

Merck will offer its complete portfolio of IVF therapies through the president’s direct-to-consumer platform, TrumpRX, and boost manufacturing in the US. The most widely used drug, Gonal-f, is currently “700% more expensive in the United States than in the rest of the world,” Trump said during a press conference in the Oval Office on Oct. 16.

The DOL released its guidance and announcement in conjunction with the Departments of Treasury and Health and Human Services, which will also start the rulemaking process to enhance health care coverage options.

Treasury and HHS will have to answer what services count as medical treatments, whether pregnancy surrogates who aren’t directly enrolled in an employer’s major health care policy can benefit from the fertility coverage, and if participants need to have a medical diagnosis of infertility to access the benefits, attorneys say.

Another factor weighing on attorneys’ minds is the government shutdown, which shows no signs of letting up after three weeks.

“Everyone’s very anxious to see this guidance but the government is shut down and it’s not really clear how that’s going to affect things,” Amin said. “Are we actually going to see anything anytime soon, or is this going to be years from now?”