EBSA-2026-0232-0001, American Society for Reproductive Medicine

July 9, 2026 Dear Acting Secretary Sonderling, Secretary Kennedy, and Secretary Bessent, On behalf of the American Society for Reproductive Medicine (ASRM), I write in response to the proposed rule 2026-09479 (91 FR 27140) on “Excepted Fertility Benefits.” We appreciate the administration’s interest in expanding access to fertility care and the efforts of the Department of Labor (DOL), Department of Health and Human Services (HHS), and the Treasury Department to explore policy options aimed at making fertility treatments more accessible and affordable. ASRM has proactively sought to engage the Domestic Policy Council (DPC), DOL, HHS, and the Treasury Department on multiple occasions following the issuance of the President’s February 2025 Executive Order (EO) on Expanding Access to In Vitro Fertilization (IVF) and the October 2025 announcement of guidance clarifying how employers might offer excepted fertility benefits. Unfortunately, the administration has been non-responsive. Regardless, ASRM and its nearly 8,000 members remain eager to offer technical expertise and support initiatives that meaningfully expand IVF access and reduce out-of-pocket costs for fertility treatments. ASRM welcomes the opportunity to provide feedback on the administration’s proposed rule on Excepted Fertility Benefits and to ultimately provide perspective on whether or not this proposed policy mechanism will actually achieve the administration's stated goals of expanded access and reduced out-of-pocket costs for patients seeking fertility care. The proposed rule raises several questions that warrant clarification to ensure that the Excepted Fertility Benefits rule achieves the administration’s stated objectives and supports equitable and impactful implementation of the program. Specifically, ASRM wishes to convey the following: •The proposed Excepted Fertility Benefits rule fails to achieve President Donald Trump’s promise to make IVF accessible and affordable by mandating coverage. •The proposed rule’s lack of a clear definition for infertility creates ambiguity regarding which services are required to be covered and who is eligible to utilize these benefits. •The proposed rule makes significant assumptions about plan adoption, utilization, and interactions with state mandates, while failing to account for other administration policies that impact – and in some cases restrict – access to fertility care. •ASRM is concerned about the lack of federal oversight envisioned for excepted fertility benefit plans and the potential negative consequences for patients. •The proposed rule’s cost containment mechanism incentivizes riskier patient decision-making, potentially leading to poorer health outcomes and greater costs for employers and employees who invest in excepted fertility benefit plans. •ASRM is concerned that the proposed timeline for the rulemaking will not allow for meaningful stakeholder engagement prior to implementation in Plan Year 2027. Unless the proposed rule is meaningfully reconsidered and re-drafted, ASRM urges the administration to withdraw it and instead pursue insurance fertility coverage mandates, which are the most effective policy solution for addressing concerns about accessibility and treatment costs. Please see our full comments attached. ASRM remains eager to lend our medical, ethical, and legal expertise to support the administration’s efforts to make fertility care more accessible and affordable. If ASRM can serve as a resource, please do not hesitate to contact ASRM’s Office of Public Affairs at publicaffairs@asrm.org. Sincerely, Robert Brannigan, MD President American Society for Reproductive Medicine