need to know issues with flexible spending accounts

Presented by Larry Grudzien | Attorney at Law

Agenda

• Allowable Election Changes

• Carryovers

• COBRA

• HRAs & FSAs

• HSAs & FSAs

• Health Reform Issues

• Dealing with mistakes

ALLOWABLE ELECTION CHANGES FOR HEALTH FSAS

Mid-Year Election Changes

• General irrevocability rule - no change required for the plan year.

• 5 events are recognized by the IRS as permitting mid-year election changes for health FSAs.

• Other events are recognized permitting mid-year election changes.

• Administrative requirements that must be met to implement a mid-year election change.

5 Events for Mid-Year Election Changes For Health FSAs

1. Change in Status

2. COBRA Qualifying Event

3. Judgment, Decree, or Order

4. Entitlement to Medicare or Medicaid

5. FMLA Leave of Absence

1 | Change in Status

These changes include: Employee’s marital status Number of dependents Employment status Dependents satisfying or ceasing to satisfy dependent

eligibility requirements Residence Commencement or termination of adoption proceedings

Note: The plan document must include a provision for each of the above events the employer wishes to allow.

1 | Change in Status – Marital Status

Change in marital status includes Marriage Divorce Death of Spouse Legal Separation Annulment.

1 | Change in Status – Number of Dependents

Change in the number of dependents Birth, Adoption, Placement for adoption, and Death.

Note: Dependent is defined as a dependent under Code §105(h)

For Dependent Care Plans, a dependent means an individual eligible for the dependent care tax credit defined in IRC §21(b)(1).

1 | Change in Status – Employment Status

Change in Employment Status Termination or commencement of employment, Strike or lockout, Commencement or return from unpaid leave of absence,. A change in work site, and Change in employment status causing a change in eligibility

under the plan (example – if the plan covers only salaried employees and the employee becomes hourly).

Note: Any of the above events that change the employment status of an employee, the employee’s spouse or the employee’s dependents would qualify as a change in status.

1 | Change in Status – Dependent Eligibility

Dependents satisfying or ceasing to satisfying dependent eligibility

Attainment of age Marriage or any other similar circumstances

Note: The individual must be under Code § 105(h).

1 | Change in Status – Change in Residence

Change In residence Change in the place of residence of an employee,

spouse or dependent. Change of residence would have to change the

eligibility for health coverage. Coverage may be dropped where the change affects

eligibility for a managed care option (even if the employee could elect similar coverage).

1 | Change in Status – Consistency Requirement

If a change in status event occurs, a plan can only permit employees to make election changes that are consistent with the event.

There is one “general consistency rule” and 4 special consistency rules.

Group Term Life, Disability, and Dismemberment Coverage. Dependent Care and Adoption Expenses. Loss of Spouse’s or Dependent’s Eligibility. Gain of Eligibility under another Employer’s Plan.


• A participant may increase or decrease group term life, disability and dismemberment coverage for any change in status event, even through eligibility under the plan is not gained or lost.

• The occurrence of the event is enough.

• Check the insurance contract to determine wither the event is allowed.

Group Term Life, Disability, and Dismemberment Coverage


• This rule is satisfied if the election change on account of and corresponds with a change in status that affects eligibility of dependent care or adoption assistance expense for tax exclusions available under tax code.

• Election may be canceled when an employee’s child turns 13 in the middle of the a plan year and is no longer a qualifying individual.

• An employee’s or a spouse’s leave of absence or other change in employment status could also trigger this rule.

Dependent Care and Adoption Expenses


• An employee can cancel accident or health coverage for only the spouse or dependent.

• An election to cancel coverage for anyone else fails to correspond with that change in status.

• May create a hardship under plans that offer limited coverage categories.

Loss of Spouse’s or Dependent’s Eligibility


If coverage is gained as a result of a change in marital or employment status, then an employee’s election to cease or decrease coverage for that individual corresponds with the change in status if coverage for that individual becomes effect or is increased under the other employer’s plan.

Gain of Eligibility under another Employer’s Plan


• If one of the 4 special rules do not apply then the general consistency rule applies.

• Under this rule, an election change satisfies the consistency requirement “if the election change is on account of and corresponds with a change in status that affects eligibility for coverage under the employer’s plan.”

• The rule includes 2 elements: The change in status event must affect eligibility for coverage

under the employer’s plan. The election change must be on account of and correspond

with the event.

General Consistency Rule


The change in status event must affect eligibility for coverage under the employer’s plan.

Gain or loss of coverage eligibility under the component benefit plan or the cafeteria plan will satisfy the consistency requirement.

A change in status that affects eligibility includes the increase or decrease of the number of an employee’s family member or dependents who benefit from coverage under the plan.

General Consistency Rule - Elements


The election change must be on account of and correspond with the event:

If one type of coverage is lost or gained, then the employee is limited to changing an election with respect to that coverage.

Other eligible individuals can also be added when a spouse or dependent gains eligibility as a change in status event.

If an employee was no previous enrolled and a change in status occurs this rule will also allow the employee to enroll in order to enroll the dependents.

General Consistency Rule - Elements

2 | COBRA Qualifying Event

A cafeteria plan may permit an employee to make a mid-year election change if a COBRA event occurs to the employee, spouse or dependent.

Employee may increase pre-tax salary reductions to cover the COBRA premiums.

Example: Employee has reduction of hours triggering a COBRA event.

He can increase pre-tax salary reductions to cover cost of COBRA premiums.

3 | Judgment, Decree, or Order

A cafeteria plan may allow mid-year changes on account of judgment decrees and orders resulting from divorce, legal separation, annulment, or change in legal custody.

Example: An employer receives a qualified medical child support order (QMCSO) requiring the employee to cover a dependent child.

The employee is allowed to change his election in order to cover the child.

4 | Entitlement to Medicare or Medicaid

• A cafeteria plan may allow mid-year election changes on account of eligibility of the employee, spouse or dependent for Medicare or Medicaid.

• Gaining Medicare or Medicaid allows participant to cancel or reduce FSA amount .

• Losing Medicare or Medicaid allows participant to elect or increase the FSA amount.

5 | FMLA Leave of Absence

• A cafeteria plan may allow a mid-year election change on account of a leave of absence under FMLA.

• Employer must allow all the election changes available to employees on non-FMLA leave.

• The plan must allow participant to revoke health care coverage if he so wishes.

• Employee can reinstate coverage upon return from leave.

• If employee continues coverage during an FMLA leave, employer may allow three types of payment options: pre-pay, pay-as-you go or catch-up.

• These rules apply to health care FSA plans and uniform coverage rule still applies

Other Events That Might Permit Mid-Year Elections

• Military leave under USERRA.

• Mistakes made by employee or employer.

• Participant Fails Medical Underwriting.

• Mid –year election changes may be required to pass non-discrimination testing.

• Automatic loss of coverage.

Administrative Requirements for Mid-Year Election Changes

• Obtain substantiation for reasons for the change.

• Decide when the election can be effective.

• Confirm that cafeteria plan regulations allow the change.

• Confirm that plan document and insurance policies allow the election.

CARRYOVER REQUIREMENTS

What is allowed?

• IRS guidance issued in October 2013 allows health FSAs to offer carryovers of unused balances of up to $500 remaining at the end of a plan year, to be used for qualified medical expenses incurred in subsequent plan years.

• Offering health FSA carryovers is optional and is an alternative to offering a health FSA grace period—health FSAs allowing carryovers from a plan year cannot also have a grace period with respect to that year.

• This exception to the use-or-lose rule offers the potential to reduce health FSA forfeitures, which may encourage more employees to participate in health FSAs.

What is allowed?

• Amounts carried over are available to reimburse eligible medical expenses incurred in a subsequent plan year.

• Offering health FSA carryovers is optional, and plan sponsors wishing to allow carryovers must specifically provide for carryovers in their plan documents.

• If carryovers are offered, the same carryover limit must apply to all participants.

• The uniform coverage rule will continue to apply to a health FSA that offers carryovers.

What is allowed?

• The amount that an employee can carry over is based on the health FSA amount remaining from a plan year at the end of the run-out period for that plan year (i.e., after all expenses for that plan year have been reimbursed).

• At that time, unused health FSA amounts from the plan year in excess of $500 (or a lower amount, if applicable under plan) are forfeited, and the remaining amounts can be used to reimburse eligible expenses incurred during the new plan year.

What is allowed?

• During a health FSA’s run-out period, potential carryover amounts may be used either for prior-year or current-year claims, although no more than $500 in potential carryovers can be used to reimburse current-year expenses.

• During this time, plans may reimburse current-year claims first from current-year amounts.

• While this ordering rule is permissive, it appears to be a best practice.

• Using current-year contributions first leaves potential carryover amounts available to reimburse prior-year expenses submitted during the run-out period.

• Conversely, reimbursing current-year claims from potential carryover amounts during the run-out period will reduce the amount available to pay run-out claims from the prior year.

Additional Issues Raised by Carryovers

• How Do Carryovers Affect HSA Eligibility?

• Will Carryovers Affect a Health FSA’s Status as an Excepted Benefit?

• What COBRA Issues Are Presented by Carryovers?

• W-2 Reporting

• Other Administrative and Compliance Issues

COBRA ISSUES

Does COBRA Apply?

• Health FSAs are group health plans and thus are subject to COBRA, unless maintained by a small employer, a church, or the federal government.

• Health FSAs that are subject to COBRA must offer COBRA coverage to qualified beneficiaries who lose coverage as the result of a qualifying event, unless the special limited COBRA obligation and must provide all required COBRA notices, including initial notices and election notices.

• IRS representatives have informally indicated the IRS view that family members other than the covered employee are entitled to elect COBRA under a health FSA in connection with an employee's termination of employment.

Limited COBRA Obligation for Certain Health FSAs

If a health FSA meets certain conditions prescribed in the IRS COBRA regulations, the obligation to offer COBRA coverage is limited, as follows:

COBRA coverage need not be offered to qualified beneficiaries who have “overspent” their accounts as of the date of the qualifying event.

For those with underspent accounts, COBRA must be offered, but may be terminated at the end of the year in which the qualifying event occurs (a qualified beneficiary receiving COBRA coverage at that time would also be entitled to any grace period provided under the plan).

Which Health FSAs Qualify?

To qualify, a health FSA must provide excepted benefits; and the COBRA premium under the health FSA must meet certain minimums.

Benefits provided under a health FSA “are excepted for a class of participants” if the health FSA is an FSA as defined in Code §106(c)(2) and satisfies the following two conditions:

Condition #1—Maximum Benefit Condition. The maximum benefit payable under the health FSA to any participant in the class for a year cannot exceed two times the participant's salary reduction election under the health FSA for the year (or, if greater, the amount of the employee's salary reduction election for the health FSA for the year, plus $500).

Condition #2—Availability Condition. Other group health plan coverage, not limited to benefits that are excepted benefits (e.g., limited-scope dental and vision coverage), must be made available for the year to the class of participants by reason of their employment.

Which Health FSAs Qualify?

Under the IRS COBRA regulations, a health FSA qualifies for the special limited COBRA obligation only if it satisfies the previous two conditions (i.e., it is an excepted benefit) and also satisfies the following third condition:

Condition #3—COBRA Premium Condition. The maximum annual COBRA premium chargeable for health FSA COBRA coverage must equal or exceed the maximum annual health FSA coverage amount.

Determining Whether an Account is Overspent

• To determine whether an account is overspent, an employer must examine the claims activity for a specific qualified beneficiary.

• The determination of whether a qualified beneficiary's account for a plan year is overspent or underspent as of the date of the qualifying event depends on three variables: The elected annual limit for the qualified beneficiary for the plan year;

The total reimbursable amount of claims submitted to the health FSA for that plan year before the date of the qualifying event; and

The maximum amount that the health FSA is permitted to require to be paid for COBRA coverage for the remainder of the plan year.

• The “Remaining Annual Limit” is the elected annual limit less the claims submitted.

• If the remaining annual limit is less than the maximum COBRA premium that can be charged for the rest of the year, then the account is overspent.

HRA & FSA

Who pays first?

• Code §105(h)(6) defines a self-insured medical reimbursement plan as “a plan of an employer to reimburse employees for expenses for medical care for which reimbursement is not provided under a policy of accident and health insurance.”

• There is one exception, however.

• It seems that the “payer of last resort” principle still survives as a practical matter when the employer also has an HRA , unless the HRA requires the health FSA to pay expenses first.

Who pays first?

• Generally, if an employee participates in both an HRA and a health FSA offered by the employer and both plans cover the same expenses, the employee must look first to the HRA for reimbursement and second (after the HRA limits are exhausted) to the health FSA.

• However, an HRA plan sponsor may choose, prior to the beginning of the health FSA plan year, to require in the HRA plan document that the health FSA will pay first.

• The HRA plan document (and presumably the health FSA plan document) must clearly specify that the HRA is the payer of last resort (i.e., that coverage under the HRA is available only after expenses exceeding the dollar amount of the health FSA have been paid).

HSA & FSA

HSA Issues

If an employee’s spouse participates in a Health FSA during the year and the spouse can be reimbursed for the employee’s expenses, will that right make the employee ineligible to participate in a HSA?

Yes, even if the spouse never submits a claim for reimbursement the employee’s expenses under the Health FSA.

HSA Issues

If an employer adopts a HDHP during the year, may an employee elect to terminate participation in a Health FSA?

No, a change in cost or coverage is not a allowable reason to change an election during the year for Health FSAs.

HSA Issues

Can an employee participate in either a Health FSA or a HRA in the same month and still be eligible to make or receive contribution to an HSA?

No, unless the employee’s situation is one of the following: The employee’s expenses reimbursed under a Health FSA and/or an HRA

are limited to dental, vision and/or preventive care benefits (“Limited Purpose Health FSA or HRA”),

The employee suspends participation in an HRA for the year (“Suspended HRA”),

Health FSA or HRA pays expenses above the deductible of the HDHP (“Post-Deductible Health FSA or HRA”), or

HRA pays or reimburses the employee’s expenses incurred after the employee retires (“Retirement HRA”).

HSA Issues

Can an employer amend its general purpose FSA to a limited purpose Health FSA during the year?

Yes – unofficial advice from IRS.

An employer may amend its Health FSA to a limited purpose Health FSA.

HEALTH REFORM

Important Changes

Limitation on Health FSA Salary Reductions Code § 125(I)(2) imposes a limit on annual salary reduction

contributions to health FSAs offered under cafeteria plans, effective for plan years beginning in or after 2013.

The limit was $2,500 for plan years beginning in 2013, and is indexed for cost-of-living adjustments for subsequent plan years. ($2,550 for 2015).

The limit applies on a plan year basis. The limit only applies to employee salary reduction

contributions. The limit applies separately on an employee basis. The limit applies separately for each unrelated employer.

Important Changes

Restrictions on OTC Medicines and Drugs Health care reform establishes new restrictions on the

reimbursement of over-the-counter (OTC) medicines and drugs purchased after December 31, 2010.

Under these restrictions, health FSAs, can only reimburse medicines and drugs other than insulin if the medicine or drug is prescribed (determined without regard to whether a prescription is necessary to acquire the drug).

By its terms, the prescription requirement applies only to medicines and drugs—it does not extend to items other than medicines or drugs that are available over-the-counter (e.g., equipment, supplies, and medical devices).

Health FSAs

• For health FSAs to avoid the requirements of Health Care Reform, they must meet the requirements of an “excepted benefit.”

• Free standing health FSAs are still possible if reimbursing excepted benefits.

• What requirements apply if a Health FSA is not an excepted benefit?

Health FSAs

A health FSA is considered an excepted benefit if it satisfies two conditions:

Maximum Benefit Condition: The maximum benefit payable under the health FSA to any participant in the class for a year cannot exceed two times the employee's salary reduction election under the health FSA for the year (or, if greater, the amount of the employee's salary reduction election for the health FSA for the year, plus $500), and

Availability Condition: Other non-excepted group health plan coverage (e.g., major medical coverage) must be made available for the year to the class of participants by reason of their employment.

Recent Guidance

• On May 13, 2014, the IRS issued Q&A guidance restating the conclusion in Notice 2013-54, that an employer is considered to establish a type of group health plan-called an "employer payment plan"-if it reimburses employees' premiums for individual health insurance policies.

• Q/A-1 provides that the employer's exposure to excise taxes of $36,500 per year (i.e., $100 per day) for each employee affected by the failures.

• This excise tax liability requires self-reporting on IRS Form 8928.

• Adverse consequences are also possible under ERISA and the PHSA.

• Q/A-2 indicates that the DOL issued substantially identical guidance in Technical Release 2013-03, and HHS is expected to announce soon that it concurs.

Recent Guidance

On February 18, 2015, the IRS released Notice 2015-17 which provides transition relief from the assessment of excise tax under Code Section 4980D for failure to satisfy market reforms in certain circumstances.

The transition relief applies to employer healthcare arrangements that constitute:

Employer payment plans, as described in Notice 2013-54, if the plan is sponsored by an employer that is not an Applicable Large Employer (ALE) under Code § 4980H(c)(2) and §§54.4980H-1(a)(4) and -2;

S corporation healthcare arrangements for 2-percent shareholder-employees;

Medicare premium reimbursement arrangements; and

TRICARE-related health reimbursement arrangements (HRAs).

Recent Guidance

• The IRS will not impose excise taxes otherwise assessable under Code § 4980H for employer payment plans maintained in 2014 or the first six months of 2015 (i.e., through June 30, 2015) for employers that are not “applicable large employers” (ALEs) for those periods.

• Employers eligible for the relief are also excused from the requirement to self-report these violations on Form 8928.

• The Notice relief does not apply to stand-alone HRAs or other arrangements to reimburse any expenses other than insurance premiums.

Recent Guidance

The Notice also addresses “2% shareholder-employee healthcare arrangements,” under which a Subchapter S corporation pays for or reimburses premiums for individual health insurance coverage for a “2% shareholder” where the payment or reimbursement is included in income and the premiums are deductible by the 2% shareholder-employee under Code § 162(l).

Pending the issuance of additional guidance on these arrangements, the Notice provides that an S corporation will not be subject to Code § 4980D or required to file Form 8928 solely as a result of having a 2% shareholder-employee health care arrangement.

Recent Guidance

The Notice permits an employer’s reimbursement of Medicare Part B or Part D premiums to be integrated with another group health plan offered by the employer, but only if:

The employer offers a group health plan (other than the premium reimbursement arrangement) to the employee that does not consist solely of excepted benefits and offers coverage providing minimum value;

The employee participating in the premium reimbursement is actually enrolled in Medicare Parts A and B;

Premium reimbursement is available only to employees who are enrolled in Medicare Part A and Part B or Part D; and

Reimbursement is limited to Medicare Part B or Part D premiums and premiums for excepted benefits, including Medigap premiums.

Recent Guidance

The Notice confirms that an employer may increase an employee’s taxable compensation, not conditioned on the purchase of health coverage, without creating an employer payment plan (or any group health plan at all).

The Notice reiterates the IRS’s position that an employer’s payment or reimbursement of employees’ individual health insurance premiums is a group health plan subject to the market reforms even if the payments or reimbursements are made on an after-tax basis.

DEALING WITH MISTAKES

Reimbursed Claim That Should Not Have Been Paid

• The plan administrator should follow the debit card correction procedures and attempt to correct the error by seeking repayment from the participant, withholding the improper reimbursement from the participant's pay, or offsetting the improper reimbursement against other valid claims under the FSA.

• IRS guidance provides that if the above correction steps have been unsuccessful, the improper payment should be treated as any other business indebtedness.

• When this step is applied, the employer must first request payment consistent with its collection procedures for other business debts.

• If the payment is not recovered, it should generally be treated as a forgiven debt and reported as wages on Form W-2 for the year in which the indebtedness is forgiven; the reported amount is subject to withholding for income tax, FICA, and FUTA

Error Found Before Year-End

Reimbursed Claim That Should Not Have Been Paid

IRS guidance indicates that under these circumstances, the mistaken payment should be treated as business indebtedness which, if forgiven, must be included in income and reported as wages on Form W-2 (subject to wage withholding) in the year in which the debt is forgiven.

The employer can seek repayment of the indebtedness from the participant on an after-tax basis through repayment by check or after-tax payroll withholding in the year in which the error is discovered.

Error Found Before Year-End

Denied Claim That Should Have Been Paid

• If a denied FSA claim is later determined to be eligible for reimbursement and the run-out period has not ended, then the participant should be reimbursed for it, up to the amount available in the participant's account.

• A denied FSA reimbursement claim that should have been paid is similar to a situation in which an employer withholds excess cafeteria plan salary reductions.

• In both cases, the employer is contractually obligated to make the participant whole.

Error Found Before the Run-Out Period Ends


• Upon discovering the error, the employer should reimburse the participant for the valid claim from his or her FSA account.

• The claim should be resubmitted if necessary for plan administration and promptly paid according to the plan's terms.

• The amount to be paid would be the lesser of the full amount of the claim or the balance available in the account for paying valid claims.

Error Found Before the Run-Out Period Ends


• Where claims are paid from general assets, most employers will allow pre-tax reimbursement of a previously incorrectly denied claim, either because of formal plan provisions for exceptions to the run-out deadline or as a practical and equitable correction.

• Some employers correct these errors by reimbursing the claims on a taxable basis outside the plan.

• To help offset the lost tax benefits, some employers provide a tax gross-up by increasing the payment for the mistakenly denied claim by the taxes due on the amount of the payment.

• The amount paid would be the lesser of the full amount of the claim or the balance that would have been available in the account had the claim been paid before the funds were forfeited.

• If the reimbursement is grossed up for taxes, it could include the participant's share of FICA taxes and the amount of federal and state income taxes payable on the reimbursement amount.

Error Found After the Run-Out Period Ends

Questions?

need to know issues with flexible spending accounts

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