Benefis Strength Test: Flexing the FSA

Benefits Strength Test: Flexing the FSA

Larry Grudzien

Attorney at Law

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• Allowable Election Changes

• Carryovers

• COBRA

• HRAs & FSAs

• HSAs & FSAs

• Health Reform Changes - What if repealed?

• Dealing with mistakes

Copyright 2016 – Not to be reproduced without express permission of Benefit Express Services, LLC

Agenda

Allowable Election Changes for Health FSAs

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• 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


Mid-Year Election Changes

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1. Change in status

2. COBRA qualifying events

3. Judgments, decrees or orders

4. Entitlement to Medicare or Medicaid

5. FMLA leaves of absence


5 Events for Mid-Year Election Changes for Health FSAs

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These changes include:

• Change in employee’s marital status

• Change in the number of dependents

• Change in employment status

• Dependents satisfying or ceasing to satisfy dependent eligibility requirements

• Change in 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

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Change in marital status includes:• Marriage

• Divorce

• Death of Spouse

• Legal Separation

• Annulment


1. Change in Status

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Change in the number of dependents

• Birth

• Adoption

• Placement for adoption

• 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

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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

• 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

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Dependents satisfying or ceasing to satisfy dependent eligibility• Attainment of age

• Marriage or any other similar circumstances


1. Change in Status

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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

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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:

Special Consistency rule for Group Term Life, Disability and Dismemberment Coverage

Special Consistency Rule for Dependent Care and Adoption Expenses

Special Consistency Rule for Loss of Spouse’s or Dependent’s Eligibility

Special Consistency Rule for Gain of Eligibility under another Employer’s Plan


1. Change in Status

Copyright 2016 – Not to be reproduced without express permission of Benefit Express Services, LLC 14

Special Consistency rule for Group Term Life, Disability and Dismemberment Coverage

• 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 whether the event is allowed

Special Consistency Rule for Dependent Care and Adoption Expenses

• 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.

Change in Status – Consistency Requirement

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Special Consistency Rule for Loss of Spouse’s or Dependent’s Eligibility

• 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

Special Consistency Rule for Gain of Eligibility under another Employer’s Plan

• If coverage is gained as a result of a change in martial or employment status, then an employees 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.



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General Consistency Rule

• If one of the 4 special rules do not apply, 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



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• 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.

• 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.



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• 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


2. Cobra Qualifying Event

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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.


3. Judgments, Decrees, Orders

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• 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


4. Entitlement to Medicare or Medicaid

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• 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.

• The 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 the uniform coverage rule still applies.


5. FMLA Leaves of Absence

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• 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.


Other Events that Might Permit Mid-Year Elections

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• 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


Administrative Requirements for Mid-Year Election Changes

Carryover Requirements

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• 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 same 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?

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

• Since offering health FSA carryovers is optional, a plan sponsor 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.

• 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?

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• 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.


What is Allowed?

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How Do Carryovers Affect HSA Eligibility?

• General-purpose health FSA carryovers raise HSA eligibility issues similar to those presented by health FSA grace periods.

• A carryover to a general-purpose health FSA makes the employee ineligible to contribute to his or her HSA for the entire subsequent plan year, even after the carryover is exhausted and even if the employee does not make or receive new health FSA contributions for that plan year.

• The adverse effect can be avoided if the plan allows employees to decline or waive their carryovers prior to the beginning of the next plan year—an employee who declines or waives a general-purpose health FSA carryover under the plan's terms may contribute to an HSA during the next plan year if he or she is otherwise HSA-eligible.


Additional Issues Raised by Carryovers

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

• Health FSA carryovers are not taken into account when determining whether a health FSA meets the Maximum Benefit Condition.

• However, it is unclear whether carryovers might cause a health FSA to fail to meet the Availability Condition.

What COBRA Issues are Presented by Carryover?

• Health FSA carryovers are included when determining the benefit that a qualified beneficiary is entitled to receive during the remainder of the plan year in which a qualifying event occurs.

• Carryovers must be counted when determining whether an account is overspent or underspent.

• Carryovers are not counted for purposes of determining the COBRA premium,



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Can employers limit carryovers to employees who elect to make salary reductions in the new plan year?

• 2015 guidance clarifies that carryovers can be limited to individuals who have elected to participate in the health FSA in the next plan year.

• This plan design is permitted even if a minimum salary reduction is required for participation.

Can employers limit carryovers to a maximum period?

• 2015 guidance allows health FSAs to require that carryover amounts be forfeited if not used within a specified period of time, such as one year.

• This plan design requires additional administration (e.g., to track the time limit for each carryover dollar) as well as ordering rules (e.g., will carryovers be used first?).



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Can employers limit carryovers to a maximum period?

• 2015 guidance allows health FSAs to require that carryover amounts be forfeited if not used within a specified period of time, such as one year.

• This plan design requires additional administration (e.g., to track the time limit for each carryover dollar) as well as ordering rules (e.g., will carryovers be used first?).

Can employers establish a minimum carryover amount to avoid having to administer carryovers of very small amounts?

• Some employers may wish to establish a minimum threshold to participate in the carryover (e.g., $5 or $10), as is frequently done for health FSA elections.

• The carryover guidance does not indicate whether such a practice is permitted. However, an IRS official has informally commented that it would seem reasonable to have a small minimum carryover amount, such as $5, $10, or the minimum annual election amount for the health FSA.



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Are carryovers factored into nondiscrimination testing?

• The carryover guidance does not address whether carryover amounts must be factored into nondiscrimination testing (e.g., the 25% key employee test for cafeteria plans).

• An IRS official has informally commented that carryover amounts would not be taken into account in nondiscrimination testing for a subsequent plan year, since these amounts were considered for the year in which the original contributions were made and would not be taken into account a second time.



COBRA Issues

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• 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.


Does COBRA Apply?

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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).


Limited COBRA Obligation for Certain Health FSAs

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• 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.

• 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.


Which Health FSAs Qualify?

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• 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

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.


Determining Whether an Account is Overspent

HRAs and FSAs – How they Interact

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• 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.”

• One exception - 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.

• 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).


Who Pays First?

HSAs: Issues with FSAs

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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.

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

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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”)

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


HSA Issues

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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.


HSA Issues

Health Reform – What happens if it is repealed?

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• 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. ($2,600 for 2017).

• 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

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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).


Important Changes

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• 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?

• 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).

Availability Condition: Other nonexcepted 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.


Health FSA

How to Deal with Mistakes

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• 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


Reimbursed Claim that Should Not Have Been Paid – Error Found Before Year-End

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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.


Reimbursed Claim That Should Not Have Been Paid; Error Found After Year-End

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• 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.

• 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.


Denied Claim That Should Have Been Paid; Error Found Before the Run-Out Period Ends

Questions?

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Larry GrudzienAttorney at Law

(708) [email protected]


Contact Information

mailto:[email protected]

http://www.larrygrudzien.com/

Benefis Strength Test: Flexing the FSA

Recruiting & HR

Transcript of Benefis Strength Test: Flexing the FSA