In response to the devastation
caused by Hurricane Katrina, the House and the Senate moved quickly to provide
relief. In September, 2005, Congress
passed the Katrina Emergency Tax Relief Act of 2005. The following listing identifies some of the relief measures as
they relate to employee benefit plan administration:
*Excise and employment tax
deadlines are extended through February 28, 2006.
*The 10 percent tax on early
distributions from IRAs and pension plans are waived.
*Extends the Work Opportunity Tax
Credit permitting employers inside and outside the designated disaster area to
claim the credit for hiring eligible individuals through the end of 2005.
*Employee Retention Tax Credit.
*Donations made to charities
before January 2006, are exempt from the limitations and phase-out of itemized
deductions.
*Employers who make cash donations
before January 2006 will have the 10% of taxable compensation limit waived.
*Reimbursement for personal use of
vehicles by volunteers who perform charitable work will not be taxed.
*Charitable mileage deduction rate
will be set at 70% of the standard business mileage rate through 12/31/2006.
(Based upon current business rate of 48.5 cents, the new charitable mileage
rate will be 34 cents per mile.)
In addition, on September 21,
2005, the IRS-DOL notice essentially stops the clock between August 29, 2005
through January 3, 2006, in determining certain COBRA and other health care
plan related deadlines. The time period
between August 29, 2005 and January 2, 2006, would be ignored for purposes of
counting off the 60 day election period for COBRA and for purposes of
determining if there was a break in “creditable coverage”. COBRA premiums due between August 29, 2005
and January 3, 2006 would be considered timely so long as they were paid by
February 2, 2006.
The deadline to file taxes has been extended to February 28, 2006 for victims of Hurricane Rita as well. Plan Administrators should be clear on whether or not the relief applies to just Hurricane Katrina victims and when it applies to Hurricane Rita victims as well. The designated areas and type of relief for both Katrina and Rita relief are available at the FEMA website, at http://www.fema.gov/news/disasters.fema
IRS issued Notice 2005-61 to
clarify the Form W-2 reporting requirements when an employer has amended a
cafeteria plan document to provide a grace period for qualified dependent care
expenses immediately following the end of the plan year. Although it had been unclear, Notice 2005-61
clarifies that employers who adopt a grace period for the dependent care plans
can continue to rely on Notice 89-111 by reporting the salary reduction amount
elected by the employee for the calendar year in Box 10 of the W-2.
The notice provides the following
example:
“For example, suppose an employer
amends its calendar year cafeteria plan to permit a grace period for dependent
care assistance until March 15 of the subsequent year, that an employee elects
salary reduction of $5,000 for dependent care assistance for the 2005 calendar
year and elects an additional $5,000 salary reduction for dependent care
assistance for the 2006 calendar year, and that the employee has $500 of
dependent care contributions remaining unused at the end of the 2005 plan year,
which is available to reimburse dependent care expenses incurred during the
grace period. For the 2005 calendar
year, the employer may report in Box 10 of Form W-2 the $5,000 salary reduction
amount elected by the employee for dependent care assistance in 2005. Similarly, for the 2006 calendar year, the
employer may report in Box 10 of Form W-2 the $5,000 salary reduction amount
elected by the employee for dependent care assistance in 2006.”
Whereas, the Notice appears to be good news for employers,
it still does not address how the taxpayer Schedule 2441 may be impacted by the
grace period. The current Form 2441,
which must be filed by all participants of a Dependent Care FSA and for anyone
wanting to claim the Federal Childcare Tax Credit, does not address how
carryover amounts will be handled.
Currently, a participant who doesn’t count carry over amounts used for
expenses incurred during the grace period as “forfeitures” (even though they
are technically “forfeited”) will show a taxable amount on the Form, even
though all reimbursements were properly made tax free. In addition, it is possible that
participants will be able to take a tax credit for amounts reimbursed tax free
under the plan to the extent such reimbursement exceeds the salary reductions
for such year. The Form 2441, essentially
should be revised to capture the carry over amounts that are used for
reimbursement of expenses incurred during the plan year.
The Employer Council on Flexible
Compensation (ECFC) held its Annual Cafeteria Plan Symposium in Reno NV August
17-19th, 2005. Shawn
Bresnahan, CFC and Sue Sieger, CFCI attended the conference this year. Harry
Beker and Elizabeth Purcell from the office of the IRS Associate Chief Counsel
were on hand to provide clarifying comments on guidance that has been released,
as well as hints to what guidance will be forthcoming. At the time of the annual conference, the
following projects were in the works:
1.
Additional guidance on the new flexible spending account
grace period, which will address the potential dependent care reporting problems
and the impact that the grace period may have on HSA eligibility.
2.
Guidance on HSA comparability.
3.
Debit card guidance as it relates to acceptable and
unacceptable practices for electronic claims payments. In addition, the IRS expects to issues guidance
related to debit cards and transportation plan benefits.
Proposed cafeteria plan regulatory project, in which the IRS
expects to consolidate and reissue the existing multiple sets of cafeteria plan
regulations.
The Treasury Department issued
proposed regulations concerning the 35% excise tax imposed under Internal
Revenue Code 4980G on employers who fail to make comparable contributions to
its employees’ Code Section 223 Health Savings Accounts (HSA) on August 25,
2005.
A comparable contribution is
defined by Code 4980(d)(2)(A) as an employer contribution that is (i) the same
amount or (ii) the same percentage of the deductible limit under the high
deductible health plan covering the “comparable participating employee”. A comparable participating employee is
defined by the Code 4980(d)(3) as all employees who (i) are eligible
individuals (as defined by Code Section 223(c)(1)) covered under any high
deductible health plan of the employer, and (ii) have the same category of
coverage (self-only or family coverage).
The Comparability Rule applies separately with respect to part-time and
other employees. Also, employers are
only required to contribute an amount to a part-year employee’s HSA that “bears
the same ratio to the comparable amount as such portion bears to the entire
calendar year” (Code Section 4980(d)(2)(B)).
Under the proposed rules,
employers that elect to make contributions to their employees’ HSA are required
to make comparable contributions for all employees who:
(1) are
eligible individuals enrolled in a high deductible health plan (HDHP),
(2) are in
the same category of employment and
(3) have
the same category of coverage.
The three employment categories
are:
(1) Current
full-time employees;
(2) Current
part-time employees; and
(3) Former
employees (excluding individuals on COBRA coverage).
It is possible, however, for a
partnership or sole proprietor to make contributions only to the proprietor or
owner, because owners are not considered to be employees for purposes of the
HSA comparability rules. Such
individuals will likely be required to include such contributions in income
since the Section 106 exclusion applicable to employees does not apply.
For purposes of the comparability
rules, the controlled group rules applicable under Code Sections 414(b),(c),
(m), and (o) apply. Thus, a
contributing employer must not only consider its own comparable participating
employees but it must also consider comparable participating employees of
employers who are considered within the same controlled group as defined in
Code Section 4141(b),(c), (m), and (o).
This rule will have significant impact on contributions made by an
employer with related affiliated companies and could result in inadvertent
failures if one employer in the controlled group is unaware of HSA
contributions made by an affiliate.
The two categories of coverage
are: (1) Self-only coverage; and (2)
Family coverage.
To be considered comparable, an
employer’s contributions to a HSA for any eligible employee who is in the same
category of employment and has the same category of coverage must be the same
dollar amount or the same percentage of the HDHP deductible for other eligible employees
in that category of employment and who have that same category of
coverage. However, because each
category of employment and coverage is tested separately for comparability, the
employer can differentiate among the categories in any manner.
The proposed rules emphasize that
the three categories of employment and two categories of coverage are the only
basis for differentiating the levels of an employer’s contributions. Therefore, an employer cannot contribute
different amounts or percentages for:
-different
collective bargaining groups;
-management
or non-management groups;
-employees
who participate in disease management or wellness programs; or
-employees
based upon age or years of service criteria.
Despite what you can’t do, the proposed
regulations do permit employers to limit HSA contributions to the accounts of
those employees who have coverage under the HDHP offered by the employer, but
not another HDHP, such as the HDHP of a spouse’s employer. If the employer contributes for any employee
in a category who has coverage under an outside HDHP, however, the employer
must contribute for all employees in that category who have other HDHP
coverage.
There is a special rule that
applies for spouses who both work for the same employer and have family HDHP
coverage through only one of the employees.
The employer, under these circumstances, may contribute to the HSA of
the employee who elected HDHP coverage and need not contribute to his or her spouse’s
HSA, as long as the employer generally limits HSA contributions to those
employees who have employer-provided HDHP coverage. However, if the employer also contributes to HSAs for employees
who have outside HDHP coverage, the employer must contribute to the HSAs of
both spouses.
The comparability rules apply and
are compliance tested based upon the entire calendar year. An employee’s eligibility; however, is
determined as of the first day of each month, and an employer may only make
contributions for eligible individuals. For purposes of coordination, the IRS
has proposed three methods for the timing of contributions as follows: (1) pay-as-you-go contributions made one or
more times per year based upon employees’ eligibility each month; (2) look back
contributions made once per year at the end of the year for each employee who
was eligible in any month of the year, but only for the months he or she was
eligible; and (3) pre-funding contributions made at the beginning of the year
for all employees who are eligible at that time. (Remember, because the HSA is
non-forfeitable, pre-funded contributions cannot be recouped if an employee
terminates employment during the year.)
If the employees are required to
establish their own HSAs, an employer is not obligated to contribute for an
employee who has not yet established an HSA when the employer funds the
account. The employer is required to
make up any missed contributions if the employee establishes an HSA by December
31st of the relevant year, but not if the employee sets up the
account after that date.
The comparability rules do not
apply to contributions made through a cafeteria plan. These contributions include an employee’s salary reduction
contributions, employer matching contributions that an employee may elect to
receive in cash, and any other employer contributions that an employee may
receive in cash or have contributed to an HSA.
Cafeteria plan contributions are subject to nondiscrimination rules
under Code Section 125, but not the comparability rules.
An employer who fails to comply
with the comparability rule is subject to a 35% excise tax on all HSA
contributions made by the employer during the calendar year (including those
contributions that would have otherwise complied with the rule). Employers that inadvertently find themselves
not in compliance with the comparability rule may need to take corrective
action to avoid application of the excise tax.
The proposed regulations clarify that employers cannot recoup any
non-comparable contributions because an employee’s interest in a HSA is
non-forfeitable. An employer may,
however, correct a violation by making additional contributions (up to an
employee’s annual contribution limits) on or before April 15th of
the year following the calendar year in which the violation occurred.
The proposed rules also specify that a portion of the excise
tax can be waived if the employer’s failure to meet the comparability rules is
due to a reasonable cause and not willful neglect. The IRS would have discretionary authority to determine what portion
will be waived based upon the facts and circumstances of the failure.
The Medicare Part D final
regulations, published in January of this year, will impact Plan Sponsors of
group health plans in two important ways.
The first will be dependent upon whether the prescription drug coverage
provided under the plan is considered to be “creditable”. If yes, certain notices must be provided to
Medicare Part D eligible participants, as well as to the Centers for Medicare
& Medicaid Services (“CMS”), regarding the prescription drug coverage
provided (the “Disclosure Notice”). The
second will be dependent upon whether the prescription drug coverage provided
to retirees is considered to be “creditable,” the plan may be entitled to
receive a governmental retiree drug subsidy.
The Plan Sponsor must notify all
individuals who are eligible for Medicare Part D of whether the prescription
drug coverage under the group health plan is creditable, or in other words,
whether it passes the Gross Value Test.
An individual is eligible for Medicare Part D if he or she it entitled
to Medicare benefits under Part A or is enrolled in Part B and lives in the
service area of Medicare Part D plan.
CMS has published two model notices which can be found on their website
at:
http://www.cms.hhs.gov/medicarereform/CCguidances.asp
Additionally, the Plan Sponsor
must provide a disclosure of creditable coverage status to CMS on an annual
basis and upon any change that affects whether the coverage is creditable.
The Disclosure Notice must be
provided to eligible individuals at the following times (at minimum):
1.
Prior to the individual’s initial enrollment in Medicare
Part D;
2.
Prior to the effective date of enrollment in the
prescription drug coverage and upon any change that affects whether the
coverage is creditable prescription drug coverage:
3.
Prior to the commencement of the Annual Coordinated Election
Period that begins November 15th
of each year; and
4.
Upon request by the individual.
The Disclosure Notice is required so as to give Part D
eligible individuals the information they need to decide whether to enroll in
Part D and to avoid Part D late enrollment penalties, which will equate to
higher Part D premiums.
The Treasury Department and the Internal Revenue Service
released the deferred compensation proposed regulations on September 30 and the
Code Section 409A guidance was printed in the October 4th Federal
Register. Section 409A governs plans
and arrangements that provide nonqualified deferred compensation to employees,
directors or other service providers.
These regulations implement new provisions established by the American
Jobs Creation Act (AJCA).
The proposed regulations identify which plans and
arrangements are covered under Section 409A, outline operational requirements
for deferral elections and permissible timing for deferred compensation
payments made under the rules.
The rules also extend the deadline for documentary
compliance with the new rules to December 31, 2006 (initially December 31,
2005).
The effective date proposed for the regulations is January
1, 2007. Taxpayers may rely on the
proposed regulations until final regulations are effective.
New
Grace Period Rule Prompts Plan Amendment Requests
By Sue Sieger, CFCI
Although,
the “new 2 1/2 month grace period” permitted by IRS Notice 2005-42, is supposed to prevent the “year end frenzy”,
it seems as if this may only delay the inevitable lost funds in flexible
spending accounts because of the forfeiture rule. The new grace period may give
a participant extra time to work themselves into a busy doctor’s or dentist’s
schedule; however, it will not give participant’s the flexibility to change the
amount elected if the orthodontist decides to delay their child’s braces, or if
someone finds out that they are not a candidate for laser eye surgery.
Since
the early 1990’s, flexible spending account participants have been programmed
with words of caution, like “BE CONSERVATIVE”, and only set aside dollars for
“predictable expenses”. Forfeitures often occur because the participant fails
to file their final claims by the forfeiture deadline or the participant fails
to make an appointment to have services provided that they anticipated at an
earlier time.
Does
the additional 2 1/2 months encourage participants to be less conservative when
figuring their expenses for the next year, because of the 21/2 month “safety
net”? Will this additional time prove
to be not enough if participants use less thought when calculating their
elections for up coming plan years?
I take
myself for example. I consider what affect the new grace period could have on
my own situation, if in fact, we were to adopt the new rule into our own
flexible benefit plan at Benefits Design Group, Inc.
My
election for medical reimbursement was for the calendar year
1/1/2005-12/31/2005 is $1600. The thought process behind the dollar amount I
elected is as follows:
$260 Health Deductible Expenses and OV
Copays
$840 Prescription Drug Co-pays for
monthly refills
$350 New Prescription Glasses and Sunglasses
$150 Over-the-counter Medications
$1600 Annual Election Medical FSA
Note: The IRS has never required a participant to earmark portions of the
election into exact medical expense categories at the beginning of the plan
year, and the participant is able to substitute any eligible medical expenses
throughout the year for those unexpected charges. The only thing that a
participant cannot do is change the dollar amount elected because of
unanticipated changes to the expenses incurred in a plan year.
Making
a list of predictable expenses for the plan year is simply a tool used by
someone (including myself), when trying to carefully choose an amount to set
aside in the medical flexible spending account for the plan year. What I have
found, is that in each and every plan year, I have used my annual election for
expenses faster than my original list could anticipate. This year, a trip to the emergency room, a
$500 health insurance deductible for out-of-network physician visits, and
co-pays for physical therapy, all have exhausted my funds by the end of May
2005. Where then would the new grace
period leave me in my situation? There
is clearly no advantage to extending the grace period in my case, or to the
many participants who find themselves in similar situations. There is no
forfeiture to worry about, just more expenses than the account balance for the
year. If participants have been conservative in their estimates, the forfeiture
should be irrelevant.
If
after careful consideration, employers wish to adopt the new grace period rule,
they will need to send in a written request to amend the plan. Please contact
our offices if you need assistance.
At
Benefits Design Group, Inc. we will continue to contemplate whether or not the
new grace period will be adopted for this plan year. For me, well I guess my new eyeglasses will have to wait until
2006…
New Grace Period Extended to the Federal
Government Employees
Federal
employees will be able to take advantage of the new grace period rules
effective with the 2005 plan year, as announced by the Federal Office of
Personnel Management (OPM) in late June.
This announcement comes on the heels of IRS Notice 2005-42, which
permits any employer to extend the forfeiture period by 2 1/2 months beyond the
regularly scheduled plan end date. Now
the 163,000 federal employees’ who participate in the medical flexible spending
account, will have until March 15, 2006 to incur expenses and an additional
forfeiture period through May 31, 2006 to file claims from the prior time
period January 1, 2005-March 15, 2006.
In addition, the OPM announced that beginning in January 2006, the
federal employees will be able to elect up to $5,000 (up from $4,000 in 2005)
for medical expenses in their flexible spending accounts.
By Deb Schlesser
It’s
a fact. Americans are living longer these days. According to the U.S. Center for National Health Statistics the
average life expectancy has risen from 69.7 years in 1960 to 77.4 years by
2002. One reason we’re living longer----Advancements in research and
development of prescription medications. However, the high cost of many
prescription drugs leave some people wondering if they can afford to live a long, healthy life. Some Americans have
looked northward to Canadian pharmacies in an attempt to obtain cheaper
prescriptions, but the recent IRS Information Letter 2005-0011 (March 14, 2005)
has reiterated that prescriptions purchased in Canada are not eligible for tax
deductible status under IRS Section 125 Flexible Spending Accounts (FSA) or IRS
Section 105 Health Reimbursement Arrangements (HRA).
However,
here are some ways to take the bite out of trips to the local pharmacy:
●
Your state and local governments may offer help by offering financial
assistance.
●
Look for less expensive versions of brand-name medicines.
●
Look into pharmaceutical companies’ discount programs.
●
Find out if you can take a “generic” medicine.
●
Ask your doctor about over-the-counter (OTC) equivalents.
●
Ask your doctor for a trial prescription or free samples.
●
“Shop around” at other pharmacies/drug stores for lower prices.
●
Consider using mail-order pharmacy services.
●
Once a year, bring all your medicines to your doctor to see if current
medications can be adjusted.
These
tips were suggested by WebMD, for more detailed information, log onto WebMd.com
and search for information regarding prescription drugs.
Remember, for an even greater savings, many over-the-counter medications and prescription drug expenses may be eligible for reimbursement under the Medical FSA or Medical HRA! Participation in a Medical FSA yields an average of 30% in payroll tax savings. Check your Summary Plan Description for eligibility rules.
Is It Time for a COBRA Check-up?
By Cindy Davis, P.C.
Periodically,
it is important to review your group health plan documents and procedures to
verify that the administration of your group health plans complies with
COBRA. Recent changes have been made to
Department of Labor (“DOL”) regulations, significantly altering the content of
COBRA notices as well as the manner in which COBRA notices are required to be given
to qualified beneficiaries, and apply to plan years that begin on or after
January 1, 2005. This is a fitting time to review your COBRA procedures for all
the group health plans that you maintain.
You should audit your group health plan COBRA compliance, even if you
out-source COBRA administration, because the law holds the plan administrator
(most often the employer) responsible for complying with the requirements.
Generally,
all group health plans are subject to COBRA unless the plan is maintained by a
small employer, a church, or the federal government. The definition of what constitutes a group health plan may be
broader than you initially believe. For
COBRA purposes a group health plan includes medical reimbursement accounts and
health reimbursement arrangements in addition to traditional group health
plans. The DOL has determined that
health savings accounts are not subject to COBRA if participation by employees
is voluntary.
INITIAL OR “GENERAL” COBRA
NOTICE
Employers
are now required to provide an initial or “general” COBRA notice to employees
and their spouses within 90 days of the date the employee and/or qualified
beneficiary becomes covered by the plan.
The employer is permitted to provide the general notice through the summary
plan description (“DOL”). A general notice
delivered in the SPD, however, is effective only for the employee and the
employer must send a separate notice to a spouse of the employee.
The
new regulations also clarify the responsibility of a plan to establish
reasonable procedures for circumstances where an employee or a qualified
beneficiary is required to notify the plan administrator of qualifying events,
second qualifying events, or the beginning or end of a disability. These reasonable procedures must be stated
in the SPD and include at a minimum: (i) the person designated to receive
notices; (ii) how notices must be given; (iii) the time limits for giving
notice; and (iv) the information the plan must receive to provide continuation
coverage. Absent establishment and
publication of reasonable procedures, the plan is considered to have received
notice if the participant or qualified beneficiary provides information
verbally or in writing to the person customarily in charge of administering the
plan.
EMPLOYEE OR OTHER QUALIFIED
BENEFICIARY NOTICE OF DISABILITY
The
new regulations also clarify that an employee or other qualified beneficiary
must notify the plan of a disability within 60 days of the latest of: (i) the
Social Security Administration disability determination date; (ii) date of the
qualifying event; (iii) the date the qualifying beneficiary would lose coverage
under the plan; or (iv) the date the qualified beneficiary is informed by the
plan of his obligation to provide a disability notice to the plan. The regulations allow the plan to establish
requirements and/or timeframes that are more favorable to beneficiaries than
these minimums.
NEW EMPLOYER NOTICE
REQUIREMENTS
The
final regulations impose several new notice requirements on employers
pertaining to continuation of coverage under a group health plan. If an employer determines that COBRA
coverage is unavailable or denied, the employer must now notify the employee
and/or qualified beneficiaries within 14 days of receiving the notice of a
qualifying event, disability, or second qualifying event. The employer is obligated to provide this
notice even if the employee or qualified beneficiary did not comply with the
reasonable notice procedures the employer has implemented for qualified beneficiaries.
An
employer must also notify an employee or qualified beneficiary if the plan is
going to terminate continuation coverage before the end of the applicable
maximum continuation of coverage period.
The employer must provide this notice as soon as practicable after the
plan determines to terminate continuation coverage early.
Although
the DOL imposed these new notice requirements on employers, the DOL did not
provide sample notices that would satisfy these respective obligations.
MEDICARE ENTITLEMENT DOES NOT
ALWAYS EXTEND COBRA COVERAGE PERIOD
Although
not part of the recent regulations, the DOL has also recently clarified that
entitlement to Medicare does not always extend the applicable continuation of
coverage period. Medicare entitlement
does not constitute a second qualifying event that extends the continuation
coverage period for the affected employee or qualified employee from 18 to 36
months unless entitlement to Medicare, standing alone, would have caused the
employee’s loss of coverage. As a
result, entitlement to Medicare of an active employee or his or her spouse due
to age cannot be an initial qualifying event for COBRA because the Medicare
rules preclude group health plan coverage for an active employee or his or her
spouse being affected by entitlement to Medicare due to age. If, however, the employee terminated
employment during the 18 months following his or her entitlement to Medicare,
then the combination of termination of employment and Medicare entitlement
would extend the COBRA coverage period from 18 to 36 months for the spouse and
dependents of the employee.
RECOMMENDED STEPS
I
recommend that each employer take the following steps to ensure that all group
health plans it maintains comply with the current federal COBRA regulations:
ü
Revise
COBRA notices and procedures to reflect the changes for the initial notice and
qualifying event notice in the final DOL regulations or implement the model
initial notice and qualifying event notice published by the DOL.
ü
Develop
and implement notices for unavailability of or early termination of
continuation coverage.
ü
Develop
and implement reasonable procedures for employees or other qualified
beneficiaries to notify the plan of the occurrence of qualifying events and
revise plan SPDs to include such procedures.
ü
Contact
your plan service providers to update plan documents to reflect that Medicare
entitlement is not a second qualifying event if it would not have otherwise
caused a loss of coverage.
ü
Review
plan service provider agreements to ensure such agreements adequately address
responsibility for COBRA compliance and the consequences for failure to do so.
Benefits Design Group, Inc.
has secured the services of Ms. Davis for plan document review and HIPAA
compliance. In addition, she serves as
the primary consultant for overall compliance and provides periodic plan
document updates, as may be required from time to time by the Internal Revenue
Service (IRS), the Department of Labor (DOL), and the Department of Health and
Human Services (DHHS) regulations.
Cindy Davis, P.C. advises employers, plan fiduciaries, third-party
administrators and other employee benefit plan service providers on all aspects
of employee benefit plans. Cindy can be
reached at (507) 896-4566 or cldavislaw@acegroup.cc.
BENEFIT NEWS IN BRIEF
According
to the Society for Human Resources Management’s (SHRM) 2005 benefits survey:
§
69%
of respondents indicated that the costs of their organizations’ voluntary
benefits-including health care and retirement-remained flat in 2004, while 28%
reported that the costs of these benefits increased.
§
The
number of organizations providing health care and prescription drug coverage
remained fairly stable.
According
to a Hewitt Associates survey, results released in July 2005:
§
Of
nearly 200 Canadian employers, Hewitt found that 52% currently offer or plan to
offer flex plans in the next two years, while another 33% anticipate offering
them in the future.
§
The
survey reports that the most popular benefit options that companies offer
through flex plans continue to be medical and dental benefits.
§
85%
of Canadian employers also provide health spending account in which employees
can receive tax-free reimbursement for health care expenses.
According
to a study by the Center for Studying Health System Change, released on June
21, 2005:
§
Health
care costs rose another 8% in 2004, practically unchanged from 8.4% in 2003,
signaling a near end of a two-year slowdown of spiraling health care costs.
§
The
study points out that the increase is higher than the rate of inflation,
“nearly 5 percentage points above the 3.3 percentage rate of inflation for the
year”.
A
survey of 365 employers conducted by the Washington-based Deloitte Center for
Health Solutions and the ERISA Industry Committee, with results released June
23, 2005 found:
§
62%
have implemented wellness programs to improve employee health, while another
33% are considering such programs.
§
Of
the 62% of companies with programs, 64% said the rising cost of healthcare
costs were a major factor in the decision to adopt the programs.
Blue
Cross and Blue Shield of Minnesota reports on July 5, 2005, that “100,000 people are
enrolled in its consumer-directed plans this year and anticipates 200,000 next
year in Minnesota”. -Duluth News Tribune-
By: Sue Sieger, CFCI
The Health Insurance Portability and Accountability
Act (HIPAA) of 1996 was written to include three administrative simplification
requirements: (1) privacy; (2)
electronic data interchange (EDI); and (3) security. As you may recall, HIPAA is applicable to health plans as covered
entities. The medical reimbursement component of a flexible benefit plan or
cafeteria plan, as well as a health reimbursement arrangement (HRA) are
considered a health plan for purposes of these applications, and therefore
construed a covered entity.
Whereas the privacy and EDI sections have previously
taken effect, the security provisions are schedule to take effect beginning
April 21, 2005 for large plans. Small
plans with fewer than $5 million in premiums will have until April, 2006 to
comply. Most of our Flexible Spending Account and Health Reimbursement Arrangement
clients are considered small plans.
The HIPAA security rules specifically apply to
electronic protected health information (e-PHI). Protected Health Information (PHI) is any individually
identifiable medical information that: (1) is created or received by a covered
entity; (2) relates to an individual’s physical or mental condition, the
provision of health care services to such individual, or the payment for such
health care services; or (3) identifies the individual, or creates a reasonable
basis to believe that such information could be used to identify the
individual.
e-PHI is any PHI that is created, received,
maintained, or transmitted electronically, such as through the internet, CD,
magnetic tape, etc. It generally does
not apply to paper faxes or voice response systems, though it would apply to
computer-based faxes or computer-based automated voice systems.
The Centers for Medicare and Medicaid Services (CMS)
has begun issuing a series of papers to assist covered entities with compliance
at the following website:
http://www.cms.hhs.gov/hipaa/hipaa2/education/default.asp
“HIPAA Security 101” is available on the website,
and provides details about the mandatory and addressable standards. One of the many requirements included is the
amendment of Business Associate Agreements and plan documents, to incorporate
the security provisions.
Benefits Design Group, Inc. will be forwarding
updated Business Associate Agreements to all our full-service flexible spending
account and health reimbursement arrangement clients during the month of April
2005. In addition, the plan documents
are currently under attorney review and we will likely have a new version of
the plan document to forward to all clients by the end of the summer. As always, please feel free to contact our
offices if you have any questions or concerns.
Is it Required that our Section
125 Plan Run January 1 thru
December 31?
Many of us get into the mind set that all our
employee benefits need to run on a calendar year. Our wages are reported on a calendar year, our taxes are paid
based upon a calendar year, and our health insurance deductibles often start over
each January 1.
Does this mean that it is mandatory that our benefit
plans run on a calendar year? Actually
it is NOT mandatory; however, it is
just what many of us are used to. The
following are questions that may help you determine the best plan year for your
organization:
1.
When does our health insurance plan renew?
The IRS recommends that the
Section 125 Plan Year be consistent with the health insurance plan renewal, as
changes to the structure of deductibles, co-pays, networks, etc. are not
considered qualifying events that permit a participant to change their
elections in the Unreimbursed Medical Flexible Spending Accounts (FSA). In addition, with the change in attitude
towards the new Health Savings Account (HSA) insurance programs, implementation
of a HSA insurance plan during a Section 125 plan year would only permit an
individual to adjust the cost of the premiums.
If a participant is actively participating in a traditional Unreimbursed
Medical FSA, that participation will disqualify them from making contributions
to a Health Savings Account (HSA).
2.
Do we experience turnover at
certain times of the year?
School districts often
establish the Plan Year consistent with the school year, so that they are less
likely to incur the expense of an employee terminating with a negative balance
in their Unreimbursed Medical FSA. If
an employee leaves or their contract is not renewed, the Plan Year will be in
sync with their contract pay schedule.
3.
When is your fiscal year?
It is sometimes practical to
run a Plan Year to coincide with a fiscal or business year for purposes of
budgeting or closing books.
4.
What Play Year will be most
understood by employees using the plan?
It will help to pick a time
period that makes sense to the employees who you want to participate in the
program. Something viewed as
complicated will likely not be fully utilized.
A successful plan needs participants using the plan to generate the tax
savings to pay recordkeeping fees and help offset other employee benefit expenses. Again, a Section 125 Plan Year administered
to coincide with your health plan will provide timely details about deductibles
and co-pays, useful in planning elections.
5. What if we want to change
our Plan Year for our Section 125 Plan?
A Plan Year can be changed by sending in a written request that
identifies the new time period that your Plan Year will cycle and the effective
date of the change. (Plan Amendments
will be made upon request for a $100 fee.)
It is recommended that the Plan Year changes at the renewal of the Plan
Year for those programs that include flexible spending accounts (FSA). Changes mid-year may result in forfeitures
of unused balances or may create expenses to the plan, generated by negative
balances. A short year will run until
you reach the new effective date of your plan.
For example: Current Section 125 Plan year runs January 1 through
December 31 and
the health insurance plan renews April 1.
Best option: Run a short Plan Year January 1 through March
31.
Renew the plan on April 1 and
run through March 31. April 1 will be
the renewal date going forward.
Is
a Health Reimbursement Arrangement (HRA) Right for My Organization?
By: Sue Sieger, CFCI
The addition of the Health Savings Account (HSA) has
added a new layer of complexity to employee benefit planning. Demographically HSA insurance products have
varied in price, which may make them more cost effective or equally cost
effective to other High Deductible Health Plan (HDHP) designs. A HSA plan design requires that all expenses
(including prescription drugs) go towards satisfying a deductible of at least
$1000 for self-only coverage and $2000 for a family aggregate deductible. That means that one family member could have
several claims and would be subject to the entire family deductible if no other
members of the family have claims.
Contributions to a HSA are based upon what that deductible is and is
prorated based upon how many months of coverage you have in a given year. A HDHP may still have the flexibility to
include or exclude a drug card and wellness benefits. A HDHP coupled with a HRA will give an employer a greater ability
to wean employees away from the well known co-payment plans, instead of going
“cold turkey” with the HSA design that cannot have co-pays until after the
deductible has been satisfied. The HRA
is an employer reimbursement program that offers an employee tax free
reimbursement of eligible medical expenses only if claims are substantiated
through a claims filing process. The
employer generates these reimbursements from premium savings that are provided
by insurance carriers when they opt to redesign their insurance packages and/or
deductible options.
With
so many choices, how does an employer begin to analyze all the
possibilities? How would someone go
about deciding if a HRA will offer cost relief to the rising cost of offering
employee benefits?
ü
At
your health insurance renewal, have your insurance agent provide you with
quotes on different plan designs and deductible options.
ü
Compare
the cost savings of the different plan designs and deductible options to your
current arrangement and projected rate increase.
ü
Review
your current deductible option compared to the deductible you would purchase,
and determine if more deductible expense can be shifted to the employee. Decide whether or not to include a drug card
option that provides for co-pays for prescriptions.
Once you have determined the
level that will become the employee deductible, consider the difference between their deductible and the plan deductible, as a
reimbursement underneath a Health Reimbursement Arrangement (HRA).
Revenue Ruling Released Regarding Transfer of Unused Sick and/or
Vacation Leave to and Cash Payments from HRAs and Other Medical Reimbursement
Plans
On April 5, 2005, the Treasury Department issued
Revenue Ruling 2005-24, which is scheduled to take effect for plan years
beginning on or after January 1, 2006.
The Ruling states that unused vacation and/or sick leave time
accumulated by an employee or former employee can be transferred under certain
circumstances to a medical reimbursement plan as a mandatory employer
contribution to provide additional tax-free medical benefits. Vacation time and sick leave time are
typically considered taxable compensation, and the Ruling also restates their
prior position that amounts paid from medical reimbursement plans are not
eligible for Code Section 105 tax exclusion, where amounts are paid
irrespective of whether a medical expense has been incurred.
The Ruling addresses four scenarios in a facts and
circumstances format:
1.
HRA
provides reimbursement for medical care expenses for active and former
employees, as well as their tax dependents.
Plan is 100% employer funded. A
portion of the amounts not used during the year are carried forward to use for
medical care reimbursement in future plan years. Upon retirement, the employer automatically contributes, on a
mandatory basis, an amount equal to the unused vacation and sick leave
accumulated by the employee prior to retirement. The Ruling assumed that this arrangement is in compliance with
the Code Section 105 nondiscrimination testing requirements.
Treasury concludes that benefits
paid under the first scenario will qualify for the Section 105 tax exclusion
because employees could not receive cash or other taxable or non-taxable
benefits other than reimbursement of expenses that are constituted as medical
care. The transfer of unused vacation
and sick leave amounts was mandatory, and as a result the amounts transferred
into the HRA are excluded from income under the Code Section 106. What the Ruling does not address is the
potentially discriminatory aspect that looms within most vacation and sick
leave formulas. Code Section 105(h)
states that reimbursement amounts cannot be tied to years of service. The value of the vacation and sick leave “banks”
very likely will be variable based upon the length of service. More guidance is needed to determine if the
non-discrimination requirements are met when put into practical application.
2.
Same
as the first scenario, except that employees may receive as taxable
compensation all or a portion of unused medical reimbursement plan contributions
at the end of the plan year and/or upon termination of employment, if sooner.
Scenario #2 does not qualify
for tax exclusion under Code Section 105 because of the cash out option. The entire amount should be included in
gross income, even though some of the amount may have been used for medical
care.
3.
Same
as the first scenario, except for the fact that upon the death of the employee
who is presumed to be a retiree, all of the unused contributions are paid in
cash to designated beneficiaries/or estate.
Scenario #3 does not qualify
for tax exclusion under Code Section 105 because of the cash out option. The entire amount should be included in
gross income, even though some of the amount may have been used for medical
care.
4.
Same
as the first scenario, except that the employer offers an “option plan,” which
the employer claims is separate and apart from the medical reimbursement
plan. If the employee chooses the
option plan, any unused contributions at the end of the plan year may be
received in cash or applied to one or more retirement plans and the dollars are
not available for use on future medical expenses. If the employee does not participate in the option plan, unused
contributions carry over from one year to the next for purposes of reimbursing
future medical expenses.
Scenario #4 does not qualify
for tax exclusion under Code Section 105 because of the cash out option. The entire amount should be included in
gross income, even though some of the amount may have been used for medical
care. In addition, the “option plan”
and the medical care plan are one plan despite the employers attempt to
identify them as two separate plans.
The relationship between unused medical benefits and additional
retirement benefits is too consistent to be construed as a separate plan.
IRS Notice for Partners and
S-Corps