Original post by Stephen Miller, shrm.org

Confusion about carrying over unused funds from year to year in health care flexible spending accounts (FSAs) has received some clarification under IRS Notice 2015-87, issued in December. The guidance also limits the use of health reimbursement arrangements (HRAs), including by an employee’s family members who are not enrolled in the employer’s group health plan.

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Flexibility for Flex Plans

Since 2013, there have been two options for health FSA extensions that employers can adopt:

  • If a health FSA plan has a carryover feature, participants can roll over up to $500 of unused FSA dollars to the next year but will forfeit any excess over $500 at year-end.
  • Alternatively, an optional grace period can give employees an additional two-and-a-half months to incur new expenses using prior-year FSA funds. At the end of the grace period, all unspent funds must be forfeited to the employer.

Plans can offer either the carryover or a grace period, but not both, or they can offer neither. These options apply to FSAs for general purpose health care including prescription drug expenses, and to limited-scope FSAs for dental and vision care. Dependent care FSAs may offer a grace period but not a carryover option.

“One of the key reasons the IRS issued new FSA guidance was to clarify that employers can place some restrictions on the carryover feature,” said Mary V. Bauman, a member of law firm Miller Johnson in Grand Rapids, Mich., and co-author of an analysis of Notice 2015-87.

“Employers were concerned that if they opted to provide the carryover, they might have to maintain small account balances over long periods of time, and that would raise their administrative fees,” added Bill Sweetnam, legislative and technical director at the Washington, D.C.-based Employers Council on Flexible Compensation, which represents employers that sponsor tax-advantaged benefit programs.

Notice 2015-87 gives employers two tools to address concerns over keeping an employee on the FSA plan books when that employee isn’t otherwise an active FSA participant, Bauman explained:

  • Employers can limit the carryover feature to only those employees who elect to make their own contributions for the following plan year.
  • The employer can limit the carryover to only one plan year. “For example, consider an employee with a carryover of $300 for plan year one who doesn’t elect to contribute for plan year two,” said Bauman. “At the end of plan year two, if the entire $300 isn’t used, the employer’s plan can provide that the balance will be forfeited.”

COBRA and Carryovers

The notice provides that a health FSA that allows employees to carry over amounts from one plan year to the next must also allow those who elect COBRA under the FSA to carry over amounts to the next year. Amounts carried over cannot be used by employers in determining the amount of the FSA plan premium charged to former employees who elect COBRA.

“What to charge former employers for the COBRA premium [on their FSA plan] had been questionable,” Sweetnam said. “The guidance makes clear that you can’t base the premium charge on the amount of funds carried over.”

HSAs and FSAs Can’t Overlap

The notice affirms prior guidance stating that employees are not allowed to contribute to a health savings account (HSA) if they contributed during the same year to a general-purpose health FSA, although they may contribute to both an HSA and a limited-scope FSA covering dental and vision care expenses.

“An employee enrolled in a high-deductible health plan who has a carryover at the beginning of that plan year will be HSA-ineligible for the entire year, even if he or she spends down the balance right away,” said Bauman.

“If you have an HSA, you cannot contribute new funds to a general-purpose health FSA in the same year,” and carrying over funds from the prior year is seen as a contribution, said Sweetnam.

HRA Coverage Restricted

Notice 2015-87 also affirms prior guidance holding that an HRA cannot reimburse active employees for the cost of premiums for nongroup health insurance they might purchase on their own, unless those purchased policies cover only “excepted benefits” (such as dental or vision insurance policies).

“Some third-party administrators were making tortured interpretations of the prior guidance and promoting arrangements that the IRS didn’t think were allowable,” Sweetnam noted. “The IRS here is addressing that and putting a stop to it.”

The guidance reiterates that retiree-only HRAs can still reimburse retirees for the cost of premiums for nongroup health insurance policies, whether bought through the private market or on an Affordable Care Act exchange.

“But there was one new issue [in the notice] that is key,” said Bauman. “If an employer provides an HRA with its group health plan, it can only reimburse the uninsured expenses of an employee’s spouse and children if they also are enrolled in the employer’s group health plan.”

Employers with HRAs in place as of Dec. 16, 2015, when Notice 2015-87 was issued, have until the first day of their 2017 plan year to amend the HRA to address this requirement, Bauman noted.

“Since family members not on the group health plan can’t be covered by the HRA, it will require employers to update their systems,” said Sweetnam. Beginning in 2017, “If a charge is made to the HRA for a prescription, for instance, you have to look to see who the prescription is for. If it’s for the employee’s spouse and the employee has self-only coverage, that’s no longer permitted under these rules. It adds a little bit of administrative complexity.”

The new guidance creates some complexity, while in other areas it gets rid of some complexity, Sweetnam said.