NEWS
Administration announces planned end of emergency declaration regarding COVID-19
On January 30, 2023 President Biden announced the planned end on May 11, 2023 of the emergency declaration regarding COVID-19 - see text below:
This means that the extensions for premium payments regarding COBRA and claims submissions for FSAs and HRAs will expire on July 10, 2023 which is 60 days after the emergency end.
More information about how the end of the emergency affects access to testing and vaccines can be found here: Fact Sheet: COVID-19 Public Health Emergency Transition Roadmap | HHS.gov
American Rescue Plan Act of 2021 provides COBRA subsidies from April 1, 2021 to September 30, 2021 for Assistance Eligible Individuals
The American Rescue Plan Act of 2021 was signed into law on March 11, 2021.
Assistance Eligible Individuals (AEIs) are employees and their families who are or would have been eligible for continuation coverage under COBRA during the months of April 1, 2021 to September 30, 2021. Highlights of the bill include:
An AEI must be or would have been eligible for COBRA due to Involuntary Termination or Reduction in Hours. Other events do not qualify.
An AEI who had an Event on or after October 1, 2019 which would have resulted in possible COBRA coverage will need to be notified by May 31, 2021 of the option to elect the subsidized coverage. Unlike normal COBRA provisions an AEI can have a break in coverage prior to the subsidized coverage.
Plans are subsidized at 100% and coverage includes group Medical, Dental, and Vision
The subsidized coverage is also available to those AEIs covered under state continuation laws rather than federal COBRA law
The subsidized coverage time period cannot exceed the maximum coverage term under COBRA
AEIs must not be eligible for other group health plan coverage or Medicare
Plans must notify AEIs who elect the subsidized coverage a notice of expiration of the subsidy 15 - 45 days before the subsidy expires
COBRA premiums during the subsidized period are paid by the employer to the carrier. Employers will use the Quarterly 941 to be reimbursed for the cost of the subsidy plus the 2% administration fee.
Election of this temporary subsidy affects premium subsidies offered on the Marketplace under ACA
The Department of Labor has a page about the ARPA subsidies here - https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/cobra/premium-subsidy - it includes FAQs as well and Model Notices.
Consolidated Appropriation Act of 2021 provides optional relief for 2020 and 2021 FSA plans
All of the below are optional and temporary relief and can be added in any combination except that plans cannot have both the grace period and the carryover. The cost to restate the plan is $100 total regardless of any or all of the options chosen. Plan amendments may be retroactive. Any selected changes will be made for both Dependent Care FSA and Health FSA and apply to both 2020 and 2021 where applicable.
A. Mid-Year Election Changes. For any plan year ending in 2021, employees may modify (includes enrollment) their Health FSA and Dependent Care FSA contributions for any reason. Election changes for Health FSAs can be limited to not go below existing contributions or claims. There is no cashout or return of funds and the election is on a going-forward basis so cannot be retroactive. Changes under this scenario can be limited to one time and to apply to a given timeframe such as within the next 30 days. This provision does not apply to insurance elections.
B. 12-month Grace Period. A grace period for a Health FSA or Dependent Care FSA for a plan year ending in 2020 or 2021 may be added and lasts 12 months into the new year. Example: if adding a grace period to a plan that ended December 31, 2020 claims with a date of service through December 31, 2021 can go against the 2020 balance. A grace period assumes that a person is also enrolled in the current plan year.
C. Unlimited FSA Carryover. All unused amounts in a Health or Dependent Care FSA may be carried over after the end of the 2020 plan year. Unused amounts may be carried over after the end of the 2021 plan year and going forward. This rule also applies to Dependent Care FSAs even though carryovers are otherwise not permitted for these accounts. A carryover applies to current employees who are in the plan on the last day of the prior year. Carryover are normally applied in April for plans that end in December to allow closing out of claims.
D. Dependent Care FSA Modification. The Act allows an extra year for children who “aged out” during the ongoing pandemic event. Employers can allow unused Dependent Care FSA amounts for children until they turn age 14, at least through the end of the 2021 plan year.
E. Spend-down of Unused Health FSA Benefits. An employee who stops participating in the Health FSA plan during calendar year 2020 or 2021 may continue to receive reimbursements from unused contributions through the end of the plan year, including any grace period.
New Option to extend claims periods for 2020 and 2021 FSA plans
A new law was signed on December 27, 2020 allowing for the optional extension of claims periods for 2020 and 2021 plan years. Please see Relief bill for 2020 and 2021 FSAs from our software partner Alegeus.
We will e-mail clients in late January 2021 with details about how to add this option at a charge of $100 to restate the plan.
New Optional IRS guidelines for pre-tax plans plus Mandatory deadline extensions
Many of the links below are provided by our software partner Alegeus.
Optional rules for pre-tax plans and FSAs - the following changes are optional and require a plan amendment at a charge of $100 by December 31, 2021 and apply to mid-year changes from January 1, 2020 to December 31, 2020 on a going forward basis. Please also click to download .pdf summary:
Elections - Cafeteria plans - can allow new election to participate in employer health plan if coverage initially denied. Can revoke or change employer health plan coverage with certain conditions.
Elections - FSA - can terminate, make a new election, or change an election for Health FSA, Limited Purpose Health FSA, and Dependent Care FSA. New elections can only be made going forward. No refunds can be issued. Changes to elections cannot result in an election being less than what has been paid out.
Grace Period extension - plans that have a plan year OR a grace period (75 day extension into new year to incur claims) that ends in 2020 may amend the plan to allow employees to incur new claims against that account until December 31, 2020. This grace period extension is available to plans that offer or do not offer a grace period as well as plans that offer a carryover. Note that if your plan ended December 31, 2019 and you did NOT have a grace period then this extension would not be an option since neither the plan year nor the grace period ended in 2020.
Carryover increase - carryover can increase from current $500 to 20% of the IRS annual FSA limit for plan years 2020 and forward. Plan must be amended by December 31, 2020 to apply to 2020 plan year.
Mandatory deadline extensions - The IRS and DOL released rules that effectively extend deadlines for COBRA enrollment and payment as well as health claims filing and appeals. We have updated COBRA letters to provide a link to the guidance.
Under mandatory rules for ERISA-covered Health FSAs, Limited Purpose Health FSAs, and Health Reimbursement Arrangements any plan that has a claims filing deadline (also known as runout period) from March 1, 2020 until 60 days after the to-be-determined end of the COVID-19 national emergency must allow automatic extension for claims filing. This DOES NOT extend the time period for incurring a claim.
For example, consider a plan that ended December 31, 2019 whose runout period ended March 31, 2020. The automatic extension means that participants can file claims with dates of service through December 31, 2019 until at least 60 days after the to-be-determined end of the COVID-19 national emergency. The extension is automatic, mandatory and does not require a plan amendment.
COVID-19 Updates and FAQs
Many of the links below are provided by our software partner Alegeus.
Tax credits for required paid leave - the required sick leave for employees is reimbursable to employers through tax credits. See the blog and the IRS site for how FSAs, HRAs, and HSAs may impact the credit.
FAQs about compliance related to FSA, HRA, and HSA accounts as well as COBRA. Two of the most common questions we have heard are listed below:
If employees are on furlough or temporary leave what happens to the accounts and how does COBRA apply? This depends on if the absence is covered under FMLA or non-FMLA. Under FMLA, benefits must be offered during the absence. Employers can collect premiums for benefits by prepayment, on an ongoing basis, or upon return to work. Some employers may maintain benefits for non-FMLA leave under the same conditions as FMLA (see above).
Some employers might cover the employee’s cost share while on FMLA or non-FMLA leave - for example cover the employee portion of the Health FSA while away so that the FSA can be accessed during the leave. Employers should treat employees equally and specify the policy in writing.
COBRA applies if a person loses coverage due to reduced hours or termination.
Can employees change Dependent Care FSA (DFSA)? The rules for changing DFSA elections are flexible. Examples of situations that allow a change or drop of coverage include change of provider, dropping a provider due to closure, dropping the service due to the child being cared for at home, and initiating coverage.
The Coronavirus Aid, Relief and Economic Security (CARES) Act was signed March 27, 2020 and includes the following changes to tax favored accounts effective January 1, 2020:
FSAs, HRAs, and HSAs can reimburse or pay for Over-the-Counter (OTC) purchases of drugs and medicines without a prescription. Note - merchants should be updating their card systems beginning April 15 to allow cards to be used for these items. Each merchant updates their eligibility list monthly, quarterly or yearly so card acceptance will depend on the merchant. Participants can file manual claims in the meantime.
Menstrual products were added to the list of qualified medical expenses covered by FSAs, HRAs, and HSAs. Note - merchants should be updating their card systems beginning May 15 to allow the card to be used for these items. Each merchant updates their eligibility list monthly, quarterly or yearly so card acceptance will depend on the merchant. Participants can file manual claims in the meantime.
Telehealth services below the deductible will be allowed in HSA-compatible health plans through December 31, 2021.
Due to the federal tax filing and payment deadline extension to July 15, 2020, contributions to Health Savings Accounts (HSAs) are allowed for the 2019 tax year until July 15, 2020.
Families First Coronavirus Response Act - effective no later than April 2, 2020 provides paid sick leave to employees affected by COVID-19. See Department of Labor page for more info.