Keeping Health Reimbursement Arrangements (HRAs) as a part of your benefit offerings

On Friday, September 13, 2013 Treasury published Notice 2013-54 (Notice) which preserves all Health Reimbursement Arrangements (HRAs) that are integrated with an underlying group health plan but eliminates an employer's ability to use a stand-alone or other tax-favored arrangements, including Premium Reimbursement Arrangements or cafeteria plans, to help employees pay for individual health policies on a tax-free basis. In addition, the Notice addresses a number of specific topics related to flexible spending accounts (FSAs) and HRAs. As such, this Alert is the first of two covering Notice 2013-54 which spells out requirements for HRAs offered starting January 1, 2014. Treasury and IRS Notice 2013-54

What kind of HRAs may employers offer?
For HRAs to be offered in compliance with the new Affordable Care Act (ACA) requirements beginning January 1, 2014, there is an exhaustive list of plan types that are available.

Most HRAs reimburse all or a subset of eligible medical expenses as described under IRS Code Section 213(d) and can continue if those eligible for the HRA are also eligible for and enrolled in an employer-sponsored ACA-compliant group medical coverage. This is called an integrated HRA. Employer-sponsored ACA-compliant group medical coverage may be provided by the employer that offers the integrated HRA or employees may certify they have coverage under a spouse's ACA-compliant group medical plan.

However, there are a couple of new rules that go along with integrated HRAs. First, participants must be able to permanently opt out of and waive future reimbursements from the HRA annually and the plan should be designed such that remaining HRA amounts are forfeited upon termination of employment. This enables employees to obtain individual coverage on Exchanges and be eligible for premium tax credits.

HRAs exclusively for retirees and/or other former employees can also continue. Participants in a Retiree HRA generally would not only be considered as having met the individual mandate (and thus, have no penalty) but also would be considered ineligible for premium tax credit available on the Public Marketplaces. In addition, the funds in retiree HRAs may be used to purchase individual coverage. These Retiree HRAs must also allow participants to permanently opt out of and waive future reimbursements from the HRA at least annually.

Under a somewhat aggressive interpretation, HRAs that reimburse just vision or dental expenses may go forward into 2014. Under current regulations, limited-scope dental or vision benefits will be excepted from the ACA's market reform provisions "if they are provided under a separate policy, certificate, or contract of insurance, or are otherwise not an integral part of a group health plan. Treas. Reg. § 54.9831-1(b)(3)

The regulation further provides that benefits are not an integral part of a group health plan unless (i) participants have the right to elect not to receive coverage for the benefits and (ii) if a participant elects to receive coverage for the benefit, the participant must pay an additional premium or contribution for that coverage Treas. Reg. § 54.9831-1(b)(3)(ii). Consequently, because an HRA is not an insured arrangement, in order for dental or vision benefits provided through an HRA to be excepted from the ACA employees that elect to have dental or vision coverage provided by the HRA must be charged a premium or contribution. This is problematic since an HRA must be "paid for solely by the employer and not provided pursuant to salary reduction election or otherwise under a [Code section] 125 cafeteria plan." IRS Notice 2002-45

Notice 2013-54 did not address this issue at all, but this seems like an area in which Treasury could provide relief by issuing guidance that an employee's payment of a premium for dental or vision benefits on an after-tax basis under a stand-alone HRA would not result in the plan losing its status as an HRA.

What if an employer finds they have an ineligible HRA?
Unused amounts that were credited to the HRA may be used to reimburse medical expenses in accordance with the terms of the HRA with no additional employer funds added to the plan. This is called a spend-down option.

This spend-down option may apply to all participants in the ineligible HRA or apply to an individual participant that is no longer covered by an employer-sponsored ACA-compliant group medical plan.

HRAs may no longer reimburse individually-owned insurance policies
Employers sponsoring HRAs or who were planning to implement HRAs or other tax-advantaged plans to allow participants to pay their individually-owned policy premiums with pre-tax dollars can no longer do so. The IRS and Treasury Department made an important change in closing this option so that employers cannot easily eliminate group coverage or send their employees to the Public Exchange yet still offer tax-free reimbursement for the payment of non-group coverage.

Employers need to be aware that any reimbursement or payment of individual coverage, inside or outside of an Exchange, cannot be made with tax-advantaged funds. Treasury and IRS Notice 2013-54

San Francisco Health Care Ordinance HRA
The ACA eliminates the use of an HRA to deliver benefits to comply with the San Francisco Health Care Ordinance (SFHCO). However, it does allow HRAs and other state, local and tribal governments HRAs to continue until the later of January 1, 2014 or the first day of the plan year following the close of a regular legislative session after September 13, 2013.

90-day waiting period
In order for active employee HRAs to retain their integrated status, they can only be made available to employees who are also eligible for and enrolled in underlying ACA-compliant health coverage. Thus, HRAs must assure that their waiting periods are not less than that of the underlying health coverage. Note the ACA requires that waiting periods for entry into the plan not exceed 90 days (60 days in California plus other states may vary).

If the HRA document does not currently reflect these terms, a simple amendment to the plan can be adopted that states the eligibility and entry dates into the HRA are the same as the underlying health insurance plan. This ensures no disconnect if the waiting period changes in the health insurance plan.

IRS Notice 2012-17

This table may help you assess your current HRA plan and next steps:

Plan Type	Subject to Annual dollar limit prohibition?	Subject to preventive services requirements?	Regulatory Status	Next Steps
Standalone HRA (i.e., reimburses individual market premiums) for active employees	Yes	Yes	Fails to satisfy annual dollar limit prohibition and preventive services requirement	Plan must be terminated. If it also pays for out-of-pocket §213(d) health care expenses, balances can be continued to be used until depleted.
Standalone retiree HRA (can be used for individual premiums and/or out-of-pocket §213(d) health care expenses	No	No	A standalone retiree HRA provides minimum essential coverage (which renders participant ineligible for premium tax credits)	Plan must be amended to allow for an annual and permanent opt out of reimbursements to enable eligibility for the premium tax subsidy.
HRA that is in conjunction with a group health plan that is ACA-compliant	Yes, but satisfies the condition only if integrated with an underlying ACA-compliant health plan.	Yes, but satisfies the condition only if integrated with an underlying ACA-compliant health plan.	Satisfies the annual dollar limit prohibition and preventive services requirements
HRA to comply with SFHCO or other government or tribal requirement	Yes	Yes	Fails to satisfy annual dollar limit prohibition and preventive services requirement	Plan must be terminated, however these can continue until the later of January 1, 2014 or the first day of the plan year following the close of a regular legislative session after September 13, 2013.