New IRS Guidance on Health FSAs and Dependent Care Assistance Programs

Background

Many employers offer health FSAs and DCAPs to provide a tax-free means for employees to pay for certain expenses, up to IRS limits. These arrangements can be funded by employee pretax payroll deductions and by employer contributions through section 125 cafeteria plans. Health FSAs are for medical expenses and the contribution limit is $2,750 for 2020 and 2021. DCAPs, also known as dependent care flexible spending accounts (FSAs) are for dependent care expenses, such as daycare costs for children. The contribution limit for DCAPs for 2020 and 2021 is $5,000 ($2,500 if married filing separately).

Generally, employees must enroll in the arrangements prior to the start of a plan year, and can only make election changes during the plan year if they have a change in status under IRS rules. Unused amounts at the end of the plan year are forfeited unless the plan includes a grace period or carryover option. Employers can design their plans to allow employees a grace period of up to two and a half months after the end of the plan year to incur expenses to use up prior year balances in a health FSA or DCAP. Alternatively, health FSAs (but not DCAPs) can provide a carryover of unused amounts to the next plan year of up to $500.

2020 changes

In 2020, the IRS issued Notices 2020-29 and 2020-33 to liberalize the health FSA and DCAP rules in response to the COVID-19 pandemic. These notices provided the following changes:

• Mid-year elections. Employees could revoke a health FSA or DCAP election, make a new election, or decrease or increase an existing election on a prospective basis in 2020 without a change in status. In addition, employees could enroll in employer-sponsored health coverage, change their plan selection or revoke an election mid-year. This additional flexibility was limited to plans that already allowed mid-year election changes.
• Grace periods. Employees could apply unused amounts in a health FSA or DCAP at the end of a grace period or plan year ending in 2020 to expenses incurred through Dec. 31, 2020.
• Carryovers. Health FSA carryovers were increased to $550 and could be used for expenses incurred through Dec. 31, 2020.

Employers were not required to implement these revised rules, but could choose to do so to help employees avoid forfeitures because of changes in their circumstances due to the pandemic. To implement the new rules, employers were to (1) notify employees of the plan changes, (2) operate their plans in accordance with the new rules and (3) adopt appropriate plan amendments by Dec. 31, 2021, which could be effective retroactively to Jan. 1, 2020.

2021 changes

New Notice 2021-15 clarifies the latest temporary rules regarding health FSAs and DCAPS included in the Act. As with the 2020 changes, employers have discretion on whether to adopt any of these temporary rules allowable under the Act. The Act and the notice provide the following:

• Mid-year elections. Employees can revoke a health FSA or DCAP election, make a new election, or decrease or increase an existing election on a prospective basis without a change in status for plan years ending in 2021. In addition, with regard to employer-sponsored health coverage, employees can be allowed to make the following mid-year election changes on a prospective basis: (1) elect the coverage if the employee initially declined the coverage, (2) select a different health plan sponsored by the same employer and (3) revoke an existing election to enroll in health coverage not sponsored by the employer.
• Grace periods. Employers can extend the health FSA or DCAP grace period for plan years ending in 2020 or 2021 to 12 months after the end of such plan year.
• Carryovers. Employees can carry over unused amounts in a health FSA or DCAP in a plan year ending in 2020 to the plan year ending in 2021. Likewise, carryovers can be made from the plan year ending in 2021 to the plan year ending in 2022. This carryover feature is available even if the plan does not currently have a carryover or grace period provision. There is no dollar limit on the carryover unless the employer chooses to impose a limit.
• Health FSA post-termination reimbursements. Employees who cease participating in a health FSA during calendar year 2020 or 2021 may continue to receive reimbursements from unused amounts through the end of the plan year in which participation ceased, including any grace period. Under this new rule, employees can be reimbursed for expenses incurred after termination of employment even if they don’t elect COBRA.
• DCAP age restrictions on dependents. Normally, employees can only use DCAP funds for dependents age 12 or under. However, under a temporary rule, employees can use DCAP funds for dependents who turn age 13 during the last plan year with a regular enrollment period that ended on or before Jan. 31, 2020, or the subsequent year if the employee had an unused balance at year end.

As with the 2020 changes, employers that choose to adopt any of the 2021 changes must formally amend their plans to do so. The amendment can be retroactive, but must be adopted not later than December 31 of the first calendar year beginning after the end of the plan year in which the amendment is effective. In addition, the employees must be informed of the changes and the plan must be operated consistently with the terms of the amendment.

Additionally, the notice discusses the impact on health savings account (HSA) eligibility when an employee participates in a health FSA that adopts the above changes. COBRA for health FSAs is also addressed.

The notice also indicates that health FSAs may be amended to provide for reimbursement of expenses for menstrual care products and over-the-counter drugs without prescriptions incurred on or after Jan. 1, 2020, in accordance with the CARES Act passed in 2020.