New Law ‘Cures’ Issues for Small Biz HRAs

A new law now allows small employers to provide a stand-alone employer-paid Health Reimbursement Account (HRA) plan to employees without incurring a tax penalty.

The new law allows a small employer (with fewer than 50 employees) to avoid a tax penalty when providing a standalone employer-paid HRA plan to employees. The HRA plan would help employees pay for insurance offered on an exchange without subjecting the employer to excise tax.

According to an analysis by Burns & Levinson, LLP, beginning in 2017, employers with fewer than 50 employees will no longer have excise tax exposure for offering employees stand-alone HRAs and no group health insurance. An HRA set up for an employee allows for the payment of the employee’s uninsured health care expenses and premiums. When not offered with a group health plan, an HRA has been subject to steep excise taxes that have affected small employers since July 1, 2015.

However, with the passage of the 21st Century Cures Act on Dec. 13, 2016, employers with fewer than 50 employees that sponsor an HRA plan but no group health insurance will no longer be subject to an excise tax of $100 per day for each employee, according to the law firm. Rather, small employers are free to offer HRA plans without also providing additional group health insurance that is compliant with federal law.

Employer Musts

The analysis notes that in order to protect against excise tax exposure, an employer with fewer than 50 employees which sponsors an HRA plan and no group health insurance must:

  • Provide coverage under the same terms and conditions to all full-time employees who have completed 90 days of service and are at least age 25. Nonresident aliens, seasonal workers, and employees covered by a collective bargaining unit may be excluded from coverage.
  • Fund the HRAs solely with employer contributions. Employees are not allowed to fund their HRA accounts with any salary reductions.
  • Provide reimbursements only for qualified medical expenses.
  • Limit reimbursements to $4,950 (or $10,000 if the arrangement also provides family coverage). These dollar limits are subject to adjustment by the government.

Notice Requirements

According to the analysis, a small employer establishing an HRA plan must notify each eligible employee in writing the following:

  • The amount of the employer’s contribution to the employee’s account for the year.
  • The requirement that the participant must report the amount of the account balance in the HRA plan to any state exchange from which he or she gets health insurance (so that he or she may receive any advance payment of the premium assistance tax credit).
  • The requirement that if the participant does not have minimum health coverage for any month, he or she may be subject to tax under the individual mandate for that month and reimbursements under the HRA plan can be subject to income tax.

Failure to provide the applicable notice can subject the employer to a penalty of $50 per participant per incident, up to $2,500 in a calendar year for all failures.

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