COBRA
requirements and Flex Plans
The final IRS COBRA Regulations were issued
on February 3, 1999. On the same day, the IRS issued
proposed regulations that would modify the final
regulations covering COBRA's application to a Health
Flexible Spending Account. The effective date is
for plan years beginning on or after January 1,
2000.
In the past, employers were required to offer COBRA
continuation on a Health FSA unless COBRA's small
business exception applies. Now there are two more
exceptions.
First, COBRA does not need to be offered to a qualified
beneficiary who has overspent their account as of
the date of the qualifying event. (COBRA must be
offered to those who have under-spent their account.)
Second, while COBRA must be offered to those who
have under-spent their account, you may be able to
cut it off at the end of the year in which the qualifying
event occurs.
Three conditions must be met in order to not offer
COBRA continuation:
(1) The health FSA is exempt from HIPAA.
A health FSA is exempt from HIPAA if those eligible
to participate in the health FSA are also eligible
to participate in the employer's major medical plan
and the maximum benefit payable to the employee
under the health spending account exceeds two times
the employee salary reduction amount (or, if greater,
the amount of the employee's salary reduction under
the health spending account for the year, plus $500.00),
the employer must comply with HIPAA. If the employer
contributes more than $500.00 to a health spending
account either as "seed" money or as a match, the
employer must comply with HIPAA. For Credit Based
Section 125 Plans, if the employee can receive the
unused portions as taxable income, then the employer
need not comply with HIPAA. If the employee does
not have the option to receive the unused portions
as taxable income, the plan will have to comply
with HIPAA only if the plan design prohibits employees
from directing more than $500.00 of the employer
credits to the health spending account.
(2)The maximum annual COBRA premium the Employer
may charge for the health FSA coverage equals or
exceeds the maximum annual health FSA coverage amount.
(3)As of the date of the qualifying event, the
qualified beneficiary has overspent her health FSA
account.
COBRA Coverage can be cut off at the end of the
plan year in which the qualifying event occurred
if the health FSA is exempt from HIPAA and the maximum
COBRA premium equals or exceeds the annual coverage
amount. You would not have to offer COBRA continuation
at the next open enrollment.
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