On June 20, the U.S. Departments of Labor, Treasury, and Health and Human
Services (the Departments) released
expanding the availability of health reimbursement arrangements (HRAs)
employers can use to pay for or reimburse employees for qualifying medical
expenses, including premiums for individual health insurance coverage. The
rule, which becomes effective Jan. 1, 2020, will significantly expand
employers’ options for offering healthcare benefits.
HRAs are account-based group health plans employers can offer employees,
providing employees with a designated amount of funds to pay for or
reimburse qualifying medical expenses on a pre-tax basis. Because HRAs are
group health plans, they are also subject to certain provisions of the
Employee Retirement Income Security Act (ERISA) and the Internal Revenue
Code of 1986 (Code). Employees are not permitted to contribute to HRAs.
However, unlike funds in healthcare flexible spending accounts, unused HRA
funds can carry over into subsequent plan years.
Following passage of the Affordable Care Act (ACA), agency guidance
implementing health reform greatly restricted employers’ ability to offer
HRAs to active employees, as the guidance took the position that HRAs
failed to satisfy two of the ACA’s market reforms: no annual dollar limits
on essential health benefits and coverage of preventive services without
cost sharing. The prior Department guidance also contained complex HRA
integration rules, thereby making them less attractive for employers. The
new rule was issued in response to a 2017 presidential executive order
directing the Departments to modify the HRA rules to increase their
usability, including in connection with non-group health coverage.
Individual Coverage HRAs
One of the most significant effects of the new rule is that it removes a
prior ACA-related restriction on integrating HRAs or other account-based
group health plans (such as employer payment plans or health FSAs) with
individual health insurance obtained in the market or Medicare as long as
certain conditions are satisfied. The rule refers to these as “individual
coverage HRAs.” As noted above, prior to the new rule, HRAs generally could
be integrated only with traditional group health plan coverage offered by
Based on this change, the door is open for employers to consider scaling
back traditional group health coverage in favor of individual coverage HRAs
integrated with individual insurance policies purchased by employees on the
insurance market, similar to what some employers have already chosen to do
with respect to retiree-only medical plans (which are exempt from ACA
regulation). Although many factors would go into such a decision, the cost
savings to employers and (nearly as important) the predictability
of employee healthcare spend on a year-to-year basis could make individual
coverage HRAs a very attractive alternative to traditional group health
Of course, individual coverage HRAs would need to meet certain
requirements, including the following:
- All individuals covered by an individual coverage HRA must be enrolled in
individual health insurance for each month in which the individual is
enrolled in the individual coverage HRA.
- Employers offering individual coverage HRAs must establish reasonable
procedures to verify that individuals covered by the HRAs are enrolled in
individual health coverage prior to reimbursement of expenses in any given
month. Acceptable methods of substantiation include verification by a third
party (e.g., insurer) or participant attestation.
- To prevent adverse selection in the individual insurance market,
employers are prohibited from offering a choice between an individual
coverage HRA and traditional group health plan coverage to the same class
of employees. A “traditional group health plan” for this purpose would not
include health FSAs or other account-based plans or plans limited to
excepted benefits only (see discussion of excepted benefits below).
- An employer that offers an individual coverage HRA to a class of
employees must offer the individual coverage HRA on the same terms to all
employees within the class.
- Permissible classes for this purpose would include full-time, part-time,
seasonal, salaried, hourly, collectively bargained, leased and non-resident
alien employees, as well as employees whose primary work location is in the
same rating area and employees who have not satisfied certain waiting
period requirements, subject to certain minimum thresholds for class size.
- It is permissible to increase HRA contributions as employees get older
(up to a maximum of three times the contribution the youngest employee
receives), as long as the same increase is provided to all employees of the
same age within the class, and to vary contributions based on the number of
dependents an employee has, again as long as the same variation is applied
to all employees within the class with the same number of dependents.
- It is also permissible for employers to implement individual coverage for
HRAs for new hires while leaving traditional group health coverage in place
for existing employees, subject to certain requirements.
- Employers must allow employees covered by individual coverage HRAs to opt
out of such coverage on at least an annual basis.
- Individual coverage HRAs must provide annual written notice to eligible
participants, including a description of the HRA terms and the opt-out
right, and a description of the consequences to an employee regarding the
employee’s eligibility for the premium tax credit if the employee accepts
or waives coverage. The Departments have provided model language for
portions of the notice. The notice must be delivered at least 90 days prior
to the beginning of each plan year, but there are two helpful exceptions:
- For employees hired after the beginning of the plan year, notice must be
provided no later than the date on which the individual coverage HRA may
first take effect.
- For individual coverage HRAs established by employers less than 120 days
prior to the beginning of the first plan year of the HRA, the notice must
be provided no later than the date on which the individual coverage HRA may
first take effect.
The new rule provides additional guidance regarding use of an employer
cafeteria plan to pay premiums not otherwise covered by the individual
coverage HRA on a pre-tax basis, as well as further information regarding
the integration of individual coverage HRAs with certain other types of
coverage, including Medicare and Tricare, spousal group health plans, HSAs
and short-term, limited-duration insurance.
Excepted Benefit HRAs
The new rule also creates an “excepted benefit HRA.” In general, following
the Departmental guidance issued under the Health Insurance Portability and
Accountability Act (HIPAA), certain benefits are considered “excepted
benefits” and are exempt from many of the federal healthcare requirements
under ERISA and the ACA. Where they meet the applicable requirements,
“excepted benefits” can include limited-scope dental and vision, long-term
care plans, hospital indemnity plans, employee assistance or EAP plans and
on-site medical clinics. The excepted benefit HRA is intended to constitute
an excepted benefit that can be offered in conjunction with a traditional
group health plan to help cover the cost of copays, deductibles or other
For an excepted benefit HRA to qualify as an excepted benefit, the new rule
requires the following:
- Unlike the individual coverage HRA, the excepted benefit HRA must be
offered in conjunction with a traditional group health plan. However, an
employee is not required to enroll in the traditional plan (or in any other
coverage) in order to use the HRA.
- The annual HRA contribution per employee must be limited to $1,800 per year, which will be indexed for inflation
beginning in 2021.
- The HRA cannot be used to reimburse premiums for individual coverage,
group coverage (other than COBRA) or Medicare. However, it can reimburse
premiums for other excepted benefits coverage, as well as for short-term,
- The HRA must be uniformly available to all similarly situated
individuals, as required under (HIPAA). For example, the excepted benefit
HRA cannot provide greater contributions for employees who have an adverse
Application of ERISA to New HRAs
Importantly for employers, the new rule distinguishes between the
individual coverage HRA (subject to ERISA) and the insurance coverage that
the HRA is used to purchase, which is not subject to ERISA if certain safe
harbor criteria are met:
- The purchase of any individual health insurance is completely voluntary
- The employer, employee organization or other plan sponsor does not select
or endorse any particular issuer or insurance coverage. (This may be
problematic for employers hoping to use individual coverage HRAs as part of
a private exchange.)
- Reimbursement for non-group health insurance premiums is limited solely
to individual health insurance coverage.
- The employer, employee organization or other plan sponsor receives no
consideration in the form of cash or otherwise in connection with the
employee’s selection or renewal of individual insurance coverage.
- Each plan participant is notified annually that the individual health
insurance coverage is not subject to ERISA.
ACA Compliance: Premium Tax Credit, Employer Mandate, Special
An employee is not eligible for a premium tax credit under Section 36B of
the Code for any month in which the employee is offered an individual
coverage HRA that is “affordable.” To determine affordability, an employer
sponsoring an individual coverage HRA can look to the lowest-cost
silver-rated plan for self-only coverage available in the exchange in which
the employee resides. The rule also uses this affordability guideline for
determining that the individual coverage HRA provides “minimum value,”
which is another requirement of the ACA.
One of the key provisions of the ACA for applicable large employers
(employers with 50 or more full-time equivalent employees) is the employer
mandate. The employer mandate imposes penalties on applicable large
employers that: (a) do not offer coverage to at least 95 percent of
full-time employees and at least one full-time employee receives a premium
tax credit (the Section 4980H(a) penalty), and/or (b) do not offer
affordable minimum value coverage to full-time employees and at least one
full-time employee receives a premium tax credit (the Section 4980H(b)
penalty). The preamble to the rule indicates that the Treasury Department
and IRS intend to propose rules under Section 4980H of the Code that will
apply to applicable large employers sponsoring individual coverage HRAs.
The ACA, as part of the introduction of the healthcare exchange
marketplace, provides a “special enrollment period” for individuals to
enroll in coverage offered in the marketplace. The new rule adds parameters
for a new special enrollment period for employees who, as a result of
individual coverage HRA eligibility, need access to the marketplace outside
of the regularly scheduled open enrollment period. The timing of an
employee’s special enrollment period is complicated, but is generally tied
to a “triggering event” (the first day on which HRA coverage can take
effect) and the applicable notice period for the individual coverage HRA in
which the employee is eligible. Because determining the timing of the
special enrollment period may be confusing, the Department of Health and
Human Services has committed to developing additional guidance by Nov. 1,
2019, including a process for verifying special enrollment period
eligibility on HealthCare.gov.
Other Important Information
The introduction of these two new types of HRAs is likely to have some
employers revisiting their approach to group health plan coverage as we
move toward the autumn open enrollment season.
The rule is generally effective for plan years beginning on and after Jan.
1, 2020. The guidance regarding the premium tax credit is applicable for
tax years beginning on and after Jan. 1, 2020, and the guidance regarding
special enrollment periods applies beginning Jan. 1, 2020, as well.
For further information about employer welfare plans, group health plans
and HRAs, including developments related to this rule, please contact one
of the authors —
G. William Tysse,
Carolyn M. Trenda or
Robert B. Wynne — or any other member of McGuireWoods’
employee benefits team.