Federal Legislative and Regulatory Report May 2004

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1 Nationwide produces this publication to provide public defined contribution plan sponsors with information about federal legislative and regulatory activity that may be relevant to plan administration and/or design. Federal Legislative and Regulatory Report May 2004 I. Washington Update On May 12, 2004, the House of Representatives approved H.R to amend the Internal Revenue Code of 1986 to provide for the disposition of unused health benefits in a cafeteria plan that includes a health flexible spending arrangement (FSA). This proposal would allow up to $500 that remains in a health FSA to be carried over from year to year; or be contributed to a health savings account (HSA) that the employer maintains for the employee. The Senate has not yet passed a similar measure. The Department of Treasury and IRS have indicated that they will soon issue additional guidance pertaining to Section 401(a)(9) minimum distributions from defined benefit plans and annuity contracts and Section 403(b) plans. In spring of 2002, proposed rules were released to clarify and update the minimum distribution requirements for defined benefit plans and annuity contracts; additional 401(a)(9) guidance, in the form of final regulations, is expected soon. Proposed 403(b) regulations are expected to be released this summer to reflect the numerous changes that have been made to these plans since the regulations were first promulgated in II. FSA, HRA and HSA Guidance Issued IRS Revenue Ruling was recently issued to clarify how participation in a high deductible health plan, flexible spending arrangement or health reimbursement arrangement affects an individual s eligibility to make Health Savings Account contributions. This ruling illustrates how FSA and HRA participation affects an individual s eligibility to make HSA contributions. Extensive information about HSAs has been provided in the December 2003 and January, March and April 2004 issues of the Federak Legislative and Regulatory Report. You can find these reports online at Select the Employer tab. Jump to the feature you want Chart: Determination of HSA Contribution Eligibility Article: Temporary Relief for Defined Benefit Plans Article: New Proposal for Guardsmen and Reservists Article: Guidance on Automatic Enrollments 2004, Nationwide Retirement Solutions, Inc. All rights reserved. Nationwide and the Nationwide frame are registered service marks of Nationwide Mutual Insurance Company. On Your Side is a service mark of Nationwide. Page 1 of 6 interest. Plan Sponsors are urged to consult their own counsel regarding this information. NRM-4976AO NRS-0943 (05/2004)

2 This new HSA guidance describes the kinds of health FSAs and HRAs that would permit eligible individuals/employees to make HSA contributions: Limited Purpose Health FSA or HRA A limited purpose FSA pays or reimburses benefits for permitted coverage (but not through insurance or for long-term care services). A limited purpose HRA pays/reimburses benefits for permitted insurance for a specific disease or illness, or provides a fixed amount per day or period of hospitalization or permitted coverage (but not for long-term care services). A limited purpose health FSAs and HRAs may also pay or reimburse preventive care benefits. Employees enrolled in limited care FSAs and HRAs may make HSA contributions without satisfying the HDHP deductible. Suspended HRA A suspended HRA is the result of an employee election made before the beginning of the HRA coverage period to forgo payment or reimbursement for any medical expenses incurred during the suspension period except payments or reimbursements for preventive care, permitted insurance and permitted coverage. An employee who does not forgo payment/reimbursement of medical expenses during an HRA coverage period is not eligible to make HSA contributions during the HRA coverage period. If an HSA is funded through salary reduction contributions under a cafeteria plan during the suspension period, the terms of the salary reduction election must indicate the salary reduction is used only to pay for the HSA offered in conjunction with the HRA and not to pay for the HRA itself. Post Deductible Health FSA or HRA A post deductible health FSA or HRA does not pay or reimburse any medical expenses incurred before the minimum annual HDHP deductible is satisfied. Retirement HRA A retirement HRA pays or reimburses medical expenses incurred after retirement (and no expenses incurred before retirement). The following terms included in this revenue ruling also have been used in previous HSA guidance. Permitted Insurance and other Specified Coverage Coverage under workers compensation laws; insurance related to property and casualty, tort liabilties, a specified disease or illness; or insurance that pays a fixed amount per day or other period of hospitaliztion. Permitted Coverage Coverage provided through insurance or other means for accidents, disability, dental care, vision care, or long-term care and preventive care coverage which does not include a deductible. The five situations outlined in the table on pages 3 and 4 demonstrate the effect of FSA and/or HRA participation on an individual s eligibility to make HSA contributions. You can find more information about Revenue Ruling at , Nationwide Retirement Solutions, Inc. All rights reserved. Nationwide and the Nationwide frame are federally registered service marks of Nationwide Mutual Insurance Company. On Your Side is a service mark of Nationwide. Page 2 of 6 interest. Plan Sponsors are urged to consult their own counsel regarding this information. NRS-0943 (05/2004)

3 Facts: Individual/Employee is not eligible for Medicare, not claimed as a dependent on anyone else s tax return, and is covered under an HDHP that has an 80/20 coinsurance feature above the HDHP deductible. Situation 1 Coverage under HDHP, health FSA and HRA In addition to coverage under the HDHP, the employee is covered under a health FSA through the employer s cafeteria plan and an HRA. The FSA and the HRA pay or reimburse all 213(d) medical expenses that are not covered under the HDHP because of the HDHP deductible and other medical expenses not covered under the HDHP such as copays and coinsurance payments. Situation 2 Limited Purpose FSA and HRA Same as Situation 1 except that the health FSA and HRA are limited purpose arrangements whose plan documents permit reimbursement only for dental and vision expenses and preventive care whether or not the minimum annual HDHP deductible has been satisfied. Situation 3 Suspended HRA Same as Situation 1 except employee is not covered under a medical FSA but is covered under the employer s HRA. Employee elects to forgo payment/or reimbursement of medical expenses from the HRA incurred during the HRA coverage period except for permitted insurance, permitted coverage and preventive care. Employer continues to make HRA contributions during suspension period. Determination of HSA Contribution Eligibility HSA contributions permitted? No. This individual/ employee is not eligible to make HSA contributions. Yes. Yes. Individual/ employee can make HSA contributions until the suspension period ends and (s)he is again eligible to receive payments or reimbursements from the HRA for medical expenses incurred after the suspension period. Why? FSA and HRA payments and reimbursements for medical care expenses will prevent the employee from being eligible to make an HSA contribution because (s)he is: Paid/reimbursed before HDHP minimum deductible has been met and not limited to the exceptions for permitted insurance, permitted coverage or preventive care. Note: The result would be the same if employee is covered under someone else s HRA or FSA. Since FSA /HRA payments or reimbursements are limited to permitted coverage, dental and vision expenses, and preventive care, the employee is eligible to make HSA contributions. Note: All of these benefits may be covered as a separate health plan, separate or optional rider or as part of the HDHP. HRA reimbursement of permitted insurance, permitted coverage, and preventive care expenses during suspension period, and employee election to forgo payment or reimbursement for other types of medical expenses will not affect an employee s eligiblity to make HSA contributions. Note: Medical expenses incurred during suspended coverage period, other than excepted expenses, cannot be paid or reimbursed from the HRA during or after the suspension period ends. 2004, Nationwide Retirement Solutions, Inc. All rights reserved. Nationwide and the Nationwide frame are registered service marks of Nationwide Mutual Insurance Company. On Your Side is a service mark of Nationwide. Page 3 of 6 interest. Plan Sponsors are urged to consult their own counsel regarding this information. NRM-4976AO NRS-0943 (05/2004)

4 Determination of HSA Contribution Eligibility Facts: Individual/Employee is not eligible for Medicare, not claimed as a dependent on anyone else s tax return, and is covered under an HDHP that has an HSA 80/20 coinsurance feature above the contributions HDHP deductible. permitted? Why? Situation 4 Post deduction FSA/HRA Same as Situation 1 except FSA and HRA are post-deductible arrangments that only pay or reimburse medical expenses including the 20% coinsurance above the HDHP deductible after the minimum annual HDHP deduction has been satisfied. Situation 5 Retirement HRA Same as Situation 1 except employee is not covered by a health FSA but is covered by a retirement HRA that reimburses only medical expenses incurred after the employee retires. Yes. Yes. Because the FSA and HRA pay/reimburse medical expenses including coinsurance after HDHP minimum annual deductible has been met, the employee is eligible to make HSA contributions. Individual/Employees may make HSA contribtuions while employed if the HRA only reimburses expenses incurred after emloyee retires. This is good news for employees who participate in employer funded retiree health reimbursement plans such as Nationwide s Post Employment Health Plans (PEHP ). On Your Side SM 2004, Nationwide Retirement Solutions, Inc. All rights reserved. Nationwide and the Nationwide frame are federally registered service marks of Nationwide Mutual Insurance Company. On Your Side is a service mark of Nationwide. Page 4 of 6 interest. Plan Sponsors are urged to consult their own counsel regarding this information. NRS-0943 (05/2004)

5 III. Temporary Relief for Defined Benefit Plans On April 10, 2004, President Bush signed the Pension Funding Equity Act of 2004 (PFEA), which affects defined benefit plans subject to ERISA. PFEA provides: Temporary funding relief for the 2004 and 2005 plan years by replacing the 30-year Treasury bond interest rate with a rate based on a composite long-term corporate bond rate that the IRS generates and publishes monthly. Additional funding relief for severely under-funded plans in the commercial airline and steel industries. Prior to PFEA, ERISA plans were required to calculate plan-funding liabilities based on the 30-year Treasury bond rate. Falling interest rates and poor stock market performance in recent years have increased funding costs dramatically for many defined benefit plans. The PFEA interim, higher corporate composite rate will reduce and in some cases eliminate: Minimum funding requirements Some plans that were previously under-funded could now be adequately funded, reducing or eliminating the need for minimum funding contributions. Required quarterly contributions Quarterly contributions are required for under-funded plans whose liabilities exceed plan assets in the prior plan year. Many plans may no longer be required to make these quarterly contributions. Variable PBGC premiums The Pension Benefit Guaranty Corporation (PBGC) guarantees a minimum level of benefits to participants and beneficiaries in ERISA defined benefit plans when the plan is unable to pay benefits. Employers pay a fixed premium to the PBGC for all participants. Under-funded plans pay an additional variable premium for each participant based on the plan s current liabilities. This additional premium amount could be reduced or eliminated. PFEA gives Congress two more years to find a permanent replacement for the 30-year Treasury rate and to pass comprehensive pension funding reform that will enhance retirement security for workers who rely on benefits from their defined benefit pension plans. You can access more information about this bill at Enter HR 3108 in the Bill Number box. IV. New Proposal for Guardsmen and Reservists Representative Bob Beauprez recently introduced the Guardsmen and Reservists Financial Relief Act of 2004 (H.R. 1779), a proposal that would permit members of the National Guard and Reserves who have been called to active military duty for at least 180 days to: Withdraw IRA funds and elective deferrals from their 401(k) and 403(b) plans anytime from the date of the call-up to the date active duty service ends without incurring a 10% early distribution penalty. Repay withdrawn amounts at a later date to an IRA. 2004, Nationwide Retirement Solutions, Inc. All rights reserved. Nationwide and the Nationwide frame are registered service marks of Nationwide Mutual Insurance Company. On Your Side is a service mark of Nationwide. Page 5 of 6 interest. Plan Sponsors are urged to consult their own counsel regarding this information. NRM-4976AO NRS-0943 (05/2004)

6 Under current law, money can be withdrawn from an IRA at anytime. However, 401(k) and 403(b) plans are permitted to distribute elective deferral contributions only if a participant is at least 59½ years old; terminates service, dies or becomes disabled; or experiences a financial hardship. Distributions from 401(k) and 403(b) plans and distributions from IRAs prior to age 59½ are subject to a 10% early distribution penalty unless one of the exceptions under the Code applies. H.R would temporarily permit active duty members of the Guard and Reserves to withdraw their 403(b) and 401(k) elective deferrals prior to age 59½ and to receive these, as well as IRA distributions, without an early distribution penalty. Under the proposal, withdrawn amounts could be repaid to an IRA account any time within two years after active military service ends. The IRA annual dollar limits would not be affected by the repaid amounts and no tax deduction would be permitted for amounts repaid to an IRA. In its current form, H.R does not include governmental 457(b) plans, or withdrawal of nonemployee deferral contributions from employer sponsored plans. The financial relief provided under H.R would apply to members of the Guard and Reserves who were called to active military duty after September 11, 2001 and prior to September 12, This bill was passed by the House and has been sent to the Senate Finance Committee. You can access more information about this bill online at Enter H.R in the Bill Number box. V. Guidance on Automatic Enrollments Many employers use automatic enrollment as a tool to increase participation in their salary deferral plans. Plans that automatically enroll eligible employees have historically used a default contribution of three or four percent of compensation. The IRS recently issued additional guidance for automatic enrollments in 401(k) and 403(b) plans. It clarifies that automatic enrollment contribution percentages: Are not limited to a certain percentage of compensation as long as the automatic deferral contributions are within plan and staturory limits. There are no special or safe harbor limits. Are not limited to amounts that are matched by employer contributions. May be periodically changed according to a specified schedule or may be changed to reflect salary increases, bonuses and other compensation increases. Automatic enrollment provisions must be contained in plan documents. Also, employees must be given information that clearly explains how automatic enrollment provisions work, how and when employees can opt out of the plan or change default percentages, and what default investments the plan will use until the participant makes investment elections. Many states require written employee consent to initiate any deduction from wages. Employers interested in adding an automatic enrollment feature to their plan should check state wage withholding laws before incorporating this feature into their plans. You can find more information about this guidance by logging onto , Nationwide Retirement Solutions, Inc. All rights reserved. Nationwide and the Nationwide frame are federally registered service marks of Nationwide Mutual Insurance Company. On Your Side is a service mark of Nationwide. Page 6 of 6 interest. Plan Sponsors are urged to consult their own counsel regarding this information. NRS-0943 (05/2004)