[MyOEBB] OEBB -- Important Information About Benefit Plans!

[MyOEBB system updates]

Dear Superintendents, Business Managers and Benefit Administrators:

Over the past several months, while working to provide information and resources to participating entities about the potential impacts of federal healthcare reform, OEBB became aware of a few other areas of compliance/interest that entities may need to be aware of relating to Health Reimbursement Accounts or Health Reimbursement Arrangements (HRAs).  We wanted to pass along some guidance the Board received from our legal counsel with the Department of Justice.

Following are some areas you should consider if your entity currently offers an HRA, or is considering offering an HRA.  Please check with your legal advisor to determine if the type of HRA that you offer, or are considering offering, complies with state and federal law.

OEBB participation compliance:

Health Reimbursement Accounts and Health Reimbursement Arrangements (HRAs) are considered benefit plans under OEBB's governing statutes, although they are not yet explicitly identified in OEBB's administrative rules.  During the initial plan development process in late 2007, no HRA designs were submitted by entities as benefit plans available at that time.  Although we believe there were some HRAs being offered through entities prior to OEBB's creation,  the number of entities utilizing HRAs has grown significantly over the years.

The Board approved filing proposed amendments to OEBB's Division 10 administrative rules to specify that HRAs meet the definition of a benefit plan.  You should be receiving a notice via email later today announcing this filing and the beginning of the public comment period.  Please watch for this. Subject to only a few exceptions found in ORS 243.886, OEBB has exclusive authority to provide benefit plans to Districts.  Please check with your legal advisor to determine if the type of HRA you offer, or are considering offering, complies with state law.

Federal Healthcare Reform (a.k.a., ACA, PPACA) compliance:

Section 2711 of the Public Health Service Act (PHSA), as added by the Patient Protection and Affordable Care Act (PPACA), prohibits lifetime limits, or certain annual limits, on the dollar value of benefits for any participant or beneficiary.  HRAs, by design, generally are subject to such limits -- they provide reimbursements up to a maximum dollar amount for a coverage period and the upper limits for each year of coverage arguably could create a cumulative lifetime limit.  Thus, HRAs that are not integrated with an entity's group medical plan that otherwise complies with section 2711 (i.e., a medical plan available through OEBB) could be subject to penalties under the PHSA as early as January 2014.

Please check with your legal advisor to determine if the type of HRA you offer, or are considering offering, complies with the requirements of the PHSA and other federal laws governing health insurance.

Federal income tax compliance, including constructive receipt:

Some districts may be offering their employees a choice between an HRA and more wages (or other taxable income). This raises federal income tax issues, including, but not limited to, what is called the "constructive receipt doctrine." The constructive receipt doctrine means that an employee who has a choice between a nontaxable benefit and a taxable benefit, and who elects the nontaxable benefit, is treated for tax purposes as if he or she actually elected the taxable benefit (i.e., the individual will be taxed on the taxable benefit that he or she could have elected). Typically the adverse constructive receipt consequences can be avoided by offering a choice between a taxable benefit and a nontaxable benefit through a cafeteria plan.

IRS Notice 2002-45 indicates that HRAs may not be funded through a cafeteria plan. Offering a choice between cash or other benefits and an HRA may obligate the Districts to impute taxable income to the employees who choose the HRA benefit.

Please check with your legal advisor to determine if your HRA complies with all IRS guidelines and, especially if your entity is offering a choice between cash or other taxable benefits and an HRA, check with your legal advisor to ensure you are reporting and withholding on the proper amount of taxable income.

Oregon Insurance Code compliance:

Because HRAs meet the definition of "insurance" under the Oregon Insurance Code, entities need to consider if their HRAs are subject to the Insurance Code and if so, whether their HRAs meet the Insurance Code's requirements. Effective since July 17, 2007, SB 989 (Oregon Laws 2007, chapter 826, section 1) expanded the number of public bodies that are exempt from regulation under the Insurance Code when they self-insure their health insurance coverage. Now codified at ORS 731.036(6), SB 989 exempts school and community college districts whose covered employees and dependents and retired employees and dependents number at least 500 and who meet other requirements. Prior to this change, the exemption did not apply unless the number of covered employees and retired employees of a school or community college district, not including dependents, was 1,000 or more. Other public bodies that jointly or individually self-insure their health insurance coverage will be able to include dependents along with employees and retired employees in order to meet the minimum number of participants required for the exemption.

If your entity is offering an HRA, please check with your legal advisor to determine whether your HRA is subject to the Insurance Code and, if so, whether it meets Insurance Code requirements.

GASB compliance:

The Governmental Accounting Standard Board (GASB), an independent, not-for-profit organization that establishes financial accounting and reporting standards for state and local governments, has issued Statements 43 and 45 on Other Postemployment Benefits. These Statements would affect local governmental financial reporting if the entity offered healthcare and other non-pension benefits, including an HRA, to retirees. Other GASB requirements may also be applicable.

If your entity is offering an HRA, please check with your legal advisor to ensure your entity is in compliance with GASB reporting requirements.

We hope this information is a helpful reminder of areas you need to be aware of if your entity currently offers, or is considering offering, an HRA to employees.


Sincerely,

Denise L. Hall
Denise L. Hall, Deputy Administrator
Oregon Educators Benefit Board
http://egov.oregon.gov/OHA/OEBB<http://egov.oregon.gov/DAS/OEBB>


OEBB encourages all members to stay healthy and be happy!!!!     Pass it on.....
http://www.oregon.gov/OHA/OEBB/pages/welllinks.aspx




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