Health Care Reform Update: Medical Flexible Spending Accounts and OTC Expenses

Health Care Reform

HR Concepts strives to keep our clients and partners informed with the most up to date information as it relates to Health Care Reform. HRC has provided various updates to parts of the reform as it relates to Section 125, Flexible Spending Accounts (FSA), and Health Reimbursement Arrangements (HRA). This HRC Insider was written to address the various questions that HRC has been receiving regarding changes to OTC eligible expenses. This notice is going to both participants with a valid email address and employer contacts so everyone is aware of this change.

As of January 1, 2011, there are a number of changes occurring in reference to OTC purchases and the use of your Medical Flexible Spending Account. Many OTC medicines and products will no longer be eligible for reimbursement without a doctor's prescription or Medical Necessity Form. If you are currently enrolled and using the HRC Total Access Card for your OTC medical expenses, you will no longer be able to use the card for certain expenses once the law takes affect on January 1. OTC claims that are no longer eligible to be put on the card will need to be submitted manually. In order to be reimbursed manually for certain OTC medicines and products you will need a signed prescription from your doctor or have a Medical Necessity Form filled out.  As an out of pocket OTC expense these pieces of additional documentation will be required before the claim can be paid in our system.  

The following list of medicines and products will assist you in the process of determining eligible expenses. A Medical Necessity Form may be completed by your doctor to satisfy IRS requirements of providing a prescription to substantiate a medical need.  HRC will provide a Medical Necessity Form on our website or by request through our Customer Care Departments or for employers by request from our Client Relations team.

The following OTC items are an example of items that require a doctor's prescription or Medical Necessity Form:

  •     Acid Controllers
  •     Digestive Aids
  •     Allergy & Sinus
  •     Feminine Anti-Fungal/Anti-Itch
  •     Antibiotic Products
  •     Hemorrhoid Preps
  •     Antidiarrheal
  •     Laxatives
  •     Anti-Gas
  •     Motion Sickness
  •     Anti-Itch & Insect Bite
  •     Pain Relief
  •     Anti-Parasitic Treatments
  •     Respiratory Treatments
  •     Baby Rash Ointments/Creams
  •     Sleep Aids & Sedatives
  •     Cold Sore Remedies
  •     Stomach Remedies
  •     Cough, Cold & Flu

The following list of OTC items is an example of items that will not require additional documentation:

  •     Band Aids
  •     Elastic Bandages & Wraps
  •     Birth Control
  •     First Aid Supplies
  •     Braces & Supports
  •     Insulin & Diabetic Supplies
  •     Catheters
  •     Ostomy Products
  •     Contact Lens Supplies
  •     Reading Glasses
  •     Denture Adhesives
  •     Wheelchairs, Walkers, Canes
  •     Diagnostic Tests & Monitors  

HRC will continue to update all enrollment and educational materials along with our web site to keep all of our brokers, partners, clients, and participants informed of any additional changes based upon the Health Care Reform legislation.

Section 132 Parking and Transit Account Update

Commuter Benefit Plan Contributions Increased


The Emergency Economic Recovery Act signed into law by President Obama on February 17, 2009 provides a significant increase in Commuter Expense allowances for employees from $120.00 to $230.00 per month. Parking Expenses for 2009 remain at $230 a month. These limits are indexed for inflation.

Internal Revenue Code Section 132 and the Transportation Equity Act for the 21st Century (TEA-21) allows employers to offer employees the opportunity to set aside a portion of their salary to pay for certain transportation expenses. The employee will not be taxed on amounts set aside and used for qualified expenses (that is, pre-tax dollars are used to pay the commuting expenses). Under IRS Section 132 and TEA-21 qualified transportation expenses generally include payments for the use of mass transportation (for example, train, subway, bus fares), and for parking (see further details below).

For 2009 the maximum monthly pre-tax contribution for mass transit was $120.00, and $230.00 for parking; however the $120.00 Commuter Expense was increased to $230.00 on February 17, 2009 by President Obama when he signed The Emergency Economic Recovery Act.


How Section 132 Works:

The transportation fringe benefit is similar to the pre-tax flexible spending accounts available for medical expenses and dependent care. One important difference, however, is the transportation benefit does not include a "use it or lose it penalty," as is the case with medical/dependent care flexible spending accounts.

Before the start of the Section 132 plan year, individual employees elected to set aside a certain amount of pre-tax salary to cover qualified costs incurred in commuting to work. The employee will designate an amount (up to $230.00 per month) for mass transit expenses and a separate amount (up to $230.00 per month) for parking expenses -- separate reimbursement accounts are maintained for each category, and funds cannot be commingled or transferred between accounts (for example, amounts cannot be transferred from the mass transit to the parking account).

As the employee incurs Section 132 expenses during the year, a request form may be submitted to the plan administrator for reimbursement. If the employee does not use the full amount before the end of the program year, the left over amount is carried forward to the next year.

Who is Eligible Under Section 132:

As a general rule, the transportation fringe benefit can only be provided by employers to employees. Common law employees and officers of corporations are eligible (the law does not include non-discrimination requirements for the benefit). Sole proprietors, partners, independent contractors, and two-percent shareholders of S corporations are not eligible for this transportation fringe benefit.

Qualified Parking Expenses:

Parking expenses that can be paid with pre-tax dollars include the costs of (1) parking a vehicle in a facility that is near the employee's place of work, or (2) parking at a location from where the employee commutes to work (for example, the cost of parking in a lot at the train station so that the employee can continue his/her commute on the train).


Qualified Mass Transit Expenses:

Transit passes for mass transportation to and from work. Qualified amounts include costs of any pass, token, fare card, voucher, or other item that entitles the employee to use mass transit for the purpose of traveling to or from his/her place of work. However, when a transit voucher program is readily available, Federal regulations prohibit the use of cash reimbursement as a way to provide transit benefits. Section 132(f) (3) states: Transit Benefits can include cash reimbursement to an employee as long as the reimbursement is for any transit pass, and a voucher or similar instrument which can be used to purchase the transit pass is not readily available for direct distribution to the employee.

The mass transit can be a public system, or a private enterprise provided by a company/individual who is in the business of transporting people in a "commuter highway vehicle." Such a vehicle must have a seating capacity for six or more adults (not including the driver), and at least 80% of the of the vehicles' mileage must be from transporting employees to and from their place of work. Additionally, the vehicle must be carrying at least three passengers (not including the driver). Commuter highway vehicles may be owned or leased by an employer to be used by employees or a third-party provider for transportation purposes. Employees can also own and operate commuter highway vehicles.

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