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Can an employer allocate Health Care Expenditures for employees then recover any unused funds?
For hours payable on and after January 1, 2017, only irrevocable Health Care Expenditures shall be counted toward the Employer Spending Requirement. In other words, only money actually spent on employee health care can be counted toward compliance with the HCSO. This means that the employer cannot retain or recover any portion of the funds at any time, even if the employee leaves the job or if the business ceases to operate.
Health Reimbursement Arrangements (HRAs), as defined in IRS Publication 969, including excepted benefit HRAs and integrated HRAs, are considered revocable expenditures because the employer has the option to recover any unused funds at some point.
For an allocation of funds to a reimbursement arrangement to be counted toward the spending requirement, the funds must be actually paid over to a third-party trustee who has control over these funds in perpetuity or until the employee exhausts the funds through submitting claims. The employer must have no access to, or control over, these funds and no possibility of ever recovering them.
Examples of Irrevocable Expenditures:
Note: Employers will have until January 30, 2017 to make the required health care expenditures for the fourth quarter of 2016; 20% of expenditures for that quarter will still be permitted to be made revocably.
There may be a more recent answer to this question. Contact Claremont for an update.