Brian Gilmore

Agreed with Artie. If it's a direct COBRA subsidy, it would generally be tax-free in the same manner as any employer-share of the health plan premium (active, retiree, or COBRA) under §106. The former employee would receive it only if they timely elected COBRA. If it's a taxable cash payment intended as a COBRA subsidy, in most cases the former employee receives it regardless of a COBRA election. That cash payment would always be taxable. The taxable approach is common for employers with self-insured plans to avoid §105(h) nondiscrimination issues. More details: https://www.newfront.com/blog/cobra-subsidies-reimbursement-2 Slide summary: 2025 Newfront COBRA for Employers Guide

Got it. Well if they do not have a formal trust in place, they may have inadvertently created a trust requirement through the segregated accounting. However, if the separate account is in the employer's name (not the plan's name) there are still ways to avoid the trust requirement. I'm assuming here they do not want to have a trust with all the associated compliance requirements and potential liabilities. The DOL looks to "ordinary notions of property rights” via all the facts and circumstances to determine “whether a plan acquires a beneficial interest in definable assets depends, largely, on whether the plan sponsor expresses an intent to grant such a beneficial interest or has acted or made representations sufficient to lead participants and beneficiaries of the plan to reasonably believe that such funds separately secure the promised benefits or are otherwise plan assets.” Here's a quick shorthand: https://www.newfront.com/blog/j-and-j-case-practical-considerations-the-erisa-trust-rules-for-health-plans-part-2 Common Arrangements That Generally Meet the 92-01 Relief to Avoid the ERISA Trust Requirement No Trust Required: Premiums/benefits paid from the employer’s general assets checking account. Facts and Circumstances: Premiums/benefits paid from a separate account in the employer’s name where the employer expresses no intent and makes no representations to lead employees to believe the funds in the account are plan assets. In either case, the employer could provide the third-party administrator (TPA) with check-writing authority over the account to ameliorate administrative burdens. Arrangements That Often Do Not Qualify for the 92-01 Relief (Subject to the ERISA Trust Requirement) Trust Required: A separate checking account held in the name of the health plan (even if maintained with a zero-balance approach to immediately pay premiums/benefits upon receipt). Facts and Circumstances: Zero-balance account maintained in the name of the TPA whereby the TPA periodically has the employer transfer funds in the exact amount of aggregate adjudicated claims to the fund the account and release approved benefit distributions to participants and beneficiaries. With respect to the TPA account zero-balance approach, the DOL has cautioned that “drawing benefit checks on a TPA account, as opposed to an employer account, may suggest to participants that there is an independent source of funds securing payment of their benefits under the plan,” which could create ERISA plan assets that must be held in trust. The J&J Connection: Avoiding the inadvertent loss of the DOL’s trust enforcement policy could end up as a key liability consideration derived from the J&J case. The J&J plan’s trust-funded status may prove to be one of the primary reasons the plan was targeted as the test case in this area, as well as a potential factor in the court’s analysis of the class plaintiff’s breach of fiduciary duty allegations.

I think all those recitals you made at the start actually answer your question. The vast majority of self-insured health plans have benefits paid from the employer's general assets. That means on the employer side, there are no "plan assets." With respect to employee contributions, those also are almost always not held in a trust. This stems from relief in DOL Technical Release 92-01 that (in short form) does not require plan assets to be held in trust where the contributions are made through a Section 125 cafeteria (as is almost always the case). The DOL has made clear that “ERISA does not impose funding requirements or standards with respect to welfare plans.” It has further clarified that “an employer sponsor of a welfare plan may maintain such plan without identifiable plan assets by paying plan benefits exclusively from the general assets of the employer.” The end result is there are no surplus "assets" subject to the ERISA exclusive benefit rule in almost all self-insured health plans. The employer simply pays what it needs to out of general assets to address claims. More details: https://www.newfront.com/blog/j-and-j-case-practical-considerations-the-erisa-trust-rules-for-health-plans-part-1 https://www.newfront.com/blog/j-and-j-case-practical-considerations-the-erisa-trust-rules-for-health-plans-part-2 On your specific point, I disagree with the premise of the question. One of the rare situations where experience gains can arise that are subject to the ERISA exclusive benefit rule is with respect to health FSAs because Section 125 imposes specific rules on how to apply forfeitures. There is some debate as to how broadly to define "plan" for this purpose, but my position is that the employer can apply those gains only to benefit participants in the health FSA. I do not believe a broader cafeteria plan or wrap plan reading to shift the benefit to participants outside that specific benefit package is appropriate in the health FSA context or in the context of a major medical plan where there are plan assets to address (e.g., a plan funded by a trust). For example, MLR rebates are a common area where there are medical plan refunds subject to the ERISA exclusive benefit rule. I don't see a good argument that the portion of the rebate attributable to plan assets could be allocated to dental plan benefit enhancements just because the dental arrangement is housed under the same mega wrap umbrella plan 501. More details: https://www.newfront.com/blog/j-and-j-case-practical-considerations-the-core-four-erisa-fiduciary-duties-part-1 Exclusive Benefit Rule Common Application Example: Health FSA Forfeitures Another common area where employers directly confront limitations imposed by the Exclusive Benefit Rule is in the context of health FSA experience gains caused by employee forfeitures. In other words, where the total health FSA contributions exceed the total health FSA reimbursements for the plan year. This will occur where the health FSA forfeitures (employee failures to submit qualifying expenses sufficient to meet their contributions) are higher than the health FSA losses (employees terminating mid-year with an overspent account) for the plan year. In this situation, the Exclusive Benefit Rule likely prevents employers from allocating health FSA experience gains from forfeitures to fund the administrative expenses of another employee benefit such as the employer’s health plan, dependent care FSA, wellness program, lifestyle spending account, or commuter benefits. Applying the health FSA experience gains to other benefits would likely breach the Exclusive Benefit Rule because not all of the health FSA participants would be participants in those other benefits, and therefore the funds would not be used for the exclusive benefit of the health FSA participants. For more details: FSA Experience Gains from Forfeitures Slide summary: Newfront Office Hours Webinar: ERISA for Employers

Regardless of the status of the proposed cafeteria plan nondiscrimination regulations, the §125 nondiscrim rules are easy to pass. That's not a concern. The hard part will be that the new §128 for tax-free Trump Account contributions through and employer includes a requirement to apply rules "similar to" the §129 dependent care FSA nondiscrimination rules. That means the dreaded 55% average benefits test will likely apply. That wasn't so much of a concern when it initially looked like Trump Accounts were only going to permit employer tax-free contributions, but now that employees may be able to contribute pre-tax it is very likely that HCEs will contribute disproportionately. That will presumably cause routine failures of that 55% average benefits test in the same vein as with dependent care FSAs. https://www.congress.gov/119/plaws/publ21/PLAW-119publ21.pdf ‘‘(c) TRUMP ACCOUNT CONTRIBUTION PROGRAM.—For purposes of this section, a Trump account contribution program is a separate written plan of an employer for the exclusive benefit of his employees to provide contributions to the Trump accounts of such employees or dependents of such employees which meets requirements similar to the requirements of paragraphs (2), (3), (6), (7), and (8) of section 129(d).’’.

Yeah if there's only one HCP involved I think you're right. Still wouldn't want that structure in place in case another HCP comes along who wants to enroll in the plan someday, but until then I think there's no practical consequence of the discriminatory arrangement. As you noted, that HCP is already being taxed on the full amount anyway via the cash opt-out credit.

It's likely a violation of the Section 125 cafeteria plan nondiscrimination rules (particularly the "uniform election" component of the contributions and benefits test) that could result in the loss of the safe harbor from constructive receipt for HCPs if discovered by the IRS. In this case, that would generally mean the HCPs would have taxable income in the amount of the available opt-out credit regardless of whether they received it. They might also lose the pre-tax treatment overall for all cafeteria plan contributions by having the amount of the available taxable cash (i.e., regular wages/salary) included in taxable income even if they elected the health plan. More details: https://www.newfront.com/blog/designing-health-plans-with-different-strategies Prop. Treas. Reg. §1.125-7: (2) Benefit availability and benefit election. A cafeteria plan does not discriminate with respect to contributions and benefits if either qualified benefits and total benefits, or employer contributions allocable to statutory nontaxable benefits and employer contributions allocable to total benefits, do not discriminate in favor of highly compensated participants. A cafeteria plan must satisfy this paragraph (c) with respect to both benefit availability and benefit utilization. Thus, a plan must give each similarly situated participant a uniform opportunity to elect qualified benefits, and the actual election of qualified benefits through the plan must not be disproportionate by highly compensated participants (while other participants elect permitted taxable benefits)…A plan must also give each similarly situated participant a uniform election with respect to employer contributions, and the actual election with respect to employer contributions for qualified benefits through the plan must not be disproportionate by highly compensated participants (while other participants elect to receive employer contributions as permitted taxable benefits). ... (2) Similarly situated. In determining which participants are similarly situated, reasonable differences in plan benefits may be taken into account (for example, variations in plan benefits offered to employees working in different geographical locations or to employees with family coverage versus employee-only coverage). ... (2) Discriminatory cafeteria plan. A highly compensated participant or key employee participating in a discriminatory cafeteria plan must include in gross income (in the participant’s taxable year within which ends the plan year with respect to which an election was or could have been made) the value of the taxable benefit with the greatest value that the employee could have elected to receive, even if the employee elects to receive only the nontaxable. Slide summary: Newfront Office Hours Webinar: Section 125 Cafeteria Plans

Good question. The guidance is pretty clear that you can make HSA contributions (up to the applicable proportional limit) after losing HSA eligibility for the year (until 4/15 of the prior year). It's always been a bit of a mystery to me whether contributions made prior to becoming HSA-eligible in the year are valid. My feeling is it is probably technically considered an ineligible excess contribution, but I'd consult with a personal tax adviser given it's a gray area. It does seem like an unnecessary hassle to take a corrective distribution of 1/12 only to make that contribution back, but again in theory that's probably technically correct.

Is the opt-out credit offered to all employees who waive (and the others just declined by enrolling in the health plan instead)? Or is the opt-out credit offered to only this one HCE to waive? If it's the former, it's probably fine. If it's the latter, it probably violates the uniform election rule.

Yeah I think it's weird they highlight that distinction since you can only contribute for under 18 folks anyway. How many under 18 employees wanted to contribute to their own Trump account? Pretty much a non-issue. The BIG deal I think from this is that it seems to suggest employees will be able to make pre-tax salary reduction contribution elections (presumably up to $2,500, reduced by any employer contribution) for Trump accounts of a dependent. There's no way to make deductible contributions outside of payroll. So all of a sudden the name of the game in Trump accounts is going to be to get your employer to throw them into the cafeteria plan, and then always make sure to utilize the pre-tax option through payroll before ever considering a regular nondeductible contribution. Given that most employers are working with a FSA TPA that offers a variety of cafeteria plan benefits in a unified login (health FSA, dependent care FSA, commuter, HSA), it seems that adding Trump accounts with employee pre-tax contributions would be an easy flip to switch to offer a pretty meaningful benefit to employees at almost no cost.

@Peter Gulia a surprising development here, I stand corrected: https://www.irs.gov/pub/irs-drop/n-25-68.pdf Q. I-3: May a Trump account contribution program be offered via salary reduction under a section 125 cafeteria plan? A. I-3: Yes, in most, but not all, circumstances. A Trump account contribution program may be offered via salary reduction under a section 125 cafeteria plan if the contribution is made to the Trump account of the employee’s dependent but not if the contribution is made to the Trump account of the employee. Although a Trump account contribution program would be a qualified benefit under section 125(f)(1), a contribution under the Trump account contribution program to a Trump account of the employee would provide deferred compensation under section 125(d)(2)(A), because the employee would have a vested right to compensation that may be payable to that individual in a later year. The Treasury Department and the IRS intend to address rules related to the coordination of Trump account contribution programs and section 125 cafeteria plans in proposed regulations.

Since I lost my job in mid-January but had an active FSA at that time, were my wife’s HSA contributions still allowed for the rest of the year? Yes, your spouse (assuming a) health FSA coverage ended in January, b) you didn't elect COBRA for the health FSA, and c) she no other disqualifying coverage from 2/1 forward) became HSA eligible as of February. If partial-year eligibility applies, is the maximum HSA contribution prorated to 11 months, meaning 11/12 of $8,550 ($7,837.50)? Yes, I agree. Although you could take advantage of the last-month rule if you wanted to increase that to the full $8,550. I've copied the details below. I haven’t used any of the $1,100 in the FSA. The FSA provider shows the account as active and says I can still use the funds. Is that correct? Probably not. It's possible they have a very long run-out period. But a run-out period doesn't affect HSA eligibility regardless. https://www.newfront.com/blog/the-hsa-contribution-rules-part-ii Contribution Limit for Partial Year of HSA-Eligibility: The Last-Month Rule Employees who enroll in the HDHP mid-year are generally subject to the proportional contribution limit above. However, a special rule known as the “last-month rule” (alternatively referred to as the “full contribution rule”) may apply to permit the mid-year enrollee to contribute up to the full statutory limit—even though the employee was not HSA-eligible for the full calendar year. In order to qualify for the last-month rule, the employee must satisfy both of the following two conditions: The employee is HSA-eligible on December 1 of the year at issue; and The employee remains HSA-eligible for the entire following calendar year. This creates a 13-month “testing period” that applies to determine whether the individual has met the last-month rule requirements. The mid-year HDHP enrollee must be eligible on December 1 through the entire subsequent calendar year to contribute up to the full statutory limit—as opposed to the standard proportional limit—for the year in which the employee enrolled in the HDHP mid-year. Example 2: Kris enrolls in HDHP coverage on October 1, 2025 and is HSA-eligible continuously through the end of 2026. Result 2: Kris can contribute up to the full statutory limit (as opposed to the standard proportional limit) in 2025 by taking advantage of the last-month rule. Kris qualifies for the last-month rule in 2025 because he was HSA-eligible in the 13-month testing period from December 1, 2025 through December 2026. If Kris had not qualified for the last-month rule (e.g., enrolled in a standard HMO in 2026), his 2025 contribution limit would have been 3/12 (1/4) of the contribution limit. The IRS provides a useful summary of the last-month rule in Publication 969 and in the Form 8889 Instructions. Mid-year HDHP enrollees who contribute to the statutory limit but do not satisfy the 13-month testing period by failing to remain HSA-eligible will be subject to income taxes and a 10% additional tax on the amounts contributed in excess of the statutory limit. 2025 Newfront Go All the Way with HSA Guide

For non-FMLA leave situations where health FSA coverage continues, you would generally use the standard pre-pay, pay-as-you-go, or catch-up contribution options set forth in the cafeteria plan FMLA rules. I understand you're talking about a non-FMLA leave, but that's really all we have to go with. More details: https://www.newfront.com/blog/health-fsa-for-employees-on-leave How to Collect Health FSA Contributions for the Leave Period The Section 125 rules provide three ways for employers to collect the employee’s health FSA (or any other group health plan) contributions during the leave: 1. Pre-Pay: Under the pre-pay option, the employee is given the opportunity to pay for the continued coverage in advance (i.e., before commencing the leave). Employees can elect to reduce their final pre-leave paycheck(s) with pre-tax salary reduction contributions for all or a part of the expected leave period. Pre-Pay Limitations: The pre-pay option cannot be the sole option offered. Employers offering this approach must offer at least one of the other two options to employees. Pre-pay cannot be used to pay for coverage in a subsequent plan year on a pre-tax basis. If the leave is expected to spill over into a subsequent plan year, the employee can only make pre-tax contributions for the part of the leave that occurs during the initial plan year. 2. Pay-As-You-Go: Under this approach, employees pay their contribution in installments during the leave. If it is a paid leave, the employee can continue to use the Section 125 cafeteria plan to contribute on a pre-tax basis from the stream of compensation through payroll. Otherwise, these contributions would have to be made by the employee on an after-tax basis (e.g., by check). 3. Catch-Up: With the catch-up approach, employees agree in advance to pay their contributions upon returning from leave. These catch-up contributions will reduce their initial return paycheck(s) by the contribution amount missed during the leave period. Although not entirely clear, it appears that employees may make catch-up contributions on a pre-tax basis even if the leave straddles two plan years. In general, employees on a paid leave will prefer the pay-as-you-go option because it facilitates pre-tax contributions in a consistent manner without any disruption. Employees on unpaid leave will generally prefer the pre-pay or catch-up options to avoid having to make contributions on an after-tax basis outside of payroll. Although the cafeteria plan regulations explicitly address these three payment options only in the context of FMLA leaves, employers are generally comfortable following the same approach for any other form of leave (e.g., state protected leave) where the employee will continue health FSA or other group health plan coverage. Slide summary: 2025 Newfront Health Benefits While on Leave Guide

There are different options you could take for how to handle. There's no right answer here--just what you find to be the most appropriate for your situation. The employee already authorized the deductions via the Sections 125 cafeteria plan election, so that's not an issue. The options are: Spread Repayment Over Multiple Pay Periods: Take the missed contribution amount in intervals over the remainder of the year. Lump Sum Repayment: Take the missed contribution amount in a lump sum. Convert Missed Amounts to Employer Contributions: Forgive the employee contributions and not require the employees to repay. I posted a full walkthrough on all these options (including template employee communications) here-- https://www.newfront.com/blog/correcting-missed-cafeteria-plan-contributions Slide summary: Newfront Office Hours Webinar: Section 125 Cafeteria Plans

@Peter Gulia Lots of discussion these days about whether the retirement plan fiduciary committee model should be adopted on the health plan side. I assume that's the reference from @QDROphile. I've set out some thoughts on that issue if you're interested here: https://www.newfront.com/blog/the-pros-and-cons-of-a-health-and-welfare-plan-fiduciary-committee

The ACA aspect is a really tricky one here. It can easily subsume the whole wrap plan document/SPD if you really go into the details. Here's my take on how to handle: https://www.newfront.com/blog/compliance-fast-where-to-define-eligibility-for-health-plans Four Eligibility-Related Areas Typically Addressed Outside Wrap SPD There are a few areas that deserve additional attention when determining if and how to address eligibility in the wrap SPD: 1) ACA Employer Mandate Applicable Large Employers (ALEs) need to offer minimum essential coverage that is affordable and provides minimum value to full-time employees (and their children to age 26) to avoid potential ACA employer mandate penalties. There are two different measurement methods available to determine whether employees are full-time (i.e., averaging a least 30 hours of service per week) for purposes of the ACA: the monthly measurement method and the look-back measurement method. The ACA full-time status determination methodology is unendingly complex, particularly with respect to the look-back measurement method. Attempting to fully explain the many intricate details of the measurement, administrative, and stability periods, for example, would be so lengthy that it would likely overwhelm all other content in the wrap SPD. Accordingly, best practice will typically be to include a “fail safe” type provision in the wrap SPD addressing the employer’s ALE status and that certain aspects of the applicable measurement method may qualify the employee for eligibility. Employers wishing to provide a more comprehensive description of the ACA full-time employee definition should generally refer to a separate company policy that is not restricted by the confines and multiple competing objectives of the wrap SPD.