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Cafeteria plans (125, flexible spending)

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[Opinion] ECFC Comment Letter to EEOC on Proposed Overtime Pay Regs under FLSA (PDF)
"ECFC is concerned that amounts allocated by the employer to an employee's account under a health reimbursement arrangement (HRA) may not be exempt from FSLA unlike other health plans arrangements established by an employer and would request clarification under the final regulations that HRAs be treated similar to other employer-provided health benefit plans." (Employers Council on Flexible Compensation [ECFC])
Using Pretax Health Savings to Keep More Money in Your Pocket
"If you have high medical costs, or think you may need high-cost care like surgery or you're planning to have baby -- it pays to put cash aside for those out-of-pocket costs pre-tax. There are two kinds of tax-advantaged savings accounts that let you put money away for health care needs, depending on what kind of health plan you have." (CNBC)
Bills Now in House and Senate to Allow Reimbursement for OTC Drug Expenses
"H.R. 1922, the Restoring Access to Medication Act ... would overturn the provision in the [ACA] that prohibited FSAs, HRAs, and HSAs from reimbursing expenses for over-the-counter drugs unless the drug is insulin or prescribed by a physician.... S. 1089, the Restoring Access to Medication Act ... would also overturn the ACA provision that prohibited FSAs, HRAs, and HSAs from reimbursing expenses for over-the-counter drugs." (Employers Council on Flexible Compensation [ECFC])
Section 125 Cafeteria Plans: Top Issues for Employers (PDF)
44 presentation slides. "Employees generally take for granted the fact that they can contribute to health and welfare benefits on a pre-tax basis through payroll. This is actually the product of a tangled web of cafeteria plan rules that permit employees to avoid constructive receipt -- a concept most have never considered. The election rules in Section 125 are very strict, and there is no corrections program to prevent a full loss of tax-advantaged status for failure to follow. This makes understanding and complying with the Section 125 rules more important than most appreciate[.]" (ABD Insurance & Financial Services)
Dependent Care FSA: Is Your Plan in Compliance?
"If your plan is not in compliance, you can proactively stop 2019 contributions by HCEs. If shut off in time, your 2019 Dependent Care FSA plan will pass the 55% Average Benefits Test. If not caught in time, you can process refunds to the HCEs or treat the remainder of their plan benefits as taxable income." (Chelko Center for Benefits Management)
Five Ways Small Organizations Can Provide Better Health Benefits To Employees
"[1] Offer tax-preferred accounts (FSAs and HSAs).... [2] Offer voluntary products.... [3] Add limited purpose FSAs.... [4] Put a wellness program in place.... [5] Look into QSEHRAs." (Forbes)
ACA: Limits, Fees and Penalties Through 2019
"The [ACA] contains a number of limits and penalties that apply to employers.... Employers use one of the three allowable safe harbor compensation methods to determine affordability ... Penalties for failure to comply with the Employer Shared Responsibility provision.... Flexible Spending Accounts ... Health Savings Account (HSA) ... Transportation Fringe Benefits ... Patient-Centered Outcomes Research (PCORI)". (OneDigital Health and Benefits)
2019 FSA Limits Raised -- But Open Enrollment Is Over: Now What?
"Employers generally cannot wait until halfway through November to finalize their open enrollment information, and they generally do not want to rely on the expected changes.... However, ... there is likely to be an employee or two who wants to wring the greatest tax savings possible out of their plan ... The first option is to do nothing.... The second option would be to reopen the enrollment process and let the employees who want to increase their FSA election do so.... [F]or the second option to work, it must be completed before the beginning of the year (e.g., Dec. 31 for a calendar year plan)." (Lockton)
IRS Updates Health and Fringe Benefit Plan Limits
"The IRS has updated various health and fringe benefit plan limits for 2019. A comparison of the 2019 and 2018 limits is listed [in a chart]." (Kilpatrick Townsend)
IRS Reminder to Employees: Plan Now to Use Health Flexible Spending Arrangements in 2019
"[IRS] reminded eligible employees that now is the time to begin planning to take full advantage of their employer's health flexible spending arrangement (FSA) during 2019. FSAs provide employees a way to use tax-free dollars to pay medical expenses not covered by other health plans. Because eligible employees need to decide how much to contribute through payroll deductions before the plan year begins, many employers are offering their employees the option to sign up for an FSA this fall for participation that begins in 2019." (Internal Revenue Service [IRS])
IRS Announces Benefit Plan Limits for 2019 (PDF)
2-page printable chart shows limits for 2018 and 2019, as well as important deadlines for 2019. (Lockton)
[Official Guidance] Text of IRS Rev. Proc. 2018-57: Inflation-Adjusted Limits for 2019 (PDF)
"For taxable years beginning in 2019,
  • "the dollar amount in effect under Section 45R(d)(3)(B) is $27,100. This amount is used under Section 45R(c) for limiting the small employer health insurance credit and under Section 45R(d)(1)(B) for determining who is an eligible small employer for purposes of the credit....
  • "the dollar limitation under Section 125(i) on voluntary employee salary reductions for contributions to health flexible spending arrangements is $2,700....
  • "the monthly limitation under Section 132(f)(2)(A) regarding the aggregate fringe benefit exclusion amount for transportation in a commuter highway vehicle and any transit pass is $265. The monthly limitation under Section 132(f)(2)(B) regarding the fringe benefit exclusion amount for qualified parking is $265....
  • "under Section 137(a)(2), the amount that can be excluded from an employee's gross income for the adoption of a child with special needs is $14,080.... under Section 137(b)(1) the maximum amount that can be excluded from an employee's gross income for the amounts paid or expenses incurred by an employer for qualified adoption expenses furnished pursuant to an adoption assistance program for other adoptions by the employee is $14,080."
(Internal Revenue Service [IRS])
Choosing the Right Flexible Benefit for Employees
"Trying to decide which of the many employer-sponsored benefits out there to offer employees can leave an employer feeling lost in a confusing bowl of alphabet soup -- HSA? FSA? DCAP? HRA? ... While there are many details to cover for each of these benefit options, perhaps the first and most important question to answer is: which of these benefits is going to best suit the needs of both my business and my employees?" (United Benefit Advisors)
Why FSAs are Worth It -- Even for Low Income Earners
"There is a myth that individuals in lower income brackets can't afford to have anything else deducted from their paychecks and therefore they forgo having a Flexible Spending Account (FSA).... As an account holder, an FSA helps you pay for things you likely already have to pay for, but now you get to do it tax free. There are hundreds of eligible expenses for tax-free purchase with your health care FSA funds, including prescriptions, doctor's office copays, health insurance deductibles, and coinsurance." (Connect Your Care)
[Guidance Overview] Cafeteria Plan Election Rules: Flexible Spending Accounts
"IRS regulations ... do not permit an employee to select any option available when a particular election change event occurs, but instead limit options according to the type of event that has occurred.... [This article focuses] on IRS rules governing changes for two types of FSAs -- health FSAs and Dependent Care Assistance Plans (DCAPs)." (Gallagher)
Health FSA Limit Projected to Increase in 2019
"The 2019 indexing is based on the 12-month average CPI-U through August 2018. With the release of the August 2018 CPI-U data, [the authors] are projecting that the health FSA limit will increase to $2,700 for 2019. The IRS is not expected to formally release the 2019 FSA limit until late October." (Buck)
2019 Health FSA Limit Projection, Final San Francisco HCSO Amounts for 2019
"ABD is projecting that for plan years beginning on or after January 1, 2019, the health FSA salary reduction contribution limit will increase to $2,700 (up from $2,650 currently).... The increase will not be official until the IRS releases its annual inflation-adjusted limits.... The San Francisco Office of Labor Standards Enforcement (OLSE) ... recently released the updated 2019 HCSO required health expenditure rates." (ABD Insurance & Financial Services)
What Dental Expenses Can a Limited-Purpose Health FSA Cover Without Preventing HSA Eligibility?
"While a limited-purpose health FSA plan document may limit dental coverage by reference to the statutory language, you may want to consider identifying specific procedures that will not be covered. Also, be sure your plan document includes language that preserves the plan administrator's discretionary authority to interpret the plan's coverage limitations." (Thomson Reuters / EBIA)
The Feasibility of Implementing Different Benefits for Different Categories of Employees
"[O]ne option employers are using is to create entirely separate cafeteria plans for separate categories of employees and associates, or separate business units.... [L]evels of benefits can diverge across the plans ... and face less risk under the IRC. However, this option requires creation of separate plans and plan documents, with separate reporting and disclosure obligations. This can also require additional operational and administrative functions to maintain the separation of multiple plans." (FutureEmployer, by Seyfarth Shaw)
House Adopts Bills Enhancing HSAs, FSAs, and HRAs
"Individuals would now be able to purchase over-the-counter (OTC) medications with an HSA, FSA, or HRA without being required to obtain a prescription for eligibility purposes ... Certain sports and fitness expenses -- including gym memberships and the cost to participate in certain physical exercise programs -- would be treated as qualified medical expenses up to a limit of $500 a year for an individual and $1,000 a year for a joint return ... HSA contribution would be raised to $6,650 for individuals and $13,300 for families ... Individuals would no longer be barred from contributing to an HSA if his/her spouse is enrolled in a medical FSA ... Spouses over the age of 55 would be able to make 'catch-up' contributions to the same HSA." (Connect Your Care)
[Opinion] ECFC Statement Submitted to House Subcommittee Hearing on Consumer-Directed Health Plans (PDF)
"Congress should take steps to stop the impact of the Cadillac Tax on consumer-directed health plans.... If full repeal of the excise tax is not feasible, we would advocate that employee contributions to FSAs and HSAs be exempted from the calculation of the Cadillac Tax or any direct limitation that may be proposed on employer-provided coverage." (Employers Council on Flexible Compensation [ECFC])
[Guidance Overview] Simple Cafeteria Plan Provides Alternative to Nondiscrimination Testing
"[A] simple cafeteria plan is treated by the [IRS] as meeting the applicable nondiscrimination rules associated with cafeteria plans ... Code section 125(j) ... establishes [1] which employers can sponsor a simple cafeteria plan; [2] which employees must be eligible under a simple cafeteria plan; and [3] what contributions must be provided under a simple cafeteria plan[.]" (Fraser Trebilcock)
FSA Eligible Expenses and Other Important Information
"If you have a health FSA, it's important to know which products and services are FSA-eligible. The following lists identify most FSA eligible expenses and non-eligible expenses according to the IRS." (DataPath)
Interaction of Health FSAs and Health Savings Accounts (PDF)
"This article explains how Health FSAs and HSAs work together and provides answers to some common questions posed by employers with respect to the complex interaction between these two consumer-driven benefit designs." (EPIC)
IRS Reduces 2018 Limits for HSAs, Adoption Assistance Programs
"Using the chained CPI also will lower the threshold for the so-called Cadillac tax ... the cap on salary reduction contributions to health flexible spending accounts (health FSAs) and transit benefits. However, Rev. Proc. 2018-18 does not address those limits." (Willis Towers Watson)
[Official Guidance] Text of IRS Publication 969: Health Savings Accounts and Other Tax-Favored Health Plans, for Use in Preparing 2017 Returns (PDF)
22 pages. "This publication explains the following programs. [1] Health Savings Accounts (HSAs). [2] Medical Savings Accounts (Archer MSAs and Medicare Advantage MSAs). [3] Health Flexible Spending Arrangements (FSAs). [4] Health Reimbursement Arrangements (HRAs)." (Internal Revenue Service [IRS])
Back to the Future: Making Sense of the Election Timing Rules for Cafeteria Plans
"[E]lections based on these events can be made on a retroactive basis: birth, adoption, placement for adoption of a child.... Correcting elections based on mistakes of fact has become a standard practice.... You can allow the election to take effect retroactively and allow employees to pay for the retroactive period on a post-tax basis.... An employer can simply waive payment for the retroactive period.... An employer can encourage employees to make anticipatory (a.k.a. springing) elections.... Employers have some flexibility when it comes to annual open enrollment." (HR Daily Advisor)
DOL Announces April 1, 2018 Applicability Date for Disability Benefit Claims Procedures
"[It] is imperative for employers to work with their insurance carriers, third party administrators, and attorneys to ensure that all underlying disability plans/benefits and associated documentation (including any ERISA wrap plans, Code section 125 cafeteria plans, and claims denial forms) are reviewed and updated to ensure legal compliance with the requirements for claims filings beginning after April 1, 2018." (Fraser Trebilcock)
Post-Open Enrollment Checkup: Tips to Avoid Headaches Later
"[1] Unconfirmed elections.... [2] HDHP enrollment with FSA.... [3] Stakeholder audits ... [4] Child support enrollments ... [5] Elections by employees with previous benefits issues.... [6] Elections by new hires during open enrollment.... [7] Missing life insurance beneficiaries ... [8] Family enrollment for one line of coverage but not others ... [9] DCAP enrollment without a dependent enrolled." (Cory Jorbin, HUB International, via Employee Benefit Adviser)
Tax Reform Bills as Passed: Issues of Concern (PDF)
7-page summary comparing fringe benefit provisions of current law with proposed and passed versions of House and Senate bills. (Employers Council on Flexible Compensation [ECFC])
New Tax Reform Bill: Major Changes to Executive Compensation Lead Impact on Benefits and Compensation Practices (PDF)
9 pages. "Employers that have used nonqualified deferred compensation plans to attract and retain highly compensated employees ... would need to consider alternatives to achieve their goals ... With the possible exception of incentive stock options, there would appear to be no reason for employers to grant stock options or stock appreciation rights.... [R]ule changes would ease the ability of employees to take hardship withdrawals and would reduce some of the complexity in administering hardship withdrawals.... As a taxable contribution, [Dependent Care FSAs] would be effectively eliminated as they would have no value to employees.... The Tax Bill does not eliminate Health Care Flexible Spending Accounts." (Smith, Gambrell & Russell, LLP)
Get on Top of Nondiscrimination Testing
"While there are different schools of thought on when to test your cafeteria plans, the bottom line is the IRS requires that your plans have passed all testing by the last day of the plan year. Many employers wait until final quarter to perform their initial testing -- so if you haven't done so already, now is the time." (Frenkel Benefits)
Can Employees Pay for Cord Blood Storage with an HRA, FSA or HSA?
"[If] the storage is merely precautionary, then the storage wouldn't be a qualified medical expense. If there's a current need (for example, the baby or a sibling or parent is actually sick and could benefit from the cord blood in the short term) then there's an argument to count the cord blood storage as a qualified medical expense and allow reimbursement of the costs through an HRA, FSA or HSA." (Mintz Levin)
How to Educate Employees During Open Enrollment (PDF)
"[1] Communicate contribution limits.... [2] Communicate plan extensions and deadlines.... [3] Explain how to track expenses.... [4] Teach them about eligible expenses.... [5] Reduce paperwork with an FSA or HSA debit card.... [6] Anticipate common questions.... [7] Explain investment opportunities." (FSA Store)
[Discussion] Handling a Section 125 Plan During a Corporate Merger
"Let's say you have two non-profit corporations, only one of whom sponsors a cafeteria plan. The two corporations merge to form a new corporation, with a new Employer Identification Number. They do this mid-year. In the qualified plan world, there is certain guidance for merger and acquisition situations, but I haven't seen anything on this for cafeteria plans. Anyone have any experience with this, or know of any guidance? If not, opinions on what is normally (or should be) done?" (BenefitsLink Message Boards)
Is Your Cafeteria Plan Document Full of Plot Holes?
"The ERISA plan document describes the legal requirements for the ERISA plan; very often, it is a wrap document that wraps all ERISA benefits ... The cafeteria plan document ... summarizes the qualified benefits (for example, medical, dental, vision, health FSA, and dependent care FSA) that an employer allows employees to pay for on a pretax basis through salary reductions.... The 2007 proposed cafeteria plan regulations and other guidance provide several content requirements." (HR Daily Advisor)
[Opinion] ECFC Comment Letter to HHS on ACA Regulatory Simplification (PDF)
"We urge the Department to take this opportunity to review the excepted benefits regulation s and eliminate the so-called group health plan 'footprint' requirement so that health FSAs are allowable for employees even if there is no group health plan coverage offered to them through an employer (either because the employer does not offer group health coverage, or does not offer group health coverage to that particular class of employees)." (Employers Council on Flexible Compensation [ECFC])
Here We Go Again: The Senate's Health Reform Bill
"The Senate bill proposes to remove the dollar limit on health flexible spending account contributions by employees effective after December 31, 2017. Currently many employers are preparing for annual enrollment for the next calendar year and may want to address this limit if it is made unlimited rather than having an unlimited amount. The Senate bill also proposes to make over the counter medical expenses reimbursable under health savings accounts (HSAs), health flexible spending accounts (HFSAs) and under health reimbursement accounts (HRAs) effective after December 31, 2016." (Winstead PC)
That Section 125 Cafeteria Plan Needs a Second Look
"An increase in [DOL] audits warrants a much closer look at Section 125 Cafeteria Plans to ensure compliance and proper administration.... [1] Understand which health & welfare benefits should be pre-taxed ... [2] Test for nondiscrimination early rather than later ... [3] [D]ependent domestic partners prompt tax confusion." (Corporate Synergies)
What is a Limited Purpose FSA, and How Can Account Holders Use It?
"A limited purpose FSA (LPFSA) is a healthcare spending account that can only be used for eligible vision and dental expenses. Unlike a healthcare FSA, however, an LPFSA can be held at the same time as [an HSA]. When coordinated with an HSA, the LPFSA can further reduce your taxes while allowing you to allocate HSA funds to other purposes -- including retirement." (DataPath)
Cash Allowances for Employees to Select from Benefits Suite?
"Generally, if an employer wants to pay its employees a cash allowance that is earmarked for certain benefits, the arrangement has to qualify under one of the plans the IRS has established (e.g. HRA, FSA, HSA, cafeteria plan).... [T]he cafeteria plan rules were set up to accommodate a 'bucket' approach, but employers must comply with the IRS's requirements when setting up such a plan. The money in a full flex plan, that allows employees to choose and trade off among different benefits, can come from employer or employee contributions." (HR Daily Advisor)
[Opinion] U.S. Chamber of Commerce Statement on Cafeteria Plans, for House Subcommittee on Economic Growth, Tax and Capital Access
"[W]hen it comes to cafeteria plans, small business owners are at a significant disadvantage and, therefore, it discourages them from implementing cafeteria plans for their employees. Consequently, we urge Congress to allow small business owners to participate in cafeteria plans and, thereby, encourage the expanded implementation of cafeteria plans by small businesses." (U.S. Chamber of Commerce)
[Guidance Overview] IRS Clarifies Rules for Disposal of Cafeteria Plan Forfeitures upon Discontinuance of Business Operations
"In Information Letter 2016-0077, the IRS responds to a taxpayer's inquiry by confirming that the unused funds will not revert to the U.S. Treasury but are instead disposed of in accordance with the plan document." (The Wagner Law Group)
FSA Reimbursement: Nine Qualified Expenses You May Not Know About
"Guide dogs/service animals.... Braille reading material.... Auto adaptation expenses.... Television closed captioning.... Special telephone equipment.... Wigs ... Smoking cessation programs.... Lead-based paint removal.... Transportation." (DataPath)
IRS Information Letter Addresses Cafeteria Plan Forfeitures
"The letter responds to a question about whether unused funds in a cafeteria plan are paid to the U.S. Treasury when the employer ceases operations and the plan terminates ... [T]he disposition of unused funds when a cafeteria plan terminates depends on the plan document's provisions regarding plan termination and the facts and circumstances at the time.... [P]roposed regulations under Code Section 125 provide ... [that] forfeitures may be used to defray plan expenses, allocated among participants on a reasonable and uniform basis (but not based on claims experience), or retained by the employer." (Thomson Reuters / EBIA)
Are Your 'Voluntary' Benefit Plans Subject to ERISA?
"[T]here are four requirements of the voluntary plan safe harbor.... The benefit plan must be completely voluntary and employee paid, with no employer contributions made in any form for any employees.... [T]he employer must not endorse the plan. In simple terms if you endorse it, you own it (for purposes of ERISA) ... Finally, under the safe harbor, employers are prohibited from receiving any compensation that exceeds reasonable reimbursement for collecting and remitting premium payments." (Graydon Head & Ritchey LLP)
Healthcare Benefits in 2017: What Employers Have to Say
"2016 marked a milestone for healthcare consumerism, with the amount of organizations offering HDHPs jumping from 28% four years ago to 39% in last year's survey to 53% in this year's survey.... With this rise in HDHPs came an increase in the number of employees being enrolled in a Health Savings Account [HSA], Healthcare Reimbursement Arrangement [HRA], or Flexible Spending Account [FSA] ... 51.5% of respondents' employees are enrolled in one or more of these plans/arrangements." (Healthcare Trends Institute)
[Official Guidance] Text of IRS Publication 969: Health Savings Accounts and Other Tax-Favored Health Plans, for Use in Preparing 2016 Returns (PDF)
22 pages; Feb. 10, 2017. "An HSA may receive contributions from an eligible individual or any other person, including an employer or a family member, on behalf of an eligible individual.... An Archer MSA may receive contributions from an eligible individual and his or her employer, but not both in the same year... A Medicare Advantage MSA is an Archer MSA designated by Medicare to be used solely to pay the qualified medical expenses of the account holder who is enrolled in Medicare.... A health FSA may receive contributions from an eligible individual. Employers may also contribute.... An HRA must receive contributions from the employer only. Employees may not contribute." (Internal Revenue Service [IRS])
[Guidance Overview] Supplemental and Wellness Benefits Received May be Taxable
"Many employers offer their employees various 'supplemental benefits,' such as accident insurance, cancer insurance, or critical disease insurance. [In CCM 201703013, the IRS] ruled that, to the extent the employer pays the cost of these benefits (or the employee contribution is made 'pre-tax' through a cafeteria plan), the benefits received are taxable income to the employee." (Barrett McNagny LLP)
[Guidance Overview] IRS Issues Key Memorandum on Tax Treatment of Fixed Indemnity Health Plans
"According to [CCM 201703013], when a fixed indemnity health plan is employer-paid or purchased on a pre-tax basis, the usual tax free treatment of benefits paid under Internal Revenue Code section 105 is not available because the amount paid is not a reimbursement of medical care under Code section 213(d). Because the amount paid is not entitled to tax free treatment, any amounts paid under the fixed indemnity health plan are included in the employee's gross income and wages." (Morgan Lewis)
[Guidance Overview] Certain Small Employers Now May Offer Special Health Reimbursement Arrangements (PDF)
"QSEHRAs are only for 'small employers.' ... The employer cannot offer any other group health plan (such as medical, dental, vision and health flexible spending account plans).... Only the employer may fund the QSEHRA ... The employer must offer the QSEHRA to all eligible employees.... QSEHRAs must be offered on the same terms to all eligible employees.... A QSEHRA may reimburse an eligible employee for eligible medical expenses ... [Here are some other] QSEHRA considerations ... Small employer requirements [also apply]." (Fox Rothschild LLP)
[Official Guidance] Text of IRS Chief Counsel Memo 201703013: Tax Treatment of Benefits Paid by Fixed-Indemnity Health Plans (PDF)
"An employer may not exclude from an employee's gross income payments under an employer-provided fixed indemnity health plan if the value of the coverage was excluded from the employee's gross income and wages. An employer may not exclude from an employee's gross income payments under an employer-provided fixed indemnity health plan if the premiums for the fixed indemnity health plan were originally made by salary reduction through a Section 125 cafeteria plan." [Dec. 12, 2016; released Jan. 20, 2017] (Internal Revenue Service [IRS])
[Guidance Overview] Proposed Amendments to the Cafeteria Plan Provisions of the Puerto Rico Internal Revenue Code
"These proposed amendments are intended to reactivate in Puerto Rico cafeteria plans and make the adoption of these plans more attractive to Puerto Rico employers by expanding the list of 'qualified benefits' that they may be provided to Puerto Rico employees. However, as more fully explained [in this article], unless HR 453 is further amended to correct or eliminate certain deficiencies existing in Section 1032.06 of the 2011 PR Code, it will be very difficult to accomplish its intended goal." (McConnell Valdes)
It's That Time of Year: Use It or Lose It!
"For participants that have more than expected left in their FSA accounts at this time of year, it's not too late to remind them of some of the ways they can spend their money. But remember, not all FSAs are created equal -- the IRS has rules for what expenses are considered qualified depending on what type of FSA account(s) your employee has in place." (Frenkel Benefits)
HSA vs FSA: Which is Better?
"The Health Savings Account is like an IRA. You get to fund it with pre-tax dollars and it's typically administered by a financial institution. But unlike an IRA, you get to use the funds when you need them (not just in retirement) towards qualifying medical costs.... The Flexible Spending Account is a pre-tax dollars savings account your company administers where you're allowed to save up a year's worth of health care costs. Most people use it to pay for deductibles, co-pays, and household health care items." [A comparison chart is included.] (PTMoney)
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