comments
Your Take: The FSA Loophole
Email
 Print
|
What’s the FSA loophole you ask? First, an FSA is a Flexible Spending Account and it’s an account where you can deposit funds pre-tax, they’re deducted from your paycheck. You can only use those funds to pay for qualified medical expenses. A qualified medical expenses can be anything from co-pays to prescription and over the counter medications. The only downside to the FSA is that you must spend all the funds within the plan year or they expire. Allocate too much and you find yourself wasting it on over the counter drugs you hadn’t planned on buying; allocate too little and you lose out on some of the tax benefits.
There is a loophole in the system though. Once you determine your FSA balance for the year, you can begin immediately spending it and be reimbursed. The amount you allocate is deducted from your paycheck each month so you could conceivably spend your entire year’s allocation before you even pay for it. If you were to leave your job, you wouldn’t have to pay the negative balance, between the amount spent and how much you’ve contributed, on your FSA. That’s the FSA loophole.
I’ve heard stories of people paying for entire operations (think: $$$$$) through underfunded FSAs prior to quitting their job. The idea behind the program is that the shortfalls are balanced out by the expired overages, though I wonder if they’re designed to handle extreme cases.
What do you think of this loophole? Have you ever taken advantage of this loophole? Do you think it should be closed off? If so, how? Have you heard of people paying for thousands of dollars in elective operations this way?
(Photo: dan4th)
{ 44 comments, please add your thoughts now! }
Related Posts
 By Jim |
 Stumble It! Bookmark reddit.comTags: Flexible Spending Account Jul 25, 2008 | Read more in Your Take |
Like this article? Get all the latest articles sent to your email for free every day. Enter your email address and click "Subscribe." Your email will only be used for this daily subscription and you can unsubscribe anytime.
Yes, I have taken advantage of this loophole. I left a job in February, having already used up my entire $2500 on dental work for my wife and I. At that point I had only paid in $200. With my new job, I was able to sign up for an additional $2500 (although I fully funded it this time). So the loophole is not only that I got to keep that extra money, but I was able to double my coverage for that year.
This is not a loophole it is part of the design. The reason that it functions in this manner is that the IRS views medical FSA plans as insurance. I don’t know about you but I would hate to have my house destroyed in a natural disaster and wait until my insurance premium equaled the damage.
I’m ok with it. The employer certainly knows when they decide to offer FSA accounts this is a possibility.
Interestingly enough accounts for dependent care are pay as you go, ie you can only be reimbursed for what you have contributed to date.
I wouldn’t feel too bad for the employer; they’re the ones that get the unused plan contributions.
Personal note – I’ve used the ‘loophole’ to benefit myself ~ $600 when quitting a job.
Yeah, given that employers get to keep unused contributions, I can’t say that I feel too bad for them.
My husband used this loophole. We knew he was leaving a job in February so the previous November, we signed him up for the out of pocket costs for two crowns. He got this work done in the first week of January, it was paid for and he left the first week of February. We didn’t feel guilty at all!
My wife inadvertently used the loophole at her previous job to save about $350 on unfunded medical expenses when she quit her job.
We had a baby in early February and blew through our entire $2,000 fund by mid-April. No current plans to leave the job this year though.
The other oddity we had happen this year was our FSA plan (Healthworks) sending us reimbursement checks for money that was eventually covered by our insurance provider. This was part of the reason we blew through the $2000 so fast. We made about 6 phone calls to make sure it was okay to cash the checks since it didn’t feel like our money but everyone told us it was fine. We likely would have still used the entire $2000 throughout the year but it’s not to know that we won’t have left over money.
Now we wish we had upped the fund to $3000 or $4000 for the year and gotten even more tax-free savings.
Please note this is true only of health FSAs. Dependent care FSAs are different, in that they require that you have money in the account (i.e., taken from your paycheck) before you get reimbursed. So, you couldn’t, say, pay for a year’s worth of daycare in advance and then quit your job.
I just started working for an employer and signed up for the FSA. I plan to contribute just enough money to pay for my estimated co-pays for me and my wife with a little wiggle room just in case, If i think I won’t use use that wiggle room in time, i’ll just get my teeth cleaned or something.-Good times
As a Senior Human Resources Manager, it’s people like the one’s above who think “oh, who cares about the big corporation, I’m going to get mine” who cost honest people in the end.
I work for a non-profit retirement community and we use the unused money to help defray health care costs for the next year. As a result we haven’t had to raise the employee portion of insurance premiums for the past 4 years (individuals in our HMO plan are covered free of charge).
I’m not saying this because we deserve thanks for doing this, but for companies whose employees take advantage of the program (Amy’s husband, Peter, Abegray) and cause the employer to withdraw this option, it’s the honest employees who get hurt.
Fivecentnickel, it’s a shame that you appear not to have the ethics (or intelligence to think things through) that I find in the articles on Blueprint for Financial Prosperity.
I don’t think the loophole can be closed however. The majority of people are honest and use the FSA as a valuable tool to help defray medical costs not covered by insurance.
Just my two cents as an opposing position from the management side of things.
Uh, excuse me. I didn’t take advantage of anything, other than a loophole not of my doing. I left my job in February for totally unrelated reasons, and the $2500 windfall was a total surprise. I even called the IRS to check on the rules to make sure that I wouldn’t have to pay taxes on it.
If you think the law as it exists is a problem, then lobby your congressman. There is nothing wrong with taking advantage of legal loopholes. I did nothing illegal or dishonest.
And you talk about honest people who use the money to defray medical costs not covered by insurance. What do you think I, and all the other people you mentioned, did? The only way to get the money is to submit receipts for legitimate medical expenses. That’s exactly what I did.
You also don’t seem to mind that the ‘unused’ money that you refer to came from hard-working people who apparently didn’t have the medical expenses that they thought they would. Why don’t you return the money to the people it belongs to? Oh right, because the law allows you to keep it. Who’s being dishonest now?
Wow, I have to comment that I was not aware of this loophole. My employer offers FSA and I always assumed that you were required to reimburse the employer/insurance co if you left before the year was up.
I took advantage of this at my previous job. I had an extra $200 that I used for prescription polarized sunglasses before I left the job in June.
Kevin, how is it ethical for an employer (non-profit or otherwise) to keep someone’s money and then use it to defray healthcare premiums the next year? They’re taking funds from an individual and effectively spreading them around to everyone else. Fair? I think not.
While the “use it or lose it” clause is an IRS stipulation, there is nothing stopping a company from giving the money back to their employees in the form of a bonus during the next year. Since the money was taken out of their checks tax free, the fact that it would go back as a taxable bonus is a non-issue. How many companies are you aware of that do this? None that I know of. There might be some rare instances, but it’s far from commonplace.
Before you go around questioning someone’s ethics and/or intelligence, perhaps *you* should think things through a bit more carefully. While using the funds to defray insurance expenses is more admirable than pocketing it as profit, it’s still not the right thing to do.
I’m sorry, Nickel, perhaps it’s not so much lack of intelligence, as lack of research. Although that seems equally as egregious for someone claiming to run a finance website.
“By law employers cannot return money to individuals who fail to exhaust their accounts, lest FSAs start to look like tax shelters. But companies can give the money back pro rata to everyone in the plan. Almost none do, choosing instead to offset plan administrative costs — an outrage that Congress finally noticed last year. ”
Time Magazine – Sunday, Oct. 13, 2002
I apologize for not quoting the IRS law directly but I’m not digging through their website to find it.
Please note that companies are not just “pocketing the profit” as you say. They are using them to offset plan administrative costs to help them to continue to offer such plans.
And Peter, to answer your question, it is still the people who are fully aware that their company is funding their FSA up front and steal from that company, who are being dishonest.
Try to justify it however you want. Chances are if you have to question whether or not you should feel guilty…you probably should.
“And Peter, to answer your question, it is still the people who are fully aware that their company is funding their FSA up front and steal from that company, who are being dishonest.”
I’m still not following you. Please clarify which actions you think I took which were dishonest? Do you think that someone with a legitimate medical expense in January should not file a claim if the amount of the claim is higher than what he has contributed so far?
I am not questioning whether or not I should feel guilty. You are the only one doing that.
@Peter: Re-read my response that you quoted in your post. I’m didn’t say you should feel guilty. I’m saying that if you know you plan to leave an employer, max out your FSA, utilize it all and then leave the employer without reimbursing them, they you are dishonest. Freudian slip, maybe?
After reviewing your initial post, I can’t assume that this is what you did, so I apologize and withdraw you from inclusion with Amy’s husband, who is clearly dishonest.
I think I’ve made my opinion sufficiently clear on this topic. The last thing that I will say is that there are exceptions in every case. Some people can’t avoid taking advantage of this situation. But if you are knowingly taking advantage of a system that is provided primarily to help people, that, in my opinion, is dishonest.
Umm, Kevin… Using the funds to offset administrative costs is equivalent to pocketing the profit. Both have the exact same effect on the bottom line. Employers offer these programs as a benefit, but then the majority of them (according to your own source) take money from a subset of employees and use it to offset their costs. If this was such a magnanimous gesture, why would Congress be outraged?
Bottom line: I’m not saying that it’s right for people to benefit from this loophole. Rather, it’s a poorly constructed system. The benefit derived by employees pocketing an excess in claims before departing is no worse than an employer pocketing the overage from employees. They are both perfectly legal byproducts of an imperfect system.
As an aside, I’ve always felt that the system should be set up such that your limit for next year is the legal max minus whatever you have left at the end of the year (which you are allowed to carry over). That way nobody gets to abuse the tax benefits by piling up huge sums in an FSA account, and at the same time nobody gets stung by things that are out of their control (such as a couple that sets aside money for a child birth and all of the attendant pediatric care and then has a miscarriage).
There are at least two downsides that I can see to this idea. First, it might be difficult from an administrative standpoint, especially since open enrollment typically occurs before the end of the year, so you don’t know exactly how much money will be carried over. Second, it would expose employers to a potentially major liability — the loophole that Jim mentioned with no overage to cover the difference. This could, however, be remedied by allowing employers to go after former employees for the difference.
Given your position in Human Resources, perhaps you could comment on this idea (preferably without the personal attacks) or suggest an alternative fix.
I’m a bit confused. How is it unethical for me to follow the rules that both parties agreed to and understand? The employer keeps my contribution if I don’t use it and I keep excess if I leave the employer. Seems like a good tradeoff.
My response to whoever thinks we are dishonest is: if a person is aware of and utilizes a well known and legal (key word here!) loophole, that’s not dishonest. That’s being a smart consumer.
Judge Learned Hand once said : “Anyone may arrange his affairs so that his taxes shall be as low as possible; he is not bound to choose that pattern which best pays the treasury. There is not even a patriotic duty to increase one’s taxes. Over and over again the Courts have said that there is nothing sinister in so arranging affairs as to keep taxes as low as possible. Everyone does it, rich and poor alike and all do right, for nobody owes any public duty to pay more than the law demands.”
The “loophole” worked against me. When I was laid off last month without notice, my employer got to keep $1200 of my own money I had not yet used. I had contributed the maximum amount ($3000) to pay for an upcoming surgery and lost pretty much all I had put in (I am in the middle of the lengthy appeal process now).
Nathan, if this happened less than 60 days ago, you are entitled to continue the benefits through Cobra. You would continue paying the monthly FSA contribution you’ve been making, plus a 2% surcharge. You can then continue to draw funds, including the additional contributions you’ve made since you were laid off. Just keep doing this until the end of the year and you should be able to use the entire $3000
Peter, thanks for the response. If you’re still tracking this post, maybe you could clarify this for me. Are you saying I can continue just the FSA benefits or would I have to get the full insurance coverage too? In that case, it wouldn’t really be worth it to me.
I’m no expert, but I believe there is a way to just continue the FSA contributions without getting full health benefits. Of course, this might vary from plan to plan.
Thanks I’ll look into it.
I am in a similar situation like Nathan. I had a balance in my FSA, almost 3K. I didn’t know I could exploit this loophole that is being discussed here so I waited until I thought the FSA balance was high enough to get some needed dental work (veneer, orthodontal). Looking back, I should have just gotten the dental work in Jan.
Come July, I found a better job. The new company made me an offer I couldn’t refuse. So I took it and quit my old company (I didn’t get laid off like Nathan did).
Now I find out that I cannot access my FSA balance unless I pay for Cobra thru my former employer even though I have medical coverage with my new employer. The Cobra is $450/month, not cheap. While on Cobra, I have contribute to the FSA, with after-tax payments, if I want to still use my FSA balance.
Does anyone know the answers to the following questions? I’ve consulted with my tax account, my HR person at my old company, the HR person at my new company, the Cobra adminstrator, and the FSA administrators. They all gave me the runaround and referred me to somebody else in this subgroup.
Q1) Can I just pay for Cobra for one month, then spend the balance of my FSA and then quit Cobra and the FSA? Is there anything that requires me to continue in the FSA plan for the whole plan year? My whole plan year is from Jan. to Dec. 2008. That means $1800 in Cobra payments for me.
Q2) My total contribute so far is about $3K. I expensed some prescription and a dental visit from FSA so I did use a little of it. Can I expense the full $5K even though I haven’t contributed all of it yet, then just quit the Cobra/FSA plan and leave a negative balance on my FSA?
The loophole being discussed here is starting an FSA, using up all the coverage, an then quitting, which leaves a negative balance on the FSA that the employee need not pay.
My situation is different. I want to leave a negative balance on the FSA while it is being administered thru Cobra. I’m not sure if this is possible.
I might have to talk to the IRS about this as a last resort.
If anyone has answers, please reply. I’m stumped here.
Again, I’m no expert, but I think the answer to your question is yes. You do *not* need not pay the full premium for Cobra health insurance. You only need to enroll in FSA Cobra and continue to make your FSA contribution to your old employer (plus a 2% administrative fee). As long as you are making your monthly payment and are enrolled in the FSA plan, it makes no difference if you are employed by that company or not. You can submit FSA claims up to the full amount of your annual contribution.
I have to enroll for Cobra and FSA Cobra, right?
I don’t think I can just sign up for FSA Cobra without signing up for Cobra. I think it’s a package deal.
I believe that is dependent on your employer. It is not an IRS rule. They employer is allowed to offer just FSA Cobra without the full health insurance package, but they do not have to.
I need some help on this subject ASAP.
I pledged $2,000 for this years’ FSA, while working for the City.
In January, I had an emergency room expense, using $590 from my FSA.
I got laid off on February 14, having only put $260 into the FSA via salary deductions.
I didn’t hear anything about my negative FSA balance, upon leaving.
I was unemployed for 6 months and get hired back by the City. I pledged another $250 for the remainder of the year.
I’ve been there 2 months now and I got a letter yesterday telling me I had a negative balance and they were going to garnish my checks for the remainder of the year to recoup there loss. End of story, no discussion.
I’m questioning whether they can take it upon themselves to just “garnish” my check without my authorization and whether they are even able to expect reimbursement of these funds.
Please help me..
Can I pay my COBRA premiums with the balance of my FSA account
thanks
Rob
Rob,
No you cannot. I had the same question and the Cobra people said that I could not pay COBRA premiums with my FSA balance.
I have to agree with posters like Peter, CK, Amy and FiveNickel.com. I found out about the “loophole” simply by calling my benefits hot line and asking questions. Our conversation and a bit of critical thinking led me to ask the right questions and they verified this situation.
Many people feel this is an ethical issues but I don’t see it like that at all.
I plan to take 100% advantage of this plan feature next year. I do not feel guilty, I feel educated.
I have also learned from this Blog that it is always SAFEST TO USE YOUR MONEY TOWARDS THE BEGINNING OF THE YEAR. Especially when the job market is down and layoffs are common. Everyone reading this blog should take note of that! Let other peoples misfortune be a lesson learned to us all. (Sorry to hear about that too! I dont agree with use-it-or-lose-it but that is a different issue)
Kevin, I am really trying to see your side of it because I am big on ethics…but like I said, I don’t feel at all as if this is an ethical issue, and I do not feel bad about creating my legal exit strategy that was verified legit by my benefits provider.
Thank you all for the discussion. Keep it coming!
Just a follow-up to my situation.
I had a balance of $3K in my FSA. I quit in July and found out that I had to spend the balance by my last date at my former job. I could continue it by paying for the FSA monthly payments thru Cobra.
So I paid $450 for a month for the FSA payments.
But I spent my balance and more. I got orthodontal work that totalled $4700. My max FSA contribution per year was $5K. So I got an extra $1250 in medical FSA spending ( $4700 – $3K – $450 ).
Nice loophole!
I read several articles about this loophole. I never intended to take advantage of it, but circumstances happened to put me in a positin to leave a job after three months of the year and getting reimbursed for my dental work.
However, my employer took the remaining negative balance of my FSA out of my next to last paycheck.
What right do they have to do that? How do I get it back?
I might be wrong E McCord but I thought the employer could not take a negative balance out of your paycheck.
What if the situation was reversed? What if you had a surplus balance in your FSA and you left your job? Would you be entitled to get that surplus refunded to you? I doubt it because this is not allowed by rules governing FSA.
It might be too late I would follow up on this with a lawyer
I just quit my job on 15th of Sept to start a new job. I contributed almost $1000.00 into my FSA account for my wife and myself. After leaving the job, my wife went to the Doctors, and I tried to submit the co-pay. The system would not accept anything after the last day of my employment with my old company. I had close to $500 left remaining in the account. After speaking to the Pay Checks, the customer rep. indicated how much ever money was left in the account will be given back to my old company (who were cheap). Now this is a serious issue, as this loop hole is never told by any HR team. Now I definitely will be “Miss using” the new FSA account. To put it simple I want my hard earned money back, and for me $500 is hard to come by.
This is weird.
Unless your company cancels your health insurance right on the last day of your employment, you should still have medical insurance from your old employer until 9/30.
Since that is the case, you should be able to access the remaining $500 of your FSA.
You should take this up with your CPA or a lawyer.
I found out about the loophole by accident. I set my funding to 2400 (200/month) and was laid off in April. I effectively ended the 2010 year with a negative $1500 balance. It just happened, it was not my intent. People end up on either side of the fence: They use up most or all of their allocation before full funding and get terminated because they have early uses of the funds, and then there are those that get terninated toward the end of the year, have a large balance because most of their expenses are at the end of the year, and they loose it all. Use it or lose it is a two way street, overfunding and the employee loses it and forfiets, underfund, and the employtee gains because it is a reverse forfiet. I don’t feel bad, and the only guilt I have have is that I didn’t make it the full $5K. The business knows the risks of offering this type of account, and I read that on average 14% is forfieted and this is a major windwall for the business. So who cares if the business loses sometimes, that is a business risk, and will usually hurt the business when they do large layoffs in the early part of the year.
Can someone direct me to the IRS ruling that states that an employer cannot withhold any money that was paid out over and above the FSA Medical contributions at the time an employee would leave the company. For instance, an employee signs up to have $100 per pay for 26 pays withheld. The first of February, they turn a bill in for $2600 but have only contributed $200 so far. They leave the company on March 1st, so you have only been able to withhold $400 total of the $2600 that you have withheld. From what I am reading above, the employee leaves the company with $2200 in their pocket and the employer cannot withhold any of that out of the last paycheck. I can’t find anything that tells me that is an IRS ruling. Any help would be greatly appreciated.
It is steeling pure and simple. Our CEO did it in his last week! We are a small non profit so we will eat the loss. He was also the one who put the limit on there. You chose your limit, if you chose to put too much a way that is a liability you take when you lose it.
If you think that is stealing, then what is it called if the roles were reversed and your small non profit was pocketing the extra money not used by the employee?