Benefits Law Update
        Practical advice from Verrill attorneys

        IRS Modifies Health FSA Rules to Permit Carryover of up to $500

        November 4, 2013

        Late last week the IRS released Notice 2013-71, modifying the health flexible spending account (“health FSA”) use-it-or-lose-it rule to allow participants to carry over up to $500 in unused health FSA funds. Although not unexpected (the Service has hinted at such a change a number of times over the past year), this new feature is welcome relief to participants and plan sponsors. Plan sponsors may adopt this optional amendment effective as early as the 2013 plan year.

        Notice 2013-71 provides that a plan sponsor may, at its option, allow a participant to carry over up to $500 of unused health FSA funds to the immediately following plan year. Unused health FSA funds are those remaining at the end of the plan’s run-out period (if any), and do not count against the limit on participant salary reduction contributions. Accordingly, a participant could elect to contribute the full $2,500 (as indexed in future years) permitted by law and also carryover as much as $500.

        An employer wishing to adopt this new carryover feature must amend its health FSA plan to provide for the carryover and must eliminate any grace period if the plan has one. The use of a carryover option does not, however, limit an employer’s ability to allow for a claims run-out period. (A grace period is a period of up to two and one-half months following the end of a plan year during which a participant may use amounts remaining from the prior year to cover expenses incurred during the current plan year, while a claims run-out period provides participants with some amount of time following the end of a plan year to submit claims for expenses incurred during that prior plan year.) Thus, for a plan allowing both the new carryover option and a claims run-out period, a participant’s unused health FSA funds from the prior plan year may be used to reimburse expenses incurred both (a) during the prior plan year and submitted during the plan’s run-out period, and (b) during the current plan year. Of course, health FSA funds that accrue during the current plan year may be used only to reimburse expenses incurred during the current plan year, except to the extent that the current plan year funds may later be carried over into the following plan year. For ease of administration, a plan may, but is not required to, use current year contributions to reimburse expenses prior to tapping into health FSA funds carried over from the prior year.

        In general, a plan sponsor wishing to amend its plan to allow for carryover must adopt the amendment on or before the last day of the plan year from which amounts may be carried over, but for the 2013 plan year a plan sponsor wishing to allow carryover of 2013 balances into the 2014 plan year has until the last day of the 2014 plan year to adopt the amendment.

        An employer considering whether to adopt the new carryover feature for the 2013 plan year should assess whether there remains sufficient time to properly inform participants of the new feature and the elimination of any grace period prior to the completion of open enrollment elections. If the employer is confident that employees would receive communications regarding the change in time to make their elections and plan for the elimination of any grace period, then the employer could amend its plan to allow for the carryover of 2013 balances. If, however, there is doubt about whether employees would receive notice in time to make elections and deal with the elimination of the grace period, then it may be better to wait for the 2014 plan year to allow for the carryover.

        Benefits Law Update

        Verrill’s Benefits Law Update blog delivers timely insights and practical guidance on the ever-evolving landscape of employee benefits and executive compensation. Our blog provides up-to-date analysis and commentary on a wide range of topics, including timely updates on developments in law affecting employee benefit plans and executive compensation arrangements.

        Subscribe

        Looking for more great content? Subscribe for regular legal updates and information delivered right to your inbox.

        Firm Highlights

        Alerts and Newsletters

        SAFEs and Preferred Stock – Key Deal Terms Every Founder Should Know

        SAFEs Before negotiating a term sheet for preferred stock, many early-stage companies, particularly at the seed stage, first raise capital through...
        Press Releases

        Verrill Welcomes Business Restructuring and Insolvency Attorney Nimra Tariq

        BOSTON, Massachusetts – Verrill is pleased to announce that Nimra Tariq has joined the firm’s Business Restructuring and Insolvency Group as an...
        Press Releases

        Verrill Welcomes Construction Attorney Cassie Dufon

        PORTLAND, Maine – Verrill is pleased to welcome Cassie Dufon to the firm’s Construction Group as an Associate, resident in the firm’s Portland...
        Press Releases

        Verrill’s Wide-Ranging Private Wealth Law Practice Recognized in 2026 Chambers and Partners High Net Worth Guide

        BANGOR and PORTLAND, Maine and BOSTON, Mass. – Verrill attorneys Kenneth P. Brier, Anya F. Endsley, Kurt E. Klebe, Mary McQuillen, Nathaniel S....
        Blog

        Update on Status of Maine Packaging EPR

        In December 2024, Verrill published a blog post, Unwrapping Maine's Gift to the Environment: A New Packaging Stewardship Program Set to Launch in...
        Blog

        Voluntary Benefits Move into the ERISA Litigation Crosshairs

        Employee-paid accident, critical-illness, cancer, and hospital-indemnity insurance have long occupied a quiet corner of employee benefit plan...
        Alerts and Newsletters

        Maine’s New Employer Surveillance Law, 26 M.R.S. § 620-A

        Effective July 14, 2026 Maine employers that electronically monitor employees must comply with a new disclosure law effective July 14, 2026. Under...
        Press Releases

        Verrill Recognized by U.S. News as One of the Best Law Firms to Work for in 2026

        BOSTON, Mass., BANGOR and PORTLAND, Maine, GREENWICH and WESTPORT, Conn., – Verrill has been featured on U.S. News’ 2026 Best Companies to Work...
        Blog

        SECURE 2.0 Roth Catch-Up Rules and the 403(b) 15-Year Catch-Up: What Tax-Exempt Employers Need to Know

        Tax-exempt employers whose 403(b) plans offer catch-up contributions for participants age 50 and above should be well on their way to compliance with...
        Media Mentions

        Robert Keach Quoted in Law360 on SIMAD Summer Camp Bankruptcy Sale

        Verrill attorney Robert Keach was recently quoted in a Law360 article examining the Chapter 11 bankruptcy proceedings involving SIMAD Holdings and...
        Media Mentions

        Chris Tsouros Featured in Law360’s Coverage of Sports Real Estate Deals

        Verrill Partner Chris Tsouros was recently recognized in a Law360 article highlighting law firms involved in significant sports real estate projects...
        Blog

        What Maine’s New Employer Surveillance Law Means for Maine Employers

        Maine employers who monitor their workforce, whether through productivity software, GPS, call recording, or cameras, have a new compliance obligation...