Benefits Law Update
        Practical advice from Verrill attorneys

        Working with the New Annual Limit on FSA Contributions

        by Kimberly S. Couch on November 27, 2012

        The Patient Protection and Affordable Care Act modified the rules relating to cafeteria plans to impose a new $2,500 annual limit on the amount that an employee may elect to contribute to a health flexible spending account (“health FSA”), effective January 1, 2013. The modification came in the form of new Section 125(i) of the Internal Revenue Code, and the IRS recently issued Notice 2012-40 to explain the new rules. Many of our clients have asked us to explain how the new $2,500 limit will work.

        Annual Limit Applies on a Per Employee Basis

        Under Code Section 125(i), the new limit applies on a plan year basis and on a per employee basis. If two spouses (or a parent and child) are both employed by a single employer (“Employer X”) or a member of Employer X’s controlled group of businesses, then each spouse (or child, if applicable) may contribute the full $2,500 to the health FSA sponsored by Employer X or another member of the controlled group. The $2,500 limit, however, applies no matter how many dependents for whom the employee seeks reimbursement under the health FSA. Thus, the $2,500 limit applies to an employee with single or family health coverage.

        If an employee participates in more than one cafeteria plan in a controlled group of businesses with Employer X, then the employee’s total contributions to one or more health FSAs sponsored by controlled group members may not exceed $2,500. In contrast, if the employee is employed part-time by Employer X and part time by another employer who is not a member of Employer X’s controlled group, then the employee may defer the full $2,500 to each employer’s health FSA.

        Note that the dollar limit will be indexed for cost-of-living adjustments for plan years beginning after December 31, 2013.

        Applies Only to Salary Reduction Contributions to a Health FSA

        The new $2,500 annual limit applies only to employee salary reduction contributions. It does not apply to employer non-elective contributions (i.e., flex credits). For example, if the employer contributes a $500 flex credit to each employee’s health FSA for the 2013 plan year, then each employee may still elect to make salary reduction contributions of $2,500 to a health FSA for that plan year. If, however, the employer provides flex credits that employees may elect to receive as cash or as taxable benefits, then those flex credits are treated as salary reduction contributions for purposes of the $2,500 limit.

        The new limit does not apply to other types of FSAs (adoption or dependent care FSAs), health savings accounts, or health reimbursement arrangements. In addition, the new limit does not apply to salary reduction contributions used to pay health insurance premiums (or the employee share of contributions under a self-insured employer-sponsored health plan).

        Application to Health FSAs with Grace Periods

        Some employers have adopted grace periods for their health FSAs that permit an employee to carryover unused salary reduction contributions to the health FSA to a subsequent plan year. The unused contributions that are carried over must be used within the grace period established by the employer under the health FSA not to exceed 2-1/2 months. IRS Notice 2012-40 provides that contributions for 2012 that are not used by the end of 2012 and are carried over into 2013 pursuant to an established grace period will not count against the $2,500 limit for the 2013 plan year.

        Plan Amendment Deadline

        Despite the imminent effective date of the new rules, an employer may adopt the required amendment to reflect the $2,500 limit at any time through the end of calendar year 2014.

        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.

        Key Contacts

        Subscribe

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

        Firm Highlights

        Published Works

        Four Verrill Attorneys Co-Author Massachusetts Trends and Developments Chapter for Chambers and Partners Child Relocation 2026 Guide

        Verrill attorneys Mary H. Schmidt, Rachel A. Deering, Hannah R. Zukoff, and Mariah G. Tappan co-authored the “Trends and Developments” chapter...
        Blog

        A New Protected Class in Maine: Holders of Final Protection Orders

        In the lead-up to Domestic Violence Awareness Month in October, employers may be taking a closer look at how their policies and practices respond to...
        Alerts and Newsletters

        Verrill Secures SJC Victory for Boston Legacy FC in White Stadium Litigation

        Verrill has secured a significant appellate victory for Boston Legacy FC in the litigation challenging the redevelopment of White Stadium in...
        Blog

        Hurry Up and Wait

        This is the third in a series of Verrill blog posts on Maine’s packaging extended producer responsibility (“EPR”) law[1]. In July we reported...
        Media Mentions

        Robert Keach Discusses First Brands Chapter 11 Case in Law360

        Verrill attorney Robert Keach was recently quoted in a Law360 article examining the rejection of First Brands Group's Chapter 11 plan and the...
        Media Mentions

        Cybersecurity and AI Governance: Scott Anderson Featured in Massachusetts Lawyers Weekly

        Verrill Managing Partner Scott Anderson was recently featured in Massachusetts Lawyers Weekly discussing how law firms can build attorney buy-in for...
        Blog

        Section 530A Account Update: ERISA Status of Trump Accounts

        The Department of Labor has issued important guidance addressing whether employer programs that permit contributions to Section 530A accounts (and...
        Press Releases

        97 Verrill Attorneys Recognized by Best Lawyers® 2027, Including Four Named Lawyers of the Year

        AUGUSTA, Maine, BANGOR, Maine, BOSTON, Mass., PORTLAND, Maine, and WESTPORT, Conn., (August 20, 2026) – Verrill is proud to announce that 97...
        Alerts and Newsletters

        SEC’s Proposed “Reg Crypto”: What Founders Need to Know

        Startup founders and emerging-growth companies have a number of options for raising capital under the federal securities laws, including Regulation D...
        Blog

        After 45 Years, the IRS Speaks on DCAP Nondiscrimination Testing – And It’s Good News

        Employers that provide a Dependent Care Assistance Program will be pleased to learn that for the first time in 45 years, the IRS has issued guidance...
        Media Mentions

        U.S. Courts Highlights Annabel Rodriguez’s Journey from Fellow to Mentor

        Verrill attorney Annabel Rodriguez was featured in a recent U.S. Courts article titled “From Fellows to Mentors: Alumni Share Lasting Lessons from...
        Media Mentions

        Robert Keach Discusses Bankruptcy Auction Strategy in Law360

        Verrill attorney Robert Keach spoke with Law360 article examining the complex bankruptcy auction process that resulted in the sale of 23 summer...