Non Discrimination Testing

If you have a Flexible Spending Account (FSA)  IRS requires you to submit to non-discrimination testing once a year. The reason for non-discrimination testing is to prevent Key and highly compensated employees from taking advantage of the benefits that these plans provide for employers and employees alike. Such advantages consist of an increase in take home pay because the dollars spent are pre-tax and a 7.65%savings annually on employers matching FICA tax. 

If your company offers any form of a pre-tax welfare benefits plan such as group Medical, Dental, Vision or Life insurance (commonly referred to as a Premium Only Plan or POP), or a Flexible Spending Account (commonly referred to as an FSA or Cafeteria Plan), there is an IRS requirement to test your benefit plan for Non-discrimination on an annual basis. These tests are designed to make sure that the company is treating all of its employees relatively in regards to their benefits package and not giving employees who are higher paid or in management positions better benefits than their lower-paid or non-management employees.

While it is easy to overlook, nondiscrimination testing is an essential piece of a company’s compliance requirements. If an employer does not perform this annual testing or does not adequately follow the steps necessary for this testing, it could lead to some hefty consequences, including losing their ability to offer pre-tax welfare benefits to their employees. HR Service, Inc. helps relieve that stress by performing this annual test in a timely and affordable manner. No matter what type of benefits your company offers, HR Service, Inc. can ensure that your company is following the IRS testing requirements.

Types of Testing

Depending on what type of benefits your company offers, there are up to nine different tests that may need to be administered. Some tests are related to eligibility and availability of benefits, and some are based on how many employees have elected these benefits. Below is a list of tests that are required for each of the most common benefit packages companies offer: 105(h) Nondiscrimination Testing

Benefits under an employer-sponsored health plan generally are not taxable due to a special section of the Code, which excludes the value of those benefits from taxation. However, to ensure that employers do not improperly discriminate in favor of Highly Compensated Individuals (“HCIs”), Congress created nondiscrimination rules under Code Section 105(h). Currently, Code Section 105(h) only applies to self-funded health plans. A plan is generally treated as self-funded, even if the plan has stop-loss insurance. Also, the Affordable Care Act (“ACA”) provides that non-grandfathered, fully insured health plans will also be subject to rules “similar” to Code Section 105(h).

The 105(h) Test is designed to verify two things. First, that “enough” non-HCIs “benefit” under the health plan, in comparison to the number of HCIs who “benefit.” Second, to verify that the health plan’s benefits (e.g., deductible levels and covered benefits) do not favor HCIs.

Section 125 Premium only Plan (POP) Including HSAs 

Eligibility Test

Contributions and Benefits Test

Key Employee Concentration Test

Health FSAs and Dependent Care FSA (DCAP)

All tests under POP listed above Benefits Test (FSA only) Contribution and Benefits Test (DCAP only)

More – Than – 5% Owners Test (DCAP only)

55% Average Benefits Test (DCAP only)

Section 105(H) Self Insured Medical Plans and HRAs Eligibility Tests

70% Test

70/80% Test 

Benefits Test

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