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Roger
Roger, Attorney
Category: Legal
Satisfied Customers: 26099
Experience:  Litigation Attorney
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my ex wife has a employer funded health savings account. I

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my ex wife has a employer funded health savings account. I have two kids and they are on her insurance. I pay for half of the insurance premium for my 2 kids and we split the medical and dental bills. The insurance plan has a $6000 deductible, therefore every time the kids go to the doctor's or dentist I pay half out of pocket and she pays half. She uses her employer funded humana access health savings account debit card. So if the doctor bill is $140 I pay $70 out of pocket and she uses the employer funded debit card and does not pay anything. Since I am paying half of the premium, shouldn't she use the debit card to pay the full amount? I appreciate your feedback.
Submitted: 1 year ago.
Category: Legal
Expert:  Roger replied 1 year ago.
Hi - my name is XXXXX XXXXX X'X a litigation attorney. Thanks for your question.

The resolution of this issue likely depends on whether or not the savings account is funded by the premium payments or some other source.

IF the savings account IS funded by premium payments, then logic would tell you that you should be entitled to the same benefits that the mother is because you're paying in the same money.

However, if the premiums aren't used to fund the health savings/debit account, then its' not likely that the current procedure will change. If your premium is funding this amount of money in this account, you likely have a claim for an equal share of the funds, but you would have to file a motion with the court for clarification on the order and ask the judge to find that you're entitled to the same benefits as she is.
Customer: replied 1 year ago.

How do I find out if it is funded by the premium payments? I know it is employee funded and my thought is that her employer is paying half of her medical bills. The deductible is very high so they probable use the money they save on the insurance to add to the debit card. I have to think that I am not the only person to have this question. Is there a way to see how a judge has ruled on this in the past?

Expert:  Roger replied 1 year ago.
Whether or not the account is funded by the premiums is going to be outlined in the policy agreement. Thus, you would have to obtain a policy of the agreement to find out how it is funded.

IF you find that the account is funded by the premium, then you can file a motion to modify the standing agreement and ask the judge to order the mother to use the account to cover the entire expense because of your 50/50 contribution to the account via your premiums.

I did a search on Lexis-Nexis and no case popped up, but the issue is really a matter of contract. Thus, whether or not you have standing to seek the account to cover the entire copay depends on how it's funded. Once you know that, you will know whether you can proceed or not.
Customer: replied 1 year ago.

Below is information that I found and copied and pasted. Could you please review and see if it answers the question of how it is funded?


 


YOUR COVERAGE (continued)
22
HEALTH SAVINGS ACCOUNT (HSA)
What is an HSA for which contributions can be made under this Plan?
An HSA is a personal savings account established with a Custodian or Trustee to be used primarily for reimbursement of “eligible medical expenses” you (the Account Beneficiary) and your eligible tax Dependents (as defined in Code Section 152, determined without regard to subsections (b)(1), (b)(2), and (d)(1)(B) thereof) have, as set forth in Code Section 223. The HSA is administered by the HSA Custodian or Trustee or its designee and the terms of the HSA are set forth in the Custodial or Trust Agreement. The HSA is not an employer sponsored employee benefit plan. The employer’s role with respect to the HSA is limited to making contributions to the HSA under this Plan (through non-elective employer contributions and/or pre-tax salary reductions elected by the Account Beneficiary). The fact that contributions to the HSA are offered under this Plan should not be construed as endorsement of the HSA by the employer. The employer has no authority or control over the funds deposited in the Account Beneficiary’s HSA. As such, the HSA identified in the RD is not a part of this Plan, and is not subject to the Employee Retirement Income Security Act of 1974 (ERISA).
Who is eligible for an HSA?
Only individuals who satisfy the following conditions are eligible for an HSA offered under this Plan:
(a) You are enrolled in a qualifying High Deductible Health Plan maintained by your employer and offered as a benefit plan option under this Plan;
(b) You have opened an HSA with the Custodian chosen by the employer. Although the Custodian may be chosen by the employer, the Account Beneficiary may rollover funds from the HSA offered under this Plan to another HSA at any time (subject to the terms of the Custodial Agreement);
(c) You are not covered (as a dependent or otherwise) under any other non-High Deductible Health Plan maintained by the employer that is determined by the employer to offer disqualifying health coverage (disqualifying health coverage means any coverage other than: (i) coverage for accidents, disability, dental care, vision care or long term care; (ii) insurance for workers’ compensation, property or tort liability; or (iii) insurance for specific diseases or illnesses, or which pays a fixed amount for each day of hospitalization);
(d) You have certified that you are otherwise eligible to participate in the HSA (e.g., you: i) cannot be claimed as a tax dependent; ii) are not enrolled in Medicare coverage; iii) have qualifying High Deductible Health Plan coverage; and iv) have no disqualifying coverage from any other source);
(e) You are not eligible for an HSA after you have enrolled in Medicare. If you had an HSA before you enrolled in Medicare, you can keep it. However, you cannot continue to make contributions to an HSA after you enroll in Medicare; and
(f) You are otherwise eligible for this Plan.
Who is an Account Beneficiary?
An Account Beneficiary is an eligible Participant who has properly enrolled in an HSA in accordance with the terms of the applicable Custodian Agreement.
UNDERSTANDING YOUR COVERAGE (continued)
23
Who is a Custodian or Trustee?
The Custodian or Trustee is the entity with whom the Account Beneficiary’s HSA is established (for purposes of this Plan, use of the term “Custodian” includes a reference to both Custodian and Trustee). The HSA is not sponsored by or maintained by the employer. The Custodian will provide each Account Beneficiary with a Custodial Agreement and other information that describes how to enroll in the HSA and your rights and obligations under the HSA. The employer may choose to restrict contributions made under this Plan to HSAs maintained by a particular Custodian; however, you will be permitted to rollover funds from the HSA offered under this Plan to another HSA of your choosing (in accordance with the terms of the Custodial Agreement).
What are the rules regarding contributions made to an HSA under the Plan?
Contributions made under this Plan may consist of both employee Salary Reduction Contributions made pursuant to a Salary Reduction Agreement and/or non-elective employer contributions, if any. Contributions made to the HSA under this Plan cannot exceed:
(a) The maximum annual contribution limit that applies to you. Your maximum annual HSA contribution is determined on a calendar year basis and may be adjusted for cost-of-living factors. For 2011, the maximum annual HSA contribution is $3,050 for self-only coverage or $6,150 for family coverage.
The maximum annual contribution generally is available only if you are eligible for an HSA for all 12 months during the calendar year. If you are eligible for only part of the year, your limit is prorated on a monthly basis. However, if you are eligible for an HSA on December 1 of a calendar year, you will be deemed to have been eligible for that entire calendar year. In order to take full advantage of this rule, you must maintain your HSA eligibility for the 13 months following December 1.
(b) Any other amount established by the employer and communicated to employees in separate HSA communications.
If age 55 or older and the Account Beneficiary properly certifies his or her age to the employer, the maximum contribution amount described above may be increased by the “additional annual contribution” amount (as set forth in Code Section 223), but only to the extent permitted as set forth in the separate written HSA material provided by the employer and/or the Custodian.
To the extent set forth in the Plan’s enrollment material or the HSA communication material, the employer may automatically withhold Salary Reduction Contributions from your compensation to contribute to an HSA unless the Account Beneficiary affirmatively indicates that he or she does not wish to contribute to the HSA with Salary Reduction Contributions. Salary Reduction Contributions will equal the maximum annual contribution amount set forth above divided by the number of pay periods remaining during the plan year. Non-elective employer contributions may be made at any time during the plan year in a lump sum amount or through periodic contributions (as determined in the sole discretion of the employer) and communicated in Plan enrollment materials. Elections to make salary reductions will be effective as set forth in the Plan except to the extent stated otherwise by the employer in the enrollment material.
UNDERSTANDING YOUR COVERAGE (continued)
24
Any Contributions (salary reductions and/or non-elective employer contributions) that are otherwise designated as an HSA contribution in accordance with the employer’s written HSA communication material may be delayed by the employer for a reasonable period of time until such time as your participation in the HSA is confirmed by the employer. If your participation in the HSA is not confirmed within a reasonable period of time, Salary Reduction Contributions that were delayed may be returned to you as taxable compensation except to the extent set forth in the employer’s written HSA material. Employer contributions (other than salary reductions) may be returned to the employer except as otherwise provided by the employer. Employer may adjust contributions made under this Plan as necessary to ensure the maximum contribution amount is not exceeded.
Any Salary Reduction Contributions that cannot be made to the HSA because you are not eligible for such contribution will be paid to you as taxable compensation or as otherwise set forth in the Plan enrollment material. Any non-elective contributions that cannot be made to the HSA because the employee is not eligible for such contribution will be returned to the employer, except as otherwise set forth in the applicable communication material.
What are the election change rules under this Plan for HSA elections?
You may change your HSA contribution election at any time during the plan year for any reason by submitting an election change form to the Plan Administrator (or its designee). Your election change will be prospectively effective as of the first day of the next pay period following the day that you properly submit your election change (or such later date as uniformly applied by the Plan Administrator to accommodate payroll changes). Your ability to make pre-tax contributions under this Plan to the HSA identified above ends on the date that you cease to meet the eligibility requirements.
The employer has also amended the HCRA to allow participants to elect to restrict the scope of eligible medical expenses so the Participant and/or his otherwise eligible dependents will be eligible for an HSA.
What options are available under the HCRA if the participant wants to participate in the Employer’s HCRA and also maintain an HSA?
According to rules set forth in Code Section 223 (applicable to HSAs), a HCRA participant will not be able to make/receive tax favored contributions to a Code Section 223 HSA unless the scope of expenses eligible for reimbursement under the HCRA is limited to the following expenses:
(a) Services or treatments for dental care (excluding premiums).
(b) Services or treatments for vision care (excluding premiums).
A HCRA participant may make an election during the annual enrollment period and/or the initial enrollment period to limit reimbursement under this HCRA to medical expenses described above. The election that you make in accordance with this paragraph during the annual enrollment period will be effective as of the first day of the following plan year. The election that you make during the initial enrollment period will be effective the same date that any other election made during the initial enrollment period would be effective.
Where can I get more information on my HSA and its related tax consequences?
For details concerning your rights and responsibilities with respect to your HSA (including information concerning the terms of eligibility, qualifying High Deductible Health Plan, contributions to the HSA, and distributions from the HSA), please refer to your HSA Trust or Custodial Agreement and/or the HSA communication material provided by your employer.
UNDERSTANDING YOUR COVERAGE (continued)
25
Effect of Medicare enrollment on your Health Savings Account
If you are age 65, you are eligible for Medicare benefits. Each covered employee and each covered spouse may choose to elect Medicare benefits at least one month before the covered employee or the covered spouse becomes age 65. If you are age 65 and actively working full-time, the Federal Law allows the participant to delay their Medicare election until they are no longer eligible for medical benefits with Journal Communications, Inc.
If you elect to defer your Medicare benefits, Journal Communications’ medical plan will remain your primary coverage. You may make contributions to your Health Savings Account, and you are eligible to receive the employer contributions. You can delay your enrollment as long as you or your spouse are still working. Once both spouses are no longer working, contributions to the Health Savings Account will terminate. When your employment ends, or when your medical plan coverage ends, you can sign up for Medicare during a Special Enrollment Period without having to pay higher premiums.
If you elect to enroll in Medicare, you may also continue to enroll in the Journal Communications’ medical plan. Journal Communications’ medical plan will remain as your primary coverage and Medicare will be payable second. If you are enrolled in Medicare, you are not eligible to make contributions to a Health Savings Account, nor are you eligible to receive the employer contributions. We encourage you to call the Social Security Administration at 1-XXX-XXX-XXXX or go to www.Medicare.gov if you

Expert:  Roger replied 1 year ago.
Hi - thanks for the information.

Under #23, it says that the HSA is funded by salary reductions. Thus, your ex-wife should be paying for the HSA through her salary via salary deductions. In that case, your premium payments wouldn't contribute to that account, so it's not likely that you would have a right to claim that any out-of-pocket expense should be paid in full through this account.

There's nothing in the above information that says premium payments contribute to the account.
Customer: replied 1 year ago.

Below I copied and pasted part of #23. You said under #23 it says that the HSA is funded by salary reductions. But it also says that it is funded by employer contributions. I know that her company puts money into her account. Would that make a difference?


 


Part of #23 that you referred to:


"What are the rules regarding contributions made to an HSA under the Plan?
Contributions made under this Plan may consist of both employee Salary Reduction Contributions made pursuant to a Salary Reduction Agreement and/or non-elective employer contributions, if any. Contributions made to the HSA under this Plan cannot exceed:"

Expert:  Roger replied 1 year ago.
The employer may contribute in a matching-type situation, but that shouldn't make a difference in this instance because the premium you're paying part of isn't used. Instead, the employer is paying money on behalf of the employee/your ex-wife in this instance.

So, I don't think that this would change anything.

Roger, Attorney
Category: Legal
Satisfied Customers: 26099
Experience: Litigation Attorney
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