Each year, the Joint Committee on Employee Benefits (JCEB) of the American Bar Association meets with officials of federal agencies in Washington, D.C., to discuss issues of interest to employee benefits practitioners. Question and answer transcripts are then prepared and posted on the ABA’s website. The responses reflect the unofficial, individual views of the government participants as of the time of the discussion. You can access the Q & A’s for 2004 at this link as well as Q & A Archives going all the way back to the year 2000 at the same link. (Thanks to Benefitslink.com for the pointer.) These Q & A’s are very interesting reading since the questions presented are generally ones for which there are no clear-cut answers and agency responses are sometimes very enlightening–like this one from the 2004 DOL Q & A’s:
Is a Health Savings Account (HSA) with employer contributions a welfare benefit plan or a pension benefit plan?Proposed Answer: While an employee can defer distributions from an HSA until termination of employment or beyond, the HSA should not be a pension benefit plan because there is no deferral of income, since the distributions will be tax-free unless the individual uses them for non-covered medical expenses which is expected to be incidental to the health expense purpose of the HSAs. Instead, it should be a welfare plan since the primary purpose is for the provision of health benefits.
DOL Response: The Department expressed the view in Field Assistance Bulletin 2004-01 that HSAs generally will not constitute “employee welfare benefit plans” for purposes of the provisions of TItle I of ERISA. If employer involvement with the HSA is limited as described in the FAB, employer contributions to the HSA of an eligible individual will not result in Title I coverage. To the extent that employer involvement is sufficient for a particular HSA to be an ERISA plan, or part of a large plan, the Department would view an HSA that meets the conditions of the Internal Revenue Code as an employee welfare benefit plan.