By: David LeFevre, ERISA Attorney + Chief ERISA Geek, ERISAfire Benefits Compliance Solutions

This post examines recent legislation that repealed the ACA’s requirement that healthcare FSA participants have a prescription for over-the-counter items and feminine hygiene products. For other analyses, see this post on mid-year election change developments from IRS, this post on a temporary relaxation of the grace period rules, this post on an increase in the maximum allowable carryover, this post on HSA implications of recent telemedicine developments, and this post on cafeteria plan implications of DOL’s black hole ERISA deadline extension.

Current Rule

The Affordable Care Act amended Code Sections 106 and 213(d) to limit qualified expenses for general-purpose healthcare FSAs and HRAs so that a prescription was required for any over-the-counter medicines or feminine hygiene products.

New Rule

The recently-enacted CARES Act allows employees to use their healthcare FSA dollars for over-the-counter medicines and feminine hygiene products without a prescription. Employer-provided HRAs may also reimburse for over-the-counter medicines and feminine hygiene products without a prescription. This change took place once the Act was passed and was applied retroactively to January 1, 2020. Therefore, employees can submit expenses for reimbursement if over-the-counter or feminine care products were purchased on or after January 1, 2020.

Plan Amendment Requirements

Depending on how the plan defines “qualified expenses,” this change may be automatic, or it may require a plan amendment.  Most cafeteria plans include a provision that expressly requires a prescription for over-the-counter medicines, and a plan amendment will be required to eliminate that provision.


An employer considering this expansion of permissible expenses should ensure that its third-party administrator has the capability to implement the change, and, if so, confirm the timing of any system changes so that the employer does not prematurely notify employees.


About ERISAfire

ERISAfire LLC is an employee benefits compliance services firm, specializing in health and welfare benefits. ERISAfire has reimagined benefits compliance to help agencies and employers manage compliance risks and make the process easier. By leveraging custom-built technology to automate transactional tasks and provide a hyper-customized compliance calendar, its ERISA geeks can focus on complex analysis and experienced ERISA attorneys can scrutinize even the most mundane compliance tasks. Learn more at

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