‘Seeing’ Red at Reconciliation over Medicine Cabinet Tax

“They won’t be so opposed to it once they see what’s in it.” That’s the rationalization House leaders gave skittish Democrats to get them to walk the plank on Obamacare Sunday night.

But one of the first things millions of Americans will “see” is an effective 40 percent tax hike on the over-the-counter medicines – from an antihistamine such as Claritin for allergies, pain relief medicine such as Tylenol or Excedrin, Pedialyte to prevent their kids from becoming dehydrated when they are sick, and even prenatal vitamins if they are expecting another one.

All of these items have two things in common.  One is that they are classified as “over the counter” (OTC) medicines and available without a doctor’s prescription. The other is that if you pay for any of these items with money in your flexible spending account (FSA) or health savings account (HSA) – and according to this guide from FSA administrator Benesyst , all of these are eligible expenses  — you will face an effective tax increase of up to 40 percent on these items in the health care bill that President Obama recently signed.

The bill restricts individuals with these pre-tax accounts to buying a “medicine or drug only if such medicine or drug is a prescribed” one. And ironically, this tax that will raise health care costs substantially by creating incentives for the use of more expensive prescription drugs even when OTC drugs are just as safe and effective.

And while the tax on “Cadillac” plans for union members was delayed in the reconciliation bill until 2018, no such luck for HSA and FSA account holders, many of whom are self-employed and entrepreneurs.

These heath care consumers and voters – and there are more than 40 million of them according to the Washington Times – will still “see” this tax hike go into effect at the beginning of 2011, the same as when I last reported in BigGovernment.com on this “medicine cabinet tax.”  And if there were a couple smart politicians, Americans would “see” this tax as soon as this week’s reconciliation debate.

Both FSAs and HSAs allow Americans to pay for medical expenses with pretax dollars. An HSA goes along with a high-deductible insurance policy and gives individuals a tax deduction for money saved that can be used for health care expenses. An FSA has similar tax advantages, but contributions to it are deducted from an employee’s salary, and money in the account must be used by the end of the year.

In 2003, the Treasury Department and the Internal Revenue Service ruled that OTC medicines could be paid for by FSAs and the newly enacted HSAs. In a press release that sounded unusually compassionate for the IRS, the agency stated:

Drugs are increasingly becoming available over-the-counter without prescription. Many health plans no longer cover the cost of these drugs as over-the-counter. While an over-the-counter drug is less expensive than the prescription drug, the cost to many consumers increases because the price paid by the consumer for the over-the-counter drug is greater than the co-payment by the consumer when the drug was covered by insurance. This is especially an issue for individuals who remedy chronic health problems by regularly taking an over-the-counter medicine.

Then-Treasury Secretary John Snow added in the release, “Since many prescription drugs have moved to the over-the-counter market, this action today makes paying for them a little bit easier to swallow.”

Specifically, the government ruled that since the tax code written by Congress did not specifically require that “only medicines or drugs that require a physician’s prescription be taken into account” for health expenses, OTC medicines were eligible. The ruling made clear that although health accounts could not purchase items for general health such as toothpaste, they could be used for medicines that treat specific conditions, such as an “antacid, allergy medicine, pain reliever and cold medicine.” Companies that administer FSAs and HSAs have developed extensive lists of a variety of OTC items that are covered.  The Benesyst guide fills two pages with an alphabetical list of eligible expenses that includes everything from analgesics to wound care.

But Section 9004 of the Senate bill the House ratified Sunday night, as well as Section 531 of the House bill that passed in November, changes the tax code so that “distribution for medicine” from HSAs and FSAs are “qualified only if for prescribed drug or insulin.” Yes, the bills are merciful enough to allow diabetics to purchase insulin under these tax plans, but if you or your family members need Pedialyte, prenatal vitamins or numerous other over the counter health items, you will see a tax hike that could be huge.

Since HSAs and FSA contributions are exempt from both income taxes and 15.3 percent payroll tax for Social Security and Medicare, and since these together can reach more than 40 percent of an employee’s salary, the effective tax increase on these medicines could be more than 40 percent.

And this tax change will almost certainly cost the health care system billions more dollars in unnecessary spending both to the government and private insurance plans. The Joint Committee on Taxation estimates that the tax hike will bring in $5 billion in revenues over ten years – itself a drop in the bucket when compared to the bill’s new trillion-dollar entitlement – but that estimate doesn’t take into account behavioral changes as a direct result of this provision.

OTC drugs are much cheaper those available for prescription, but they could now be more expensive to individual consumers given that prescription drugs would still be eligible for favored treatment in the tax plans, and that insurance companies would be mandated to cover many of them. Consequently, any time a consumer has the slightest headache, the financial incentive would often be to see a doctor and get a prescription rather than go to the store and get medicine off the shelf.

This could mean that billions will be wasted on the additional costs for prescription drugs in instances when OTC medicines could be just as safe and effective at treating the illness.  A 2005 study in the American Journal of Managed Care found that the Food and Drug Administration’s clearing of antihistamines such as loratadine (Claritin) for over-the-counter sale saves about $4 billion a year in health care costs. Ironically, the liberals and Democrats who normally rail against big pharmaceutical companies are now creating a huge windfall the firms that make expensive prescription drugs by penalizing users of OTC medicines.

The rallying cry for opponents of Obamacare has been “Hands off my health care.” In addition, they now could say, “Hands off my medicine cabinet.” And the fight could begin as soon as reconciliation. A smart politician could introduce an amendment to strike the medicine cabinet tax, arguing that under dynamic scoring which takes into account behavioral changes of taxpayers, the tax would cost the government more. If they need something else to pay for this fix, there is always the House’s costly repairs to certain “Cadillac” that 51 Senators could decide to ditch.