The Patient Protection and Affordable Care Act (PPACA) addresses non
discrimination in health benefit plans. If a health benefit plan is
grandfathered, it may continue to discriminate without payment of penalties until 2014. If a health benefit plan does not comply with the guidelines for maintaining grandfathered status, it will become subject to the non discrimination tests and will pay fines if it discriminates against any group of employees.
However there are other rules that apply to HSAs beyond the PPACA. IRS Reg.Sec. 54.4980G-1 addresses discrimination in HSAs. Employers that offer HSAs through a 125 cafeteria plan must contribute the same dollar amount toeach HSA or be subject to discrimination. If the HSA is not offered through a 125 cafeteria plan, the employer must contribute the same dollar amount or percentage of deductible for all employees. All employees must be subject to the eligibility standards. If there is one standard for rank and file employees and another for highly compensated employees, it would be deemed discriminatory.The penalties for being caught running a discriminatory HSA are significant.The contribution must be comparable for all employees participating in the HAS. If not, the employer will be subject to an excise tax equal to 35% of the amount the employer contributed to employees' HSAs.Currently, there is not much more that addresses this issue in the PPACA, Interim Final Rules ,or the 2011-1 Notice about HSAs. But there is an existing IRS reg that would appear to be applicable.