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Agree. The ACA market reforms require no life time or annual limits that an FSA would never be able to meet. So, you need to keep the health FSA an excepted benefit. There are two conditions to keep it an excepted benefit: a maximum benefit condition and an availability condition. If someone is eligible for the FSA but not eligible for the group medical plan then you have not met the availability condition and are potentially subject to a $100 per day per employee ($36,500 per year per employee) excise tax under 4980D for each employee in the FSA.

If an employee is not eligible for an employer-provided ACA compliant group health plan, the FSA becomes subject to the ACA market reforms.