Non-discrimination issues for HSA?

[Bird]

Hi all, I'm usually over on the retirement plans side of the boards but have a question about my own health insurance plan. There are just two of us on the plan, and I'm about ready to start a high deductible plan with an HSA for myself, and keep my employee on a more traditional plan (if you can call the ugly mess that the plan has become traditional...and yes, we're in NJ so we're allowed to split the plans as long as we are with the same carrier). Is there non-discrimination testing on the HSA part, as there would be for a POP plan or full cafeteria plan? Does it matter if the HSA is employer or employee funded or some combination? (I haven't looked at it for a while but I think it is problematic if more than 25% of the "benefits" go to HCEs.)

Sorry for my ignorance and thanks for any help.

[leevena]

Section 105 nondiscrimination applies to self-insured HDHP (I assume yours is fully insured), and no for the HSA. However, if you are making the HSA contribution outside of the 125 plan you must follow the comparable contribution rule. If the contribution is made inside the 125, it then becomes subject to the 125 nondiscrimination rules.