"Whether or not these HSA plans meet that requirement really depends on how they develop the regulations," says AHIP spokesman Robert Zirkelbach.
Another dark cloud already overhead is the ACA's medical loss ratio, or MLR, which kicked in this year. The MLR requires that individual and small-group insurers put at least 80 percent of every premium dollar (85 percent for large-group plans) toward the customer's medical claims or rebate the difference. Again, that's going to be tough for a high-deductible policy.
"We have concerns about having the MLR requirement at all, given the potential consequences it may have," Zirkelbach says.
"We have asked for either an exemption or a different standard to be applied to these plans," says Ramthun.
Regulation still up in the air
There is no clear indication on when rulings on these key points might come down from the Department of Health and Human Services.
Add to these uncertainties the volatile 2012 election cycle, the pending Supreme Court ruling on the constitutionality of the ACA itself (expected next summer), and forthcoming definitions regarding minimum "essential" benefits and low-income subsidies, and it's not surprising that HSAs find themselves in a regulatory limbo.
Considering the forecast, is it still a good time to purchase an HSA?
"Absolutely; get them while they're hot," says Ramthun. "My view is that these plans are going to qualify to participate in the insurance exchanges with the caveat that there are regulatory issues that may crop up later that we have to address. I can't say at this point that any of those are deadly to HSAs, but we have to monitor them to be safe. Until we get that final word, there is that uncertainty."