We are not aware of any law or regulation requiring banks to open HSAs for all individuals who apply for them, and we believe that you may follow your bank’s internal procedures for determining eligibility to open a new account — including providing adverse action notices when required.

While the IRS has established requirements that individuals must meet to be eligible for an HSA, we do not believe that a bank must open an HSA for every individual who meets these criteria. Consequently, we believe you may follow your standard procedures for determining eligibility for checking and savings accounts when deciding whether to open an HSA for an individual — provided that your procedures otherwise comply with applicable law, such as the Fair Credit Reporting Act’s requirement to provide adverse action notices to consumers who have been denied accounts based on information in a consumer report and prohibitions on unlawful discrimination under Illinois and federal law.

For resources related to our guidance, please see:

• IRS Publication 969 – Health Savings Accounts and Other Tax-Favored Health Plans, page 3 (2021) (“A Health Savings Account (HSA) is a tax-exempt trust or custodial account you set up with a qualified HSA trustee to pay or reimburse certain medical expenses you incur. You must be an eligible individual to qualify for an HSA. No permission or authorization from the IRS is necessary to establish an HSA. You set up an HSA with a trustee. A qualified HSA trustee can be a bank, an insurance company, or anyone already approved by the IRS to be a trustee of individual retirement arrangements (IRAs) or Archer MSAs. The HSA can be established through a trustee that is different from your health plan provider.”)

• IRS Publication 969 – Health Savings Accounts and Other Tax-Favored Health Plans, page 3 (2021) (“To be an eligible individual and qualify for an HSA contribution, you must meet the following requirements.

• You are covered under a high deductible health plan (HDHP), described later, on the first day of the month.

• You have no other health coverage except what is permitted under Other health coverage, later.

• You aren’t enrolled in Medicare.

• You can’t be claimed as a dependent on someone else’s 2021 tax return.

     If you meet these requirements, you are an eligible individual even if your spouse has
     non-HDHP family coverage, provided your spouse’s coverage doesn’t cover you. Also,
     you may be an eligible individual even if you receive hospital care or medical services
     under any law administered by the Secretary of Veterans Affairs for a service-connected
     disability.”)

• Fair Credit Reporting Act, 15 USC 1681m(a) (“If any person takes any adverse action with respect to any consumer that is based in whole or in part on any information contained in a consumer report, the person shall— (1) provide oral, written, or electronic notice of the adverse action to the consumer.”)

• Illinois Human Rights Act, 775 ILCS 5/4-102 (“It shall be a civil rights violation for any financial institution, on the grounds of unlawful discrimination, to: . . . (A) Deny any person any of the services normally offered by such an institution.”)

• 42 USC 1981(a) (“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens. . .”)