In actuality, Aitken explained, the high percentage of waivers is the byproduct of local law rubbing against the new national legislation. In April 2008, San Francisco passed an ordinance requiring employers to spend a minimum amount per hour on health care for their employees who work in the city. In response, a number of eateries chose to set up Health Reimbursement Arrangements, which are essentially pools of funds set aside by employers to reimburse medical expenses paid by employees.
HRAs are serviced by a third-party administrator or plan service provider. They are also subject to the annual limit provision in the national health care law, which is set at $750,000 in 2011 before it is eliminated fully in 2014.
Like many self-insurance policies and union organizations, employers using HRAs have been applying for a waiver from this provision, arguing that application of the requirements would "completely eliminate the benefit" of setting up the HRA in the first place, Flex-Plan Services said. When they do so, they turn not to lawmakers like Pelosi or to the employers themselves, but to third-party administers like Aitken's company. (And, as she hinted, political donations by Flex-Plan have leaned Republican, according to data collected by the Center for Responsive Politics.)
"These are some of the administrative hiccups that, I think, when you have a giant health care overhaul like this, you’re bound to have," said Aitken. "And I think that’s exactly why [the Department of Health and Human Services] put in the option for waivers, because they knew that there are some players who have different types of arrangements all over the nation."
On January 7, 2011, Flex Plan first requested waivers for its clients. In a letter to the HHS, the company's attorney Tina Ann Davis, wrote that, “[m]any of our HRAs were implemented by employers to satisfy local law requirements, provide coverage that otherwise would not be offered, or to help employees with their out-of-pocket medical care costs," the letter reads. "HRAs allow these employers to comply with the local law while providing an affordable health care benefit to their employees."
Aitken confirmed the authenticity of this letter.
This information, however, was not public knowledge prior to the Daily Caller's piece. And the disclosure on Tuesday morning that a number of businesses in Pelosi's own district had been granted waivers immediately became partisan fodder, with the Drudge Report linking to the story and the topic being pushed during White House Press Secretary Jay Carney's briefing.