OPINION Last year, after receiving data from San Francisco, the Wall Street Journal reported on an investigation into the use of health reimbursement accounts by several local restaurants. It showed a group of employers evading the city's health care law while charging their customers a "Healthy San Francisco" surcharge that is never actually spent on employees' health care.
Rather than providing health coverage to their workers, as customers are led to believe, the restaurants are allocating funds for HRAs — and taking back the funds before they can be used.
The numbers speak for themselves: Of the $62 million that was set aside for health care accounts in 2010, more than $50 million was kept by employers.
Workers spoke about never being notified about the accounts; being forced to jump through numerous, often onerous hoops to receive reimbursements or never receiving reimbursements; facing severe restrictions on use of the funds; and fearing retaliation for seeking to access the funds. It was clear that as long as employers can take back unspent funds they have a large incentive to restrict workers' access.
In response, Supervisor Campos drafted an amendment to the Health Care Security Ordinance (known as Healthy San Francisco) that would have closed this loophole, which was being exploited by a small number of employers. The Chamber of Commerce, accompanied by the San Francisco Chronicle, made hysterical claims about impending job loss and business closures, and after the Board of Supervisors approved the legislation on a 6-5 vote, Mayor Ed Lee vetoed it.
Supervisors Malia Cohen and David Chiu then authored "compromise" legislation that actually didn't address the problem. Their version merely allowed employers to take back workers' health care dollars after two years instead of one. This cosmetic change did, however, provide enough window dressing to please the Chamber, so the supervisors approved it and Mayor Lee signed it into law.
Now, just a few months later, an article in the Public Press showed exactly why we opposed the Cohen/Chiu amendment in the first place: It doesn't really close the loophole. Employers can still take money back from the HRAs. This creates a clear incentive to choose HRAs over insurance — the worst option for workers. Furthermore, the loophole leaves responsible businesses that provide health coverage to employees through insurance or HSF competing against employers that exploit it by paying less into HRAs.
When the landmark Healthy San Francisco legislation passed five years ago, it never occurred to us that some businesses would be so obvious in their attempts to game the system. We find it unconscionable that there are businesses charging customers a healthcare surcharge and then keeping the money for profit. What is more unconscionable is that City Hall passed an amendment that continues to let it happen.
The Department of Labor Standards Enforcement compliance data for 2011 will be available next month — and if that continues to show abuse of the HRA provision, then it's time for the Board of Supervisors to end the charade and truly close the loophole once and for all. Healthy San Francisco is about providing healthcare for workers — not creating additional profit for businesses.
Assemblymember Tom Ammiano represents the 13th District. Supervisor David Campos represents District 9.
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