Herrera seeks emergency stay
to reinstate health care ordinance
By Julia Cheever
December 28, 2007
The city of San Francisco filed an emergency bid with a federal
appeals court Thursday for a stay of a ruling that struck down
an employer spending mandate in the city's pioneering health care
The emergency motion asks the 9th U.S. Circuit Court of Appeals
in San Francisco to act by Monday because the financial mandate
was due to take effect Wednesday.
City Attorney Dennis Herrera wrote, "Without this stay,
tens of thousands of San Francisco residents and workers will
be deprived of critically necessary health care services for uninsured
The stay, if granted, would reinstate the spending mandate and
remain in effect while the city appeals Wednesday's ruling by
U.S. District Judge Jeffrey White in a lawsuit filed by the Golden
Gate Restaurant Association.
White agreed with the association's argument that the funding
mandate conflicts with a federal law, the Employee Retirement
Income Security Act, which regulates employee benefit plans.
Herrera argued in the motion that the city plan doesn't conflict
with the law because it doesn't require businesses to participate
in a federally regulated program. Instead, the San Francisco ordinance
gives businesses the choice of either funding an ERISA-regulated
plan or making payments to the city.
Herrera wrote, "It is entirely up to the employer to decide
how to comply with this spending requirement."
Association executive Kevin Westlye said, "We intend to
oppose the motion for the stay."
Westlye said the restaurant group opposes only the employer spending
mandate and that nothing in the San Francisco ordinance prevents
the city from expanding its health care program with government
The city's groundbreaking Healthy San Francisco program, enacted
last year, would provide medical care for approximately 73,000
uninsured adult residents who do not qualify for other government
programs such as Medi-Cal.
The program would be paid for with a combination of city, state
and federal funding and contributions from employers. Those enrolled
would also pay quarterly participation fees on a sliding scale.
Under the mandate struck down by White, businesses with 20 or
more workers would have contributed a set amount per worker, through
either their own health plan or payments to the city. The amount
was $1.17 per hour per worker for businesses with 20 to 99 workers
and $1.76 per hour for companies with staffs of more than 100.
Healthy San Francisco director Tangerine Brigham said the plan
has thus far enrolled 7,352 uninsured people on a limited scale
and is due to begin expanding on a phased basis Wednesday.
She said that without the employer contributions, the program
will limit enrollment to people with incomes of less than three
times the federal poverty level of $32,000.
That limit would result in coverage of about 47,000 people within
two years but would leave another 26,000 without coverage, she
Brigham said, "We're disappointed with the court ruling
but we're expanding the program. We have been able to demonstrate
the need for organized health care. People want it and are enrolling
in the program."
Brigham said the number of uninsured people in the city was estimated
last year at 82,000, but a recent state survey updated the current
number to 73,000.
Herrera said in the brief that about 90 percent of city businesses
with 20 or more employees already provide health care plans, but
about 20,000 workers have either no coverage or less than would
be provided under the city program.
He wrote that the spending mandate was "more sensible and
more just" than a simple health care tax on all employers
because the formula gives businesses credit for existing medical
programs and avoids giving them an incentive to drop those programs.
If the appeals court does not grant an emergency stay, the city
asks it to schedule an expedited appeal process, with all briefs
due by April and a hearing in May or June.
Copyright © 2007 by Bay City News, Inc. -- Republication,
Rebroadcast or any other Reuse without the express written consent
of Bay City News, Inc. is prohibited.