Healthcare

By Dennis Herrera

In 2006, the City passed an ordinance creating "Healthy San Francisco," a city-run health care program designed to provide comprehensive health benefits to uninsured San Francisco residents. At the time, an estimated 82,000 San Franciscans were uninsured. As a result of the program -- and City Attorney Dennis Herrera's aggressive and successful legal defense of it -- the number of San Franciscans lacking health coverage is down to 23,000, and counting.

Healthy San Francisco is funded in part by imposing a minimum spending requirement on medium and large businesses that do not provide health insurance. In particular, the ordinance requires medium and large businesses to spend between $1.17 and $1.76 (there are updated numbers for 2009, on the OLSE website) per hour by paying into plans of their own or by paying the City so that the City can provide employees with health care through the City's program. Over 90% of San Francisco's medium and large businesses were already providing health insurance to their workers when the ordinance took effect, and therefore were unlikely to be affected by the law.

But one business group sued in federal district court, challenging the spending requirement on the grounds that it violated the federal Employee Retirement Income Security Act ("ERISA"), a federal law designed to prevent private companies from mismanaging employee benefits.

So, in July of 2007, City Attorney Herrera asked federal Judge Jeffrey White to dismiss the lawsuit. In December 2007, Judge White dealt the program a potentially lethal blow by striking down the minimum spending requirement. The day after Judge White's ruling, Herrera filed an appeal with the Ninth Circuit Court of Appeals, simultaneously requesting an emergency stay of the lower court decision. In January 2008, the Ninth Circuit granted Herrera's emergency request, so that the program could take effect as scheduled while Herrera pursued his appeal.

In his Ninth Circuit appeal, Herrera argued that the program fairly and justly gave those employers who didn't offer health coverage the flexibility to either add benefits or pay a reasonable amount to enable the City to provide benefits and, therefore, the program did not violate federal law. Herrera argued that Judge White's decision was incorrect and, if allowed to stand, would frustrate state and local health care reform efforts throughout the nation. He was opposed by the Bush Administration, which intervened in support of the plaintiffs in their attempt to strike down San Francisco's program.

In September of 2008, the Ninth Circuit agreed with Herrera and reversed Judge White's decision, ruling unanimously that the City's groundbreaking universal health care program did not violate federal law. Shortly thereafter, the plaintiffs filed a petition for rehearing, which was again supported by the Bush Administration. In March 2009, the Ninth Circuit again rejected the arguments of the Bush Administration and the plaintiffs, denying the petition for rehearing.

In April 2009, the plaintiffs filed an emergency application with the United States Supreme Court, asking the high court to step in and halt the program. The Court gave Herrera a week to respond to the application. He filed a brief with the Court which argued that the program should not be stopped given its huge success in reducing the number of uninsured in San Francisco. Herrera documented in great detail the accomplishments of the progam, and submitted evidence of how it had affected the lives of real people in tangible ways. The Court rejected the plaintiffs' emergency application, allowing the program to remain in effect.

Despite the Court's rejection of this emergency application, the plaintiffs have insisted that they will pursue an appeal with the United States Supreme Court. An announcement from the Court on whether it will agree to hear the case is expected during the Fall of 2009. Meanwhile, the number of San Franciscans lacking health coverage will continue to drop, because of the effectiveness of the program and Herrera's successful fight to keep it in operation over the past three years.