:: Ninth Circuit Panel Issues Stay Permitting Enforcement Of San Francisco Ordinance
In an unusual move, a three-judge panel of the Ninth U.S. Circuit Court of Appeals issued a stay that permits San Francisco to enforce its ordinance which allows the city to require businesses with more than 20 employees to pay a fee to help cover employees’ health care costs. The Order can be read here.
The New York Times notes the significance of the decision, observing that:
The plan is just one of many to be floated by cities and states frustrated by the pace of national health care reform. The California Legislature has also been debating a universal health care program proposed by Gov. Arnold Schwarzenegger, a Republican who has worked closely with the Democratic majority in Sacramento on a plan.
In San Francisco, city officials envision their program eventually providing care for about 73,000 uninsured adults, through a network of 22 clinics offering primary and preventive care and coordinating access to more specialized hospital services, including mental-health and substance-abuse services.
The San Francisco Chronicle observes that the ruling is unusual:
That the ruling allows the law to take effect during the city’s appeal is unusual. Generally, appellate courts refuse to allow enforcement if a lower court has found part of a law invalid. In this case, however, the appeals court said it was granting San Francisco’s request for an emergency stay of White’s ruling because the city had a strong argument and because of consequences for people who cannot get health coverage. “Otherwise avoidable human suffering, illness and possibly death will result if a stay is denied,” Judge William Fletcher said in the 3-0 decision.
Further implications, according to the S.F. Chronicle:
The court’s attitude makes it more likely that a proposed state health care law, which the Assembly has approved and Gov. Arnold Schwarzenegger supports, will survive any legal challenge. Like the San Francisco measure, the state measure depends in part on funding from employers. The Senate has yet to take up the bill.
My prediction is that the Ninth Circuit will not agree with the reasoning of this panel when the case is heard on the merits. The case is said to be on a fast track, with final briefs due in April and a ruling possible in late summer or fall.
Comments
One Response to “:: Ninth Circuit Panel Issues Stay Permitting Enforcement Of San Francisco Ordinance”
Roy:
Thanks for posting this important case.
Part of the rationale behind the merit of the city’s case was that “the ordinance requires that covered employers make certain levels of health care payments to an ERISA plan or to some other entity, including the City. It does not require that employers provide certain health care benefits to their employees, through an ERISA plan or otherwise.”
Again the decision stated “under the ordinance in our case, by contrast, an employer’s obligations to the City are measured by reference to the payments provided by the employer to an ERISA plan or to another entity, including the City.”
The city emphasizes payments over benefits to make their case.
Isn’t this merely distinguishing between a defined contribution plan, and a defined benefits plan, in health care plan diction, rather than in retirement plan diction?
Don Levit