In a friend of the court brief filed with the U.S. Supreme Court, Acting U.S. Solicitor General Neal K. Katyal urged the high court not to review a September 2008 ruling by the 9th U.S. Circuit Court of Appeals that the San Francisco Health Care Security Ordinance (HCSO) was not pre-empted by the Employee Retirement Income Security Act (ERISA) (see 9th Circuit Lets Stand San Francisco Health Care Ruling) or a March 2009 9th Circuit refusal to reconsider that position.
Katyal explained in the brief that the U.S. Department of Labor (DoL) had decided it was best to leave the 9th Circuit’s September 2008 decision alone in light of the recent passage of major national health care reform that “significantly changed the legal landscape governing health care spending requirements.” The Bush Administration had filed briefs opposing the city’s program with lower courts.
By “encourag(ing) the provision and availability of health insurance,” the reform measure will “reduce substantially the likelihood that state and local governments will choose to enact new employer spending requirements like those contained in San Francisco’s HCSO,” Katyal wrote in the legal brief. The San Francisco law requires city employers to spend a minimum amount on employee health care plans or pay a tax to San Francisco’s “Health Access Program,” which provides free care to low- and moderate-income residents.
Also, from a legal standpoint, Katyal argued that the health care reform law dramatically reduces the importance of deciding whether local health spending mandates are pre-empted by ERISA; the new law may also independently pre-empt local ordinances, the government lawyer argued.
“The Solicitor General’s brief today strengthens our position in a case that had already been significantly bolstered by the passage of health care reform at the national level,” said San Francisco City Attorney Dennis Herrera, in a statement. “At this point, I think it would be hard to imagine the high court reaching out to undermine a local program that works for thousands of families who would otherwise go without health care.”
Herrera’s statement and the Katyal legal brief are available here.