Will the Supremes take Healthy SF challenge?


By Sarah Phelan

Next stop the Supreme Court?

That at least is where Kevin Westley, executive director of the Golden Gate Restaurant Association, said his group would take its challenge of San Francisco’s Universal Health Care Program, after the US Ninth Circuit Court of Appeals decided this week not to grant GGRA a rehearing request.

But does this threat have any teeth and why is GGRA making it?

GGRA’s threat came even as Mayor Gavin Newsom was expressing his hope, by way of a press release, natch, that GGRA, “will work for, not against, the City and County’s efforts to expand health care access.”

“With an estimated 60,000 uninsured adults, it is time for all of us to collectively focus our efforts on providing health care to our uninsured residents,” Newsom said, after the Ninth Circuit upheld the city's employer spending mandate.

That mandate requires companies with 20 to 99 employees to spend $1.23 per worker per hour, and companies with 100 employees or more to spend $1.85 per worker per hour.

Newsom called the court’s decision, “a significant victory for the thousands of San Francisco workers who now have access to health care.”

Deputy City Attorney Vince Chhabria said he found GGRA's insistence on taking the case to the Supreme Court, "very disappointing."

"26,000 San Francisco workers have become eligible for coverage in San Francisco's program,as a result of the court's ruling," Chhabria told the Guardian. "One can understand why GGRA filed the suit, but now to continue and try to get this ruling overturned is to take away health coverage from thousands of workers."

So, what are the chances of the Supreme Court taking the case?

"The Supreme Court will take the request seriously, probably, because there was dissent by a handful of the Ninth Circuit's most conservative judges," Chhabria said, as he listed the top three reasons why he believes the Supreme Court probably won't take this case.

1.The odds are very low.

As Chhabria explains, the Supreme court gets 8,000 appeals every year, but only takes 80.

2. The most common reason for the Supreme Court to take a case is if there is disagreement between two or more lower courts on the same issue.

GGRA is trying to argue that there is disagreement on this ruling between the Ninth Circuit in California, which did not uphold GGRA's appeal of Healthy SF's employer spending mandate, and the Fourth Circuit in Maryland, which did uphold Walmart's appeal of a Maryland healthcare-related penalty appeal.

But Chhabria believes, "that conflict is more illusory than real."

"In Maryland, the state imposed a penalty on Walmart for failing to provide its employees with healthcare," Chhabria said. "But San Francisco doesn't do that, it doesn't impose a penalty. IInstead, it says that employers have to pay a minimum amount to provide workers with healthcare, and that employers can chose whether to provide this health care access themselves, or they can pay this mandated minimum amount to the City to provide it. So, the two decisions really harmonize. Read together, they stand for the proposition that local governments may not impose a penalty on employers if they don't provide healthcare, but they may impose an expenditure requirement as long as it provides employers with the option of making a payment to the government, if they don't want to provide it themselves. This creates a coherent and logical rule."

3. The healthcare debate is moving forward in Washington under President Barack Obama.

"President Obama is pushing healthcare reform. He says he wants it done by the end of the year, and, typically, the Supreme Court doesn't want to step in midway, preferring to want and see how that debate shakes out," Chhabria said.

Noting that anything, however, is possible, and that the City Attorney's Office is continuing to litigate this case aggressively, Chhabria added, "City Attorney Dennis Herrera understands that this program is a major priority for San Francisco policy makers and for San Francisco's progressive community. He has been litigating forcefully and will continue to do so, until we ultimately prevail."

Adding to the city's optimism is Obama's singling out of San Francisco's healthcare program during the recent conference of mayors.

"Obama said that local governments should not have to wait for DC to act," Chhabria recalled. "He said they should be at the forefront of solving the healthcare crisis."

Another good sign is that only a handful of the most conservative judges on the Ninth Circuit weighed in, in favor of GGRA.

"The majority apparently recognized that the sky is not falling as a result of San Francisco's program," Chhabria said.

Currently, businesses with 20 workers or more must offer health coverage in one of three ways: sign up for private insurance, pay the city for coverage at a network of city and private facilities or set up health care accounts.

It costs the city an estimated $170 million to provide health access to residents, with employers contributing about $35 million since January 2008, Healthy San Francisco program director Tangerine Brigham said.

Calls to GGRA's Kevin Westley remained unanswered as of press time, but it's worth noting that GGRA's insistence to this program in San Francisco may be tied to the trade association's fear that the program could spread: a review of GGRA's website reveals that many of its members are chains that have restaurants in cities and towns other than, or as well as, San Francisco.