While Chris Reed of the San Diego Union-Tribune is so sure that the state health reform plan is going to be struck down because of ERISA, given the recent decision in San Francisco, the judge who made that decision isn’t so sure. In fact, he proposes a structure similar to what the initiative filed last week proposes.
From Judge White’s conclusion in his opinion:
The Court is not convinced that other alternatives for creating a program for providing public health care are not viable. Defendants propose an increased general tax requirement, but state the unfairness of not taking existing health care expenditures into account. Without wading into the legislative dominion, the Court can envision such a tax program that takes existing health care expenditures by private employers into account in the form of tax credits.
From the initiative filed by Governor Schwarzenegger and Speaker Nunez:
19003 (a): On and after January 1, 2010, each employer shall pay a health care
contribution equal to a percentage of wages paid to its employees during the
calendar year. Each employer shall be eligible for a credit to offset the
contribution by the amount that the employer expends for health expenditures for
employees and their dependents during that same period.
There’s no guarantees, but it seems that the initiative takes the judge advice–and let’s remember this is one judge who takes a broad view of ERISA pre-emption.