Judge Blocks NYC’s Medicare Advantage Deadline!

State Supreme Court Judge Lyle E. Frank ruling says, in part, “Petitioners have by clear and convincing evidence met the requisite burden for a preliminary injunction by exhibiting the likelihood of ultimate success on the merits, the prospect of irreparable injury in absence of injunctive relief, and the balance of equities weighing in the petitioners’ favor.”

By Steve Wishnia

State Supreme Court Judge Lyle E. Frank has blocked the city from switching its retired employees’ health coverage to Medicare Advantage. A preliminary injunction issued this morning scotches its Monday deadline for retirees who want to keep traditional Medicare to opt out of the for-profit Aetna Medicare Advantage plan.

The injunction, issued Friday, July 7, bars the city from removing retirees or their dependents from their current health-coverage plans until the court resolves a lawsuit against the switch to the Aetna plan filed May 31 by nine retirees and the New York City Organization of Public Service Retirees. If the July 10 deadline had gone into effect, retirees who opted out would have to pay for their own Medicare and supplemental coverage.

“Petitioners have by clear and convincing evidence met the requisite burden for a preliminary injunction by exhibiting the likelihood of ultimate success on the merits, the prospect of irreparable injury in absence of injunctive relief, and the balance of equities weighing in the petitioners’ favor,” Judge Frank wrote.

“Clearly, the judge listened to us,” NYC Organization of Public Service Retirees President Marianne Pizzitola told Work-Bites. “It’s exactly what we’ve said the entire time. Medicare Advantage is an inferior plan to traditional Medicare plus a supplement. We were promised that for decades, and we relied on that promise.”

Judge Frank held that the petitioners were likely to win their suit, on the grounds that the city most likely could not legally privatize health care under a 1967 administrative-code law that requires it to “pay the entire cost of health insurance coverage” for workers and retirees, and that the city had made “numerous promises” to its employees that they would receive a Medicare supplemental plan when they retired, and that Medicare would be their first level of coverage.

Mayor Eric Adams’ office said the city is considering appealing the injunction. “We are extremely disappointed by this misguided ruling,” it said in a statement. “The city’s Medicare Advantage plan, which was negotiated in close partnership with the Municipal Labor Committee, improves upon retirees’ current plans, including offering a lower deductible, a cap on out-of-pocket expenses, and new benefits, like transportation, fitness programs, and wellness incentives. Further delay in implementing it will only cause greater uncertainty for our retirees and have a detrimental impact on our city’s budget.”

In oral arguments the previous day, lawyers for the city and the MLC, the group of public-sector unions that backed the switch, had claimed that the plan was legal, because the Aetna plan was “premium-free,” and that the city had never promised that its support for Medicare would be permanent.

Judge Frank rejected those claims, saying that the administrative-code law’s use of the word “will” meant that the promise extended to the future, and that it “makes no mention of the word ‘premium’ but rather uses the word ‘coverage.’”

He also said that many retirees don’t know if their doctors will accept the proposed new Aetna plan. As that “involves people who are often elderly and/or infirm,” he added, the city should not be permitted to go ahead with the plan until it has shown “that those that will be affected are fully aware of the ramifications of this plan, so that they can make an informed choice of whether they will opt in.”

The judge also rejected the city’s arguments “that petitioners have not been able to prove that the Aetna Medicare Advantage Plan is inferior, and delaying this new policy will derail the City’s plans.”

“As this matter deals with health decisions of an ageing and a potentially vulnerable population, mostly on fixed incomes, any lapse in care for these people could lead to deleterious impacts. Moreover, at oral argument, the attorney for Aetna acknowledged that there would very likely be situations where medical care deemed to be needed by a doctor for a retiree could be turned down, and certain medical facilities would be unavailable to retirees,” Frank wrote. “This demonstrates that should this plan go forward, irreparable harm would result.”

“We call on the City and the Municipal Labor Committee to end their ruthless and unlawful campaign to deprive retired municipal workers of the health-care benefits they earned,” Pizzitola said in a statement released by the NYC Organization of Public Service Retirees.

Speaking to Work-Bites, she compared the current District Council 37 and United Federation of Teachers leaders, who both pushed hard for Medicare Advantage, to the late DC37 leader Victor Gotbaum, who wrote that he considered it a compliment when Herbert Haber, chief labor negotiator in Mayor John Lindsay’s administration, told the New York Times that “Vic will cut your heart out if he feels you’re hurting his members.”

“I don’t see Henry Garrido or Michael Mulgrew cutting anyone’s heart out for hurting retired union labor,” she said. “We had to defend ourselves, because the people we relied upon didn’t.”

DC37’s press office did not respond to a message from Work-Bites, and the UFT referred questions to the MLC, whose listed phone number was out of service.