NYC Lawyers to Retirees: ‘There is NO PROMISE’

NYC retirees point the finger at City Hall for attempting to strip them, and every municipal worker after them, of their traditional Medicare benefits. Photos by Steve Wishnia

By Steven Wishnia

Dozens of retired city workers overflowed a Manhattan courtroom on July 6, as State Supreme Court Judge Lyle E. Frank heard oral arguments on whether he should issue a temporary restraining order to prevent the City of New York from switching their health coverage from Medicare to a private Medicare Advantage plan on Monday, July 10.

The judge said he expected to issue a ruling on Friday, July 7.

Nine retirees and the New York City Organization of Public Service Retirees are asking the court to delay the switchover until the lawsuit they filed May 31 is resolved. It argues that pushing retirees into a for-profit plan run by the Aetna insurance company is illegal on multiple grounds, including that the city has long promised workers that when they retired or if they became disabled, it would pay for a supplemental plan that covered what Medicare didn’t.

To win a restraining order, they have to persuade Judge Frank that they would suffer “irreparable harm” from losing their current health coverage, that they are likely to win their case, and that the “balance of equities” favors them. “Potential threats to the health and well-being of vulnerable individuals outweigh financial or administrative harm to the government,” they argue.

“The issue here is whether the city has to offer a plan that covers the entire cost,” their lawyer Jacob Gardener told the court. “That language was crafted in 1967, 30 years before Medicare Advantage existed.”

Medicare Advantage is a “fundamental shift in the way health care is delivered,” from public to private for-profit, Gardener continued. The Aetna plan selected by the city, he added, is worse than what retirees now have, because it has higher copayments and often requires prior authorization for medical procedures, which it denies about 12% of the time.

“Every single one of these retirees is scared they’re going to be the next Orrana Cunningham,” Gardener said, as about 75 people filled the benches or stood in the back, with more unable to get in. Cunningham was an Oklahoma woman who died in 2015 after Aetna refused to authorize proton-beam radiation therapy for an advanced cancer near her brain, saying it hadn’t been proven effective. In 2018, a jury awarded her widower $25.5 million, saying the company had “recklessly” denied her claim.

THE ARGUMENTS

Gardener and two colleagues faced off against three teams of attorneys: from the city, Aetna, and the Municipal Labor Committee [MLC], the group of public-sector unions headed by UFT President Michael Mulgrew, DC37 Executive Director Henry Garrido and Uniformed Sanitationmen’s Association President Harry Nespoli, who backed moving retirees into Medicare Advantage. Judge Frank quickly dismissed Aetna and the MLC’s requests to be added to the case on the city’s side — “I just don’t see the need for intervention,” he said — but gave their lawyers time to speak.

Attorney Jacob Gardener addresses municipal retirees outside the courthouse on July 6.

Vijeta Jasuja of the city Corporation Counsel’s office disputed the idea that the city has a commitment to provide traditional Medicare. The only law, she argued, is that it can’t cut the benefits it offers. Documents from the 1980s that listed different Medicare options for city retirees, she added, did not tell them that “this is going to be forever.”

“There is no promise here, let alone a promise in perpetuity,” she said.

Aetna’s plan, added city attorney Rachel Kane, “will provide the same level of coverage.” Its opponents, she said, are focused on individual changes to aspects of coverage, not the overall package.

MLC lawyer Alan Klinger contended that Medicare Advantage “is a Medicare plan” and thus complies with Section 12-126 of the city administrative code, the 1967 law that requires the city to “pay the entire cost of health insurance coverage” for workers and retirees up to the legal limit. (An attempt to amend it to clear a way for Medicare Advantage failed to get a vote in the City Council earlier this year.)

The Medicare Advantage plan, Klinger said, was negotiated by the unions, incorporated in their collective bargaining agreement, and is premium-free. It would “defy logic,” he added, to say the city can’t negotiate a health plan that is “similar, if not better.”

“The city retirees are getting a better plan,” Aetna lawyer Karl Geercken insisted. Its premiums are lower, there’s a $1,500-a-year limit on out-of-pocket payments, and the opponents’ claims that many doctors are out of network are exaggerated, he said.

“Prior authorization,” he continued, has been “given a bad name.” That provoked laughter from retirees. Medicare, Geercken explained, imposes it to ensure that patients aren’t upsold, given expensive treatment they don’t need.

“The evidence is showing there will not be irreparable harm,” he said.

The plan for city retirees, he added, also includes benefits like a 24-hour hotline to talk to nurses, a free annual at-home wellness check, four weeks of meals after surgery, and transportation to and from the hospital.

Retirees care more about whether their doctors are in the plan’s network, Gardener responded. The lead plaintiff in the suit, Robert Bentkowski, a Fire Department worker who retired due to disability in 2014, likely needs a second kidney transplant, he said.

But the Florida hospital treating Bentkowski “does not accept Medicare Advantage for any transplants,” the lawsuit says. If he had to replace the city’s current supplemental Medicare plan, it would cost him at least $800 a month.

‘Real people affected’

“Your presence in the courtroom made a difference,” Gardener told a rally of about 150 people after the hearing. The judge, he added, now “knows that there are real people affected.”

“I am fighting Mayor Adams and an unconscionable effort to take away our premium-free health care,” Evie Jones Rich, 90, a retired City University professor and Professional Staff Congress member, said.

Neal Frumkin [in green], vice-president of Inter-Union Relations for the DC 37 Retirees Association, joins fellow retirees in denouncing the City of New York’s ongoing campaign to push municipal workers into a profit-driven Medicare Advantage health insurance program.

She lambasted the “four men in a room,” the union leaders who agreed to privatize retirees’ health care in exchange for raises for active workers: Mulgrew, Garrido, Nespoli — and Greg Floyd of Teamsters Local 237. 

“They have sold us out. They have betrayed us,” she declared, before urging the crowd to picket the district offices of Councilmembers who don’t support Brooklyn Democrat Charles Barron’s bill [Intro. 1099] to preserve their access to premium-free traditional Medicare.

Mary Karagher, a certified paralegal in the Manhattan District Attorney’s office, echoed the theme of a broken promise.

“When I first took the city exam, when I was 18, they told me, ‘Don’t worry, your health insurance is going to be here,’” she told Work-Bites before the hearing. “I’m still here, and they got the health insurance backward.”

The daughter of two longtime city employees, she’s planning to retire next year, after 48 years of working for the city.

“We have ailments. Doctors are not going to accept this. I’m a cancer survivor. My mom has COPD [chronic obstructive pulmonary disorder],” she said. “It’s not for us. That’s the bottom line.”

“If we lose, it’ll cost me $10,000 a year. None of my doctors will accept this,” PSC member Myra Hauben, a retired College of Staten Island professor, said after the rally.