By Steve Wishnia

A group of retired New York City transit workers is again seeking a court order to restore their access to traditional Medicare.

The group, TWU100R, is filing an amended petition before State Supreme Court judge Shahabuddeen A. Ally, challenging Transport Workers Union Local 100’s 2023 contract, which eliminated the about 22,000 retirees’ option to keep traditional Medicare. Instead, they were required to enroll in one of two profit-driven Medicare Advantage plans run by Aetna as of January 1. Much like other retirees across the country fighting similar battles, they are arguing that the change illegally diminishes their health-care benefits.

“Somebody behind a desk tells you whether you need a stent in your heart or your legs need to be fixed,” TWU100R President Lloyd Archer, a retired bus operator and former Local 100 official who is lead plaintiff in the case, told a small online meeting of retirees and active members in mid-January. The group is collecting affidavits from retirees about how Medicare Advantage has impaired their medical care, such as by care being delayed or denied or higher copayments or drug prices.

“We’re getting a lot of phone calls,” Archer told Work-Bites January 30. The previous day, he says, he’d gotten calls from a woman who now has to pay $157 for a 30-day supply of prescription eyedrops, up from $20, and a man with diabetes who already had a surgical procedure on one leg, but now has to wait up to four months for Aetna to authorize the procedure on his other leg.

Celso Garcia, an active bus operator, told Work-Bites that Medicare Advantage plans are “especially deficient” in covering treatment for more costly diseases, such as cancer.

Memorial Sloan Kettering, one of the top cancer-treatment facilities in the city, only accepts the Aetna Medicare Advantage plans on a limited basis, opponents say. “It would be accepted, but it would be out of network, so the out-of-pocket [cost] to the patient would be higher,” an employee told a retired transit worker inquiring about coverage in a video posted on TWU100R’s website in January.

Hearings on the petition are scheduled for March 11-12, according to court documents.

Judge Ally had issued a temporary restraining order Dec. 18 which prohibited the MTA and the union from requiring retirees to enroll in the Aetna plans by Jan. 1, but vacated it on Dec. 21. The amended petition is intended to correct the previous one, says Arhcer. It adds the Metropolitan Transportation Authority, the New York City Transit Authority, and TWU Local 100 as defendants, instead of listing only individual officers of the three entities.

Neither the MTA’s nor Local 100’s spokespeople returned messages from Work-Bites.

The transit retirees’ arguments are “very similar to ours,” says Marianne Pizzitola, president of the New York City Organization of Public Service Retirees, which has won multiple lawsuits stopping attempts by Mayor Eric Adams and the heads of the Municipal Labor Committee to force city retired workers into Medicare Advantage. (The city continues to appeal those decisions.)

New York City municipal retirees are arguing that Medicare advantage diminishes benefits legally promised to workers and disrupts life-saving medical treatment. The main difference, Pizzitola adds, is that city law prohibits diminishing retirees’ medical benefits, while the transit retirees are protected only by their contract, as the MTA is a state agency. The MTA’s Medicare Advantage plan is actually more restrictive than the city’s, she says, because it will not pay for retirees to use out-of-network providers except in emergencies.

TWU100R’s petition filed in December also charged that the way the changes were added to the contract was deceptive. Local 100 did not give members a copy of the contract’s actual language, just a summary of highlights, says train operator Evangeline Byars.

The highlight summary, distributed last year, did not specifically mention either the elimination of traditional Medicare nor use the phrase “Medicare Advantage.” It just said that for benefits beginning Jan. 1, “Medicare eligible Retirees will be entitled to enroll in either of two TWU Enhanced Retiree Benefits Coverage” plans, with an appendix comparing those two plans. “The parties agree that the Plan(s) of Benefits will not be a diminishment of benefits for Medicare eligible retirees,” it added.

That also made it harder to organize the 22,000 transit retirees affected against the plan. “The majority of them didn’t know,” says Byars. The group also had to raise money to hire a lawyer.

Byars says that reducing health benefits is part of a general diminishment of retirement benefits for public workers. “We’re going to be the first tier to retire in poverty,” she says, blaming the state’s law that lowered pension payments for employees hired since April 2012. More than half of public-sector workers in the state are now part of that “Tier 6” group.

“Medicare is a public benefit and should not be privatized,” says Garcia.

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