Retirees Sue to Halt Forced Switch to Medicare Advantage

Yesterday, the NYC Organization of Public Service Retirees initiated a new lawsuit against the City, as reported by the Daily News. Using a complicated mix of legal strategies, the goal of the legal action is ultimately to stop Mayor Adams from switching retired municipal workers—such as UFT members—off traditional Medicare and onto an Aetna-run Medicare Advantage Plan (MAP).

I of course am no legal scholar, but I did read through the 106-page official court filing,  and encourage others to do the same. The lawsuit makes an overarching claim that retired City workers took lower salaries and made irreversible financial, geographic, and medical decisions, both while working and once retired, in part because they were assured during and after their careers that in retirement the City would pay for their Medicare Part B premium plus their choice of a Medicare Supplemental plan. As good as any excerpt detailing the lawsuit’s primary claims can be found on pages 73-74. In this section, we see the facts/arguments tailored toward an ‘unjust enrichment’ claim, though other passages tailor those same facts/arguments toward other types of claims. That section is reproduced here:

“First, Respondents engaged in an unjust bait and switch. For 57 years, the City has promised municipal workers that a career in civil service – which pays wages substantially below those in the private sector – would entitle them to City-funded Medicare plus supplemental insurance in retirement. Retirees worked for the City for decades in reliance on this promise. When he was running for office, now-Mayor Adams agreed that eliminating Medicare plus supplemental insurance would be an unfair “bait and switch” that would “traumatize” these elderly and disabled Retirees. 50 He added: “You don’t become a civil servant to become a billionaire. You become a civil servant to have stable health care, a stable pension and a stable life, and we cannot destabilize it after they retire. Right now, after serving your city, we should not do any type of bait and switch. When you retire, you retire with an understanding, and we need to make sure we live up to that agreement.”

Second, Respondents are statutorily and contractually required to continue offering, and paying for, a choice of Medicare Supplemental plan.

Third, the vast majority of Retirees survive on meager pensions. Absent the City fulfilling its obligation to pay for Medicare plus supplemental insurance, most Retirees will be unable to afford the healthcare that they need and to which they are entitled.

By forcing Retirees to incur expenses that Respondents themselves owe, Respondents have been, and will continue to be, unjustly enriched. Equity and good conscience demand that Respondents’ unjust enrichment be enjoined and that any financial benefit they receive (including in the form of savings) be disgorged.”

Altogether, the legal filing presents an interesting case—really, cases, plural—to prevent the City from throwing retirees onto MAP. Whether the petitioners will be successful is another story, and—again—I  lack the legal expertise to make a valid prediction. The retirees do have a solid track record – one they’ve been building since they won their first big lawsuit. In that case, the City and official union leadership were stopped from throwing retirees onto a different version of MAP unless they paid up to stay on traditional Medicare (now they don’t even have that option). But Judge Frank’s decision in that case was made on the basis of a narrow reading of Administrative Code 12-126. Our own Unity-led UFT leadership misrepresented that precedent all over the place, suggesting that because of it, the City would be able to unilaterally throw all retirees onto whatever MAP plan they wanted without a pay up option. That of course wasn’t completely true. The City would only be able to do this if union leadership agreed to this ‘nuclear’ option. As we now know, most unions did not agree to this decision, but because of the outsized weight that UFT and DC-37 have in voting on healthcare bargaining decisions through the MLC, Mulgrew and Garrido were able to almost singlehandedly greenlight the MAP nuclear option, and without consulting their memberships either.  (Why? The most likely reason for Mulgrew/Garrido selling out the city’s retirees can be gleaned from Jonathan Rosenberg’s testimony on budgetary implications of moving retired municipal workers onto MAP. While the City is the respondent of the new lawsuit, the primary savings of MAP (and, by extension, changes to in-service healthcare) go not to the City exactly, but to our joint stabilization fund. But I digress – that’s a post for another day.)

Will Marianne Pizzitola’s group be able to use the law to stop the City from pushing retired municipal workers onto an inferior Medicare Advantage Plan? Their legal strategy worked the first time around. It also worked the second time around. But, with a nuclear option now activated—a nuclear option that was tailored precisely to legally circumvent Judge Frank’s previous decision—we’ll  have to see if the law will still be on our side. Still, let’s keep up hope.