NYC Transit Retirees Suffer Legal Setback in Battle Against Medicare Advantage Push
TWU Local 100 retirees fighting to retain their traditional Medicare Benefits were dismissed back in October — this week, they won a Temporary Retraining Order, blocking the privatization of their healthcare. Photo by Joe Maniscalco
By Bob Hennelly
Editor’s note: This story has been revised to reflect the latest developments in TWU Local 100 Retirees’ fight to obtain a Temporary Restraining Order and stop the privatization of their traditional Medicare benefits.
In a legal reversal for TWU Local 100 retirees hoping to head off being forced into an Aetna Medicare Advantage Plan, a New York State Judge has rolled back a TRO he issued Dec. 18 which prohibited the MTA and the union from advancing their plan which the retirees lawyer says kicks in on Jan. 1. In an order issued Dec. 21 vacating the TRO, Judge Shahabuddeen A. Ally referenced filings he received from the legal team representing the union and the MTA in response to the TRO filed on Dec. 20.
Shahabuddeen scheduled a Jan. 10 hearing at 10 a.m. at the Courthouse at 111 Centre Street.
“They have stayed our stay and everything goes back to the way it was before, until we have the hearing of Jan. 10th, ” Kenneth Nelson Page, the retirees attorney told Work-Bites. “We are all online now trying to figure out next steps.
The lawsuit’s claims are similar to the ones raised by the litigation that’s been successfully pursued by the New York City Organization of Public Service Retirees that turned to the courts starting in 2021 to prevent 250,000 retired municipal workers from also being forced off of traditional Medicare and onto the controversial Aetna plan. The city continues to appeal.
Last year, a Health and Human Services Inspector General report found that some of the leading Medicare Advantage Plans were denying
nearly one in five claims that met Medicare criteria for approval raising “concern about [Medicare] beneficiaries access to medically necessary care.”
Legislation is pending in Albany and Washington D.C. to prohibit the growing practice of ‘rolling over’ retirees into what critics contend are predatory for-profit insurance plans that promise enhanced benefits like hearing, vision and dental put also deny or delay access to healthcare through prior authorization requirements.
Public employers and unions argue the shift to Medicare Advantage Plans generates savings while expanding the range of benefits for retirees. The re-working of the retirees health benefits has coincided with contract negotiations for active employees.
Earlier this year, 31 million people, more than half of the Medicare age cohort, were enrolled in a Medicare Advantage plan.
“We worked our entire lives for Traditional Medicare, not a ‘for-profit alternative’” said Lloyd Archer, president of TWU100R, and one of the nine plaintiffs in the case. “ We deserve it and we are going to fight as hard as we can for it!”
“I’ve done extensive research on Medicare Advantage and it seems they deny many, many claims—there for private, for-profit insurance companies,” said Anthony Tousis, a TWU Local 100 retired bus operator and 9/11 WTC Health Program participant told Work-Bites. “The problem is they are not following Medicare guidelines and what they want to do is make as much money as they can off of each individual enrollee.”
“Are we going to try and balance budgets and essentially steal money off of the backs of retired public servants that got us through 9/11, blackouts and COVID?” Page, the lawyer for the retirees asked rhetorically, during an interview with Work-Bites. “Are we willing to risk one bad health outcome, or something even more tragic, just to save money with a new system that’s rollout hasn’t been planned well.”
“The MTA and TWU Local 100 taking away Retirees’ access to traditional Medicare and installing a barrier to access to care is cruel,” said Marianne Pizzitola, a retired FDNY EMT and president of the NYC Organization of Public Service Retirees. “While no retiree would ever deny that active workers should be given raises for their work, it should never be done on the backs of retirees. Our Organization will continue to help Retirees around the Country facing this same injustice!”
In his order in the TWU retiree case, New York State Judge Shahabuddeen A. Ally cited the retirees’ argument that the contract between the union and the MTA forced retirees into an “inferior, private and for-profit” Medicare Advantage plan that put “their health and full medical access at risk” with the switch being done “without consultation, notice, full consideration of the dire consequences” of the “foreseeable acute harm” to the retirees.
“We will be in court seeking a correction of this ruling in order to head off any disruption of our retirees’ health benefits, said MTA Spokesperson Eugene Resnick, in a statement in response to a query.
A TWU Local 100 press spokesperson referenced Local 100’s prior statements on the Aetna Medicare Plan rollout that asserted the union’s “number one mission is to provide the best plan for our retirees — and if that’s Medicare Advantage then it’s Medicare Advantage — but a specifically tailored Medicare Advantage plan for transit workers.”
Local 100 has consistently maintained their Medicare Advantage Plan was far superior to the one that New York City retirees are fighting in court.
Retired Nassau County civil servants, who were represented by CSEA Local 830, won a similar legal reprieve this week when New York State Judge Conrad Singer also issued a TRO preventing County Executive Bruce Blakeman’s administration from forcing the retirees into a plan their lawyer told Newsday would cover less and would shift costs onto the retirees.
“These are seniors on fixed incomes and they will need to make difficult choices about whether to keep their health care or give up basic necessities,” retiree lawyer Adam Cohen told Newsday.
Alex Lawson is the director of Social Security Works, a national non-profit advocacy group. Lawson told Work-Bites the wave of retiree litigation comes on the heels of an NBC News investigative report that rural hospitals in Texas, Mississippi, Arkansas, Missouri, Colorado, and South Dakota were “routinely” having their Medicare Advantage claims denied by private insurers.
“A court would say, we need to look at this because people are saying this is going to harm them—up to kill them and they are being forced into a system that’s been shown to deny and delay care and now it’s not just academic white papers pointing this out, but the popular press,” Lawson said. “According to a National Bureau of Economic Research study if you shut down the bottom five percent performing Medicare Advantage Plans you would save 10,000 lives a year—or put another way—200 plans are killing 10,000 people a year and the government knows who the worst actors are, so why are we sitting back and allowing it?”
This past July, The New York City Organization of Public Service Retirees [NYCOPSR] was given a hero’s welcome at a ‘Save Medicare’ rally in front of the U.S. Capitol. Roughly 70 members shared the spotlight with Sen. Elizabeth Warren (D-MA), and several other members of the House of Representatives who blasted for-profit Medicare Advantage insurance companies for delaying and denying health care treatment to seniors.
The rally to ‘Save Medicare’ was organized by Be a Hero, a non-profit, that according to its website believes that in the “richest country in the world, and everywhere… healthcare should be a human right.”
According to Jamila Headley, the group’s co-executive director, saving Medicare from increased privatization has emerged as a top priority for the non-profit. Headley said that the New York City retirees’ battle against Aetna Medicare Advantage had been an inspiration to other activists across the country concerned about the fate of Medicare.
“Honestly, every news article we saw and every time we talked with the folks organizing on the ground — it gave us hope that there were people willing to fight back,” Headley told Work-Bites. “I think that for so long this has been happening and no one had been organizing or saying anything about it. And even us, as a national organization — we were working on other healthcare issues — sort of sleeping on this — which is really a looming threat. It has really been inspiring seeing folks organized and really fight back at a local level. It gives us hope for what is possible on the national level.”
The Capitol Hill rally included remarks from Meagan Bent, whose father Gary Bent, a retired University of Connecticut physics professor, died in March after his Medicare Advantage insurer, using an algorithm and artificial intelligence, denied him access to skilled nursing and acute therapy that had been prescribed by his neurosurgeon. Bent was 82.
“Our family continues to struggle with the question why are people who are only looking at patients on paper or through the lens of an algorithm making decisions that deny services judged necessary by people’s healthcare providers?” Bent said. “People that have interacted with them [the patients] personally and, sometimes, have known them for years.”
“This year, for the first time more than half of all beneficiaries are enrolled in Medicare Advantage instead of traditional Medicare,” Sen. Warren told the large crowd in front of the Capitol. “Medicare Advantage substitutes private insurance companies for traditional Medicare and that private coverage is failing with Medicare beneficiaries and taxpayers. It’s all about the money. Private insurers are in Medicare Advantage to play games to extract more money from the government. Experts estimate the Medicare Advantage insurers will receive more than $75 billion in over payments this year alone.”
Last year, the New York Times and Kaiser Health News published extensive investigative pieces which raised alarming questions about the nation’s largest Medicare Advantage insurers including Aetna. The news outlets confirmed that the insurers were on the radar of regulators who had documented a sector wide practice of so-called “upcoding” when insurers would say patients were sicker than they were to secure a higher reimbursement from the government while using prior authorizations as well as outright denials of care to reduce their costs.
In a legal reversal for TWU Local 100 retirees hoping to head off being forced into an Aetna Medicare Advantage Plan, a New York State Judge has rolled back a TRO he issued Dec. 18 which prohibited the MTA and the union from advancing their plan which the retirees lawyer says kicks in on Jan. 1. In an order issued Dec. 21 vacating the TRO, Judge Shahabuddeen A. Ally referenced filings he received from the legal team representing the union and the MTA in response to the TRO filed on Dec. 20.
Shahabuddeen scheduled a Jan. 10 hearing at 10 a.m. at the Courthouse at 111 Centre Street.
“They have stayed our stay and everything goes back to the way it was before, until we have the hearing of Jan. 10th, ” Kenneth Nelson Page, the retirees attorney told Work-Bites. “We are all online now trying to figure out next steps.”
The lawsuit’s claims are similar to the ones raised by the litigation that’s been successfully pursued by the New York City Organization of Public Service Retirees that turned to the courts starting in 2021 to prevent 250,000 retired municipal workers from also being forced off of traditional Medicare and onto the controversial Aetna plan. The city continues to appeal.
Last year, a Health and Human Services Inspector General report found that some of the leading Medicare Advantage Plans were denying nearly one in five claims that met Medicare criteria for approval raising “concern about [Medicare] beneficiaries access to medically necessary care.”
Legislation is pending in Albany and Washington D.C. to prohibit the growing practice of ‘rolling over’ retirees into what critics contend are predatory for-profit insurance plans that promise enhanced benefits like hearing, vision and dental put also deny or delay access to healthcare through prior authorization requirements.
Public employers and unions argue the shift to Medicare Advantage Plans generates savings while expanding the range of benefits for retirees. The re-working of the retirees health benefits has coincided with contract negotiations for active employees.
Earlier this year, 31 million people, more than half of the Medicare age cohort, were enrolled in a Medicare Advantage plan.
“We worked our entire lives for Traditional Medicare, not a ‘for-profit alternative’” said Lloyd Archer, president of TWU100R, and one of the nine plaintiffs in the case. “We deserve it and we are going to fight as hard as we can for it!”
“I’ve done extensive research on Medicare Advantage and it seems they deny many, many claims—there for private, for-profit insurance companies,” said Anthony Tousis, a TWU Local 100 retired bus operator and 9/11 WTC Health Program participant told Work-Bites. “The problem is they are not following Medicare guidelines and what they want to do is make as much money as they can off of each individual enrollee.”
“Are we going to try and balance budgets and essentially steal money off of the backs of retired public servants that got us through 9/11, blackouts and COVID?” Page, the lawyer for the retirees asked rhetorically, during an interview with Work-Bites. “Are we willing to risk one bad health outcome, or something even more tragic, just to save money with a new system that’s rollout hasn’t been planned well.”
“The MTA and TWU Local 100 taking away Retirees’ access to traditional Medicare and installing a barrier to access to care is cruel,” said Marianne Pizzitola, a retired FDNY EMT and president of the NYC Organization of Public Service Retirees. “While no retiree would ever deny that active workers should be given raises for their work, it should never be done on the backs of retirees. Our Organization will continue to help Retirees around the Country facing this same injustice!”
In his order in the TWU retiree case, New York State Judge Shahabuddeen A. Ally cited the retirees’ argument that the contract between the union and the MTA forced retirees into an “inferior, private and for-profit” Medicare Advantage plan that put “their health and full medical access at risk” with the switch being done “without consultation, notice, full consideration of the dire consequences” of the “foreseeable acute harm” to the retirees.
“We will be in court seeking a correction of this ruling in order to head off any disruption of our retirees’ health benefits, said MTA Spokesperson Eugene Resnick, in a statement in response to a query.
A TWU Local 100 press spokesperson referenced Local 100’s prior statements on the Aetna Medicare Plan rollout that asserted the union’s “number one mission is to provide the best plan for our retirees — and if that’s Medicare Advantage then it’s Medicare Advantage — but a specifically tailored Medicare Advantage plan for transit workers.”
Local 100 has consistently maintained their Medicare Advantage Plan was far superior to the one that New York City retirees are fighting in court.
Retired Nassau County civil servants, who were represented by CSEA Local 830, won a similar legal reprieve this week when New York State Judge Conrad Singer also issued a TRO preventing County Executive Bruce Blakeman’s administration from forcing the retirees into a plan their lawyer told Newsday would cover less and would shift costs onto the retirees.
“These are seniors on fixed incomes and they will need to make difficult choices about whether to keep their health care or give up basic necessities,” retiree lawyer Adam Cohen told Newsday.
Alex Lawson is the director of Social Security Works, a national non-profit advocacy group. Lawson told Work-Bites the wave of retiree litigation comes on the heels of an NBC News investigative report that rural hospitals in Texas, Mississippi, Arkansas, Missouri, Colorado, and South Dakota were “routinely” having their Medicare Advantage claims denied by private insurers.
“A court would say, we need to look at this because people are saying this is going to harm them—up to kill them and they are being forced into a system that’s been shown to deny and delay care and now it’s not just academic white papers pointing this out, but the popular press,” Lawson said. “According to a National Bureau of Economic Research study if you shut down the bottom five percent performing Medicare Advantage Plans you would save 10,000 lives a year—or put another way—200 plans are killing 10,000 people a year and the government knows who the worst actors are, so why are we sitting back and allowing it?”
This past July, The New York City Organization of Public Service Retirees [NYCOPSR] was given a hero’s welcome at a ‘Save Medicare’ rally in front of the U.S. Capitol. Roughly 70 members shared the spotlight with Sen. Elizabeth Warren (D-MA), and several other members of the House of Representatives who blasted for-profit Medicare Advantage insurance companies for delaying and denying health care treatment to seniors.
The rally to ‘Save Medicare’ was organized by Be a Hero, a non-profit, that according to its website believes that in the “richest country in the world, and everywhere… healthcare should be a human right.”
According to Jamila Headley, the group’s co-executive director, saving Medicare from increased privatization has emerged as a top priority for the non-profit. Headley said that the New York City retirees’ battle against Aetna Medicare Advantage had been an inspiration to other activists across the country concerned about the fate of Medicare.
“Honestly, every news article we saw and every time we talked with the folks organizing on the ground — it gave us hope that there were people willing to fight back,” Headley told Work-Bites. “I think that for so long this has been happening and no one had been organizing or saying anything about it. And even us, as a national organization — we were working on other healthcare issues — sort of sleeping on this — which is really a looming threat. It has really been inspiring seeing folks organized and really fight back at a local level. It gives us hope for what is possible on the national level.”
The Capitol Hill rally included remarks from Meagan Bent, whose father Gary Bent, a retired University of Connecticut physics professor, died in March after his Medicare Advantage insurer, using an algorithm and artificial intelligence, denied him access to skilled nursing and acute therapy that had been prescribed by his neurosurgeon. Bent was 82.
“Our family continues to struggle with the question why are people who are only looking at patients on paper or through the lens of an algorithm making decisions that deny services judged necessary by people’s healthcare providers?” Bent said. “People that have interacted with them [the patients] personally and, sometimes, have known them for years.”
“This year, for the first time more than half of all beneficiaries are enrolled in Medicare Advantage instead of traditional Medicare,” Sen. Warren told the large crowd in front of the Capitol. “Medicare Advantage substitutes private insurance companies for traditional Medicare and that private coverage is failing with Medicare beneficiaries and taxpayers. It’s all about the money. Private insurers are in Medicare Advantage to play games to extract more money from the government. Experts estimate the Medicare Advantage insurers will receive more than $75 billion in over payments this year alone.”
Last year, the New York Times and Kaiser Health News published extensive investigative pieces which raised alarming questions about the nation’s largest Medicare Advantage insurers including Aetna. The news outlets confirmed that the insurers were on the radar of regulators who had documented a sector wide practice of so-called “upcoding” when insurers would say patients were sicker than they were to secure a higher reimbursement from the government while using prior authorizations as well as outright denials of care to reduce their costs.