NYC Retirees on Pins & Needles Following Final Arguments in Latest Medicare Advantage Case
Attorneys Steve Cohen and Jake Gardener (l to r) join New York City Organization of Public Service Retirees President Marianne Pizzitola in debriefing retirees following Thursday’s Medicare Advantage hearing at the New York State Court of Appeals in Albany.
By Joe Maniscalco
Are the seven justices now deliberating the case that will largely determine if the City of New York will be allowed to strip municipal retirees of their Traditional Medicare benefits sitting on the New York State Court of Appeals…or the NYS Court of Schlemiels?
The jurists hearing final arguments in Bentkowski v. City of New York made a lot of retirees upset and angry yesterday in Albany when the judges appeared to seriously entertain the City’s contention that retirees were never actually promised the City-funded Medicare supplemental insurance they earned after decades on the job.
“This was the jewel,” retired special education teacher Suzanne Knabe told Work-Bites after Thursday afternoon's proceedings in Albany were concluded. “This was the carrot. This is why you kept working for 30-something years to get your health benefits, to get your Social Security, to get your pension. That was the motivation right there. Nobody’s going to want this job without decent healthcare. The Medicare Advantage plan is a joke. It’s a joke.”
Thursday’s 45-minuet court proceedings in Albany largely revolved around the idea of promissory estoppel. That’s a legal principle involving the enforcement of promises without a formal contract. And judges were considering how that principle might apply to New York City municipal retirees pushing back against ongoing efforts to herd them into a profit-driven Medicare Advantage plan notorious for evaporating pools of doctors and hospitals, and delays and denials of care.
Jake Gardener, the attorney arguing the case on behalf of retirees, pointed out that they have already legally established in other court proceedings that retirees were promised City-funded Medicare supplemental insurance—and relied on that promise to their detriment.
Worry and stress are clearly etched on the faces of New York City municipal retirees gathered in Albany’s Academy Park on Thursday afternoon.
“Those facts aren’t going to be changed,” Gardener told retirees gathered in the small park across the street from the New York State Court of Appeals building. “The only question for this court is whether the law requires the City to do something about the state of affairs. And if they rule that the law doesn’t require the City to abide by its promises, then I think that is a very unfortunate and unjust outcome.”
Despite the City’s contention that the health care municipal retirees presently have was never actually promised to them, and therefore, there’s nothing preventing Mayor Eric Adams’ administration from pushing them into a predatory Medicare Advantage plan—retirees say they have their lived experience and plenty of evidence demonstrating that over the last 59 years officials used the City-funded Medicare supplemental insurance retirees presently have as a tool for retention and recruitment.
“As an agency personnel officer I was in charge of benefits and orientation,” New York City municipal retiree Roberta Gonzalez said. “And every orientation, I went to supervise the benefits office from soup to nuts on exactly what was in the booklets that we handed out. As people retired, at least from the Health Department, everybody who was retiring met with the benefits officer and was explained exactly what was in that book as their benefits.”
Lilliam Barrios-Paoli, former Deputy Mayor for Health and Human Services, submitted an affidavit on behalf of retirees that the City’s counsel tried hard to tear down and dismiss.
In it, Barrios-Paoli said forcing municipal retirees into a single Medicare Advantage plan would “endanger the health of tens-of-thousands of elderly and disabled people” and “breach the promise made to hundreds-of-thousands of NYC municipal workers for more than 50 years, and which they relied on…”
New York City municipal retirees battling back against the Medicare Advantage push gather in Academy Park after hearing final arguments in a case that will largely determine the future of their healthcare.
New York City Organization of Public Service President Marianne Pizzitola also pointed to Section 12-126 of the city Administrative Code which outlines retiree health care benefits—the same code, Medicare Advantage advocates had previously tried to scrub.
“The only reason why we have 12-126 is because when Medicare became available [in 1965), a mayor then wanted to be able to give it to us,” Pizzitola said. “He could give it to employees through a personnel order, but not to retirees. He had to create a statue for people that had already left City service.”
As a young cop on the beat, retired NYPD Lieutenant Jack LaTorre’s superiors were always telling him, “You’ll never get rich, but you’ll get a good pension after your service—and you’ll have excellent health insurance.”
“I thought that was golden,” LaTorre told Work-Bites on Thursday. “Friends on Wall Street asked me, ‘How much you making a year?’ The answer was $15,000 in 1986. ‘You gotta get involved in Wall Street—you’re on the wrong corner,’ they said. It’s a sad commentary to make that here we are today.”
Retired teacher Mea Ambrosio said that “golden promise” of guaranteed health care was still in effect 15 years ago, when she started on the job at just $54,000 a year with two master’s degrees.
“We got sprinkled with fairy dust [today],” Ambrosio told Work-Bites. “It was deferred compensation. Colleagues who went to private schools were making $70,000. How could you say 250,000 people imagined this conversation [about healthcare]. It was for retention and recruitment. That’s how I was approached. They gave it to you with the City emblem on it—it’s not like we imagined this.”
The City’s counsel also tried to make some hay out of retirees bringing their case without class action certification. But Gardener said the reason why there was no class action certification is because “the City stipulated that that was unnecessary to address all of the claims in this case.”
“So, they agreed with us that the court could issue a ruling covering all retirees, which it did. And then the Appellate Division did the same thing,” Gardener told retirees. “Now, for the first time in this litigation, the City is suddenly saying, guess what, you can’t get this if you don’t have a class action certification. But as I tried to explain…first of all, the City lawyer was not involved in the trial court proceedings…we considered that, and came to an agreement that that was unnecessary.”
A ruling from the New York State Court of Appeals could come at anytime.
“I can’t tell you what the court will say,” a tearful Pizzitola said on Thursday. “And as [retiree lawyers] Jake and Steve [Cohen] have always said to us, there’s a 50/50 chance of winning. We always come hoping that we’ll win. I still hope that we’ll win. But we’ve been let down by other people. We’ve been let down by all of our electeds—at least a good majority of them—or people have lied to us repeatedly about this. Our own unions let us down from the very beginning. So, if we would happen to not be victorious here, would that be a disappointment? Yes, of course. But that just means we have to keep organizing and fighting to try to get what we want another way.”
The Mayor’s Office responded to a Work-Bites request for comment saying, “The safety and care of the brave men and women who serve our city is a top priority. We continue to pursue the Medicare Advantage plan — which would improve upon retirees’ current health plan and save hundreds of millions of dollars annually — and await the court’s next decision this year.”
Gonzalez, like other municipal retirees who helped shepherd the City of New York through the greatest travails it’s ever faced, gave everything she had to civil service in return for that “jewel,” that “golden” promise of worry-free health care.
I have 9/11 cancers,” a hurt and incredulous Gonzalez said after court on Thursday. “And I’m not gonna have health insurance?”
That’s now largely up to the seven justices sitting on the New York State Court of Appeals.