High court OKs Medicare switch

In a significant setback for retired municipal workers who have battled to keep their government-administered Medicare, the state’s highest court has given the green light to the Adams administration’s plan to shift the roughly 250,000 retirees to a cost-saving Medicare Advantage plan. 

In a unanimous decision released Wednesday, the Court of Appeals concluded that the retirees did not sufficiently demonstrate that city officials had assured city employees and would-be employees that as retirees they would have a choice of health plans. 

The former city workers have long maintained that city officials made the promises as part of their recruitment and retention efforts. They and their advocates submitted hundreds of affidavits to the courts as proof of their claims. Among those, one by Lilliam Barrios-Paoli, a retired longtime city official who headed several departments, asserted that for decades the city’s human resources administrators had made the assurances, including through annual summary program descriptions. 

The judges, though, agreed with city officials and their attorneys that the program descriptions “contain nothing that could be construed as a clear and unambiguous promise of Medicare supplemental insurance coverage for life.”

“To the contrary, we agree with the City that the language in the SPDs is descriptive and for informational purposes only. The language on which petitioners rely — “becomes eligible,” “is provided,” “provides,” and “supplements” — is in the present tense,” the opinion, written by Associate Judge Shirley Troutman, reads. “Because there is no clear and unambiguous promise in the [summary program descriptions], the affidavits of Barrios-Paoli and the hundreds of retirees likewise fail to establish the existence of such a promise.”

The decision essentially brings to a close the retirees’ and their advocates’ attempts to block the administration’s plan in the courts, which to this point had been successful. But the proposed switch could yet be turned aside.

City Council legislation, introduced last year by downtown Manhattan Council Member Christopher Marte, would prevent city officials from instituting wholesale changes to the retirees’ health plans. But the bill, Intro 1096, has so far failed to gather significant momentum — just 15 Council members, along with Marte, have signed on as co-sponsors, short of the 26 needed to pass the bill or the 34 members who would be required to override a near-certain veto from Mayor Eric Adams. 

Marte called the court decision “disappointing” but vowed to carry on with efforts to preserve the retirees’ current benefits, saying that “the responsibility for protecting retiree healthcare lies with the City Council.” 

“Now, more than ever, we must pass Intro 1096. This is our clearest and most urgent mechanism to stop the administration from forcing retirees onto Medicare Advantage — a privatized plan that has been repeatedly exposed as dangerous, restrictive, and profit-driven. For retirees receiving lifesaving care, a forced switch to Medicare Advantage—where their providers may no longer be in-network—can be a literal death sentence,” Marte added in a statement. 

Michael Mulgrew, the president of the United Federation of Teachers, said the union, as a member of the Municipal Labor Committee, would not support the city’s planned switch. 

The MLC, the umbrella organization of municipal unions, sanctioned the city's plan in March 2023 when, in a weighted vote favoring larger unions, it approved an agreement between the city and Aetna that would have funneled the retirees into a Medicare Advantage plan administered by the managed-healthcare company. 

“At this point, the plan should no longer be considered valid due to the amount of time that has passed since it was negotiated. The city and the MLC would need to start from scratch negotiating a new plan, which, if they choose another Medicare Advantage plan, we would not agree to,” Mulgrew said in a note to members following the release of Wednesday’s court decision. 

The MLC could again be called on to approve any new agreement. Mulgrew said he believed other unions would also oppose the plan. 

Mulgrew, the MLC's executive vice chair and an influential member of the organization, initially backed the proposed switch but withdrew the UFT's support a year ago, saying the matter had become unnecessarily contentious. City officials, he said at the time, were not sufficiently attentive to unions’ concerns regarding the potential switch.

A Council spokesperson, Rendy Desamours, said the Council was reviewing the court's decision.

"The mayoral administration holds the authority over healthcare decisions for municipal employees and retirees and should bring all parties together to reach a resolution that protects adequate healthcare choices for them," Desamours said in an emailed statement.

The results of the primary elections next week could see others join in support of Marte’s legislation. The proposed switch to Medicare Advantage plan has long been supported by some public-sector unions, among them District Council 37, the city’s largest, which brings a significant get-out-the-vote effort to sparsely attended primaries. Several mayoral candidates, among them front-runner Andrew Cuomo, have said they are opposed to the switch. 

“While we are disappointed in the ruling by the Court of Appeals, the solution to protecting seniors’ healthcare has always been with the City Council and the Mayor. The next Council and Mayor need to do the right thing and codify protections for seniors in City law,” the Organization of Public Service Retirees, which has led opposition to the proposed switch, said in a statement.

City Hall did not respond to a request for comment on the court’s ruling.

richardk@thechiefleader.com