License to Lawlessness

Spoiler:  [ Here is the on-line consumer complaint form, that quickly solved the problem described below.  I have to figure out how to publicize it.}

With the largely incoherent “arguments” about why Abuse of Power is no vice and justifying absolute presidential immunity for obstructing multiple corruption investigations droning on in the foreground of American democracy — let’s examine what happens to the average citizen when the law that protects their health care can be routinely violated without consequences.

In New York State, patients who get their health care through the Patient Protection and Affordable Care Act (“ACA” or “Obamacare”) can, on the eleventh day of January every year, have the health insurance they’ve lawfully reenrolled in canceled at the whim of the private health insurance company they pay for coverage.   I learned this sobering fact when it happened to me on January 22 of this year when I called to pay my premiums through June, as I had done every six months for the last few years.    

The reason given for abruptly canceling the policy I’d renewed on December 6 was that I’d missed the ten-day “grace period” for paying the first month’s premium for a new policy.   My arguments that I’d received no notice of any “grace period”, that it was the same policy I’d had for two or three years, same ID number, same ID card, same premium, fell on deaf ears.

The Healthfirst supervisor, Daya (like the vegan cheese), told me, with great certainty, that Healthfirst was following the “guidelines” and that I’d have to quickly reapply at the New York State of Health Marketplace if I wanted coverage starting March 1.  She informed me there was no requirement that health insurance companies give customers any notice of this ten day “grace period” and that the only appeal was an internal one.   She said she’d refer my “case” to “financial” and get back to me.  She told me I’d be responsible for paying the full price of the expensive, on-going heart-related procedure I’d had on January 8th, mistakenly believing I was still insured.    

In her long experience at Healthfirst, she told me, she’d never known “financial” to overturn a valid termination.  True to her word, I had a cheerful voicemail from her the following day and when I returned the call was informed by a representative that the termination was, unfortunately, final, irrevocable and non-appealable.   

Until two business days later when the company called to apologize for their “mistake”.  They took my payment over the phone, right before January ended, apologizing as much as I demanded.  I pummeled that poor woman, bullied her into admitting she empathized, would be equally outraged if she suddenly and without any warning found herself in my position.  My friends sent me congratulations for my tenacity, my legal skills, for prevailing in a high stakes fight nobody should have to fight just to have the basic right to health care granted to all citizens of every other wealthy nation.  I am as angry now as I was when they cancelled my insurance.  Here is why:

While one of the innovations of the Patient Protection and Affordable Care Act was making it much harder for insurance companies to cancel policies for late payments without notice (an industry-wide practice as widespread and previously legal as non-coverage for “pre-existing conditions”), the first ten days of every  new year apparently offer an annual exemption to this rule allowing health insurance companies to cancel policies without warning.   That might be the law, or it might not be the law.  It’s up to the individual affected by termination for not paying in the “grace period” to try to find out what the law actually is and if any official in their state can help them determine the legality of what has just been done to deprive them of affordable health care.  Oh, and if there’s an available legal remedy if the action taken against them was illegal under the ACA.

An internet search took me to the only public agency that handles health care related consumer complaints.    The Better Business Bureau will help consumers with virtually every business-related conflict, excluding anything to do with health insurance.  The New York City Public Advocate does not get involved with consumers as individuals, only matters of “public policy”.   The state entity that has the monopoly on selling ACA plans, the “New York State of Health Marketplace” (NYSOH)  has no mechanism, outside of a three to four month quasi-judicial appeals process, to help health care consumers correct even NYSOH’s own errors that deprive them of health insurance or payment subsidies.  NYSOH also does not inform us of our basic legal rights as patients protected by the embattled Patient Protection and Affordable Care Act [2].  

The job of helping all of the many New York State health care “consumers” (otherwise known as “patients”) who experience problems with their health insurance falls to the small Health Care Bureau, a desk at the New York State Attorney General’s office, a hotline staffed by one or two decent, well-meaning, overwhelmed and powerless people who are very, very busy.

I contacted the Health Care Bureau and spoke to an extremely sympathetic and harried woman who lamented that there was little they could do for me, except to reach out to the company with a complaint and hope the corporation would change its mind.  I got an email telling me my transcribed complaint had been submitted [3].  The complaint, which stated my dictated complaint verbatim, looked very official, here is what is at the top of the copy they sent me:

Screen shot 2020-02-03 at 3.33.54 PM.png

The next day the extremely kind woman from the Health Care Bureau reached out to let me know that, sadly, Healthfirst  got back to her to say, in essence, “tough noogies.”  She greatly empathized when she called to give me the bad news, told me she wished there was more she could do and advised me that I’d better get busy re-applying to NYSOH for health insurance if it wanted coverage again on March 1.

I called a non-profit advocate for the poor and elderly where a lawyer had helped me in the past, though even that excellent lawyer’s powers were extremely limited when it came to overcoming the refusal of a private health insurance corporation to comply with the law.   They researched my complaint and called me back to inform me that I’d better reapply if I wanted to be insured again on March 1, since there was probably nothing anyone could do.  In a voicemail they regretted they could not be of more help to me and made a reference to the Department of Financial Services consumer help forms.

I spent many more hours on the internet and on the phone, spoke to many more people at several New York City offices [1].  Eventually I found one who told me to file the consumer complaint form I’d already found at the New York State Department of Financial Services.  I’d found a link to this form during my second full day of research but had been skeptical, due to past experience with that agency. The great woman I spoke to at the NYC agency, Alexa, told me confidently that the insurance company would be forced to reverse its decision as a result of this complaint.  I wrote the complaint, filed it on-line and two business days later, Alexa’s prediction came true.  

There is a short explanation for why the corporation changed its unappealable decision: it had violated the law by canceling my health insurance, without notice or warning.   The government’s enforcement of its laws is the only thing that can force an unscrupulous person (or “person”)  to behave ethically, or at least comply with the law.   Without public enforcement, a law is as empty as the words of the lawyer for a vicious criminal arguing that since his client truly believed he was doing nothing wrong it was legally impossible that he’d committed the crime the jury had seen the videotape of him committing.   No intent, no crime, no harm, no foul!

The explanation for why the Department of Financial Services was the place to find and file a new, highly effective, amazingly fast-acting on-line consumer complaint against a health insurance company is a little longer.   When New York State became one of the first states to adopt the ACA, it abolished the Commissioner of Insurance position as well as the state’s Department of Insurance.   All of the functions of that oversight agency were merged into a new agency that also oversees banking and finances in New York State.   This was a full three years after the calamitous fallout from the financial industry’s massive fraud came close to causing a world economic collapse.   What could go wrong?  

The last time I had problems with my health insurance, at some point between my two “successful” several month appeal processes at the New York State of Health Marketplace to overturn errors they had made, I contacted the Department of Financial Services.  At the time, their fraud investigators, one of whom I managed to track down and eventually spoke with for a long time, only had the ability to investigate insurance fraud claims lodged by insurance companies against customers.  There was no consumer help available, though they helpfully referred me to the same 800 number that had begun my twenty hours or so in the useless administrative cul du sac I’d described in a long letter to the Attorney General’s office.

This time I was screwed by a corporation and, amazingly, managed to get quickly unscrewed.  Why am I still angry?  A character flaw, I suppose, I can’t help thinking of countless neighbors of mine, for whom English is a second language, who have no hope of finding this well-hidden, highly effective new remedy for the ILLEGAL practice of terminating affordable health care without notice or warning of any kind.  I think of anyone who does not have my particular skill set and perversity, anyone who has not been a lawyer, trying to navigate the impossibly rough waters of not being illegally thrown off an insurance policy.  

WHY DOES NOBODY (outside of a very cool NYC worker named Alexa) IN ANY OFFICE DEDICATED TO HELPING CITIZENS WITH HEALTH CARE KNOW ABOUT THE SECRET NEW 100% EFFECTIVE CURE for this particular corporate abuse?  Why is the public, particularly its most vulnerable members, not publicly and effectively informed of it?  Why is there no requirement that we be informed of how the law to protect patients actually protects patients?

As for the amazing quickness of the legal relief I got (two business days!), I can only conclude that out of the many hundreds or thousands around the state similarly screwed, I must have been one of very few, perhaps the only one, who filed a complaint with the Department of Financial Services on their new secret on-line form.  I can’t think of how else my vexing problem could have been solved so quickly.    Here is the NYSDFS consumer complaint form, by the way.

Abuse is not a crime, unless the law specifically makes it a crime.  If the law doesn’t specifically say you can’t abuse, it’s perfectly legal to do whatever you want, “abusive” or otherwise (within other legal limits) to anybody,.   If there is a law against a certain kind of abuse, but there is no enforcement available for those abused and no penalty to the abuser, well, that speaks for itself.  It says “I know you are, but what am I?!!”   In that case, effectively, even though a practice is actually against the law, in reality there is no law.  If there is no law, you have the democratic government you vulnerable, helpless, pitiful chumps deserve, losers!  It’s up to us all to … oh, never mind… there must be a good reality show we can all watch to calm down…



[1]   I learned from a great and knowledgeable woman at the New York City Human Resources Administration, Department of Health, Public Engagement Unit (212-331-6266  M-Th  9am-8pm  Fri til 6:30)  that New York City has a new program, NYC Care, that provides an extensive safety net for low-income individuals who lose access to affordable health care.  

This wonderful pilot program can save a lot of lives, because it provides for low cost doctor visits.  It should be well-known and well-publicized until it is.   NYC Care has a helpline at 646-NYC-CARE (692-2273).  The program is only active in the Bronx, so far, but if you go to any public hospital (Bellvue, Harlem Hospital, Jacobi, Lincoln, Montefiore)  you can enroll, at the Financial Planning or Business Office, in the low-cost, pay-as-you-go “options program”.   I will also post this as a separate piece, a public service announcement.

[2]  The inept public agency that has the state monopoly on providing ACA health plans is run by an unaccountable political appointee, Donna Frescatore, who does not allow consumers to contact her, nor does she allow NYSOH reps to divulge her identity to consumers.   Both of my appeals against NYSOH were necessitated by errors made by NYSOH reps that could only be corrected by winning a quasi-judicial appeal months later.   As a result of her excellent stewardship of NYSOH Frescatore has been promoted to Deputy Director of Medicaid in the State.   She must have EXCELLENT people skills.

[3] their email reads, with all the hallmarks of officialdom:

Thank you for submitting your complaint to the Health Care Bureau. Attached please find a copy for your records. Your assistance is vital to our efforts to serve the people of the State of New York.

The Attorney General takes seriously the legal issues of all New Yorkers, and every complaint to this office is carefully considered. Please be assured that we will thoroughly evaluate each of the issues you have raised, and determine if we, or any bureau within our office, can provide assistance. We may also share your submission with other local, state, or federal agencies, as appropriate.

We will contact you if we require any additional information. Please do not submit follow-up inquiries through the complaint form, which is for new submissions only. If contacting our office regarding this submission, please refer to Intake #1-129605382. Inquiries may be made by phone at (800) 771-7755, or by email.

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