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Judge orders Cincinnati to pay $141K in retirees' legal fight over health care and loss of Viagra

Judge gives city of Cincinnati 30 days to pay
Cincinnati City Hall
Posted at 11:47 AM, Dec 17, 2020
and last updated 2020-12-17 22:07:34-05

CINCINNATI — A federal judge ordered the city of Cincinnati to pay $141,350 in attorney bills that have accumulated over three years while retired city workers fight changes to health care benefits, such as the removal of Viagra and Cialis from prescription coverage.

U.S. District Court Judge Michael Barrett signed an order on Wednesday, giving the city 30 days to pay legal bills to several local firms representing retirees.

That legal bill ballooned due to a widening dispute over what the retirees say they are entitled to, and what the city says it can afford. The retirees filed a motion to hold the city in contempt in November.

The city and its retired workers reached a historic agreement in 2015 that solved a looming pension crisis. It allowed the city to move $200 million from its health care fund to the pension fund. In exchange, the city agreed not to significantly change health care benefits.

“As the court knows well, the years since the agreement was executed have seen a steady flow of disputes, motion practice, meetings and negotiations as the parties have worked to address new and old issues under the agreement and avoid all-out litigation,” the retired workers' attorney, Peter O’Shea, wrote in the motion for legal fees in December 2019.

In June 2019 retired workers filed a motion to stop the city from removing erectile dysfunction drugs from their health care benefits – a cut that would save the city $425,000 per year. Current city employees lost this coverage in 2018.

The city continued to cover erectile dysfunction drugs necessary as part of a medical condition, such as an enlarged prostate, but ended coverage of lifestyle or recreational use of the drugs.

“Not every drug which seeks to address the admittedly unpleasant effects of the aging process is, in the strictest sense, ‘medically necessary' and subject to full insurance coverage,” the city’s then attorney, Steve Goodin, wrote in a July 2019 motion.

Goodin was the city’s trial attorney through his firm Graydon Head & Ritchey until he withdrew from the case on Nov. 30. That’s the same day Hamilton County Probate Court Judge Ralph Winkler appointed Goodin to serve on Cincinnati City Council to temporarily replace Councilman Jeff Pastor, who faces federal corruption charges.

The city has been fighting payment of these legal fees for months, arguing that its agreement with retirees caps fees at $5,000 a year.

“The City does not expect class counsel to work for free; it does, however, have a fiduciary obligation to the Cincinnati Retirement System and a general moral obligation to be a good steward of its members’ funds,” Goodin wrote in a December 2019 court filing.

The Cincinnati Retirement System was expected to spend an estimated $34 million on retiree health benefits in 2019 and coverage for prescription drugs accounts for half of that, then City Manager Patrick Duhaney wrote in a June 2019 memo to City Council.

“This trend is expected to increase at alarming rates due to escalating costs for brand-name drugs, new and specialty drugs coming to market at ever-higher prices, and increased utilization,” Duhaney wrote.

The city added numerous new drugs to its health plan, including ones which cure Hepatitis C and dramatically improve the life expectancy for certain cancer diagnoses, and it did so without court approval, Goodin wrote.

He argued the city is entitled to make routine tweaks to its health care plan without a judge’s oversight.

In January 2019 retired city workers asked a judge to hold the city in contempt for violating the consent decree by not making regular payments into a health care trust.

“It is noteworthy that this court has never held the city in contempt of the agreement for any reason whatsoever, and that the city has continued to work collaboratively with all class counsel on refinements and revisions to the agreement. The latest kerfuffle regarding the need to transition some retirees to a Medicare Advantage Plan yielded nothing in the way of adverse findings against the City,” Goodin wrote in a December 2019 court filing.

Attorneys for the retirees are also fighting for access to city documents as they investigate changes to health insurance and an independent actuarial analysis of the Deferred Retirement Option Plan.