There is no grinding like the Law

The relevant rule governing “retirement” for purposes of not paying the biennial $375 dues:

(g) Each registration statement filed pursuant to this section shall be accompanied by a registration fee of $375. No fee shall be required from an attorney who certifies that he or she has retired from the practice of law. For purposes of this section, the “practice of law” shall mean the giving of legal advice or counsel to, or providing legal representation for, particular body or individual in a particular situation in either the public or private sector in the State of New York or elsewhere, it shall include the appearance as an attorney before any court or administrative agency. An attorney is “retired” from the practice of law when, other than the performance of legal services without compensation, he or she does not practice law in any respect and does not intend ever to engage in acts that constitute the practice of law. For purposes of section 468-a of the Judiciary Law, a full-time judge or justice of the Unified Court System of the State of New York or of a court of any other state or of a federal court, shall be deemed “retired” from the practice of law. An attorney in good standing, at least 55 years old and with at least 10 years experience, who participates without compensation in an approved pro bono legal services program, may enroll as an “attorney emeritus.”

and does not intend ever to engage in acts that constitute the practice of law.

Which suggests retirement is final and irreversible.   On that ground I paid my dues every two years, though I haven’t practiced law more than a few times in the last decade.  

I was told by a bright man at the Office of Court Administration that coming out of retirement is easily done.  It is a simple process, though, apparently, a secret one.   You request a Rescind Waiver Form, fill it out, submit it along with the full biennial dues for that period, and take one Continuing Legal Education credit for each month going forward.  A matter of a few weeks to come out of retirement, no problem.

I told him that I had no doubt about what he’d told me but that, as a lawyer, I needed something in writing to that effect.   This is because if I acted relying on a statement of the rules he sent me in writing, I’d have an excellent defense if it ever came to that.   He obliged by sending this email, which is not part of any rule or contained in any on-line guide one can access:

A link to the registration rules can be found here: www.nycourts.gov/rules/chiefadmin/118.shtml

NYS does not have an inactive status as may be available in other jurisdictions.

The retirement certification may only be claimed if you do not practice law in New York or elsewhere and do not intend ever to engage in acts that constitute the practice of law.  If you meet the definition you may sign the retirement exemption and the biennial registration fee of $375 is waived.  As a retired attorney you would remain a duly admitted NY attorney and there would be no bar to you filing on a future registration as active – additionally, Part 118.1(g) allows retired attorneys to continue to perform legal services without compensation.  Therefore, since you remain a duly admitted attorney you would still be required to register every two years.

and do not intend ever to engage in acts that constitute the practice of law.

The devil cavorts in the legal details, yo.   The road to hell is paved with good intentions, they say, including, I suppose, the intention never to engage in acts that constitute the practice of law.

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Lynching in America

Terry Gross recently did a show on the new National Memorial for Peace and Justice in Montgomery, Alabama, a museum that honors the “victims of lynching and racial terrorism in the U.S.”    The hideous subject of gruesome, racially motivated murders, usually involving prolonged torture,  is little discussed and even less often analyzed here in the land where it was long practiced.   The highly uncomfortable subject of lynching is usually treated, by those whose family members were never lynched, with the famous Obama formula of “looking forward, not back” on horrific American practices, though, of course, that is unfair to the first African-American (literally) president.  

Stalin, a man not known for his wit, is credited with the witty formulation:  the death of one man is a tragedy, the death of a million men, a statistic.  Thousands were lynched during a long reign of terror against the previously enslaved citizens of these great United States, but a look at just one lynching should suffice to drive the nature of this vicious tragedy home.  

Then consider the pompous blowhard fuckheads (racist fuckheads, by the way) who decade after decade thwarted any and all attempts to make lynching a federal crime.  The strutting, braying racists of today, men like America’s former Sheriff Joe “I Know the Law Better Than You, Fuckface, er, your Honor” Arpaio, are just an echo of those walking turds who considered themselves good men, American patriots.

I don’t mean to get all emotional about this subject, a subject which I have thought about many times over the last few years.  My feelings on the subject have been stirred in recent days by America’s collective nonchalance about our extensive, secret torture program directed against suspected Islamic terrorists, with the confirmation of a zealous, stonewalling torture advocate hanging by the votes of a few spineless politicians.    (See this one for more on Gina Haspel, the reality TV president’s pick for America’s Top Spook).

I recall my father telling me that not all lynchings were secret backwoods murders.  Some of them happened in broad daylight, before a cheering crowd of average Americans who brought a picnic lunch, and the kids, and afterwards bought souvenirs of the event, photos, dismembered body parts taken from the screaming victim.  Imagine that, if you can.

Google Jesse Washington (or simply click here), if you want to feel sick to your stomach about Making America Great Again.  A glance at the photo of his charred, mutilated corpse, toward the top of the linked entry, should suffice.  A glimpse of the photo of the vast crowd, pressing in from every direction to get a close look at the torture, will make your skin crawl.  

Jesse Washington was an illiterate teenaged farm hand, a black kid, accused of… whatever… probably making advances toward a white woman, nay, raping her, with his eyes if not his body– yeah, that’s it– he raped her — and then he murdered her!  Justice followed swiftly.  Within a week, after full due process as guaranteed by our Constitution, Jesse Washington was a burnt, mutilated husk of a corpse, on display for the roaring crowd. 

The record shows he was convicted of the rape and murder of the white woman he worked for, seven days after the white woman’s bludgeoned body was found.  He was convicted after a no doubt scrupulously fair hour long trial, found guilty of both crimes by a jury of his peers in Waco, Texas, 1916.  The jury deliberated for four minutes.  Washington apparently had confessed to the crimes and his inexperienced court-appointed lawyers attempted no defense.  In any event, there clearly would not be time for an appeal.

I note here that just as in the cases when police shoot unarmed blacks who later turn out to have criminal records of some kind, the fact of their record does not begin to justify the extrajudicial death sentence. You will hear gas bags argue that point, but… you know.   Even if Jesse Washington was guilty of the crimes he was convicted for, the punishment should never be left up to a lynch mob.  Although in Waco that day it was, with the law and order mayor, up for re-election, and police chief, standing aside.

An example was made of him as he was immediately dragged from the courthouse and thousands of righteous white people, up to half the population of the Texas town,  pressed forward in front of Waco City Hall, good Christians, their children on their shoulders, to watch him be publicly tortured to death over the course of two hours.  His death by torture lasted twice as long as the trial, imagine that.  

Jesse Washington’s fingers and genitals were chopped off.  The lack of fingers thwarted his attempts to climb the chains to get out of the bonfire he was lowered into.  He was burned a bit, raised back over the bonfire by the chains, lowered, burned slowly, piece by piece,  dismembered, burned some more, hung like a large strip of beef jerky, eventually dead.  His charred, armless body was chained to a wagon and dragged a few miles, to be hung up on display in the small town where the murder had taken place, as a lesson to everybody.

What is hard to understand about this terrorist act we blandly refer to as “lynching”?   It is unthinkable social barbarity of an unspeakably medieval variety.  The larger horror is that lynching is performed to keep the status quo humming along, to strengthen desired social norms.   It is a public demonstration, or equally effective as a private one people can wink about, of the prerogative of a group with the power to torture and kill anyone they target in a group without the power to do anything about it.  

How much real power did the white barber from Waco, Texas, his wife and three kids have as they stood in the sun among the 10,000 to 15,000 good citizens watching men roast, cut and hang Jesse Washington to death, children pry his teeth out to keep as souvenirs?   Not much.   But, goddamn, they sure had more power than that boy they were taking to pieces up front.   The satisfied face on one of the spectators, looking at the charred remains of Jesse Washington, says it all.   You can see the picture on the linked Wikipedia page. 

Here in America when we talk about terrorism it’s always the same one note samba: Al Queda, ISIS, fanatical militant Islamists who hate our freedom.  It is not a brave stand for me to point out that those motherfuckers have nothing on our home grown haters.  We just don’t talk about our history of violent racism and the legally winked at terrorism that long supported it.  We don’t talk about the many harms that flow from institutionally protected violence, like the epigenetic changes passed on among the descendants  of the victims. 

I am glad that museum is open in Alabama, I’d like to visit it some day, unlikely as that may be.   It is past time for Americans to begin confronting, understanding and addressing America’s shameful, ongoing, long-repressed history of racialized fear, rage, hatred and deadly violence.  

Since I always try to end even the most depressing of these posts on an uplifting note, here you go:

On the centenary of the lynching, May 15, 2016, the mayor of Waco apologized in a ceremony to some of Washington’s descendants. A historical marker is being erected.[114]

It’s the individuals, stupid

We have to be honest here — as a species homo sapiens is very fucked up.  We are violent, irrational, clannish, destructive, greedy, prone to hatreds, even in our religious life, which should incline us to love our fellow humans, to protect the weak, to oppose evil, instead of routinely burning starving heathen babies to death. Our work here, as a species, has long spoken for itself.  An angry homo sapiens given power will as often as not act as you would expect a weak, spiteful, pissed off ape to act.

Funny as it may sound to hear it from me, I strive to give a happy, or at least upbeat, ending to my stories.   This ongoing stand-off with the Post Office, although I act like there’s a larger principle about accountability involved, is also a story I am shakily driving toward a happy ending.   The missing element of hope has been provided by two lovely individuals in the Post Office I have spoken with about this, one on Monday, one on Friday.

Individual homo sapiens are capable of the most touchingly human acts.   Part of my distaste for hierarchy, and corporate structure, is that people are forced to act according to the will of their masters.  They must do things that many of us would not consider right in the name of feeding their family.   There is no choice in these situations, you do as you are told or take a goddamned hike and your family goes hungry — and until recently, without the possibility of affordable health insurance.

I called the number for D. McNeil, the first woman I spoke to at the Post Office.  She was out to lunch just now but her colleague was equally aghast, equally apologetic, equally generous with her time and sympathy.   It appears the office the complaint was forwarded to was the local Post Office, Umar’s place.  Umar, being the best situated Postal official, was supposed to investigate this complaint about himself, determine whether he’d done anything wrong, and get back to me.   In the meantime, he caused the rent check to my landlord to be sent back to me a second time.  Needless to say, Umar’s investigation of himself is ongoing and complex.

She told me at the end of a long call that she’d written down everything I’d told her, to add to the record.  I apologized for her writer’s cramp.  She laughed, told me she had taken shorthand in school.    “Must have come in handy,” I said.    She told me Ms. McNeil would call me when she comes back from lunch.

Apparently Mr. Umar didn’t cross out the barcode at the bottom of the envelope that told the machine to return the envelope to the customer instead of delivering it.  The woman I spoke to just now pointed this out, along with the fact that the machines cannot see arrows, even if Umar had drawn a dozen.   He should have known to cross out the errant barcode.   Unless he was being spiteful, which is my best theory.

“So either he was stupid or vengeful,” I said, “not to put words in your mouth.”  She laughed and told me she indeed hadn’t said that, but that Umar should have known.

I now have to hold the envelope up to a strong light, read the landlord’s contact phone number on the invoice, and let them know they will have the rent check I’ve been trying to send them for ten days, by Tuesday at the latest.  Meanwhile, I am off to the little local Queens post office where the staff is always so nice.  I am optimistic that they will be helpful.  If not, I’ll buy a stamp and send the damn thing again from their place.  

The women at the landlord’s office were cool, promised to call me when my check arrives.

Stay tuned for the thrilling conclusion of this asinine tale.  I am hoping to send you on to your next internet surfing stop with a smile of some kind on your face.   Remember: we are always dealing with individuals, as well as the systems that constrain them and often make them act like jerks accountable to nothing but their lowest nature.  As individuals, homo sapiens most often will not lynch, rape, burn villages, design weapons more terrible than you can imagine.  Individuals laugh, feel concerned about each other’s troubles and will most often try to help.  Like Bill Clinton famously said, as he was signing a law that would vastly increase the prison population,  “Ah feel your pain.”

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Coming soon:  the dark comedy thriller “I Married O.J.”

He was handsome, he was charismatic, he was hilarious. He was strong and rich and powerful and vowed he would always protect me…

“The Era of Strategic Patience is Over”

Watching Amy Goodman’s War and Peace Report just now, while feeling semi-shitty from this antineoplastic agent doing its thing in my cells, yesterday’s pronouncement by The Best President, in the context of threatening to annihilate North Korea: “The Era of Strategic Patience is Over” kind of captured it all for me. 

I should be thinking happier thoughts, it’s true, sipping hot tea while chatting with a friend, keeping my blood pressure in check, I know.  But I have cabin fever and can’t even go for my daily constitutional, as Sekhnet has me confined to quarters while my immune system is suppressed, at least until I am free of phlegm.  I wonder, idly, if I ever will be free of phlegm.  My chest sounded like a mischievously creaking pirate ship doing weird animal imitations last night, I never heard some of those sounds.

This bellicose, bragging windbag who is done with strategic patience is only the front man for the American fascist chickens coming home to roost, the triumph of the methodical Koch brothers fulfilling the fevered dreams of their rabid father, a founding member of the radical John Birch Society.   He, like the Koch boys, is the product of inherited wealth and entitlement who, unlike those born to the manor who possess grace and dignity, also lacks noblesse oblige, not to mention empathy and decency

A many times failed businessman who played an infallible captain of industry on a wildly popular scripted “Reality TV” show, he now has people saying former president Dubya was not as stupidly certain and misguidedly evil as everyone thought at the time.  Impressive achievement, actually, when you think of it like that.   George Dubya Bush, among other regrettable accomplishments, destroyed Iraq and Afghanistan and started the perpetual and borderless War on TERROR that we all take for granted today.  No small achievement, that.  Particularly for the munitions industry and those who buy and sell its wildly, historically profitable stock.

So, in Sutherland Springs, Texas yesterday, another maniac at the end of his personal era of strategic patience, took the initiative to kill a bunch of people who were inside a church.   This is the kind of the thing we must have infinite patience for as a free society, we are told, the slaughter of random children in churches and schools.  The reason is because when God inscribed those words in the Second Amendment they had nothing to do with state militias, or keeping slaves in check in places like South Carolina where slaves were in the majority and you needed a militia with guns to keep those motherfuckers from rising up against what they felt were unjust working conditions (and they did so a few times, mind you) — it preserved a sacred and deeply personal American right to have guns and kill any and everyone we fucking want to kill.   

No sense being mad about it, or even sad.  The gun itself didn’t kill anyone, it was the enraged mentally ill coward who used the gun improperly, who, by the way, had every legal right to buy, own and fire those guns, until someone else with a gun could kill him.   It’s true he was discharged from the Air Force for being a violent asshole, beating up his wife and kid while enlisted, and spent a year in prison for the assaults before his Bad Conduct discharge (the military’s failure to link his imprisonment for breaking his step-child’s skull to the civilian criminal database was why he wasn’t barred from purchasing the gun he used to slaughter twenty-six, apparently) but why should that be held against him for the rest of his life? 

If we didn’t get legislation to keep guns out of the hands of maniacs after that kid in Connecticut shot his own mother in the face a few times and headed over to the nearest elementary school to massacre kindergarten kids and their teachers — don’t hold your breath this time.   Any Republican who supports sensible restrictions on gun ownership will be primaried out of office by the National Rifle Association, and plenty of Democrats are vulnerable too.    On the other hand, is not the era of strategic patience at an end?   I know my era of strategic patience is getting close to the fucking end.  

The message is hammered home day after day.  If you are a billionaire you are part of a despised and worshipped minority entitled to all the political influence you can afford to buy.  The same goes for middle class people and the poor, buy all the damn political influence you want.   It’s like the old Anatole France gem:  

The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.

True dat.  The president sends his prayers to the folks of tiny Sutherland Springs, Texas who lost their five year old little girl, their fourteen year-old, the dead pregnant woman, more than twenty others.   Back in reality, he sends his son-in-law, Jared, a younger, more self-contained version of himself, to personally thank the Saudis for buying all that top-shelf state of the art murder equipment from U.S. munitions makers, keeping Americans at work at what we do best– killing and advertising.  It’s not our business that the Saudis are using American weaponry against the poorest nation in their region, creating a medieval plague of starvation and cholera in Yemen in the name of preserving their vast royal wealth and extremist Wahabist version of medieval Islam.  Why hate on the Saudis just because they’re rich?   

I’ve got to pull my mind out of this, somehow.   I have to call Albany today, speak to Mr. Bockstein, find out how to get my letter to the Attorney General read by someone in his office who can describe it in ten words to the busy A.G.    I have to drink more tea, this cup of coffee I just had will only DE-hydrate me when I need to stay well hydrated to keep my phlegm loose and flowing.  There is a flow to all this. 

You hear great athletes and musicians sometimes describe this flow state.  In this state all their years of practice and learned excellence is able to flow directly, without thought or bidding.   They see the entire court at once, hear the whole of the music, with every space breathing free and looking like an entire universe.  Every pass they make in the flow state finds the hands of the person they throw it to, every note they play finds its mark, reverberating perfectly against everything else that is happening in that moment.   This also applies to every other field of human invention.  I understand the greatest scientific insights come during these states, as well as the greatest poetry.

This world we are living in right now is not designed, except for rare moments when we can pay to watch it at the highest professional level, to encourage real-time creative problem-solving, to have more people in a flow state.   It is a system of masters and slaves.  The masters are few, the slaves are the rest of us.  We who are not the masters sometimes dream of some way to smash our chains.  We wake full of hope some days, having dreamt of walking unencumbered by the heavy chains of a slave society.  It is easy to dismiss this hope.  It is essential not to.  If for no other reason than to say: fuck them.

 

Note on Son of Letter to etc.

Interesting to notice how the unconscious mind grapples with a seemingly unsolvable problem.  When you are under ongoing stress from a difficult to bear psychological torment the brain struggles against it in the background, I suppose.  Objectively, your situation might scream for relief– anybody in your position would be ready to start shouting, particularly if there is no possibility of relief.  

The way things are set up here in the Free Market, you’d better have a lot of money to buy influence if you are burnt by something that desperately needs changing.  I have been banging my head against repeated drafts of a letter that has, at best, a small chance to influence even NY State’s publicity hungry AG to take action.  First a bit from the trenches:

My Obamacare navigator (the “in-person assister” who helps consumers find their way on the opaque New York State of Health website) was on the line with me Monday when I called to get my subsidy reinstated.  The quickest way to resolve this situation is to simply run my numbers again and calculate the subsidy the law entitles me to.  

This, I learned, will be impossible to do, according to the New York State of “Health”, without jeopardizing my current coverage– they can’t grant me a special extension to refile while they examine their clear error in denying me the subsidy the law entitles me to now.  I snarled a bit then preserved my right to appeal the removal of my subsidy.

My navigator heard that I am unable to refrain from snarling at the NYS rep Clint Eastwood-like but at length, whenever my low threshold for frustration is exceeded.  Now, no doubt, she understands that this Patient Protection Act shit has driven me a bit crazy.

The first time I exploded was when they rejected my appeal request because my scanned tax return with my signature did not have a handwritten date next to my signature, only a typed one by the paid preparer, a filing date verified by the official IRS tax transcript which was sent with it…

My navigator, a lawyer who works for a busy nonprofit assisting some of the thousands fucked by the Patient Protection Act, looked over a previous draft of my letter to the AG.  She emailed that I needed to focus on what I was really asking the AG to do– in the mode of “question asked”.  At law, you can’t complain without requesting specific relief within the power of the person you are petitioning to grant — well you can, but it won’t get you anything. 

It’s like that dilemma described in “Standing on a Phantom Leg” — part of my unconscious grapple with this very issue of being fucked without a remedy at law.  The complaint can be irresistibly well-drawn, but for legal purposes, it has to state a “cause of action” and request specific relief the court can provide.  The letter as written, and posted the other day as Son of Letter, in addition to being bloated and senselessly recursive, really doesn’t state exactly what I am asking the AG to do.

Reading a skillful litigator friend’s critique I realized the most recent draft of the letter was a long foul ball.   If I wrote it to the chief of the legislature, and my congress person, and everyone else in the New York State legislature, maybe a reasonable letter– since they are the ones to write the laws.  But all the AG can do is enforce existing laws.  I have to convince him that NYS insurance companies routinely commit widespread fraud against mandated low-income health insurance buyers utterly unprotected by New York State law, in spite of the fig leaf of administrative supervision by the Department of Financial Services.

Will it persuade the AG to rush off for a news conference (he’s a progressive and a publicity hound)?  That is the only question to be asked of the letter.  Written well but not hitting the mark?  Who cares? I have no time for that kind of writing.  I need this letter to be a clean base hit if I have any hope of it spurring the AG to action.

THIS JUST IN:

The New York State Attorney General has the power to, and does, propose legislation.   Yee fucking hah!  Back to the drafting table.

Son of To Whom It May Go Fuck Yourself

The Honorable Eric Schneiderman
Attorney General of New York
The Capitol
Albany, NY 12224-0341

Dear Mr. Attorney General,

 

I am writing to alert you to a massive consumer protection failure in New York State and to seek your help in correcting it. There is currently no state agency meaningfully overseeing the practices of private corporations providing health care insurance in the state of New York.   This letter lays out the current non-functional administrative apparatus, such as it is.  

I urge your office to launch an investigation into this administrative vacuum.   Patients faced with denial of needed health care services have no government forum in which corporate abuses, oversights and fraud can be remedied.   An investigative report would recommend legislation to redress the literally life-threatening menace of corporate denials of health care without any recourse under the law.  At minimum we need something like a State Ombudsman’s office to oversee health insurance in our state.

As our new president forcefully carries out his announced intention to dismantle the apparatus of government regulation, the need for state oversight of health industry corporations in New York State has become urgent. The promised replacement for the Patient Protection and Affordable Care Act (“PPACA”), whatever it might be, won’t eliminate the need for protection of vulnerable older and low-income healthcare consumers.   It is unlikely that the need for these protections will become less pronounced under a completely deregulated health insurance system.

The administrative ‘remedies’ that currently exist in New York State allow no timely or meaningful process to resolve adverse healthcare-related decisions. That there is no state agency empowered to supervise this crucial sector of our state’s welfare is a terrible oversight.

I’ve admired the courageous and proactive steps your office has taken against the powerful perpetrators of various frauds and urge you to consider this letter in the context of systemic healthcare-related fraud against a large class of vulnerable low-income and senior citizens of New York State.

Uncertainty about health care, lack of information about high surprise costs and the denial of prescribed medical services without explanation are all stressful. They negatively affect the health and quality of life of those mandated to purchase their health insurance plans in New York State.   As detailed below, health insurance buyers in our state are denied any state protection against the practices of private health insurance companies, even when the denial of necessary service appears to be fraudulent.    

This consumer protection emergency transcends the current health care scheme under the PPACA.   The president’s threatened repeal of the PPACA makes it all the more essential for New York State to regulate private health insurance companies.  

In googling your mailing address to mail this letter I came across the New York State Health Care Bureau, under services at the bottom of your office’s home page. That bureau informed me they can help me resolve a billing dispute with a provider or insurance company. The citizens of New York State sorely need a regulatory apparatus that can make expedited, binding determinations on when insurance companies cross the line into actual fraud against their mandated customers.  

 Of course, the creation of a regulatory agency is a matter for the legislature. A fraud investigation by your office into practices such as the ones described below would highlight the need for state regulation; a report would give momentum to legislation to create a bureau where life and death health decisions could be expeditiously heard and resolved.  

As stated, defrauded health insurance consumers (patients) in New York State have no forum where complaints can be resolved, outside of the New York State Department of Financial Services, which, it turns out, does not hear such complaints.

The fraud investigator I spoke to there could not find a word other than ‘fraud’ to describe the facts I set forth, but urged me to call the NY State Department of Financial Services Consumer Services Hotline. He assured me that they were the specialists in the area of health insurance. The recorded menu at the hotline, which I recognized from my first call many hours earlier, offers no option for resolving issues with insurance companies of any kind.  

On my original call to the Department of Financial Services, a long wait to speak to a representative yielded the number of the proper federal agency to contact.   Calls to the U.S Department of Health and Human Services are robotically routed to a NY State number that is, sadly, the office of Temporary and Disability Assistance, where a helpful party connects you to a fraud hotline, which turns out to be at the office of the Medicaid Inspector General, where the office of legal affairs is also sympathetic, but unable to help, and so forth.

As for the PPACA, I understand that it was drafted by Liz Fowler, a career health industry insider who went on to a senior executive position with Johnson & Johnson immediately after her work on the PPACA was done. I‘ve witnessed the many attempts to repeal the law and thwart its implementation, rather than fix any of its original flaws, as other complicated laws affecting millions are tweaked and improved over time. Even so, the lack of any provision for oversight of corporations participating in the PPACA by New York State is grotesque. To a sixty year-old cardiac patient unable to see a cardiologist now for many months, the lack of oversight may also be deadly.

Although the situation I’m complaining of is personal and extremely aggravating, it is sadly typical.   I’ve commiserated with many others who suffer under similar insurance coverage.  Erroneous bills are a common, if relatively innocuous, theme.

I receive bills that there is no way to resolve, most recently an invoice for $1,324 for a fully covered sonogram I had in August. The x-ray and kidney sonogram I also had that day were fully covered, the sonogram of another body part was not.   The billing issue was resolved with the insurance company (Anthem/Empire Blue Cross) and the provider to a zero balance in October. Two months later, the full bill for $1,342 was sent to me again in a Third Notice.  

Nobody at Empire could give me the reason the provider had sent that bill, although the representative, who checked my account and called the provider again, informed me that, this time, it was my responsibility to pay it in full.   She offered to send a consumer handbook for my plan that would fully explain the reason, which she claimed was clearly set forth there, though she could not state it.

There is nobody in New York State to adjudicate something as small as a billing dispute, let alone fraud, outside of a judge on some court one must file an actual lawsuit to appear before, assuming one could find a cause of action to get in the door of the courthouse.

Empire recently sent me an email warning of termination of my insurance for non-payment of December’s premium. This warning arrived two weeks after their email confirmation of my payment for December and January.

More ominously, a patient can be denied medical service without explanation (site-specific provider NPI numbers and proper CPT pre-authorization codes notwithstanding), and there is nobody in New York State you can appeal to, except to the insurance company itself.   Empire Blue Cross “Health Plus” recently sent me to two providers for needed medical services, a cardiologist and a physical therapy facility.  Neither provided me with any service. 

I received the site-specific NPI number for the cardiologist, scanned and emailed the back and front of my insurance card, got pre-approval from his office. The consultation was halted ten minutes in and I was informed that my insurance would not cover the visit.   When I arrived at the ‘physical therapy facility’ Empire had referred me to, it was a nursing home.  The director told me the facility offers PT, but only to residents.

The circuit of government agencies I have contacted in vain came full circle with the “consumer help line” the NYS Department of Financial Services Fraud Unit investigator had me call, which I immediately recognized as the very first number I’d called.   Here is a summary of that cul du sac:

NYS Department of Financial Services referred me initially to the US Dept of Health and Human Services which, supposedly, connected me to NYS Health and Human Services, although to an incorrect branch of that agency, the pertinent branch apparently having been merged into the NYS Department of Financial Services which took over all functions of the former NYS Insurance Department as well as oversight of banking and several other discrete and seemingly unrelated areas.  

The NYS Department of Financial Services, one learns, has sole responsibility for oversight of health insurance companies, as well as all fraud investigations related to consumer fraud against insurance companies, and complaints about the practices of banks and brokers.   Everything but, according to a fraud investigator for the Department of Financial Services, investigations of colorable fraud committed by insurance companies against mandated health-care “consumers” in New York State.

My political and legal conclusions are beside the point. Whatever the reasons, the fact remains that in New York State in 2017, even under the PPACA, citizens whose health is menaced by private insurance company denials are denied any legal process to have these vexing, sometimes life-threatening situations resolved.   

Outside of a possible Article 78 (which government agency would you sue for relief, the Department of Financial Services? The New York State of Health Marketplace cannot be sued, even over their own clear error, until exhausting their slow and inadequate ‘administrative remedies’) or a class action under a private attorney general or qui tam statute, what is a patient trying to get an appointment to see a cardiologist since August to do under the PPACA in New York State?   At minimum an ombudsperson, or a few hundred of them, would be a good start.

I’ve followed your career from the start and have admired your principled engagement in the fight against injustice.   To have a legal right that cannot be enforced is to have no legal right.   The mere existence of an ‘administrative process’ (four to six month wait for an appeal of a clearly erroneous adverse NYSOH determination) does not mean there is anything like due process. Widespread injustice is accounted by some as a kind of ‘externality’, a cost of private industry doing business. The lack of legal recourse for denial of purchased health care must not be allowed to stand in New York State.

I have attached the specific grievances I was until the other day unable to submit directly to Anthem/Empire.   I have forwarded them to the organization indicated in Anthem/Empire’s internal directive. I have since learned from an attorney at that non-profit that they do not play this role in the complaint process. She provided me with an online version of Empire’s Handbook, I quickly found the mailing address for complaints on page 15.

I will be glad to do what I can to help your office take steps towards sorely needed due process for denial of health care for some of the State’s most vulnerable citizens.  If needed, I can assist in researching and drafting the report. I am open to being a plaintiff in any lawsuit the State might want to bring and to testifying in any proceeding, in any forum.

I look forward to hearing from your office and stand ready to give any other details or assistance your office might require.

 

Yours sincerely,

 

 

 

 

A Genteel Taste of Poverty

“OK, while we’re on the subject, and since there will no doubt be a detailed chapter of my life story about poverty, a subject I am an expert on, let’s dance this one out a bit, shall we?” the skeleton of my father said, extending a bony hand in a courtly gesture to a dance partner.  

“You have never lived in poverty, let’s stipulate to that from the beginning.   You grew up in a cozy little house, not far from winding, tree-lined streets with mansions on both sides.  You’ve been ‘broke’ many times, as they say, by choice– thinking of yourself as some kind of artist for the first half of your life– and although you avoided it until the age of 40, you have been in debt, like most Americans, for a third of your life now.   The ‘poverty’  you’ve experienced is the elected poverty of a privileged middle class person, you have had only a whiff, the smallest possible nibble of the bitter thing that is poverty in the richest nation in history.”  

That nibble has been enough for me, continues to be more than enough for me.  

“I don’t dispute that, Elie, I’m just pointing out at the start that being treated like a powerless asshole– which all Americans in our corporate culture pretty much are, let’s be brutally honest about it, shall we?– is only one part of the horror of poverty.  You focus on that because you are being fucked around by the embattled Welfare State in terms of not receiving adequate medical care and so forth, the many long battles you’ve had to even learn what rights you actually have under your beloved Obamacare, and finding out you have virtually no rights a white man is bound to respect is maddening, I understand.  But you experience but one of the many torments of poverty, I assure you.

“If the so-called War on Poverty had been fought with anywhere near the zeal and expense of the War on Drugs, or, God forbid, the War on Terror, it could have been won generations ago.  Some presidential wit, it may have been that bright bulb Reagan, announced that the War on Poverty was over, that Poverty won.  He was as good as his word, though it would fall to another popular Republican president, Bill Clinton, to truly make good on those words.  

“I know some of your readers will take exception to this, good liberals that they are, but our first black president, as he was then called, the Honorable William Jefferson Clinton, was like that fisherman Malcolm X talked about.  Not everyone who throws food to the fish is a friend of the fish, Brother Malcolm said, sometimes that food is on the end of a sharp hook, tied securely to a line and fishing pole.

“Refer your liberal friends to the right wing legislation the charismatic compromiser Dollar Bill Clinton signed:  Welfare “Reform”,  NAFTA, the repeal of Glass-Steagall after lucrative corporate mergers illegal under that FDR-era law– lucrative, economy-crashing mergers it would cost the taxpayers a trillion to bail out,  “Don’t Ask Don’t Tell”, the later overturned Defense of Marriage Act that banned homosexual marriage, the 1994 Omnibus Crime Bill that fueled the privatized prison industry and led to even more mass incarceration of the poor.  Anyone can ask Jeeves about Clinton’s conservative accomplishments, they are legion.”

Jeeves is gone, dad, nobody knows anything about Jeeves any more.  That Ask Jeeves search engine is long gone.  You should just say “google it”.  

“Well, you can ask Jeeves about that, I suppose.  I don’t really stay up to date about technology.  I’ve been dead for twelve years you know, as of this April 29th.  Might be a good deadline to fix, the twelfth anniversary of my untimely passing, to have some publishing irons in the fire.  You’ve got to eat a pound of dirt before you die, Elie, and a writer has to eat a pound or two of rejection letters before beginning to collect the ducats and the literary prizes.”  The skeleton of my father nodded, to emphasize the indisputable truth of these statements.  

Yes, sir.  Consider it done, April 29th is my deadline to have literary irons in the fire.  

“You want a gentle taste of poverty?  You tell  your closest friends, middle class people living decent middle class lives, some of the horrors of the medical mistreatment you’ve received under Obama’s compromise with the powerful corporations that provide medical services to Americans at two and three times the cost the rest of the industrialized world pays.   You begin to describe the latest horror and they cut you off, say you told them already.  They get it.  It may be a different horror story entirely, there is no shortage of detail and new detail, but they get it, they can only hear it as part of the same unlistenable song, which it also is.  Yes, the latest, sharpest, galling bone in your throat, to you, but to them– the same distressing bone.  You made a poor choice not working hard and buying a decent home and having decent health insurance provided through your work.  Now you want their sympathy because you’re too good to live a life like the one they all chose?  

“Here, in a word, is the most destructive part of poverty, something you’ve tasted in the most diluted form, corrosive as that taste may have been to you: hopelessness.  Try that on for a couple of days, the feeling that nothing you do, no matter how hard you work, will make the slightest difference in your life or in the life of anyone you love.   As a thought experiment it has the feel of torment, but the imagined feel of torment is much different than the torment itself.  

“What does a poor child learn from day one?  As often as not that mommy is always upset, short-tempered, preoccupied, that daddy, when he’s around, is cranky, prone to outbursts.  That’s a caricature, of course, just as not all super-rich people are greedy, self-absorbed assholes, not all poor people fit this stereotype.  I’m just giving an example.  What the child in generations of inherited poverty imbibes with his mother’s milk is a deep sense of hopelessness.  

“That child may be deeply loved, many poor children are, hard as that is for some people to believe.  Your sister taught several very poor immigrant kids who were clearly well-loved.  They were kind to other kids, and gentle, and polite.  When she met the parents, they were the same way.  It may be significant that they were immigrant kids, from Central America, rather than kids born into a tenth generation of violent American poverty.  Why is poverty violent?  Ask Mother Goose.”

Mother Goose?  

“Well, you tell me Jeeves is dead.   I hope you don’t have bad news for me about Mother Goose.”  

No, she’s as well as she’s ever been.  

“I’m just making the point that poverty lays out a program for a kid’s life.  In the slums poor kids go to the worst schools, as you know, you used to teach in some of those schools.  They learn from ancient textbooks, the ones wealthier public schools discard.  The physical plant of the school is often in bad shape.  The neighborhood they walk through is filled with drug dealers, murdered pit bull puppies, the constant threat of a stray bullet, a rabid gang member, an altercation and early, sudden, violent death.  Check out the life expectancy for a child born in the roughest slums versus the average American life expectancy, check out the infant mortality rates in slums.  

“But you see, man, this is all statistics, cold, imagined horrors.  None of this shit touches anybody who does not have to live it.  Hunger.  You can’t imagine the torment of being hungry because your parents don’t have the money to feed you enough.  In my case, my mother, may she rest in peace, insisted on giving some of the little money we had to charity.  Unbelievable, really, poor as we were, and we were grindingly poor, she felt she had a religious obligation to help the less fortunate.  There were none less fortunate than us, but look for logic in religion and you may be searching for a lifetime.”  

A couple of seagulls screamed as they flew by over the graveyard off Cortlandt Road and the skeleton turned to consider them.  Hudson River seagulls, a long way from the ocean, but there you go.  Just part of the miracle of nature.  

“That’s God right there,” said the skeleton pointing up. “You know, you were always mystified about how African slaves, enslaved by white Christians who cited the Bible for their right to own slaves, could become devout Christians.  People take comfort where they can get it, and the notion of an eternally merciful Jesus waiting for them when they died, and a better life in the faithfully imagined world after this one, was about the only comfort they were going to get.  Plus, massa would give them an hour or two to worship Jesus Sunday instead of picking cotton under the lash of overseers not as keen on Jesus, perhaps, as their employers.  You got to like those hours off on Sunday morning, don’t you, Elie?”

Yep, you certainly have to like that, dad.  

“Look, we’re not done talking about poverty, and powerlessness, and the soul crushing weight of hopelessness, obviously — but you have to scurry on down to the Civil Court now to answer a personal appearance ‘subpoena’ threatening you with fines and imprisonment for an alleged failure to return the questionnaire you are 99% certain you sent back weeks ago.  You can’t fight City Hall, son, few should be more keenly aware of the many reasons for that than you.  Just get dressed, walk down there, humbly turn yourself in and wait for them to tell you what they plan to do next.  You’ll just have to be a Christian about it, my son.”   

Yes, father, something I always strive to be.

The skeleton made a clicking sound with the side of his mouth, the two-click sound you associate with encouraging a horse to get a move on.