HOW TO FIGHT FOR YOUR HEALTH BENEFITS
By KAREN CHENEY

(MONEY Magazine) – Edward McKeever always knew his job could kill him. For 25 years, he assembled steel girders into office towers and magnificent bridges like the 4,260-foot-long Verrazano Narrows span that links Brooklyn and Staten Island. Sometimes he worked on scaffolding hundreds of feet in the air, protected from falling only by a thin nylon tether. "It was dangerous work," he recalls, "but I loved it." And he trusted that if he survived to retirement, he wouldn't need to worry about medical bills. "My union plan promised health benefits for my wife and me for the rest of my life," says McKeever, now 73. "It was written in the retirement plan as plain as day."

But in 1994, that tether broke. The Iron Workers District Council Benefit and Pension Plan revoked health benefits for McKeever and other retirees because the program was running out of money. Its funding was based on ironworkers' hourly wages, and a construction downturn meant less work for ironworkers. Says the lawyer for the plan: "The trustees eliminated benefits for those retirees who had reached age 65 because they were eligible for Medicare and least affected by the loss of benefits."

Suddenly, McKeever had to pay for expenses Medicare doesn't cover, like prescription drugs (which cost him at least $200 a month), a $760 annual deductible for hospital stays and co-insurance amounting to 20% of his other medical costs. In the end, he was lucky: He was able to get coverage--albeit more expensively--under his wife's retiree health plan. "If it weren't for that, I don't know what we'd do," says Eileen McKeever, 69, a former insurance agent.

Anyone in or near retirement must wonder: Will my employer pull the rug out from under me? Roughly a third of large firms have tinkered with their pledges in the past two years, typically off-loading more of the cost onto people like you. According to Foster Higgins, a New York City benefits consulting firm, about 16% of these employers have boosted retirees' health premium contributions and 11% have upped deductibles, co-insurance payments or out-of-pocket maximums. The message is clear: You, the retiree, are going to be more responsible for protecting yourself. Here's how:

--First, find out if you are at risk. Your employer has no obligation to provide you with lifetime medical coverage unless the company has unconditionally promised it to you in writing. Ask your benefits administrator for a copy of the summary plan description (SPD), a document that outlines exactly what your benefits include. The SPD can be changed from year to year, so if you're still working, be sure to get the most current one. Retirees should ask for the SPD that was in effect at the time they retired.

As you read it, look for a clear promise along the lines of: "Basic health-care coverage will be provided at the company's expense for your lifetime." Next, check for such disclaimers as: "The company reserves the right to modify, revoke, suspend, terminate or change the program, in whole or in part, at any time." If your SPD has one of these "reservation of rights" clauses--and most plans today do--you're on shaky ground.

--If you are still working, count on paying all or part of your health-care costs once you retire. In 1996 only 40% of large employers offered medical coverage to early retirees, according to Foster Higgins, vs. 46% just three years ago. Fewer still--33% in 1996, down from 40% in 1993--provide health benefits to retirees who are eligible for Medicare.

Whatever your company may have promised, however, it does not have to set aside money to pay for health care, so the pledge can be broken if the business lacks cash. Some do back up their promises by contributing to a voluntary employee beneficiary association, or VEBA. Depending on how the VEBA is set up, the money in it can cover expenses ranging from health benefits to life insurance, says Dennis Coleman, a benefits consultant with the Kwasha Lipton Group in Fort Lee, N.J. Your summary plan description will tell you if your company contributes to a VEBA.

In any event, you should start saving as much as you can to buy your own coverage (see the box above), particularly if you plan to retire before age 65. Dr. David Friend, a health benefits expert at Watson Wyatt, a Washington, D.C. consulting firm, says that a comprehensive, nongroup policy for someone age 55 could cost $10,000 a year.

--If you are offered a buy-out, negotiate for better health benefits. When you are downsized out of a job, you are often asked to sign a release agreeing not to sue the company for age discrimination. But, says Raymond Fay, a Washington, D.C. lawyer who is representing 50,000 early retirees in a class-action suit alleging that General Motors reneged on its promise to provide lifetime benefits: "You aren't required to sign a release unless you get something extra for doing so." If your company wants you out, that "extra" could be agreeing to extend your health coverage for a few more years or even for life. Be sure to get any such promise in writing.

--If your employer reneges on benefits once you have retired, consider bringing a lawsuit. If your SPD is vague or contradictory about how long your benefits are supposed to last, you could sue the company on the basis of misinformation. "Failure to be clear about benefits is a breach of fiduciary responsibility," explains Alan Sandals, a lawyer with Sandals Langer & Taylor in Philadelphia. Early retirees who accepted a buy-out in return for lifetime benefits could also have a strong legal case. But remember, you have no guarantee of winning.

Even worse, these legal wrangles can last for years, making the O.J. Simpson trial look like a monument to speedy justice. To defray expenses, you could enlist other retirees and file a class-action suit. You might also be able to sue for age discrimination. In a ground-breaking case, Ed McKeever and 14 other retired ironworkers won the right this year to sue their benefits plan under the Age Discrimination in Employment Act, because the program revoked benefits only for those 65 and older. The case is now awaiting trial.

Most employers want to honor their promises, if only so they won't look bad. Sometimes the best leverage you have is to threaten to make them look very bad indeed.