The LICH legal battle continues

Baynes issues TRO

April 2, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle

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Brooklyn Supreme Court Justice Johnny Lee Baynes issued a temporary restraining order late Monday afternoon, as the Eagle has reported, preventing the New York State Department of Health and the State University of New York’s Board of Trustees from executing a plan to close the embattled Long Island College Hospital.

On March 14, Baynes issued a ruling against the SUNY board stating that it violated the Open Meetings Law when it did not provide ample notice of a meeting to discuss the closing of LICH. In that March 14 decision, Baynes did not make any comment on the validity of the need to shut down LICH, and left the door open for the possible closure of LICH so long as procedures were followed.

Days after Baynes’ initial ruling, on March 19, the SUNY board voted again to close LICH citing financial troubles. Concerned that their beloved hospital will once again have its doors shut for good, the New York State Nurses Association (NYSNA) has filed a petition requesting that the SUNY board show cause explaining how the March 19 vote complied with relevant procedural law.

NYSNA alleges that the rules by which the SUNY board is hanging the validity of the March 19 vote are not appropriate in this case, as the rules are “impermissibly vague.” In its complaint, NYSNA asserts that the rules governing “situations in which a medical facility attempts voluntarily to discontinue its operation,” only require that the medical facility give the DOH commissioner (Nirav Shah) 90 days notice and obtains the commissioner’s written approval.

This law, NYSNA claims, “fails to provide an objective basis for the commissioner to evaluate the medical facility’s ‘notice of its intention’ to ‘discontinue operation.’ “

In addition, the rule “fails to provide any guidance with regard to the ‘notice of its intention’ to be provided…[and] also fails to indicate whether the commissioner’s approval must be provided during the 90-day period, at the expiration of such 90-day period or at some [other] point in time,” NYSNA claims.

This lack of guidance, NYSNA alleges, encourages medical facilities, such as LICH, to only submit “arbitrary” or insufficient materials to the commissioner to support the decision for closure.

NYSNA therefore hopes to have the SUNY board’s March 19th decision to close LICH vacated as well as to void the board’s decision to submit a plan of closure to the DOH.

Baynes has since issued a hearing date for all parties to state their case. In advance of the May 2 hearing, Baynes has granted a temporary restraining order preventing attempts to close LICH from moving forward. The SUNY board is not only prevented from going forward with its plan to close LICH but, the temporary restraining order also precludes the SUNY board from communicating with DOH about possible LICH closure.