Cobble Hill

BREAKING: Brooklyn judge nullifies LICH closure plan

Justice Baynes' decision could affect Interfaith Medical Center, too

September 13, 2013 By Mary Frost Brooklyn Daily Eagle
Share this:

Supporters of Long Island College Hospital (LICH) celebrated in Cobble Hill on Thursday night after learning that state Supreme Court Justice Johnny Lee Baynes had issued a ruling that throws a wrench into the state Department of Health’s approval of SUNY Downstate’s closing plan for LICH.

Justice Baynes wrote in his 20-page decision that the state’s regulations for closing hospitals were “unconstitutionally vague,” and that DOH did not take the needs of the community into consideration when it approved SUNY Downstate’s plan to close LICH.

His ruling not only affects LICH’s closure plan, but has implications for future closures of hospitals including Interfaith Medical Center in Bedford-Stuyvesant.

News for those who live, work and play in Brooklyn and beyond

“This court ruling changes the playing field in our fight to protect care for New York patients,” said Jill Furillo, executive director of the New York State Nurses Association (NYSNA), a party to the court action along with 1199 SEIU United Health Care Workers, and Concerned Physicians of LICH, represented by lead attorney Richard Seltzer of Cohen, Weiss and Simon.

“The Department of Health cannot  rubber stamp hospital closures,” she said. “It must act under lawful regulations that take the health needs of the community into account. The court not only rejected the closure plan for Long Island College Hospital, it ruled that the state’s process for approving hospital closure plans is unconstitutionally vague. We now have stronger standing to keep other vital community hospitals like Interfaith open for care.”

SUNY spokesperson David Doyle commented, “The latest decision allows SUNY to move forward with the RFP process to find another health care provider and owner of the property. SUNY has always been and remains committed to helping provide a solution to the Brooklyn healthcare situation, including the preservation of our medical school at Downstate.”

Public Advocate Bill de Blasio will join nurses, doctors, healthcare workers and civic groups to celebrate the decision at 1 p.m. Friday.

Justice Baynes’ ruling stems from a gripping three-day hearing held in state Supreme Court last month before an overflow crowd. The vagueness of the DOH regulation requiring 90 days notice before closing a hospital was a major bone of contention there. (See for details.)

DOH had approved the LICH closure plan only two days after it was officially submitted by SUNY Downstate on July 17. (Two previous submissions were either rejected by the court or withdrawn by SUNY.)

SUNY and DOH had argued that the purpose of the 90-day notice provision was “not for the benefit of 1199 and Concerned Physicians of LICH,” but “only for the benefit of DOH.”

In his ruling on Thursday, Justice Baynes wrote, “By that calculation, any time the DOH and the hospital agreed that the hospital would close, for whatever reason, such closure would never be subject to challenge. Such construction is counter to reason.”

Justice Baynes wrote that SUNY and DOH’s assertion neglected to take into account the mission of DOH, “which is to promote and assure provision of adequate health care in any given neighborhood.”

In August, DOH made the argument that the agency simply rubber-stamped decisions made elsewhere to close hospitals. DOH attorney Robert Welch told Justice Baynes that DOH “does not decide if a hospital closes. Once it’s decided, DOH monitors how the hospital closes to provide health and safety” to patients.

On Thursday, Justice Baynes responded to that argument: “DOH gives no reason why it would be given the responsibility to rubber stamp a fait accompli. This is counter to the stated mission of DOH and counter to the role that it is required to play in approving closure plans, generally.”

Justice Baynes said DOH’s position was inconsistent with one it had taken previously. In 2008, DOH exerted its authority to deny approval to closing several critical LICH departments. “DOH contends it cannot even delay a closure now, which is in direct opposition to its position in 2008,” Justice Baynes wrote.

He also wrote that DOH was even vague about what constituted “notice,” saying that attorneys for DOH opined that “notice is notice is notice;” and had presented a convoluted time line of when SUNY had actually given notice, involving a closure plan that it later retracted.

Another point Justice Baynes ruled on was the issue of legal standing. SUNY said that none of the plaintiffs in the case had standing to bring it to court. Justice Baynes ruled that all of the plaintiffs, with the exception of an individual patient, had legal standing.

In a concurrent decision he ruled that Public Advocate Bill de Blasio lacked the legal standing to sue state agencies, but that six civic organizations did have standing.  These groups, represented by Jim Walden of Gibson, Dunn & Crutcher, will likely be “folded into” the decision.

He also wrote that the plaintiffs had showed that SUNY Downstate has been de facto winding down LICH despite the ongoing RFP (Request for Proposals) process seeking a new operator.

Justice Baynes’ ruling was a confirmation of attorney Seltzer’s argument made in August that the standards governing DOH’s actions on the closure plan are “unconstitutionally vague” and lack objective standards. “If the legislature gives power to DOH to regulate health, the only way to regulate that is to make sure there’s some standard,” he had argued.

On Thursday, Justice Baynes agreed. “Agencies must include objective standards in regulations in order to protect against arbitrary administrative action’ and ‘untrammeled administrative discretion,’” he wrote.

Nurse organizer Eliza Carboni told the Brooklyn Eagle late Thursday that the order which implements the ruling was not yet written. The plaintiffs “have to come up with a proposed order either with SUNY, or on our own and on their own,” she said. The deadline for the order is September 23. She added that a decision cannot be appealed, though an order can.

Any proposed layoffs at LICH are on hold.

De Blasio, the Democratic frontrunner in the this week’s mayoral primary, has also petitioned with the six civic groups to intervene in a legal action unfolding before state Supreme Court Justice Carolyn Demarest  which will transfer LICH to a new operator.

As part of her decision issued on September 4, Justice Demarest ordered the return of ambulances, a fully operational Emergency Department and the Intensive Care Unit (ICU) by September 11.

While only basic ambulance service has returned, several critical care areas have been reopened.  SUNY spokesperson David Doyle told the Brooklyn Eagle that on September 11 Justice Demerest stayed her order until September 25.

“We will continue to work in good faith with the court to resolve all issues regarding SUNY’s association with Long Island College Hospital,” Doyle said. “The basic medical care currently available at LICH will continue contingent on the ability to maintain staffing levels necessary to ensure patient safety.”

Updated Sept. 14 with a comment by SUNY spokesperson David Doyle.

Leave a Comment

Leave a Comment