Saying that “substantial progress” was being made, on Tuesday parties vying for Brooklyn’s Long Island College Hospital (LICH) agreed with SUNY’s motion to ask state Supreme Court Justice Johnny Lee Baynes for one more day to negotiate a deal before resuming litigation.
With LICH scheduled to close on Thursday and lives from Red Hook to Williamsburg in the balance, attorneys are hoping to reach an agreement that will maintain medical and emergency care at the hospital without a break in service.
A number of motions and counter motions are in play in the LICH case, but two in particular are affected by Tuesday’s halt in litigation: Community groups and doctors agreed to delay filing a motion to eliminate six scores in SUNY’s RFP voting process that appear to fall outside of settlement guidelines; and developer Fortis Development Group, the third-place finisher in the RFP vote, agreed to put off filing for an order to intervene in this motion.
Frank Carone (Abrams, Fensterman, Fensterman), representing SUNY, told Justice Baynes that the parties needed 24 hours “to see if there is a mechanism to [both] resolve the motion and satisfy the RFP.”
Last week Justice Baynes asked several of the competing bidders – second-place bidder Peebles Corp., Fortis Development Group, and Prime Healthcare Foundation, a hospital chain -- to try to work out a joint deal that might keep the Cobble Hill hospital open and allow developers access to the non-core properties.
At the same time, Justice Baynes allowed SUNY’s negotiations with Peebles, next in line in the RFP process, to continue. Peebles is not promising a full-service hospital, but may prove flexible regarding an expansion of services during negotiations.
The extra day could encourage Peebles or third-place Fortis to up their healthcare offerings in an effort to avoid further litigation, insiders said.
Jim Walden (Gibson, Dunn &Crutcher), representing community groups and doctors, told Justice Baynes that “over the last two weeks, we’ve seen more movement towards what you asked us to do a year ago – to find a long term medical solution for LICH . . . I believe strongly we’re close to that.”
“The gives are getting closer; we’re in reach of a compromise,” he added. “Not just with Peebles. We’re in active conversations with Fortis and Prime. If bidders get their ducks in a row, we will be in position within a week” to announce a long-term plan that would provide “continuity of care and emergency room services.”
The motion by community groups and doctors to eliminate the non-compliant scores, if successful, would upend Peebles’ rank, moving Prime Healthcare Foundation, a hospital group, to the number two slot.
Prime would likely satisfy the community’s wishes for a full-service hospital, but 1199 SEIU’s California branch has been engaged in union-related lawsuits against the chain.
Troy Schell, general counsel for Prime Healthcare Foundation, told the Brooklyn Eagle last week that Prime looked forward to working with the unions. “Prime can’t save LICH without the support of 1199 and NYSNA,” he said.
First-place bidder Brooklyn Health Partners trying to stay in game
The first-place bidder in SUNY’s disputed RFP process, Brooklyn Health Partners, a California developer group headed by Merrell Schexnydre, was eliminated from consideration by SUNY earlier this month. Expressing a lack of confidence in BHP’s ability to deliver the medical services promised and questioning their financial strength, Justice Baynes ruled against BHP on May 13. Moses Reser, affiliated with BHP’s Brooklyn investor Harry Miller, told the Brooklyn Eagle that BHP’s attorneys had filed a motion on Tuesday to reconsider that decision, and that an appeal was pending.
Litigation is also pending from other disappointed RFP bidders, a doctor who disputes the RFP rankings, and a business owed millions because SUNY did not credential LICH’s doctors with insurance companies.
More than two dozen lawyers filled the front rows of Justice Baynes’ courtroom on Tuesday. “Every single lawyer in New York City is here,” noted one. Patients, nurses, doctors and community leaders packed into the back rows. Some spectators waited outside in the hall.
Many of the attorneys thanked Justice Baynes, who has been overseeing the convoluted case for more than a year, for his steady hand.
“Thank you for your patience, guidance and wisdom in helping us to get to a better place than we were one year ago,” Walden said.
Richard Seltzer (Cohen, Weiss & Simon) representing the New York State Nurses Association (NYSNA), told Justice Baynes that his patience and focus were the “key to the case.”
Susan Cameron (Levy Ratner), representing 1199 SEIU United Healthcare Workers said she was “extremely hopeful” that discussions “will yield a positive result.”
If the disputing parties – which include SUNY, elected officials, community groups, doctors, unions, bidders, the state Department of Health and the Downstate at LICH Holding Company – cannot reach an agreement, Justice Baynes said he stood ready to rule.
“The greatest power is the one you don’t have to use,” he said. “I’m hoping parties can come to a solution. I will give you the opportunity to do what you believe can be done.”
McCall is served
SUNY chairman H. Carl McCall, who did not appear during the proceeding, conferenced afterwards with Justice Baynes and attorneys.
McCall told the Brooklyn Eagle that he hoped his presence would accelerate an agreement. “I hope so,” he said. “We certainly need to move it along.”
As McCall was leaving the courthouse, he was served with papersrelating to suit filed by Dr. Jon Berall, who is also contesting certain RFP rankings.
Susan Raboy, spokesperson for the advocacy group Patients for LICH, said after the proceedings, “I walked in feeling negative, but they feel they can reach a decision in the next 24 hours. Whether I’ll agree with it, I don’t know.”
Attorney Walden, representing the community and doctors, told the Eagle, “Every attorney in this room stood with the court and conceded that substantial progress has been made towards a solution. Whether with Peebles, as we hope, or others, if we must, we are within reach of a real solution for this community.”
But many nurses and doctors remain bitter.
Dr. Al Giwa told the Eagle, "The paramedics and ambulance service are scheduled to be laid off in an area FDNY determined to have a great need for an ambulance service." Dr. Giwa said SUNY was laying off a dozen full-time and roughly 20 part-time paramedics. "No one even mentions them."
Doctor Alice Garner, Chief of the Neonatal unit at LICH, said, “It’s obvious that SUNY does not want a hospital in that locale.” She and other doctors discussed SUNY’s lack of credentialing LICH doctors with insurance companies, which led to the loss of millions in income for LICH over the last two years.
“If you don’t collect the money I bill, you don’t want a hospital. Last year I billed $1,600,000 in the Neonatal unit. They collected $204,000. The year before I billed $1,400,000. They collected $200,000. Imagine that same pattern in every department.”