Update: Case continues next Tuesday
By Mary Frost
Brooklyn Daily Eagle
When a revised Request for Proposals (RFP) to sell Long Island College Hospital (LICH) was negotiated by SUNY and LICH advocates, it was hailed by Mayor de Blasio, city officials and the state.
Unlike two earlier attempts by SUNY to sell LICH, the revised RFP was specifically crafted to attract a full-service hospital operator to the Cobble Hill campus.
Now, with LICH all but closed and the first- and second-place bidders rejected by SUNY, community groups want a judge to disqualify several of the scores submitted by panel members ranking the bids.
Attorney Jim Walden (Gibson, Dunn & Crutcher) told state Supreme Court Justice Johnny Lee Baynes on Tuesday that 6 of the 18 panelists had not followed the rules laid out in the famous RFP.
One panelist, described only as "Judge #9," gave no points at all to any of the four hospital bids, but awarded the full 70 points to a non-hospital project offered by developer Fortis Property Group. Fortis was SUNY's original choice in both previous RFP rounds.
Walden asked Justice Baynes to use Judge #9 as "a litmus test."
"The settlement stipulation was violated. Whether it was done intentionally is irrelevant," Walden said.
According to the RFP, proposals that provided for a full-service hospital with at least 100 inpatient beds were "eligible for a higher score." Proposals lacking a full-service emergency room, an intensive care unit, and in-patient beds were "subject to receiving a lower technical score."
"Commitment to provide health services consistent with [the above] objectives" was the first of the selection criteria.
"There's no wiggle room," Walden said. "The criteria is the criteria."
If full-service hospital proposals had failed to materialize, the RFP had the flexibility to allow proposals offering lesser amounts of health care to be considered, Walden said.
"There was a safety valve," he said. As it turned out, four full- service hospital proposals -- something critics had characterized as "wishing for unicorns" -- were submitted, along with fivee other proposals.
SUNY, DOH see it differently
Lawyers for SUNY on Tuesday presented a starkly different interpretation of the RFP's rules -- and one that appeared to differ from their earlier take on it.
"The stipulation assured nothing more than a process," said SUNY attorney Frank Carone (Abrams, Fensterman, Fensterman). "The only mandatory element was a mandatory non-contingent purchase price of $210 million. Everything else is non-mandatory, discretionary, and that's exactly what the evaluators did."
SUNY attorney Edward Spiro (Morvillo Abramowitz) said that the stipulation used words like "eligible for a higher score" or "subject to receiving a lower score," as opposed to being entitled to a higher score.
"The offer of a full-service hospital is not automatically entitled to the full 70 points," he said, adding, "We ask you not to lose sight of the evaluators, a distinguished group of 18 with unique perspectives."
Regarding Judge #9, Spiro said, "There's no evidence of any bad faith. He was entitled to exercise his discretion."
Spiro was also of the opinion that since the community groups had negotiated with the Peebles Corporation, which was ranked second in the bidding process, that indicated that the community groups supported SUNY moving forward. "The groups should be stopped," he said.
Walden had negotiated with Peebles to increase their offerings beyond what they had proposed in their RFP response -- most notably to carry out a community health needs survey, and act on it if the survey found that more medical care was needed.
"Now they're going back and saying they really didn't mean Peebles was the right entity," he said. "These inconsistent positions should not be authorized."
Nicole Gueron (Gueron, Reisbaum), representing the state Department of Health, also contested the community's motion. "The petitioners ask us to completely scramble the results of the RFP we worked on with such care and so long. How carefully we chose our words. They ask for a do-over."
"If you believe their argument, all four hospitals must be ranked first," she said. "Why have evaluators? It could be done by computer."
SUNY's own words
But SUNY may have a harder time arguing against their own Senior Health Care Counsel, Ruth Booher.
Walden produced a video, , which he gave to several reporters, of Ms. Booher explaining the requirements of the revised RFP to SUNY's board of trustees.
It was apparent that Ms. Booher held much the same interpretation of the meaning of the RFP that the LICH supporters did.
On the video Booher can be heard explaining that if a proposal "doesn't include an ER, intensive care unit, beds, you get your score lowered... If you include a 100-bed hospital, you get it increased."
'Thumb on the scale?'
Walden also discussed the issue of an unauthorized conference call DOH had made to the evaluators during the time when they were supposed to be in isolation. During this call, some of the panelists had said they were "taken aback by DOH's attempt to insert itself," Walden said. "Clearly it was an attempt by DOH to put their thumb on the scale and tell them that a hospital would probably not get a Certificate of Need."
Panelists were later instructed to "ignore" what DOH had told them during the call.
If the rankings in question were dropped, fourth-place Prime Healthcare Foundation, a full-service hospital proposal, would move into second-place. Walden said Prime, which has owns and operates 25 non-profit and for profit hospitals across the country, met all the RFP's criteria and has the financial wherewithal to deliver the medical services it promises.
A Prime spokesperson told the Brooklyn Eagle on Tuesday, "Prime Healthcare is ready to take over and make a seamless transition immediately. Our goal has been and will always be to operate an acute care facility, which is what the community wants and deserves."
Prime has submitted an application for a Certificate of Need with DOH. "Once Prime secures site control pursuant to an Agreement with SUNY, it will then need DOH to expedite a review, which would then allow Prime to operate the facility under our own license," they said.
Late Tuesday, Prime filed to join the motion with the community groups, physicians and Public Advocate.
Walden said he would continue to negotiate with Fortis while seeking to disqualify the RFP rankings.
The unions 1199 SEIU and NYSNA declined to join the motion,. Several individual union members approached the Eagle after the hearing to say, "We are in for a full-service hospital," and "We are willing to work with anybody."
Update: Justice Baynes set the next court date for Tuesday, June 10.
Rally before court
Before Tuesday's hearing, a large crowd gathered on the courthouse steps to express outrage at the closure of the hospital and fears for the future.
Many in the crowd said they had given up on Mayor de Blasio, who had been a strong proponent for LICH as Public Advocate but disappeared from the scene after becoming Mayor.
Dr. Saul Melman, an emergency medicine physician at LICH from 2003 until SUNY terminated his job on March 23, told the Brooklyn Eagle, "Bill de Blasio ran his campaign on the promise of LICH staying open. He said it would be devastating if we lost the hospital. Since he became Mayor, he's turned his back. We need de Blasio to man up and save the hospital."
Jeff Strabone, spokesperson for the Cobble Hill Association, said, "We're here today for our last but best shot to save LICH." He thanked Public Advocate Letitia James, Assemblywoman Joan Millman, state Senator Daniel Squadron, Councilmembers Carlos Menchaca, Stephen Levin and Brad Lander, and Congresswoman Nydia Velázquez for their constant support -- and also reminded LICH supporters of officials who "abandoned us."
"If LICH closes, we won't forget you in an election year," he said.
Charlene Nimmons, President of the Wyckoff Gardens Association, noted that the LICH coalition had hand collected 25,000 signatures. "Mayor Bill de Blasio, you said you were going to keep the hospital open. Keep your promise!"
Pastor Johnnie Greene, President of Impact, said, "I'm calling on Mayor Bill de Blasio and Gov. Cuomo to do the right thing!" He also demanded "the immediate resignation of SUNY Chairman H. Carl McCall."
Red Hook Councilman Carlos Menchaca said, "The needs assessment has to happen. Red Hook presidents, East and West, have beeen calling for this a long time."
Tony Lewis, CEO of the Cobble Hill Health Center, said, "In the course of a year we sent over 700 people to the hospital. We compromised with Peebles for a needs assessment. SUNY, what are you frightened we're going to find there?"
Local resident Sharon Gordon said that her whole family uses LICH. "I'm very concerned. Everybody has to wait forever at [New York] Methodist. My friend took her three-year-old with respiratory problems to Methodist. They wouldn't see her. She had to take her back on the ambulance and go to Cornell." She added, "This is the kind of thing that's happening in the neighborhood."