Brooklyn judge puts off LICH decision; focus on community needs assessment

June 11, 2014 By Mary Frost Brooklyn Daily Eagle

Jim Walden talks LICH at Brooklyn court. Photo by Mary Frost

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State Supreme Court Justice Johnny Lee Baynes on Tuesday reserved his decision on the fate of Long Island College Hospital (LICH) after hearing final arguments from community groups that some of the rankings of the proposals should be tossed for not following the rules of the state’s RFP.

SUNY and the state Department of Health argued that the rankings should stand and the process of selling LICH should continue.

Eliminating the questioned rankings would move Prime Healthcare Foundation, the non-profit arm of a nationwide chain which proposes to operate LICH as a full-service hospital, into contention.

SUNY is currently negotiating with developer Fortis Property Group, which does not propose to operate a hospital at LICH. Attorneys for Fortis told Justice Baynes that their discussions with SUNY have been “fruitful.”

Following protests from second-ranked bidder Peebles Corporation that SUNY terminated talks before the 30-day negotiation period had expired, Justice Baynes affirmed that SUNY has the right to terminate discussions with any bidder at any time.

“From research, it appears that SUNY has the right to walk away,” Justice Baynes said, citing several precedents. “The 30 days is, in my opinion, a maximum of 30 days. If SUNY concludes the negotiations are going nowhere, SUNY walks away.”

Justice Baynes said that the numerous parties involved in the litigation would not have to wait 60 days for his decision, though he did not promise a specific day. “It could be Friday, it could be after that, but it will come.”

Fortis’s proposal includes a “freestanding emergency room,” specialty medical services, and offices for primary care. On Tuesday Fortis told Justice Baynes that they had increased their offerings to include an HIV – AIDS clinic and 12 observational beds, which could go up to 20 if necessary. Fortis said they would also fund a community foundation, and set aside 10,000 square feet of space for additional medical services, should health partner NYU-Langone Medical Center decide it needed it.

Community advocates, who feel that a full-service hospital is crucial, have been pushing for an independent health needs assessment of LICH’s catchment area, stretching from Williamsburg to Red Hook, and are willing to pay half the cost of that study. Fortis has not agreed to this, however.

Second-place bidder Peebles Corporation had agreed to this type of study, but SUNY recently terminated talks with the group.

When pressed by Justice Baynes about when ambulance service would return to LICH, a Fortis attorney was unclear. “We will put forth our best efforts to get ambulances ASAP,” he said. “We understand the importance of the issue.”

SUNY spokesperson David Doyle told the Brooklyn Eagle late Tuesday afternoon, “Discussions between SUNY and Fortis continue to be productive and we remain optimistic that an agreement that provides substantial medical services and continuity of care can be reached.”

Community health needs assessment

Attorney Walden told the Eagle that Fortis did not want to carry out an independent needs assessment because “they know the assessment would show a need for a hospital, and then they’d be on the hook for building one.” NYU said it would carry out an ongoing internal assessments, but did not commit to offering hospital services. Walden said he would work to “bridge the gap.”

Walden told supporters that they should demand that their elected officials push for the community needs assessment.

Dr. Saul Melman, a board certified Emergency Room physician with LICH from 2003 until March 28, when his job was terminated, called out to Mayor Bill de Blasio “to keep your word to fight for a full service hospital and demand, at the very least, that Fortis allow an independent organization to do a needs assessment. Otherwise we are leaving a real estate company deciding what the health care needs of the community are.”

Dr. Melman added, “Hundreds of us stood behind you on the court house steps, when you were arrested, when we marched to Foley Square. We need you to get back in the game.”

When asked by the Brooklyn Eagle if Mayor de Blasio would push for the community needs assessment, de Blasio spokesperson Phil Walzak responded, “Mayor de Blasio and this Administration continue to talk everyday with SUNY, with the community, and with health care providers about finding common ground that maximizes health care at LICH and preserves a continuity of care for the community.”

Officials including Assemblyperson Joan Millman, Sen. Daniel Squadron, and City Councilman Stephen Levin told the Eagle on Tuesday that they all supported a community needs assessment.

RFP arguments

Community groups and LICH doctors, who have been fighting LICH’s closure since January 2013, say that some of the RFP bid evaluators did not follow the rules laid out by the court. The RFP called for proposals offering to operate LICH as a hospital to get more points than those not including a hospital. The RFP also said that points would be subtracted if a proposal did not offer elements like an intensive care unit and ER.

But six of the evaluators ranked proposals not offering hospitals over proposals that did. One evaluator gave a score of “0” to all hospital proposals, and a perfect score of 70 to Fortis.

Responding to an earlier assertion by SUNY that the community had traded justice for process, attorney Jim Walden (Gibson, Dunn & Crutcher) told the judge, “We never traded justice for a broken process.”

SUNY attorneys last week told the judge that evaluators were merely using their own judgment and that the RFP allowed the flexibility to rank proposals not offering hospitals more highly.

DOH attorney Nicole Gueron (Clarick, Gueron, Reisbaum) refined the argument on Tuesday, saying that continuity of care was just as important – or even more important – than providing a hospital. She said that evaluators “had a choice between a hospital or continuity of care. Section 2A1 speaks about continuity, Section 2A2 speaks about hospitals. Both are substantive criteria. If you keep the doors open, that’s a rational choice and well within the parameters of the RFP.”

Walden pointed out that the RFP clearly stated in its “Selection Criteria” section that proposals would be evaluated based on a “Commitment to provide health services consistent with the objectives set forth in Part 2, Section A (2).” This is the section that speaks about favoring hospitals. “Continuity of care,” as described in 2A1, is not mentioned as a criterion for selection.

SUNY’s explanation also differs from one that SUNY lawyers gave to SUNY trustees at an earlier board meeting. Last week Walden provided DVDs of the meeting, showing a SUNY attorney telling the trustees 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.”

SUNY’s argument that a large degree of flexibility was built into the RFP wasn’t communicated to SUNY trustees, who were informed that the ranking were “binary” – either yes or no.

Walden told Justice Baynes on Tuesday, “DOH invited you to a grave misunderstanding of ‘continuity’ over ‘hospital.’ All the proposals assured continuity of care. Under the RFP, when two proposals both offer continuity and one is a hospital proposal, by definition the hospital ranks highest.”

Attorney Kenneth Fisher (of Cozen O’Connor) argued that a “proposal” differed from a “bid,” by virtue of being more flexible and taking into account factors other than price; and that the panelists ranking the proposals were not “judges,” who must make decisions based on the record, but evaluators who applied their diverse expertise and backgrounds to the evaluation process.

“If anyone broke the process, it was the community groups,” Fisher claimed. He said that as a result of Peebles Corporation’s successful negotiations with the community, North Shore-LIJ, one of Peebles’ health care partners, “started to back off.”

Prime Healthcare Foundation, a full-service hospital group ranked fourth in the process, after Fortis, told Justice Baynes they were joining the community groups’ motion. Prime’s attorney said they had “stepped in at the 11th hour” many times and turned around many community hospitals.

DOH attorney Gueron said DOH had already conditionally approved Fortis – NYU’s Certificate of Need (CON) application, while Prime Healthcare Foundation, a full-service hospital proposer ranked fourth, still had an “incomplete” CON application.

A Prime spokesperson told the Eagle late Tuesday, “Prime Healthcare has filed everything it can related to the CON application, showing that it is ready and willing to take over Long Island College Hospital. But the Department of Health deems it incomplete and won’t review it unless and until we have an agreement with SUNY, which has not happened. If a deal is reached, Prime Healthcare will move forward with the CON process as soon as possible. Until then, we wait.”

1199 SEIU attorney Susan Cameron opposed the community’s motion, while NYSNA attorney Richard Seltzer took no stance on the motion. Both said they believed the process needed to move forward. Roughly 400 nurses and 800 1199 members have lost their jobs at LICH.

An 1199 member told the Eagle after the hearing, “I am ashamed to be an 1199 member. As workers we fought for a full-service hospital. It seems like 1199 is on a different page.”