On February 07, 2024 a
Exhibit,Appendix
was filed
involving a dispute between
Andrea Gordillo,
Arthur Z. Schwartz,
Center For Independence Of The Disabled,
Community Coalition To Save Beth Israel Hospital And The New York Eye And Ear Infirmary
By Its Co-Chair Penny Mintz,
Elliot-Chelsea Houses Tenants Association,
Fulton Houses Tenants Association,
Michael Schweinsburg,
Pca Doe,
Rhoda Lyman,
Richard Cruz,
Sarah Batchu,
Save Nyee, Inc.,
The 504 Democratic Club,
and
James V. Mcdonald
As Commissioner Of The New York State Department Of Health,
Mount Sinai Beth Israel Hospital,
Mount Sinai Hospital System,
New York Eye And Ear Infirmary Of Mount Sinai,
New York State Department Of Health,
for Special Proceedings - CPLR Article 78
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 02/07/2024 02:07 PM INDEX NO. 151136/2024
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/07/2024
EXHIBIT TT
FILED: NEW YORK COUNTY CLERK 02/07/2024 02:07 PM INDEX NO. 151136/2024
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/07/2024
The Public Advocate 1 CENTRE STRl·:Fl
f\LW YORK, NY 10007
for the City of Ne\v York TEL 2i2 669 4102
' E'\X 2 l 2 669 77·10
WVv'\V.PCRADVOCATE.NYC.GOV
:Letitia James - Public Advocate
August 9, 2017
The Honorable Howard A. Zucker
Commissioner
New Yark State Department of Health
Coming Tower, Empire State Plaza
Albany, NY 1223 7
Dear Commissioner Zucker:
I am deeply concerned about Mount Sinai-Beth Israel's (Beth Israel) practice of applying for
limited and segmented review of individual Certificate ofNeed (CON) applications. Beth
Israel's clear goal is to dismantle the hospital and close the facility. Indeed, the effective closing
of a hospital that provides vital services in an underserved community should not be permitted to
proceed without substantial review and public comment, the type of review required by the State
Environmental Quality Review Act (SEQRA).
A CON is required for construction projects and modifications to the operation of a hospital.
Major construction and high expenditure projects are generally subject to a high level of review. 1
However, in certain circumstances, decisions around hospital services trigger the need for an
environmental review pursuant to SEQRA. See e.g. Coppola v. Good Samaritan Hosp. Med.
Center 309 A.D. 2d 862 (2d Dep't 2003). That is the case here.
SEQRA's primary purpose is to inject environmental considerations into government decision
making. See NY CLS ECL § 8-0101, A1atter ofCity Council a/Watervliet v. Town Bd. oftown of
Colonie, 3 NY 3d 513, 515 (2004). SEQRA requires environmental reviews of discretionary
government actions. See Jackson v New York State Urban Dev. Corn., 67 N.Y.2d 400, (1986).
The CON review is subject to the discretion ofthe Department of Health (DOH). Therefore the
CON review should include a SEQRA evaluation.
Under SEQRA, the lead agency (here DOH) must first determine whether an action would have
significant impact. If there is not a significant impact, it must issue a negative declaration. If the
action is found to have a significant impact, the lead agency must do a full review, which
provides the public an opportunity to comment on the action and catTies with it the obligation to
consider mitigation. NY CLS ECL § 8-0109.
An action is presumed to have a significant impact on the environment if it falls under any of the
categories listed in 10 NYCRR 97.13(a). Three provisions of 10 NYCRR 97.13(a) are implicated
1
10 NYCRR 7IO.l(c)(5). The decertification of hospital beds is often given only limited review
ExT
FILED: NEW YORK COUNTY CLERK 02/07/2024 02:07 PM INDEX NO. 151136/2024
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/07/2024
by the closure of Beth Israel: (1) the proposed action conflicts with a community plan (Id. at
97.13{a){4)); (2) the proposed action will attract a large number ofpeople for a sustained period
(ld at. 97.13(a)(3)); and (3) the proposed action contemplates a substantial change in use (Id. at
97.13(a)(8)).
Beth Israel sought to decertify seventy-three of its maternal beds within their obstetrics
department. The decertification of these beds will result in the elimination of one of five Level
Three Perinatal Care Facilities in Manhattan? This perinatal designation means that Beth Israel
is qualified to offer care for complex and dangerous pregnancies.
The closure of the obstetrics unit creates a" "material conflict with a community's existing plans
or goals as officially approved or adopted." See 10 NYCRR 97.13(a)(4). SpecificaJly, the closure
of the obstetrics unit creates a material conflict with the regional perinatal plan. Perinatal
services are a "core health service" that municipalities must provide to be eligible for State aid.
NYS Public Health Law§ 602(a). Each hospital providing perinatal care in New York is required
to participate in the statewide perinatal regionalization system, which is intended to coordinate
the availability of perinatal services in the State. See NYS Public Health Law§ 2522, 10 NYCRR
721.1 et seq. Accordingly, every perinatal care hospital is required to enter into an agreement
with its regional coordinator concerning, an1ong other things: 1) intra-network transfers of
obstetrics patients; 2) the availability of 24 hour consults; 3) participation in the statewide
perinatal data system; and 4) cooperation on outreach and education efforts." See 10 NYCRR
721.2, 721.3.
On average Beth Israel serves 4006 people a year for obstetrical services, the majority of which
come from communities of color (see Appendix). The level of care provided at Beth Israel may
only be offered at other Level Three or regionally designated hospitals which are already
overcrowded and underfunded. Requiring mothers to travel to hospitals farther away from their
communities creates a barrier to obtaining appropriate perinatal care. The purpose of the regional
plan is to eliminate barriers to maternal health for underserved communities. Granting Beth
Israel a CON would therefore affect the regional perinatal care system and defeat the purpose of
this plan creating a material conflict, triggering a SEQRA review pursuant to 10 NYCRR
97.13(a)(4).
Furthem1ore, when Beth Israel shuts the hospital down, they have represented that they will sell
the property. The property would then, likely, be converted to residential use. The conversion
would inalterably change the environment of the community in which the hospital currently
operates. The residential property would increase traffic flow and substantially affect population
patterns and infrastructure needs. Beth Israel's closure will have a significant impact on the
environment as that term is defined in SEQRA and, thus, the lead agency should be required to
propose measures that would mitigate any harm to the community, as SEQRA contemplates.
2
Mt. Sinai recently informed us that MSBI is a Level2 Perinatal Center. The Department of Health website still
shows MSBI as Level 3 Perinatal Center. In either case, this does not obviate the regional perinatal plan analysis.
2
FILED: NEW YORK COUNTY CLERK 02/07/2024 02:07 PM INDEX NO. 151136/2024
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/07/2024
Please provide us with a copy of any environmental assessments performed in conjunction with
the closing of Beth Israel and any associated CON applications. I look forward to hearing from
you.
Sincerely,
~/7
Letitia James
3
FILED: NEW YORK COUNTY CLERK 02/07/2024 02:07 PM INDEX NO. 151136/2024
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/07/2024
APPENDIX
1
HospitaL Type_?f_Care £'a tie..!:'! county of origi_n Nu'!Jber of Patients Number of days stayed Days sp17ntper pati~
:seth Israel Med 'Obstetric A!b~ny 1 38 38
's~th -rs~IMd :ob~tE!ric. Bronx 166 582 3.51
Beth Israel Med :obstetric Cayuga 1 1 1
Be~h l~_ra Med Q_l!stetric Dutchess 1 2 2
Beth Israel Med -Obstetric Herkimer 1 2 2
Bet~ Israel Med :obstetric _Kings 2,199 5,858 2.66
Beth Israel Med Obstetric Nassau 20 57 2.85
!Beth Israel Med :obstetric .New York 900 2,669 2.97
lBeth Israel Med Obstetric Non-NYS 23 57 2.48
laeth.israel Ob~trlc Med ,orange 4 11 2.75
I Beth Israel -Med Obstetric Putnam 1 3 3•
- - . -. ~
:BE!~ l~r-e ~ed :9~se.tric Q(JE!en~Â 495 1,311 265
; Beth Israel Med ~obsteric Richmond 55 153 2.78
/Beth Israel Med ,Obstetric Rockland 4 11 275
Beth Israel Med '.Obstetric Suffolk 8 22 275
I seth lsra_el Med O~steric Unknown 98 287 293
, Beth Israel Med :obstetric Westchester 29 1n 5.93
1Total .. ·· 4006 11236 83.01
~Hospital Type of Se!Vice :Race Number of Patients Days spent in hospital Days spent per patient
>seth Israel Med Obstetric; Black 960 3,068 3.2'
'Beth Israel Med "Obstetric Other 1,812 4,960 274
~eth Israel Med Obstetric White 1.234 3,208 2.6
/Total 4006 11236 8.54·
:Hospital ;TYf?§!_Of Service .. · E~h!'Jity _ Nuf!Jber of P_atien~ .. Days spen~ in hospit?l Day~ spent per patie!1t
Beth l_:;_ra_el lli1ed :q_bst~ric Not c;>f $pani~/f-!sk 3,303 9,180 2 77
/B_eth lsraei lli1ed :Obstetric Spanish/Hispal)ic Origin 6~7 2,056 2.95
Total 4,006 11,236 6
Source:SPARCS
4
Preview
FILED: NEW YORK COUNTY CLERK 02/07/2024 02:07 PM INDEX NO. 151136/2024 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/07/2024 EXHIBIT TT FILED: NEW YORK COUNTY CLERK 02/07/2024 02:07 PM INDEX NO. 151136/2024 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/07/2024 The Public Advocate 1 CENTRE STRl·:Fl f\LW YORK, NY 10007 for the City of Ne\v York TEL 2i2 669 4102 ' E'\X 2 l 2 669 77·10 WVv'\V.PCRADVOCATE.NYC.GOV :Letitia James - Public Advocate August 9, 2017 The Honorable Howard A. Zucker Commissioner New Yark State Department of Health Coming Tower, Empire State Plaza Albany, NY 1223 7 Dear Commissioner Zucker: I am deeply concerned about Mount Sinai-Beth Israel's (Beth Israel) practice of applying for limited and segmented review of individual Certificate ofNeed (CON) applications. Beth Israel's clear goal is to dismantle the hospital and close the facility. Indeed, the effective closing of a hospital that provides vital services in an underserved community should not be permitted to proceed without substantial review and public comment, the type of review required by the State Environmental Quality Review Act (SEQRA). A CON is required for construction projects and modifications to the operation of a hospital. Major construction and high expenditure projects are generally subject to a high level of review. 1 However, in certain circumstances, decisions around hospital services trigger the need for an environmental review pursuant to SEQRA. See e.g. Coppola v. Good Samaritan Hosp. Med. Center 309 A.D. 2d 862 (2d Dep't 2003). That is the case here. SEQRA's primary purpose is to inject environmental considerations into government decision making. See NY CLS ECL § 8-0101, A1atter ofCity Council a/Watervliet v. Town Bd. oftown of Colonie, 3 NY 3d 513, 515 (2004). SEQRA requires environmental reviews of discretionary government actions. See Jackson v New York State Urban Dev. Corn., 67 N.Y.2d 400, (1986). The CON review is subject to the discretion ofthe Department of Health (DOH). Therefore the CON review should include a SEQRA evaluation. Under SEQRA, the lead agency (here DOH) must first determine whether an action would have significant impact. If there is not a significant impact, it must issue a negative declaration. If the action is found to have a significant impact, the lead agency must do a full review, which provides the public an opportunity to comment on the action and catTies with it the obligation to consider mitigation. NY CLS ECL § 8-0109. An action is presumed to have a significant impact on the environment if it falls under any of the categories listed in 10 NYCRR 97.13(a). Three provisions of 10 NYCRR 97.13(a) are implicated 1 10 NYCRR 7IO.l(c)(5). The decertification of hospital beds is often given only limited review ExT FILED: NEW YORK COUNTY CLERK 02/07/2024 02:07 PM INDEX NO. 151136/2024 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/07/2024 by the closure of Beth Israel: (1) the proposed action conflicts with a community plan (Id. at 97.13{a){4)); (2) the proposed action will attract a large number ofpeople for a sustained period (ld at. 97.13(a)(3)); and (3) the proposed action contemplates a substantial change in use (Id. at 97.13(a)(8)). Beth Israel sought to decertify seventy-three of its maternal beds within their obstetrics department. The decertification of these beds will result in the elimination of one of five Level Three Perinatal Care Facilities in Manhattan? This perinatal designation means that Beth Israel is qualified to offer care for complex and dangerous pregnancies. The closure of the obstetrics unit creates a" "material conflict with a community's existing plans or goals as officially approved or adopted." See 10 NYCRR 97.13(a)(4). SpecificaJly, the closure of the obstetrics unit creates a material conflict with the regional perinatal plan. Perinatal services are a "core health service" that municipalities must provide to be eligible for State aid. NYS Public Health Law§ 602(a). Each hospital providing perinatal care in New York is required to participate in the statewide perinatal regionalization system, which is intended to coordinate the availability of perinatal services in the State. See NYS Public Health Law§ 2522, 10 NYCRR 721.1 et seq. Accordingly, every perinatal care hospital is required to enter into an agreement with its regional coordinator concerning, an1ong other things: 1) intra-network transfers of obstetrics patients; 2) the availability of 24 hour consults; 3) participation in the statewide perinatal data system; and 4) cooperation on outreach and education efforts." See 10 NYCRR 721.2, 721.3. On average Beth Israel serves 4006 people a year for obstetrical services, the majority of which come from communities of color (see Appendix). The level of care provided at Beth Israel may only be offered at other Level Three or regionally designated hospitals which are already overcrowded and underfunded. Requiring mothers to travel to hospitals farther away from their communities creates a barrier to obtaining appropriate perinatal care. The purpose of the regional plan is to eliminate barriers to maternal health for underserved communities. Granting Beth Israel a CON would therefore affect the regional perinatal care system and defeat the purpose of this plan creating a material conflict, triggering a SEQRA review pursuant to 10 NYCRR 97.13(a)(4). Furthem1ore, when Beth Israel shuts the hospital down, they have represented that they will sell the property. The property would then, likely, be converted to residential use. The conversion would inalterably change the environment of the community in which the hospital currently operates. The residential property would increase traffic flow and substantially affect population patterns and infrastructure needs. Beth Israel's closure will have a significant impact on the environment as that term is defined in SEQRA and, thus, the lead agency should be required to propose measures that would mitigate any harm to the community, as SEQRA contemplates. 2 Mt. Sinai recently informed us that MSBI is a Level2 Perinatal Center. The Department of Health website still shows MSBI as Level 3 Perinatal Center. In either case, this does not obviate the regional perinatal plan analysis. 2 FILED: NEW YORK COUNTY CLERK 02/07/2024 02:07 PM INDEX NO. 151136/2024 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/07/2024 Please provide us with a copy of any environmental assessments performed in conjunction with the closing of Beth Israel and any associated CON applications. I look forward to hearing from you. Sincerely, ~/7 Letitia James 3 FILED: NEW YORK COUNTY CLERK 02/07/2024 02:07 PM INDEX NO. 151136/2024 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/07/2024 APPENDIX 1 HospitaL Type_?f_Care £'a tie..!:'! county of origi_n Nu'!Jber of Patients Number of days stayed Days sp17ntper pati~ :seth Israel Med 'Obstetric A!b~ny 1 38 38 's~th -rs~IMd :ob~tE!ric. Bronx 166 582 3.51 Beth Israel Med :obstetric Cayuga 1 1 1 Be~h l~_ra Med Q_l!stetric Dutchess 1 2 2 Beth Israel Med -Obstetric Herkimer 1 2 2 Bet~ Israel Med :obstetric _Kings 2,199 5,858 2.66 Beth Israel Med Obstetric Nassau 20 57 2.85 !Beth Israel Med :obstetric .New York 900 2,669 2.97 lBeth Israel Med Obstetric Non-NYS 23 57 2.48 laeth.israel Ob~trlc Med ,orange 4 11 2.75 I Beth Israel -Med Obstetric Putnam 1 3 3• - - . -. ~ :BE!~ l~r-e ~ed :9~se.tric Q(JE!en~ 495 1,311 265 ; Beth Israel Med ~obsteric Richmond 55 153 2.78 /Beth Israel Med ,Obstetric Rockland 4 11 275 Beth Israel Med '.Obstetric Suffolk 8 22 275 I seth lsra_el Med O~steric Unknown 98 287 293 , Beth Israel Med :obstetric Westchester 29 1n 5.93 1Total .. ·· 4006 11236 83.01 ~Hospital Type of Se!Vice :Race Number of Patients Days spent in hospital Days spent per patient >seth Israel Med Obstetric; Black 960 3,068 3.2' 'Beth Israel Med "Obstetric Other 1,812 4,960 274 ~eth Israel Med Obstetric White 1.234 3,208 2.6 /Total 4006 11236 8.54· :Hospital ;TYf?§!_Of Service .. · E~h!'Jity _ Nuf!Jber of P_atien~ .. Days spen~ in hospit?l Day~ spent per patie!1t Beth l_:;_ra_el lli1ed :q_bst~ric Not c;>f $pani~/f-!sk 3,303 9,180 2 77 /B_eth lsraei lli1ed :Obstetric Spanish/Hispal)ic Origin 6~7 2,056 2.95 Total 4,006 11,236 6 Source:SPARCS 4