By Arthur Z. Schwartz
On August 30, 2017, as promised, a lawsuit was filed to block the further closure of Beth Israel Hospital, and to restore the services already cut.
The lawsuit, titled George Capsis et al v. Howard Zucker as Commissioner of the N.Y. State Department of Health, addresses the ruse pursuant to which Beth Israel-Mount Sinai Hospital has attempted to circumvent the state law intended to prevent wholesale changes in a neighborhood without proper public review. What Mount Sinai-Beth Israel has done is apply for segmented and limited review by the NYS Department of Health (NYS DOH) of individual Certificate of Need (CON) applications. No matter what Mount Sinai-Beth Israel says about opening a new hospital and expanding outpatient services, its clear goal is to dismantle the existing 800-bed hospital, close the facility, and turn its property into condos. The lawsuit argues that the effective closing of a hospital which provides vital services in a 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).
Normally, a CON is required for small construction projects, and modifications in the operation of a hospital. Major construction projects and high expenditure products are generally subject to a higher level of review. And, in certain circumstances, like those surrounding the Beth Israel closure, decisions around hospital services trigger the need for an environmental review, usually an Environmental Impact Statement, backed by studies and numbers and reviewable by the public.
SEQRA’s primary purpose is to inject environmental considerations into government decision-making. ‘Environmental’ is a broad term which includes public health. The law requires environmental reviews even of discretionary government action of a certain size. A project involving more than 250,000 square feet, like the dismantling of Beth Israel Hospital, is a project of such size. The CON review done by the NYS DOH is a discretionary review. The lawsuit argues that the CON reviews being done, piecemeal, involving the slow shutdown of Beth Israel, should include a SEQRA evaluation.
Under SEQRA, the lead agency (here, the NYS DOH) must first determine whether an action would have a significant impact. If the action is found to have a significant impact, the lead agency must conduct a full review, known as an Environmental Impact Statement. This review provides the public an opportunity to comment on the action and carries with it an obligation to consider mitigation.
Just the closure of the obstetrics unit (Labor & Birth) should have triggered a review. SEQRA requires an environmental review when a proposed action “conflicts with a community plan,” and when “the proposed action contemplates a substantial change in use.” The closure of the Labor & Birth unit created a material conflict in the state’s regional perinatal plan, in which Mount Sinai-Beth Israel is a participant. Beth Israel didn’t wait to build a new hospital with a new Labor & Birth unit; they just closed the one they had. And, they have no plan to provide obstetrical care at their new, 70-bed hospital.
More importantly, Beth Israel served over 4,000 people per year for obstetrical service. The level of care offered by Beth Israel may only be offered at other Level 3 hospitals, most of which are overcrowded and underfunded. Requiring expectant mothers to travel to hospitals farther away from their homes creates a barrier to maternal health for the women of Lower Manhattan and the nearby Brooklyn communities which heavily utilize Beth Israel. Approval of Beth Israel’s CON concerning the Labor & Birth unit (which has already closed) should trigger a SEQRA review. Despite letters from the Community Coalition to ‘Save Beth Israel’ and Public Advocate Letitia James, no such review has been announced and Beth Israel has been allowed to just run away.
I could go on, but it is obvious that, when looked at AS A WHOLE, the closure of the existing Beth Israel Hospital impacts the environment of Lower Manhattan, including the West Village and Central Village. So, we sue. And we have asked Attorney General Eric Schneiderman NOT to defend the Commissioner of Health, Howard A. Zucker. The NYS DOH is failing in its core role, which is protecting the public health. The Attorney General should tell Governor Cuomo to find someone else to defend his Commissioner.
Arthur Z. Schwartz is the Male Democratic District Leader for Greenwich Village.