Hospital Care Is A Right!

While the political class debates Obamacare, hospitals all over the country are in crisis. The system of "non-profit" and privately owned hospitals suffers greatly from the volume of uninsured and underinsured patients, and the lack of competition in the insurance industry (which allows the companies to lower hospital reimbursement rates while profits increase). In New York City, last April, St. Vincent’s Hospital, run by the Catholic Church, closed under the weight of $1billion in debt. More and more the question of the government’s responsibility to provide care is going to be raised. In New York, the State Constitution actually includes rights related to healthcare
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This article was published in WestView, a monthly newspaper published in the West (Greenwich) Village, in June 2010

The Legal Case for A New Hospital on the Lower West Side

by Arthur Z. Schwartz

We Have a Right to a Hospital!

I reported last month in WestView that I had filed suit, on behalf of the Fulton Houses
Tenants Association and the community group ACORN, seeking to block the use of $15 million in State money which has been “granted” by the Governor to help launch an “urgent care center” in the vicinity of St. Vincent’s, and demanding, instead, that it be used to help bring a new hospital, or “acute care center” to the Lower West Side.
We asked for this injunction as part of a broader action seeking to compel the New York State Department of Health (“DOH”) to replace the hospital or “acute care” medical services lost to the Lower West Side of Manhattan as a result of the closure of St. Vincent’s Hospital. It is my belief that this lawsuit could become landmark litigation, not about St. Vincent’s, but about the obligation of the State Government to supply hospital quality health care to its citizens.

What Did We Lose When St. Vincent’s Closed?
St. Vincent’s Hospital was a 758 bed tertiary care teaching hospital. While operating, it included a:

  1. Level I trauma center and critical care center;
  2. Comprehensive cardiovascular center;
  3. Level III neonatal ICU;
  4. Comprehensive cancer center;
  5. Comprehensive HIV center;
  6. Full service emergency department; and
  7. Inpatient and outpatient psychiatric addiction services.

The Emergency Department alone treated 65,000 patients in 2009. Physicians in the hospital performed 20,000 surgeries a year.
In addition to its inpatient and emergency services, St. Vincent’s had an extensive community service plan for its “Primary Service Area,” which it defined as Chelsea-Clinton, Greenwich Village-Soho, Lower Manhattan, and Union Square-Lower East Side neighborhoods. That plan included:

  1. one of the largest mental health and substance abuse programs in the Northeast United States;
  2. a vast array of services for senior patients, which included a visiting doctors program designed to serve the homebound elderly; and
  3. an extensive HIV/AIDS testing, treatment, and education program.

Due to its close proximity to Chinatown (two miles), St. Vincent’s developed close ties to the Chinese community, one of the poorest communities in New York City. St. Vincent’s opened an independent Chinese-speaking inpatient unit, employed physicians who speak Cantonese and Mandarin, and provided a free shuttle service from Chinatown to the hospital.
Not only was Chinatown within the St. Vincent’s service area, so too were the Fulton Houses and the Elliot-Chelsea Houses, NY City Housing Authority developments between Ninth and Tenth Avenues, from 216th to 28th Streets.
Throughout its recent history, St. Vincent’s became one of the principal hospitals utilized by the needy and poor for medical services, so much so that a majority of its emergency room patients came from outside of its service area.

The Berger Commission

On April 13, 2005, the State Legislature enacted Enabling Legislation creating the Commission of Health Care Facilities in the 21st Century. The Enabling Legislation authorized a commission, which became known as the Berger Commission, to select hospitals and nursing homes across the state for downsizing and closure to create “a more coherent, streamlined health care system in the State of New York.” The Enabling Legislation required the Berger Commission to transmit its rightsizing recommendations to the Governor by December 1, 2006. Section 9(b) of the Enabling Legislation provided that once approved by the Governor, the recommendations of the Berger Commission would become law unless “a majority of the members of each house of the legislature voted to adopt a concurrent resolution rejecting the recommendations of the commission . . . in their entirety by December 31, 2006.” If the Legislature failed that, the Enabling Legislation required the Commissioner of Health to “take all actions necessary to implement the Berger Commission’s recommendations.” In addition, the Enabling Legislation authorized the Berger Commission to authorize the “necessary investments” needed to implement its plan, and authorized the Commissioner of Health to expend funds available under the HEAL-NY capital grant program to implement the Berger Commission’s recommendations.
On or about December 5, 2007, Governor Pataki transmitted his approval of the Berger Commission’s Final Report to the Legislature. Because the Legislature declined to hold a vote on the recommendations contained in the Final Report, the Berger Commission’s health care redistribution plan had the force of law.

The Commission’s methodology and its analytical framework centered around an absorption and access analysis that involved the simulated closure of individual hospitals and the capacity of surrounding hospitals (“coverage partners”) to absorb the closed hospitals’ patients.
The Final Report recommended the closure of several hospitals in New York City. The Commission recommended the St. Vincent’s Midtown Hospital close. However, with respect to St Vincent’s in Greenwich Village, the Commission recommended that it stay open.
The reasoning behind this conclusion was spelled out in the Report of the New York City Regional Advisory Committee to the Berger Commission The Advisory Committee Report recommended use of HEAL-NY money to restructure “St. Vincent’s Downtown to support the long-term viability” of the hospital.

The NYC Advisory Committee Report contained maps illustrating a number of critical facts:

  1. A map showing the “Medicaid-eligible population to primary care provider ratio” showed that the area where Fulton Houses is located had a “serious shortage,” as did the Lower East Side. The area around Chelsea-Elliot Houses was labeled “stressed.”
  2. Sensitive condition admission rates in South Chelsea were 150–200% of the overall New York City admission rates.

While the Berger Commission was in process, the St. Vincent’s Catholic Medical Center System filed for bankruptcy. The System launched a reorganization effort, selling or transferring money-losing facilities, focusing development on St. Vincent’s Hospital in Greenwich Village, and emerging from bankruptcy in the summer of 2007. A plan was developed to sell the hospital’s property on the east side of Seventh Avenue and utilize the money to build a new, modern facility on the west side of Seventh Avenue, with a planned opening set for 2011. That plan moved far more slowly than planned, in part because of community opposition and litigation addressed to the impact of the plan on the Greenwich Village Historic District.

The process of building a new St. Vincent’s Hospital focused on the New York City Landmarks Preservation Commission, which St. Vincent’s set out to convince of the importance of building a new hospital on a landmarked site on the west side of Seventh Avenue, the O’Toole Building. An opening letter from St. Vincent’s consultant, Charles F. Murphy, described St. Vincent’s as being located in “immediate proximity to communities that remain among the most medically underserved in Manhattan.” According to the letter eighteen percent of the residents of Greenwich Village and SoHo had no personal physician, and 23% of the Chelsea-Clinton residents did not have a personal physician. The report continued, quoting from the Berger Commission Report, to say that “32% of the City’s primary care physicians available to low income residents . . . are based in hospitals.”

The Landmarks Commission held public hearings about St. Vincent’s application to build a new hospital. On October 7, 2008, the session was entirely dedicated to hearing from representatives of the New York State Health Department and the Mayor’s office.
Riva Cohen, from Deputy Mayor Gibbs’ office, discussed the ongoing importance of the Berger Commission Report. She stated:
Its analysis was not merely qualitative or anecdotal. It was informed by a statistical model . . . for determining whether adequate alternative capacity existed within reasonable proximity to a hospital considered for closure . . ..

Notably, St. Vincent’s Hospital Manhattan was not recommended for either closure or down-sizing. In fact, its analysis indicated that neighboring hospitals would not be able to absorb St. Vincent’s patients if the facility were to close, especially during the peak season . . ..

With the closure of St. Vincent’s Midtown, St. Vincent’s Manhattan in Greenwich Village is now the only hospital serving Manhattan’s West Side, from Battery Park to West 58th Street.
Ms. Cohen described how St. Vincent’s is the only level one trauma center serving this area:
A level one trauma center provides the highest level of care to the most
severely injured victims of car accidents, airplane crashes, fires,
shootings, and other calamities . . ..
St. Vincent’s is one of only four level one trauma centers in Manhattan and the next West Side level one trauma center is at St. Lukes Hospital on 114th Street.

She then spoke about St. Vincent’s Emergency medical services:
I spoke with the Commissioner at the Fire Department who oversees the EMS system, and asked him his opinion about what would happen if St. Vincent’s emergency department closed or if it had to be moved elsewhere . . .
After reviewing statistical and geographical data on EMS response times and traffic patterns, the Fire Department determined that St. Vincent’s current location is optimal.

She then concluded:
In sum, West Side residents, workers and visitors in the fast-growing
community St. Vincent’s currently serves need a full service hospital, with
emergency and trauma capabilities that meet 21st Century standards of
patient safety, infection control and quality assurance. A closure of the
hospital, or relocation away from the community where St. Vincent’s is
currently located, would not provide that sort of access.

The next witness was Seth Cummins, Chief of Staff for the New York City Office of Emergency Management. He described St. Vincent’s as a “regional trauma center.”
Should an incident in this city produce a surge of trauma patients, the
time required to transport these patients to the nearest trauma center
could significantly impact the outcomes. On this basis, we consider the
existence of a regional trauma center . . . on the lower west side of
Manhattan to be vitally important. In the minutes and hours following a
large scale event, this critical facility would provide immediate support
for life safety operations in various contexts.

Mr. Cummins testified that if a hurricane threatened New York City, hospitals in the storm surge zones would have to be evacuated and St. Vincent’s “location near these large hospitals in lower Manhattan evacuation zones would result in reduced transport times, and a shortened evacuation operation.”

The Landmarks Commission approved St. Vincent’s application to build a new hospital and that decision was met with an Article 78 proceeding. In the City’s responding papers it further emphasized the importance of St. Vincent’s. According to the City, St. Vincent’s Emergency Medical Department saw 60,000 patients per year, 20% of whom were admitted to the hospital. Its homeless program treated 10,000 patients a year, with 55,000 patient visits. Its primary service area includes 440,000 residents, 815,000 private sector workers, and millions of tourists . “The communities [St. Vincent’s] services are filled with unrecognized pockets of poverty. Twenty-five percent of the hospital’s service population has a household income of under $25,000 a year. In 2007 St. Vincent’s Hospital provided $40 million in unreimbursed charity care to the poor.” “No other Manhattan hospital, not even . . . public hospitals, has more zip codes within their service area so lacki
ng in primary care doctors as does St. Vincent’s. St. Vincent’s Hospital is the doctor’s office of this impoverished community. It provides primary care, acute care and an emergency safety net for thousands of those who have no public hospital on the West Side.”

The Closure and the Urgent Care Center

On April 14, 2010 St. Vincent’s filed its Bankruptcy Court Petition, and planned a closure by April 30.
On April 18, 2010, the New York State Department of Health issued a Request for Grant Application (“RGA”) under the State’s “Heal Capital Grant Program,” (HEAL) administered pursuant to Section 2818 of the Public Health Law, a program whose purpose is to “encourage improvements in the operation and efficiency of the health delivery system within the state.” The RGA seeks only to establish an “Urgent Care Center” at the St. Vincent’s building. An urgent care center is nothing more than a clinic–no emergency care for life-threatening illnesses, no surgery can be done, and no medical needs potentially requiring hospitalization can be addressed.
On April 26, 2010, the Department of Health put out a press release stating that it had made a decision to issue several grants, using HEAL funds worth about $15 million, in part to allow Lenox Hill Hospital to open an “urgent care center,” probably on the St. Vincent’s premises. No contract, as yet, has been entered into, either with an urgent care provider or with St. Vincent’s for use of its premises.

The State Health Commissioner Has a Constitutional Duty to Protect and Promote the Health of New York’s Inhabitants and Provide Aid to the Care for the Needy.

The Commissioner of Health has an obligation, under the New York State Constitution, to “protect and promote the health of New York’s inhabitants. ” Moreover, by statute, the Commissioner is charged with the central responsibility for New York State’s hospitals. Because the Berger Commissioner concluded in 2006, after conducting a thorough analysis, that St. Vincent’s should not close and that a Level I Trauma center was necessary in the western portion of downtown Manhattan, the Commissioner is in violation both of the Constitution and his statutory obligations to provide emergency hospital services to New York’s inhabitants.

The State is also failing to address its obligations to the needy. In Jiggets, a 1990 NY Court of Appeals case, recipients of family assistance benefits challenged allowances set by the Department of Social Services as not being adequate. The Court of Appeals explained: “The provision of assistance to the needy is not a matter of legislative grace but is specifically mandated by the New York State Constitution. The Court analyzed the mandatory nature of the allowances by statute, reading the broader language thereof: “Allowances shall be adequate to enable the father, mother or other relative to bring up that child properly, having regard for the physical, mental and moral well-being of such child in accordance with the provisions of [] and other applicable provisions of law.” The Court determined that the Constitution of this State mandated more sufficient allowances for shelters for individuals on public assistance.

Subsequently, in Campaign for Fiscal Equity v. State of New York, the NY Court of Appeals recognized that the Constitution of the State requires a school system “wherein all the children of this state may be educated,” to ensure “a sound basic education to all of the State’s children. In the CFE case, the Court of Appeals considered the scope of the constitutional requirements to provide a “sound education” to New York’s children. It was not enough for the schools to provide a classroom and a teacher. Rather, the Court defined a sound basic education as “the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury.” Further defining that standard, the Court explained, “a sound basic education conveys not merely skills, but skills fashioned to meet a practical goal: meaningful civic participation in contemporary society. This purposive orientation for schooling has been at the core of the Education Article since its enactment in 1894. As the Committee on Education reported at that time, the ‘public problems confronting the rising generation will demand accurate knowledge and the highest development of reasoning power more than ever before . . .’”
I am arguing to the Court that a similar high standard of health services is required to be guaranteed to all citizens by the State. Article XVIII, Section 3 of the NY Constitution creates an affirmative obligation by the Commissioner of Health “to provide for the protection and promotion of the health of the inhabitants of the State.” The relevant duties of the Commissioner of Health are set forth as follows:
1. The commissioner shall:
(a) take cognizance of the interests of health and life of the people of the state, and of all matters pertaining thereto and exercise the functions, powers and duties of the department prescribed by law;
* * *
(f) enforce the public law.
(emphasis added).

The Public Health Law has been interpreted as a New York State Constitutional “mandat[e] that the protection of the health of [New York State’s] inhabitants was a matter of public concern.” In 1977, the Appellate Division affirmed the trial court’s imposition of an injunction to prevent the strike of nursing home workers, finding that Section 206 of the Public Health Law reflected a constitutional mandate by the Legislature to the Commissioner “to order the discontinuance by any person causing or engaging in ‘a condition or activity which in his (the Commissioner’s opinion constitutes a danger to the health of the people.’” As a result, the Court concluded that the State’s interests in promoting health and protecting the general welfare required that the court impose an injunction to prevent a strike of nursing home workers.

New York Health Code Section 2800 charges the Department of Health with “the central, comprehensive responsibility for the development and administration of the state’s policy with respect to hospital and related services.” The Berger Commission was created by the Executive and Legislative Branches of the State government with the mission of “rightsizing the health care delivery system in New York State.” The Commissioner, therefore, should be working to replace St. Vincent’s, and the level of care it provided, not reduce services. The Berger Commission found that the hospital services provided by St. Vincent’s could not be replaced.

In view of the constitutional requirements to provide assistance to the needy, to provide and protect the health care of New York State’s inhabitants, the Commissioner’s responsibility for New York State hospital institutions, and the Berger Commission’s findings of the need for an emergency facility like St. Vincent’s in the lower, western portion of Manhattan, it is inconceivable that the Commissioner would now argue there is no constitutional or regulatory obligation to provide emergency hospital services to the inhabitants of the very district the Berger Commission determined needed Level I Trauma and other hospital facility services well into the Twenty First Century.

Despite these f
acts, and the law the Health Commissioner has made a clear choice–he has abandoned all efforts to bring a hospital to the Lower West Side of Manhattan to replace St. Vincent’s and has decided, instead, to spend state money on a palliative “urgent care center” to treat scrapes and bruises.

This is not just the lament of a community resident who wants a nearby hospital for himself and his family. As explained in the testimony of Seth Cummins, the City’s Director of Emergency Services, to the Landmarks Commission, the loss of a Level I Trauma Center is an incalculable loss:
"There is no Level I Trauma Center on the West Side of Manhattan below 114th Street. Just one month after a near miss in Times Square, the State government cannot just be allowed to shrug its shoulders at such a loss–and of the Health Department’s refusal to deal with the loss as though it were a public health crisis. It is a public health crisis and demands both Court intervention, and vigorous protest activity by people formerly serviced by St. Vincent’s"