An interview recently published in Hamodia.

In the latest development in the effort by kehillos and organizations to block the planned New York City Health and Hospitals (H+H) takeover of Maimonides Medical Center — a move that they say will put the lives of community members in danger — the New York State Department of Health has rejected Maimonides’ latest application for the H+H takeover.

Senior officials had anticipated the application appearing on the June 10th agenda of the Public Health Council’s Establishment and Project Review Committee, but it was absent. The Department rejected it for a basic reason: Maimonides never filed the required Health Equity Impact Assessment (HEIA).

Hamodia spoke to Martin Bienstock of Bienstock PLLC and Akiva Shapiro of Holtzman Vogel, the attorneys leading the legal battle on behalf of the community, to learn where the case is holding and what is likely to happen next.

A city public hospital system moves to take over a key, non-profit Brooklyn hospital, and a coalition of chassidishe kehillos and community askanim ends up stopping it — at least for now. Please tell us about the various components of the process that brought this attempted takeover to a screeching halt.

Martin Bienstock: I view this through two important perspectives, two important prisms.

One is essentially that the government is stealing a private hospital. This is a hospital with a 100-year history as a not-for-profit, built up over generations of hard work, and now it is a deeply established hospital with significant real estate assets and a significant business.

It is not proper for the board simply to hand it over to the government — taking it out of its historical roots, out of its not-for-profit status — and make it into a government entity. Government is not the same as not-for-profit; government is government, and not-for-profit is private.

So that’s the first perspective. It’s simply an improper transfer of a private institution over to the government.

The second prism is that of public health. Maimonides is not perfect, but New York City’s Health and Hospitals Corporation has an extremely uneven history in terms of the quality of care that it provides.

We’ve heard even recently of terrible incidents out of Bellevue — with people leaving without permission and causing harm on the streets — and the quality at H+H goes up and down, but the lows are very, very bad, and this transaction is forever.

So, even if H+H is currently being operated by Mitch Katz, who we think is a good operator, that’s going to change. There will be a new leader, and over time, the history shows that H+H does not provide the highest quality of care — it provides poor quality of care — and that’s dangerous.

So, those two prisms — that they’re stealing a private hospital, taking it away and giving it to the government, and that they’re endangering the health of local residents — are basically what has guided us, because there actually are laws that protect against both of those things.

Before a not-for-profit hospital can be turned over to anyone — before you can sell out a private not-for-profit hospital — you need the approval of either the attorney general or the courts.

What we’ve done, in part, is ensure that this is going to get an appropriate review — not just a rubber stamp by the attorney general, which is what they were trying to get, but a real review by the courts.

The attorney general, as a result of our efforts, we believe, rejected the idea of simply rubber-stamping this. They were hoping to have gotten it approved long ago if the attorney general was trying to rubber-stamp it, but she wouldn’t.

So the idea being reflected there is that they can’t just steal our private institution and hand it over to the government. They can only do that with a proper review to make sure it really is necessary. If you’re transferring a private institution to the government, it really needs to be the only viable option.

The second part of it is the public health angle. They were trying to ram it through without approval of the Public Health and Health Planning Commission — what we call the Public Health Council — which is required to review healthcare transactions to make sure the public’s health is being protected.

That’s why kehillos in the affected neighborhood filed suit in Albany, and they won. The judge ordered them to bring this through the Public Health Council.

What happened this past week is that the Department of Health rejected their application because they didn’t do what’s called a Health Equity Impact Assessment, which is designed to measure the impact of the transaction on affected communities.

The first point you made was regarding transferring from a nonprofit to the government. What is the actual downside you’re concerned about?

Martin Bienstock: One is the fact that it’s long been a Jewish institution. It has catered to all the different ethnic communities, but it has been a long-standing Jewish hospital.

A private institution can reflect that type of history and that type of local interest and control. It’s a Boro Park institution. It’s an institution that was founded by particular groups, and a private institution has the right to respond to the needs and desires of the groups that established it, whereas the government does not.

And not only doesn’t it have that responsibility, but in many cases it’s prohibited from preferring one group over another.

The minute this becomes a government institution, it’s owned by the City of New York, with a duty to all of the voters and all of the citizens in the City of New York — an equal duty, no different from any of the other 15 H+H facilities that are totally neutral, available, and responsive to everyone.

For instance, without getting into a radical example, more generally, the mayor will control the board, and he can do what he thinks is in the best interests of whatever constituencies he wishes to serve — whatever his judgment holds as best for the people of New York.

It doesn’t require us to say he would have any bad faith. It’s just that he has a different orientation and a different perspective than what’s best for the local community and the people who’ve been supporting this hospital for 100 years.

He may have a thousand other interests he wants to serve — whether good or bad, legitimate or not — they’re just not the interests of the people who use this hospital and who built this hospital.

Let’s break down a little bit what’s been going on. First of all, there is the decision by the state attorney general to send the deal for court review. Has that court review begun?

Akiva Shapiro: The processes have to be sequenced in a certain way, so the short answer is no — that process has not begun. It cannot begin until all other regulatory approvals have been obtained.

Akiva Shapiro: The way it will have to go — and that’s why all of these are intertwined — is that Maimonides has to first complete this Health Equity Impact Assessment, which is a comprehensive review done by a third-party consultant that will review the impact of the proposed change on healthcare quality and care for affected communities, in light of the fact that this is a significant Medicaid and Medicare population, as well as all the proposed potential changes.

That itself is a lengthy, costly, and significant process.

Who gets to choose that outside consultant?

Akiva Shapiro: Maimonides.

There are recognized processes and guidelines for conducting that kind of assessment and analysis, and the statute sets out various factors that have to be considered.

Presumably, this is not an overnight procedure.

Akiva Shapiro: Certainly not an overnight procedure. It’s a multi-month process.

The next meeting of the Establishment Committee of the Public Health Council — so they first have to go to this Establishment Committee, get a recommendation of approval from that committee, and then go to the full Public Health Council.

The next meeting of that committee is in late August. Their hope is that they can finish this Health Equity Impact Assessment with enough time before that August 27 meeting to resubmit their application.

That’s a best-case scenario for the hospital.

At that meeting, would there be a possibility for people to testify?

Martin Bienstock: It’s actually a two-part process. There’s an Establishment Review Committee — a committee that meets two weeks before the Public Health Council. They’re the ones who gather the evidence and hear the testimony.

That committee meeting is in August, and they then make a recommendation to the full council. The full council may deliberate, but they typically don’t allow testimony. There may be some chance to say something there, but that’s not where the evidence is gathered.

The evidence is gathered at the committee level, and then the council holds a hearing and votes.

Was the decision by Maimonides — and actually the city, and to a degree the state as well — to skip the commission review and skip the health impact statement something deliberate, do you think? Or was it just…

Akiva Shapiro: Well, we know it was deliberate, without imputing motive as to why they tried to do it, because the court challenge itself was a challenge to the decision to waive the Public Health Council review.

Maimonides made a request to the Department of Health to bypass the Public Health Council. The Commissioner of Health agreed and gave them a green light, and that is why we brought the lawsuit to begin with.

NYC Health + Hospitals is the largest municipal hospital system in the country. It is not, by any measure, a politically marginal institution. What does it take — legally and strategically — to successfully challenge an entity of that scale?

Martin Bienstock: Well, I think we have two of the most important things going for us.

One is that we have the law on our side. They really were trying to avoid the legal requirements necessary to transfer a hospital like Maimonides over to the government, so we definitely have something to work with.

The other is the tremendous support we have from our clients and from the community. The sacrifices that people have made in terms of time and effort in order to support this, for no other reason than to protect the community’s health and access to care, is just astounding.

We have the most amazing group of community people who are so supportive in terms of their time and efforts, and that’s really been key to evening the playing field, because the city does have unlimited resources with which to push this through.

Akiva Shapiro: I’d just add one thing. I think there was an expectation from Maimonides leadership and from Health and Hospitals that this would be rammed through with little opposition, because it’s a nonprofit hospital.

The impacted communities, in order to challenge it in a meaningful way, did have to come together, fundraise, pool resources, and make this a priority.

And it all started — and this is another important element we didn’t touch on — with the trustees. Seven of the trustees of Maimonides initially hired Marty when it looked like there was going to be a vote to sell the hospital on a couple of days’ notice, with no information — or little information — provided to them.

He got a temporary restraining order that initially blocked the vote. Then I came in, and we joined forces and started fighting at the board level on behalf of those trustees.

So, it started with the trustees, and I think that initial success, and the initial show of force — saying there’s someone here watching and someone here speaking up — was enough to galvanize the broader community to see that this is something worth fighting for, that there’s a chance to fight for it.

That lawsuit is still before the court?

Akiva Shapiro: That lawsuit is pending, and we are pressing forward with it.

And I’ll say — just to go back and finish the steps — assuming they get past the Public Health and Health Planning Commission and receive approval, at that point they will then be required to make an application to the court.

There’s a separate lengthy process to get a public hearing in front of a justice of the Brooklyn Supreme Court, and the community will have an opportunity to have input at that point as well and to appear at the hearing.

And even if they were to get through that, we still have our lawsuit challenging the board process — the fact that they ran this through and still haven’t provided full information to the board.

They’re still trying to keep the board in the dark. That’s another element to this whole thing, separate even from the public health issues and the selling of our hospital.

There’s a fundamental transparency and informational requirement that, unfortunately, Maimonides and H+H seem to be defying at every turn.

They’re trying to push it through at the board level, push it through at the Department of Health level, trying to avoid the court review — instead of going through the proper steps for a transaction of this magnitude.

Whenever we’ve had conversations with Maimonides and with the city, it has always come down to one argument: “There is no other option. No one else has come forward with a viable alternative.” In your opinion, are there viable alternatives?

Martin Bienstock: So, that’s part of the transparency discussion we were having before.

Once the city was identified as the party that was going to take over the facility, it became incredibly difficult to have other entities step up and say they’re willing to come in, because the city is the 900-pound gorilla, and the state had already committed the financing to be provided to the city.

So, it was very difficult for other entities that do business with the state and the city to come in and say, “Sure, we’re willing to challenge the city and put together a different deal.”

But we do think we should identify the most appropriate structure for how this would go forward, with the governor’s help — and we’re working with people in the community who are taking the lead on this.

There’s a substantial pot of money available from the governor, and we think that money will be available for other transactions.

It’s something we’re paying close attention to regularly, and we believe that a deal will come together that will avoid the two tragic outcomes we’re concerned about — and that will keep the hospital in the community as a private hospital, not a government hospital, and that will improve the quality of care through an association with other entities or better operating conditions.

I think there’s a widespread perception that the current situation, where the hospital faces challenges, is a product of poor management, and that getting good management in there can improve things very significantly.

I think a combination of that, a new operator, and new relationships can really provide the opportunity for a very much improved Maimonides Hospital in community hands, taking care of community people into the future.

Akiva Shapiro: I’d just add one thing to that, which is that we’ve seen this time and again in the last eight or nine months or so that we’ve been fighting this.

Maimonides and H+H claim that the sky is falling, there’s a fire in the building, and the only way out is their transaction — it has to happen right now. If they don’t do it right now, they’re going to lose the state money, they’re going to lose the reimbursement rate, and they’re going to lose various other things.

And it’s a heavy-handed sales technique, right? “The deal is closing, and if you don’t decide in the next 60 seconds, it’s gone.”

We’ve just said no, we’re not playing that game.

This is the same approach as when they didn’t have a board committee, didn’t put together a board committee to consider different options, or reach out to buyers.

Instead, they sprung it on the board on a Friday and said, “On Monday, we’re voting on this transaction, and if we don’t vote yes, the whole hospital is going to fall.”

And it’s just not true. We don’t have another buyer or transaction in hand now, in large part — as Marty said — because of the way they’ve handled this. But we don’t think anyone should fall for these heavy-handed sales techniques.

They’ve shown time and again that they claimed they had to close by April 1. The attorney general said it had to go to the court. They said, “Oh, never mind, we don’t have to close by April 1. Now we have to close immediately — we can’t go through the Public Health Council process.”

The court said they had to go through the Public Health Council process. Now they say, “Okay, we’ll take the time to go through that process.”

It’s just not credible anymore.

Do you feel confident that a certain part of this process could stop it, and if so, which part? As you said, there are three different steps: the committee hearings and the deliberations of the full commission; the court review of the deal; and you still have the lawsuit by the trustees. Where do you have your best case?

Martin Bienstock: Well, all three are really good, because they’re all correct.

There really should not be a forced transfer of private not-for-profits to the government without any real compensation to the community. They really shouldn’t steal our hospital — and this really is not a good plan — which means that the court should, and we think it will, deny the application to liquidate Maimonides.

That’s what it is: a total takeover by the city. It requires Maimonides to liquidate its assets and hand them over to New York City, and I don’t think a judge is going to approve that.

At the same time, I also don’t think the Public Health Council is going to approve the sale, given the impact it’s going to have on local residents and the quality of their health care.