New York State Department of Health to Mount Sinai Beth Israel:

Cease and Desist!

By Arthur Schwartz

On Friday, December 22, just as the City was shutting down for the holiday weekend, a bulletin was issued by the New York State Department of Health. After years of silence, and even past support for the efforts of Mount Sinai Hospital to shut down Beth Israel Hospital at 16th Street and 1st Avenue, the DOH sent Mount Sinai a letter telling them to stop what they were doing: shutting the hospital down, floor by floor, department by department, even though their closure plan had not been approved by the Department of Health. Here is what the letter said:

“Mount Sinai Beth Israel is hereby directed to CEASE and DESIST from closing beds and services without approval of the Department of Health (“Department”). Continuing to close beds or services without approval is unlawful and may result in civil penalties of $2,000 per day for each day that the beds or services are closed without approval. The Department also reserves the right to avail itself of any other appropriate remedy, including but not limited to seeking a court order.

10 NYCRR § 401.3(a) requires that “Proposed changes in physical plant, bed capacity and the extent and kind of services provided shall be submitted to the Department in writing….” In addition, under 10 NYCRR § 401.3(g), “No medical facility shall discontinue operation or surrender its operating certificate unless 90 days’ notice of its intention to do so is given to the commissioner and his written approval obtained.” The Division of Hospitals and Diagnostic & Treatment Centers’ DAL#: 23-06 Facility Closure Plan Guidelines was sent to facilities on August 29, 2023, to assist facilities in submitting the required documents in the timeframes required to be compliant with the regulation.

Mount Sinai Beth Israel’s closure plan was submitted for the Department’s review and approval on October 25, 2023. On November 17, 2023, the hospital submitted an addendum to the plan describing that operations would be closing more quickly than anticipated due to “decreased patient utilization” and “a number of staff resignations as result of the planned closure that, coupled together, will impact on the delivery of services as [Mount Sinai Beth Israel] moves toward full closure.” The hospital indicated that “further adjustments may be needed to the timing (and scope) of the service reductions based on circumstances outside of Mount Sinai Beth Israel’s control.”

No closure of beds or services can be implemented without approval from the Department of Health under 10 NYCRR § 401.3(g), as specified in the Division of Hospitals and Diagnostic & Treatment Centers’ DAL#: 23-06. In addition, to the extent Mount Sinai Beth Israel is decertifying beds or licensed services prior to its full closure, a certificate of need (CON) application is required pursuant to 10 NYCRR § 710.1(c)(1).

Please provide a written response confirming that no changes in operation will occur and that Mount Sinai Beth Israel will desist from any closure of beds or services until approval has been received from the Department.”

Here is the rub. Mount Sinai’s plan cannot be approved if the Department of Health is doing its duty. The closure plan regulations that the Cease and Desist letter refer to tells a hospital that if it wishes to close, it must “Identify and confirm availability of services at other area facilities including obtaining information to ensure that the provider can accept new patients, identifying where Medicaid patients can obtain care if the closing provider provides services to Medicaid patients; providing information about other facilities to patients and families, ensuring language access … and that the wishes of current patients/families are respected and ensuring that concerns such as geographic location, public transportation, type of facility/provider, medical care, etc. are addressed in identifying future placement options and ensuring continuity of care for patients.” Mount Sinai’s plan, submitted on October 25, is only 16 pages long. It essentially states: we are losing money and here are two nearby hospitals the community we service can go to: Tisch NYU and Bellevue. There is no analysis of the ability of the hospital’s in-patient capacity to handle more cases, and no discussion at all about whether the Emergency Rooms (ERs) at those hospitals can absorb tens of thousands of more emergency visits. Just look at the data for the four hospitals in Manhattan (all on the east side below 28th Street).

In 2022 Beth Israel had 495 beds in service serving 20,028 patients. There is no real discussion presented about how all those patients fit into the other Downtown hospitals. But Mt. Sinai has never met any opposition form the Department of Health in the past as it ripped apart Beth Israel, pre-pandemic, and eliminated its profit-centers: maternity, neo-natal care, heart surgery, and pediatric surgery. The Department of Health said nothing when the pandemic hit in 2020 and Beth Israel had 600 empty beds while the State set up a makeshift hospital at the Javits Center. (Members of the community had a lot to say and embarrassed Beth Israel into opening the hospital to COVID patients during the darkest days of the pandemic.)

Right here, in the pages of Village View, we posted an internal memo on December 1, about how, even without approval, Beth Israel was headed for a total shutdown by March 2024. I waived the memo at the Mt. Sinai Beth Israel Board at a public meeting on November 28, and asked how they could make such a plan in the face of DOH regulations which state “no actions related to the proposed closure, such as discontinuing a service, may be taken prior to receiving approval of the closure plan.” But Mt. Sinai kept marching forward, confident that their friends at DOH would do nothing. Then, on December 21, the NY Post published a Fire Department Directive to its EMS crews to stop taking patients to Beth Israel effective 12/31. That would mean the end of true emergency services at Beth Israel. The Department of Health had to act.

Should they be trusted? I think not. As we go to press, a number of local residents who have used Beth Israel for emergency services, and local community groups have sued Mount Sinai and Beth Israel, to get their own Temporary Restraining Order to stop the closure of Beth Israel, and the associated effort to close the New York Eye and Ear Infirmary (NYEE). DOH had given Mt. Sinai permission to close that renowned facility on condition that its services would get moved to Mt. Sinai. But when Mt. Sinai submitted its Beth Israel closure plan, the DOH did not rescind the NYEE “conditional approval.”