Matter of New York State Nurses Assn. v New York State Dept. of Health & Adirondack Med. Ctr.
Annotate this CaseDecided on December 23, 2014
Supreme Court, Albany County
In the Matter of the Application of The New York State Nurses Association, Petitioner,
against
The New York State Department of Health and Adirondack Medical Center, Respondents.
3281-14
APPEARANCES:
Cohen, Weiss and Simon, LLP
By: Richard M. Seltzer, Esq.
Jonathan Harris, Esq.
Attorneys for Petitioner
330 West 42nd Street
New York, New York 10036-6979
Eric T. Schneiderman
Attorney General of the State of New York
(By: Joshua L. Farrell, Assistant Attorney General, of Counsel)
Attorney for Respondent, New York State Department of Health
The Capitol
Albany, New York12224-0341
Iseman, Cunningham, Riester & Hyde, LLP By: Brian M. Culnan, Esq.
Attorney for Respondent, Adirondack Medical Center
9 Thurlow Terrace
Albany, New York 12203
David A. Weinstein, J.
Petitioner New York State Nurses Association ("NYSNA") brings this petition against respondents New York State Department of Health ("DOH") and Adirondack Medical Center ("AMC" or "Adirondack") under Article 78 of the CPLR, to declare void the determination of DOH to approve a Certificate of Need ("CON") for a part-time Emergency Department ("ED") for AMC's hospital facility at Lake Placid ("AMC-LP"), to enjoin AMC-LP from operating a part-time ED, and various related relief. The matter is now before me on respondents' motion to dismiss the petition for lack of standing.
Background
The facts alleged in the petition, as relevant to the present motion, are as follows:
NYSNA is a union and professional organization of registered nurses, with 37,000 members (Pet. ¶ 7). It serves as the collective bargaining agent for about 25 ED nurses at Adirondack (Pet. ¶ 8). Its Articles of Incorporation list, among its purposes, to "[p]romote nursing and health services of a nature commensurate with human needs," "[a]dvocate for effective systems of nursing care delivery," and "[i]nitiate and conduct legislative activities and provide for political action that will insure and protect the public's health" (id. ¶ 7).
AMC-LP is an acute care hospital in the Town of North Elba, New York, in the Village of Lake Placid (id. ¶ 10). Until recently, it operated a 24-hour ED, with four beds (id. ¶¶ 10-11).
On July 25, 2013, the Board of Trustees for Adirondack Health, the name for the "larger AMC health system" of which AMC-LP is a part, passed a resolution to seek "administrative or legislative action" to allow AMC-LP to run its ED on a part-time basis (id. ¶ 13). Although no statute or regulation was enacted, on April 16, 2014 DOH granted contingent and conditional approval to a CON application by AMC-LP, which allowed the hospital to decertify two medical/surgical beds, and left the hospital with a part-time ED (id. ¶ 28). On June 16, 2014, AMC terminated its full-time ED, and limited ED operation to the hours between 8:00 a.m. and 11:00 p.m. (id. ¶ 30). According to petitioner, this was the first instance in which DOH allowed a hospital to function in New York State with a part-time ED (see id.).
DOH conditioned the change to Adirondack's CON upon Adirondack's compliance with 10 NYCRR § 405.19 — a requirement petitioner contends is contradictory on its face, since it deems a part-time ED as inherently inconsistent with the regulation (see Pet. ¶¶ 28, 36). Section 405.19 provides, among other things, that in regard to an ED: (1) "[t]here shall be at least one emergency service attending physician on duty 24 hours a day, seven days a week" (10 NYCRR § 405.19[d][1][ii]); (2) "[e]very medical-surgical specialty on the hospital's medical staff . . . shall have a schedule to provide coverage to the emergency service by attending physicians in a timely manner, 24 hours a day, seven days a week" (10 NYCRR § 405.19[d][1][iv]); (3) it shall "have laboratory and X-ray capability . . . available 24 hours a day, seven days a week" (10 NYCRR § 405.19[b][3]); and (4) "[t]here shall be at least one supervising emergency services [*2]registered professional nurse present and available to provide patient care services in the emergency service 24 hours a day, seven days a week"[FN1] (10 NYCRR § 405.19[d][2][I]).
NYSNA further asserts that the switch to a part-time ED "has led or will lead to an inevitable reduction in the amount of care and deterioration in the quality of patient care" (Pet. ¶ 34). In support of this contention, the petition cites a news article stating that transport times for emergency patients have increased. NYSNA asserts that such a diminution in care touches on an issue that is "key to NYSNA's purpose and the mission of the NYSNA nurses working in the ED at AMC-LP," and "runs squarely counter to NYSNA's interests as an organization that . . . advocates for the improved delivery of care to the sick and disabled" (id. ¶¶ 34-35). Moreover, petitioner argues that ensuring compliance with DOH regulations is "central to DOH's mission of protecting public health" (id. ¶ 36).
The petition was accompanied by the supporting affidavit of Nancy Kaleda, the Deputy Director of NYSNA, and various exhibits. Kaleda attests that the ED "served a unique community need" in providing emergency care to the more than one million visitors Lake Placid receives annually, as well as to the Village's residents (id. ¶ 7). She also says that the reduction in ED hours will "inevitably result in markedly reduced care at AMC-LP" (id. ¶ 18). Beyond alleging (based on the article referenced above) that the step has reduced transport times, however, she provides no specifics in this regard.
DOH and Adirondack have now moved to dismiss the petition on the ground that petitioner lacks standing. Adirondack supports its motion with the affidavit of Linda McClarigan, its Chief Nursing Officer. She states that AMC has two acute care sites twelve miles apart — one in Lake Placid, and the other in Saranac Lake ("AMC-SL"), in addition to several other facilities (McClarigan Aff. ¶¶ 2-3). AMC-SL is the system's "main hospital campus," with a larger ED and 16 of the 22 nurses at AMC that work primarily in the ED (id. ¶¶ 3, 5).
According to McClarigan, the transition of the AMC-LP ED to part time was proceeded by collective bargaining with NYSNA, resulting in a Memorandum of Agreement ("MOA") regarding staffing at the ED (Pet. ¶ 6 & Ex. A). She further states that "not a single RN has lost his or her job as a result of [the] transition" to a part-time ED in Lake Placid (id. ¶ 7). Rather, two registered nurses have been upgraded from part-time to full-time (id.).
Respondents argue that NYSNA has not alleged that any of its members have suffered a cognizable injury beyond the same "generalized harm that it predicts the community will suffer," as necessary to establish standing (DOH Mem. of Law at 1).
NYSNA replies with the affidavit of Kim Barnes, a program representative at NYSNA who previously worked in an ED in Plattsburgh, New York for ten years. Her present responsibilities for NYSNA includes various tasks relating to collective bargaining with Adirondack.
Barnes avers that those nurses who transitioned from part-time to full-time status did so as a result of causes other than the adoption of a part-time schedule at AMC-LP (see Barnes Aff. ¶ 7). She further asserts that prior to the reduction of ED hours, "all or almost all" per diem nurses at AMC-LP worked 12-hour shifts. Now, two of them work only three-hour shifts, a situation made more difficult by their long distance commutes (id. ¶ 9). Barnes also states, in regard to the MOA, that its purpose was to negotiate the modalities of the transition once Adirondack had determined that it would curtail the ED hours, and NYSNA "did not agree to the conversion itself" (id. ¶ 5).
Finally, Barnes says that those patients who lack cars, and require ED care between 11 p.m. and 7 a.m., must now travel an additional ten miles to AMC-SL, which can take 15-20 minutes more (id. ¶ 12). Such delay, according to Barnes, can cause "major complications and a serious adverse impact on health" for victims or heart attacks and strokes (id. ¶ 13).
Discussion
Standing is a "threshold" issue in any litigation, and thus is a prerequisite to bringing suit (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 812 [2003]). A petitioner has common law standing to sue only if it can show two things: first, that it has suffered an "injury-in fact"; and second, that the injury falls "within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted" (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]). Such injury cannot be "conjectural" or "hypothetical" (City of Los Angeles v Lyons, 461 US 95, 101-02 [1983]), and it cannot reflect a harm suffered generally by the public at large (see Matter of Parkland Ambulance Serv. v New York State Dept. of Health, 261 AD2d 770, 771-772 [3d Dept 1999], lv denied 93 NY2d 818 [1999]). Moreover, the mere fact that an issue is of "vital public concern" does not vest a party with standing (see Society of the Plastics Indus. v County of Suffolk, 77 NY2d 761, 769 [1991]).
Where the petitioner is an organization, standing also requires that three other elements be satisfied: First, one or more of the organization's members must have standing to sue. Second, the interests asserted in the proceeding must be "germane to its purposes so as to satisfy the Court that it is an appropriate representative of those interests." Third, it must be evident that "neither the asserted claim nor the appropriate relief requires the participation of the individual members" (see id. at 775).
The harms upon which petitioner relies to meet the "injury-in-fact" test fall into two categories: (1) a diminution in the quality of health care received by AMC-LP patients, and (2) the loss of working hours by per diem nurses employed by that hospital. I address these in turn.
In regard to the first argument, there is nothing in petitioner's submission that establishes that any member of NYSNA suffered a cognizable "injury-in-fact" as a result of any impact the transition to a part-time ED had on patient care. Petitioner has not made any claim that the prospective harms it alleges — an increase in travel time and concomitant negative impact on health outcomes — will impact any member of NYSNA in any way distinct from the general public. Indeed, it does not present any evidence that any of its members even receive care through AMC-LP.
To the extent petitioner contends that, as caregivers, its members suffer some sort of distinct injury when the hospital in which they are employed offers diminished services, that [*3]argument is without merit. The Appellate Division declined to credit a comparable argument in Matter of New York State Psychiatric Assn., Inc. v Mills (29 AD3d 1058 [3d Dept 2006]). In that case, a professional organization of psychiatrists challenged a law recognizing certain mental health professions, in part on the ground that "the public will not be properly protected by the licensure requirements" established by the law (id. at 1060). The Court found that this asserted injury provided no basis for standing on the part of the psychiatrists, as the harm was "no different from any injury that may be suffered by the public at large" (id.). The same is true here.
In any case, the allegation that delays in transporting patients may impact their medical care is not based on any cited instance of actual harm. Instead, petitioner posits that some impact on care may occur in the future. That contention is too conjectural, and too conclusory, to serve as a basis for petitioner's standing (see Matter of McAllan v New York State Dept. of Health, 60 AD3d 464, 464 [1st Dept 2009] [injury claim based on diminished paramedic services rejected as overly "speculative"]; Matter of Parkland Ambulance Serv., 261 AD2d at 771-772 [3d Dept 1999] [claim that issuance of ambulance service certificate without public need inquiry would "undermin[e] the availability of ambulances" in county did not support standing, as it was "conclusory" and "devoid of any particularized harm"]). Further, any harms to patient care elucidated in petitioner's filings are at best "potential, not actual" (Roberts v New York City Health & Hosp. Corp., 87 AD3d 311, 320 [1st Dept 2011]).
In sum, petitioner has failed to show that any of its members suffered any cognizable injury from a loss of quality in the health care provided by AMC-LP as a result of the constriction of its ED hours. This argument, therefore, provides it no basis for standing (see Long Is. Gasoline Retailers Assn., Inc., 27 Misc 3d 914, 919 [Sup Ct, Nassau Cty 2010], appeal dismissed 83 AD3d 913 [2d Dept 2011] [no organizational standing when plaintiff failed to show "injury-in-fact to one of the plaintiff associations' members"]).
As to the second category of harm raised by petitioner — the reduction in work hours by per diem nurses — I find that petitioner has met the "injury-in-fact" prong, and respondents essentially conceded as much during oral argument. Specifically, petitioner has provided evidence that members of NYSNA suffered a loss of income as a direct result of the ED restructuring. That suffices to show sufficient injury for standing purposes (see Matter of Dental Society of the State of NY v Carey, 61 NY2d 330, 334 [1984] [injury-in-fact shown by change in Medicaid reimbursement schedule that diminished provider compensation, even without showing of specific out-of-pocket loss by individual provider]).
But that is not the end of the inquiry. As noted above, petitioner must also show that the "interest or injury asserted fall within the zone of interests protected by the statute invoked" (see Society of Plastics Indus., 77 NY2d at 773). This it has not done.
The regulation at issue is included in Subchapter A of Chapter V in the DOH regulation. The purpose of that Subchapter is to set forth "minimum standards" for medical facilities (see 10 NYCRR § 400.1). The regulation was promulgated pursuant to Title 28 of the Public Health Law, which governs hospitals (see Notes to 10 NYCRR Part 405). Public Health Law § 2800 contains the "Declaration of policy and statement of purpose" in regard to this title, and states as follows:
"Hospital and related services including health-related service of the highest quality, efficiently provided and properly utilized at a reasonable cost, are of vital [*4]concern to the public health. In order to provide for the protection and promotion of the health of the inhabitants of the state, pursuant to section three of the article seventeen of the constitution, the department of health shall have the central, comprehensive responsibility for the development and administration of the state's policy with respect to hospital and related services, and all public and private institutions, whether state, county, municipal, incorporated or not incorporated, serving principally as facilities for the prevention, diagnosis or treatment of human disease, pain, injury, deformity or physical condition or for the rendering of health-related service shall be subject to the provisions of this article."
The courts have also characterized the legislative purpose of Article 28 as "to control costs" (see People by Whalen v Woman's Christian Assn. of Jamestown, 44 NY2d 466, 471 [1978]), as well as the "promotion of efficiency in health care planning" (see Arnot-Ogden Memorial Hosp. v Guthrie Clinic, 122 AD2d 413, 414 [3d Dept 1986]).
In short, the statute underlying the regulation at issue was enacted for the purpose of promoting quality care, delivered efficiently at a cost that is under control. In the context of an emergency department, the governing regulation specifically requires hospitals to offer "prompt physician evaluation of patients presenting with emergencies," and ensure them "initial treatment and stabilization or management" (see 10 NYCRR § 405.19[a][2][I] and [ii]).
What is absent from these statements of purpose, and from the present record as a whole, is any indication that the regulations or underlying statute were enacted to ensure a certain level of employment for hospital staff — either in general or for nurses in particular. The only conceivably relevant evidence to the contrary cited by petitioner in this regard is that the regulations provide that "at least one supervising emergency services registered professional nurse present and available to provide patient care services in the emergency service 24 hours a day, seven days a week",[FN2] and set forth various other requirements regarding nurse staffing (see 10 NYCRR § 405.19[d][2][I]). But such provisions relate to the coverage given patients, not the number of hours that each individual nurse is able to work. Indeed, the level of nursing staff is directly tied to the amount of patients treated. Thus, the regulation provides: "As patient volume and intensity increases, the total number of available registered professional nurses shall also be increased to meet patient care needs" (10 NYCRR § 405.19[d][2][iv][b] [emphasis added]). The fact that certain per diem nurses have lost hours undoubtedly has a detrimental effect on those individuals, but it does not reflect the necessary nexus between the harm and the statutory purpose, so as to give petitioner standing.
A review of other relatively analogous cases confirms this result. Roberts, supra, is particularly instructive. In that case, various laborers and union officials challenged a cost-reduction plan by the New York City Health and Hospitals Corporation ("HHC") that included layoffs. Petitioners argued, inter alia, that the plan violated certain provisions of Article 28 and [*5]regulations issued thereunder, as the reduced staffing would create "an unsafe condition for patients and staff members" (id. at 316). The Court found, however, that the petitioners were not "within the zone of interests or concerns sought to be promoted or protected by the statutory provisions under which HHC acted" (id. at 319). Rather, the cited regulations "mostly provide for the benefit and protection of the patients at hospitals and other medical facilities" (id. at 319-320). Thus, "[a]ny benefits HHC staff derives from those regulations are incidental," and "insufficient to confer standing"[FN3] (id. at 320).
The principle underlying Roberts — that statutes protecting patients or the public health cannot serve as a basis for standing by individuals and entities who are not receiving treatment and only impacted incidentally thereby — has been adopted consistently in other appellate decisions (see e.g. Matter of New York State Psychiatric Assn., Inc., 29 AD3d at 1060 [psychiatrists lacked standing to challenge licensure provisions since "the intended beneficiaries of the statute are mental health care patients, not the practitioners of psychoanalysis"]; Arnot-Ogden Memorial Hosp., 122 AD2d at 414 ["A fair reading of [Article 28] does not lead to the conclusion that competing health care providers were intended to be protected by it," and any effect on competition "is merely incidental to its intended goals of cost containment and the promotion of efficiency in health care planning"]). So, too, in this case, the beneficiaries of Article 28, and therefore of the regulations issued thereunder, are hospital patients, and the public fisc — not the nurses in their capacity as employees.
Put simply, while petitioner has shown economic harm to some of its members, it has not demonstrated the requisite nexus between such harm and the purpose of the regulations at issue. The loss of employee hours by NYSNA's members therefore falls short as a basis for its standing (see Lancaster Dev., Inc. v McDonald, 112 AD3d 1260, 1262 [3d Dept 2013] [bidder's showing of "economic injury" from loss of bid due to requirements of competitive bidding process inadequate to establish standing, because such injury did not fall within the "zone of interests" such statutes address — protection of the public fisc and prevention of fraud and favoritism]).
Finally, in the alternative, NYSNA seeks to proceed under the doctrine of common law taxpayer standing (see Mem. of Law in Opp. to Mot. to Dism. at 11-12). That doctrine, first recognized in Boryszewski v Brydges (37 NY2d 361 [1975]), allows taxpayers to challenge "important governmental actions, despite such parties being otherwise insufficiently interested for standing purposes, when the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny" (Matter of Colella v Board of Assessors of County of Nassau, 95 NY2d 401, 410 [2000] [citation and internal quotation marks omitted]).
Petitioner has not demonstrated that there is any such "impenetrable barrier" here. While I cannot opine on whether any particular, hypothetical individual or group would meet the criteria for standing, I note the following: petitioner's position on this petition is premised on the notion that individuals needing treatment may suffer injury due to delays in emergency care it asserts [*6]will result from the closure of the AMC-LP during nighttime hours. This raises the prospect that a party or parties injured due to such delays (and who can meet the various tests set forth above) may be able to challenge the restricted hours of the AMC-LP ED. Nothing in this opinion forecloses that possibility, or indicates that no other individual or organization will have standing on some other grounds. Rather, I have concluded that (1) NYSNA's allegations of injuries to patient care are speculative and conclusory; (2) it has made no showing that, to the extent there is any impact of patient care, that impact will cause injury to any member of the Association as distinct from that suffered by the public at large; and (3) any injury suffered by NYSNA's members in the reduction of hours for individual employees does not fall within the zone of interests protected by Article 28 of the Public Health Law, or the regulations issued thereunder. Such findings preclude petitioner's standing in this case; they do not indicate that there is no one out there legally able to bring a future challenge. Thus, the test for taxpayer standing is not met here.
In light of the foregoing, it is
ORDERED, that respondents' motion to dismiss the petition is GRANTED, without costs.
This constitutes the judgment of the Court. The original judgment is returned to the attorney for respondent. A copy of the judgment and the supporting papers have been delivered to the County Clerk for placement in the file. The signing of this judgment, and delivery of a copy of the judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.
SO ORDERED AND ADJUDGED
ENTER.
Dated:Albany, New York
December 23, 2014
__________________________________________
David A. Weinstein
Acting Supreme Court Justice
Papers Considered:
1.Verified Petition of The New York State Nurses Association, dated August 13, 2014;
2.Memorandum of Law of Petitioner New York State Nurses Association in Support of Verified Petition, dated August 13, 2014;
3.Affidavit of Nancy Kaleda in Support of Verified Petition, dated August 13, 2014, with exhibits A through G annexed thereto;
4.Petitioner's Affidavit of Kim Barnes, dated September 30, 2014;
5.Notice of Motion on behalf of Respondent New York State Department of Health, dated September 19, 2014;
6.Memorandum of Law in Support of Respondent Department of Health's Objection in Point of Law / Motion to Dismiss Based Upon Petitioner's Lack of Standing, dated September 19, 2014;
7.Notice of Motion on behalf of Respondent Adirondack Medical Center, dated [*7]September 19, 2014, with exhibit A annexed thereto;
8.Memorandum of Law in Support of Respondent Adirondack Medical Center's Motion to Dismiss the Verified Petition, dated September 19, 2014; and
9.Memorandum of Law of Petitioner New York State Nurses Association in Opposition to Respondent's Motions to Dismiss the Verified Petition and Respondent New York State Department of Health's Objection in Point of Law, dated October 2, 2014.
FootnotesFootnote 1:Although the merits of this petition are not before me on this motion, respondents indicated at oral argument that their substantive position in regard to this regulation is that it requires Adirondack as a whole to have a full-time ED, which it does at its Saranac Lake facility. They contend, therefore, that AMC remains compliant with section 405.19 despite the switch of AMC-LP's ED to part-time operations.
Footnote 2:As noted supra n 1, it is petitioner's position that the ED changes leave AMC-LP in direct violation of this and other provisions of section 405.19, while respondents' view is that compliance with this regulation must be determined based on the ED staffing at AMC as a whole.
Footnote 3:As noted, NYSNA asserts that the advancement of public health is one of its purposes (see Pet. ¶ 7). That may satisfy the requirement for organizational standing purposes that the subject matter of the litigation is "germane to its purposes" (see supra p 4), but it is not a substitute for a showing that an injury-in-fact was suffered by at least one individual member, and related to the purpose of the regulation at issue.
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