NYLPI and Chadbourne & Parke LLP are in the midst of litigation to challenge the constitutionality of the New York State Commission on Health Care Facilities in the 21st Century, also known as the Berger Commission.

Chadbourne partner Tom Bezanson and NYLPI staff attorney Jin Hee Lee at a press conference at Bronx Supreme Court

The Berger Commission was created by the State legislature in 2005 to review the status of health care resources in the State, and make recommendations to downsize, close or merge hospitals that were underperforming financially in an effort to save costs. The recommendations of the Commission were set to automatically become law on January 1, 2007, without a legislative approval process.

NYLPI's suit involves a specific hospital, Westchester Square Medical Center, that serves the Parkchester neighborhood of the Bronx. Parkchester is a low-income community of color that has seen significant divestment of health care resources in the last few decades, and Westchester Square is one of few remaining hospitals in the area.

The Berger Commission recommended the closing of eight hospitals statewide, including Westchester Square, as well as the restructuring of 50 other facilities. On January 3, NYLPI and Chadbourne filed suit on behalf of Mary McKinney, a resident of the Parkchester area of the Bronx, as well as Mechler Hall Community Services, which runs a local senior center. Both Ms. McKinney and the senior citizens of Mechler Hall rely heavily on Westchester Square for their health care treatment.

Ms. McKinney is a 64-year-old woman who is diagnosed with cancer and asthma. She has relied on Westchester Square for decades. "Losing Westchester Square will completely disrupt my access to vital health care. I simply cannot afford to lose accessible emergency and hospital services," she said.

The suit alleges that the Berger Commission violated the New York State Constitution by permitting an unelected commission to institute massive policy changes in the distribution of health care resources in the State. NYLPI and Chadbourne argue that resources could be spent more effectively to alleviate the massive disparities in health care access for communities of color.

"It is simply unacceptable for the state to develop health care policy in this manner," stated NYLPI Senior Staff Attorney Amanda Masters. "Nothing affects New Yorkers more than issues concerning their health care, and the public must play a meaningful role in any effort to reshape the distribution of health care resources."

The case was filed in Bronx Supreme Court, and on January 4, the judge issued a temporary restraining order preventing the State from taking any action to close Westchester Square. On March 9, the judge denied a preliminary injunction and dismissed the case, but NYLPI and Chadbourne are appealing to the First Department.

NYLPI thanks Chadbourne & Parke LLP for their work on this case, and specifically recognizes the following attorneys:

Thomas Bezanson, Partner
C. Ian Anderson, Associate
Robert Grossman, Associate
Jason Park, Associate

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Reprinted with Permission from NYLPI's Pro Bono Matters (Spring 2007).