Letter to Justice Posner from Kimerling Re: Affidavits

    PUERTO RICAN 
  

LEGAL DEFENSE 
  

AND EDUCATION 
  

  

December 3, 1996 

99 HUDSON STREET BY FASCIMILE AND MAIL 
NEW YORK, NY 10013-2815 

212-219-3360, 800-328-2322 

FACSIMILE 212-431-4276 

  

Justice Herbert Posner 

Supreme Court, Queens County 

88-11 Sutphin Boulevard 
Queens, New York 11435 

Re: Campaign to Save the Public Hospitals et al. v. Giuliani et 

al, No. 10763/96 
  

Dear Justice Posner: 

I was amazed at defense counsel’s contention yesterday on the 

telephone that the Affidavit of Judith B. Wessler, M.P.H., attached to 

Campaign plaintiffs’ reply papers, was not responsive to the issues raised 
by both the Court during the November 12, 1996 conference call and 
defendants’ Supplemental Affirmation of Daniel Turbow, submitted 
November 19, 1996 [hereinafter "Turbow Aff."]. The Wessler Affidavit 

is responsive to the issues raised by the Court and responds directly to 
issues raised in the Turbow Affirmation and its accompanying exhibits. 

For that reason, we urge the Court to include it as part of the record. 

Campaign plaintiffs submitted the Wessler Affidavit in response to 
the Court’s question as to whether the proposed sublease between HHC 
and PHS-NY may be ultra vires under the HHC Act because it 
jeopardizes the provision of care to the poor in Brooklyn and thus fails 
to fulfill the purpose for which HHC was created. 

The Wessler Affidavit also responds directly to the following points 
raised by the Turbow Affirmation: (1) the effect of the sublease on 
indigent access to care;'; (2) the continuation of services needed by the 

  

! Turbow Aff. at 11 3, 4, 5, 11, e.g "Most pertinently to this Court’s stated concerns, 

under the sublease PHS-NY is obligated to spend considerably more on indigent care than 
HHC currently spends." Turbow Aff. at 2, 13. See also Exhibits to Turbow Aff., Volume 
II, Part III to SEQRA Analysis, C-1 through C-22. 

ge-33  



poor; (3) the nature of PHS-NY’s obligation to provide care to the indigent up to the 
"trigger point; (4) the effect of the sublease on HHC’s ability to provide care to the poor 
throughout New York City;* (5) monitoring of compliance of care to the indigent;’ and 
(6) PHS-NY and PHS, Inc.’s track record of providing care to the indigent. 

During the telephone conference with the Court yesterday, Mr. Turbow expressed 
particular concern about 11 21-24 of the Wessler Affidavit which discusses PHS-NY and 
PHS, Inc.’s record of providing indigent care. I am incredulous that Mr. Turbow objected 
to plaintiffs provision of this information to the Court. Volume I(A), Tab 4 of the Exhibits 
to Turbow Affirmation includes the following documents: 

* The PHS Track Record in Cleveland (a document provided by PHS that 
describes its provision of care at its hospitals in Cleveland) 

The PHS Management Team (a document provided by PHS that describes 
its management team) 

Primary Health Systems and Coney Island Hospital: An Innovative 
Partnership in Patient Care (a document provided by PHS that describes its 
version of the benefits of the sublease) 

Six articles about PHS and its management including, e.g.: Mangelsdorf, 
Higher Math: Steve Volla Won This Year’s Turnaround Award by Remaking 
Every Aspect of American Healthcare Management -- and by Taking 

Quantitative Analysis to the Limit, INC. MAGAZINE, Dec. 1993; 

Santiago, Primary Health Gets Moneys to Make More Hospital Buys, CRAIN'S 
CLEVELAND BUSINESS, May 1-7, 1995; Roth, Sale a Cure for Hospital, 
COURIER TIMES, July 26, 1996. 

  

> Turbow Aff. at 11 4,5, e.g. "In sum, the transaction calls for the continued delivery 

of services at CIH, the provision of indigent care, capital improvements of the facility, and 
HHC oversight. HHC believes that it will result in better health care at a lower cost." 
Turbow Aff. at 4, 15. See also Exhibits to Turbow Aff., Volume II, Part III to SEQRA 

Analysis, C-16 through C-18. 

> Turbow Aff. at 1 4, see also Exhibits to Turbow Aff., Volume IIL, Part III to SEQRA 

Analysis, C-20 through C-22, Appendix A, Analysis of Potential Effects of the Personal 
Responsibility and Work Opportunity Reconciliation Act of 1996 on Medicaid Coverage 
for Patients Served by Coney Island Hospital. 

4 
Turbow Aff. at 14 & n.4, e.g. "The $17 million of this amount that reflects HHC 

bonds will be used by HHC to fund other HHC capital projects." Turbow Aff. n.4. 

> Turbow Aff. at T 4. 

° Exhibits to Turbow Aff, Volume I, (A) at Tab 4; Volume II, HHC Senior 
Management Staff’ Site Visit Reports to PHS Cleveland facilities and PHS/Integrated 
Health Computing Inc. Wayne, PA facilities.  



Justice Herbert Posner 

December 3, 1996 

Page 3 

® HHC Senior Management Staffs’ Site Visit Reports: September 10-13, 1996 
Site Visit to Cleveland PHS Facilities (nb. Memorandum of W. Michelen to 
LaRay Brown also discussed and attached to Wessler Affidavit); and 
September 13, 1996 Site Visit to PHS/Integrated Health Computing, Inc., 
Wayne, PA. (Volume II(B) of Exhibits to Turbow Aff.) 

Given the submission by defendants of public relations material, press clippings 
praising PHS-NY and PHS, Inc., and memoranda from HHC staff concerning the PHS 

facilities in Cleveland and Wayne, Pennsylvania, there is absolutely no doubt that the 
paragraphs in the Wessler Affidavit concerning PHS-NY and PHS, Inc.’s history of 
providing care to the indigent are responsive to the Turbow Affirmation and its 
accompanying exhibits. 

In sum, Campaign plaintiffs submitted the Wessler Affidavit in an effort to ensure 
that this Court would have sufficient information to form a reasoned judgment about 
whether the proposed sublease between PHS-NY and HHC is ultra vires because of its 
effects on access to health care for the indigent. 

Sincerely, 

4 Rt ea : 
Eoin, a EI 

/ \ 
J Kenneth Kimerling 

Daniel Turbow 

Ira Finkelstein