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Town of Kearny v. New Jersey Dep't of Health and Senior Services

March 11, 2008

TOWN OF KEARNY AND ALBERTO SANTOS, ALEXA ARCE, CAROL JEAN DOYLE, EILEEN ECKEL, DAVID KRUZNIS, MICHAEL LANDY, SUSAN MCCURRIE, LAURA PETTIGREW AND BARBARA SHERRY, CITIZENS OF THE TOWN OF KEARNY, APPELLANTS,
v.
NEW JERSEY DEPARTMENT OF HEALTH AND SENIOR SERVICES AND FRED M. JACOBS, COMMISSIONER, RESPONDENTS.



On appeal from a final decision of the Department of Health and Senior Services.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 8, 2008

Before Judges Skillman and Winkelstein.

Appellants are the Town of Kearny and several of its residents. They challenge an April 25, 2007 decision of the Department of Health and Senior Services (the Department) that denied their request for a hearing with regard to the Department's decision to approve a request of the Monmouth-Ocean Hospital Service Corporation (MONOC) to reduce the hours of operation of mobile intensive care unit 257, located in Kearny.*fn1

On appeal, appellants also claim that the Department's decision to permit MONOC to reduce unit 257's hours of operation was arbitrary and capricious.

We conclude that appellants did not have standing at the agency level so as to be entitled to a hearing, and that the Department's decision was supported by the record. Consequently, we affirm.

On April 1, 2003, West Hudson Hospital, located in Kearny, submitted a certificate of need (CN) application to discontinue its general acute care hospital services and realign those services between Clara Maass Medical Center, located in Belleville, and West Hudson Hospital; both facilities are part of the St. Barnabas Healthcare system.*fn2 In December 2003, the Department approved the application subject to certain conditions, requiring the mobile intensive care unit located at West Hudson Hospital to "expand its services from 16 hours of operation to 24 per day . . . and continue these services for a period of 3 years from the date of approval. After three years, any changes in service requires written approval from the Department."

In August 2004, MONOC and St. Barnabas sought permission to transfer operating rights for various mobile intensive care services. The Department granted conditional approval on September 10, 2004, dependent upon MONOC's continuing to provide twenty-four hour, seven day per week mobile intensive care services at West Hudson Hospital. MONOC was also required to adhere to the conditions of the December 2003 approval, which, as noted, obligated MONOC to expand services for its mobile intensive care unit located at West Hudson Hospital from sixteen hours to twenty-four hours per day for a period of three years.

On November 16, 2006, Jeff Behm, MONOC's vice president of operations, asserted that MONOC was facing an "impending financial crisis" with regard to its mobile intensive care units. He stated that MONOC intended to remove a number of those units from service, including unit 256 in Belleville, and decrease the hours of operation of unit 257, in Kearny, from twenty-four hours per day, seven days a week, to sixteen hours a day, seven days a week. The Department responded on December 4, 2006, that the request does not conform to the administrative notice requirement, which requires prior departmental authorization. MONOC's unauthorized action to place CN mobile intensive care units out of service - effectively terminating a CN service - is contrary to law and administrative rule governing CN approved services. . . .

MONOC . . . by its actions, has created an unstable and unsafe environment in several communities. MONOC's actions are instigating a de facto public health crisis.

These actions constitute violations at least of N.J.S.A. 26:2H-5.8 and N.J.S.A. 8:41-9.2(a)3.

The Department directed MONOC to "maintain and adequately staff" its mobile intensive care services in multiple towns, including Belleville and Kearny.

MONOC responded that it did not intend to abandon or reduce mobile intensive care unit certificates of need. It stated that mobile intensive care unit 257, operating out of the former West Hudson Hospital area in Kearny, would remain in service, but MONOC "will be reverting" that MIC unit's operating hours to those that pre-existed the closure of West Hudson Hospital. In other words, it intended to reduce MIC unit 257's operating hours to those hours that were in effect prior to the Department's December 4, 2003 letter, which ...


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