Federal lawsuit over FEMA funds dismissed

Long Beach group challenged SNCH plan to use money on Oceanside campus


A federal judge last week dismissed a lawsuit filed against the Federal Emergency Management Agency by a group of Long Beach residents seeking to block the release of $154 million in FEMA funds to South Nassau Communities Hospital in Oceanside.

Members of the Beach to Bay Civic Association filed the lawsuit in U.S. District Court in Central Islip in 2016.

That year, FEMA approved a plan that would allow South Nassau to build a $45 million emergency medical facility in Long Beach and use the remaining Hurricane Sandy disaster relief funds to expand its Oceanside campus.

The suit claimed that the federal funding was meant to restore medical services in Long Beach after the Long Beach Medical Center closed, and that FEMA violated the plaintiffs’ constitutional rights under the 14th Amendment by allowing the bulk of the money to be spent in Oceanside as part of an expansion project and disregarding community input. South Nassau, which acquired LBMC in 2014, was not named in the suit.

Members of Beach to Bay — Barbara Bernardino Dubow, Mark Tannenbaum, Dr. Martin Gruber, Constance DiBeneddeto and Ed Glister — had sought an injunction to halt the distribution of the funds and an advisory opinion from the court to determine whether the money was being used appropriately.

In a decision issued on Jan. 18, U.S. District Judge Denis Hurley granted FEMA’s motion to dismiss for “lack of standing.” “It is unlikely that a favorable decision will redress plaintiffs’ alleged injury because LBMC no longer exists, so FEMA has no one to give the funds to other than the entity that acquired LBMC’s assets, which is exactly what FEMA has done,” Hurley wrote. “FEMA is certainly in no position to force New York to reopen the LBMC facility.”

“FEMA remains committed to working with our local and state partners as we continue with Sandy recovery,” a spokesman for the agency said in a statement.

Robert Capers, the U.S. attorney for the Eastern District of New York, had called on Hurley to dismiss the suit in November 2016, saying that FEMA funds are being spent appropriately, and that any claims that the lack of a full-service hospital in Long Beach would put barrier island residents in jeopardy are speculative.

FEMA and South Nassau officials said that alternative-use legislation under the Stafford Act allowed the hospital to use the funding to also bolster services and infrastructure at its Oceanside campus. Capers said that the law gives FEMA the discretion to make such decisions without judicial review, and that the court did not have jurisdiction over Beach to Bay’s claims.

“It is apparent that defendant has an element of choice in approving alternate use of project funds,” Hurley wrote. “For example, nowhere does the policy state that if a proposed alternate project meets certain criteria that it will be guaranteed to receive the funding.”

“We are pleased that the federal court has dismissed the Beach to Bay lawsuit on several grounds, including that they lacked standing to sue and that FEMA acted within its authority when it allocated disaster relief funds to South Nassau following Super Storm Sandy,” South Nassau said in a statement.

The lawsuit was filed after a number of protests and meetings focusing on South Nassau’s plans for the former LBMC campus, with many people saying that a 25,000-square-foot Medical Arts Pavilion that South Nassau intends to build there would not operate as the full-service hospital that many residents had called for.

After Sandy, the state Department of Health blocked LBMC from reopening, saying that it had lost more than $2 million per year since 2008 and had failed to produce a sustainable business plan.

In 2014, SNCH acquired the medical center for $11.8 million following a bankruptcy proceeding. The sale was finalized after South Nassau reached an agreement with FEMA on Sandy aid and agreed to redevelop health care services in Long Beach and the surrounding communities. The project’s total cost is $279 million, which is being covered by FEMA and other federal funds.

Beach to Bay maintained that a medical pavilion was inadequate to meet the needs of a “geographically isolated” community, and could not accept ambulances with patients suffering from certain “time-critical” medical conditions, including trauma, stroke, hip fractures, difficult pregnancies and other emergencies.

The group has pushed for a smaller hospital, with fewer beds than the LBMC’s 162, offering in-patient care and other services such as orthopedics and geriatrics that it said would make the facility financially viable.

“We feel the decision is disappointing, but I think that there are other avenues for us to pursue, and we’ll explore those,” Bernardino said. “My understanding is that Mt. Sinai might be taking over South Nassau as a new partner — they may be more open to the model that we’ve created.”

“We’re obviously very disappointed,” said Frank McQuade, an attorney for Beach to Bay who added that the group is considering an appeal. "I am most disappointed that the merits of the case will not be given a forum. Beach to Bay will continue its advocacy for a larger portion of the FEMA money and a broader range of medical services, with direct dialogue with SNCH and its successor, Mt. Sinai.”

The proposed Medical Arts Pavilion would have an expanded 24-hour emergency department and about 15 exam rooms, as well as primary care and radiology services, space for a variety of medical subspecialists, and women’s and children’s health services. Officials said that the building would be constructed to accommodate a third floor to potentially house additional services based on need. South Nassau filed for permits with the Town of Hempstead and the City of Long Beach in July that kicked off an 18-month environmental review process.

South Nassau officials have said that rebuilding a full-service hospital is not financially viable, and maintain that a temporary emergency department in Long Beach, which SNCH opened in 2015, is capable of stabilizing and treating patients. Those who require hospital admission or advanced treatment are transferred by ambulance to South Nassau or another hospital.

“South Nassau restored emergency medical services to the barrier island more than two years ago, and has served more than 22,000 patients since opening Long Island’s only free-standing, 911 receiving emergency department in Long Beach,” South Nassau said in a statement. “The hospital is moving ahead with plans to further expand and restore medical services to residents of Long Beach as well as improving the capabilities of our main hospital in Oceanside, which serves the entire South Shore of Nassau County.”

Editor’s note: An earlier version of this story stated incorrectly that the lawsuit was filed earlier this year.