State OKs nursing home closure; fate in limbo

The state Health Department has approved County Executive Steve Levy's plan for closing the 264-bed John J. Foley Skilled Nursing Facility in Yaphank, and county health officials say a new appellate division ruling gives them leeway to start implementing the plan.

In a Jan. 21 letter, Mark Kissinger, deputy commissioner in the state's office of long-term care, said the county plan "satisfactorily meets" state requirements. As of Wednesday, the nursing home had 221 residents.

The state Health Department approval comes as several residents and a nursing home worker have challenged the closing in court. They argued that closing the facility violates the "Mary Hibberd Law," which requires the county legislature to approve a sale or shutdown before Levy can include such a plan in the budget.

In the latest ruling Wednesday, a four-member appellate division panel in Brooklyn continued to block the county from moving ahead in closing the facility or terminating nursing services at that facility, pending rulings in several courts.

But Dan Aug, a spokesman for County Executive Steve Levy, said Wednesday's ruling does give the county leeway to take steps to shut the facility like beginning to survey area nursing homes to profile the types of patients they may be willing to accept.

Anton Borovina, attorney for shutdown foes, said, "They can go through all the wishful imagination they like but they act at their peril . . . this Second Appellate ruling is a strong indicator that the court agrees the Hibberd law has been violated."

Levy pressed for the $36-million sale of the nursing home last year, but the county legislature refused to approve it, so the county executive included a shutdown in his 2011 budget. A majority of lawmakers again balked, but Levy vetoed a measure to keep the nursing home open and the legislature failed to override his veto.

The continued legal controversy throws into question whether Levy will be able to close the facility by March 31, as proposed in his 2011 budget. If the legal battle continues, it would cost the county about $3 million monthly to keep operating the facility - money not included in the 2011 budget. That budget also includes $17 million in net revenues from the sale of the building and the nursing home license.

However, the state letter said that once the last patient departs, the county must relinquish its nursing home operating certificate to the state. Dr. James Tomarken, county health commissioner, acknowledged that once relinquished, the county will not have the right to sell the license, which was budgeted to bring in $3.9 million.