June 10, 2008

State Health Planning Board

C/O Jamie Hernandez
NJ Department of Health and Senior Services
Office of Legal and Regulatory Affairs
Market and Warren Streets - P.O. Box 360
Trenton, New Jersey 08625

Re: CN No. FR 080303-20-01, Application for Closure of Acute Care

Services at Muhlenberg Regional Medical Center

Dear Honorable Members of the State Health Planning Board:

Please accept this letter in lieu of more formal brief on behalf

of People’s Organization for Progress (POP) and its Statewide Chairman

Lawrence Hamm in opposition to the CN Application for Closure of Acute

Care Services at Muhlenberg Regional Medical Center.

POINT ONE: The CN Application for Closure of Muhlenberg Must be

Denied Because of Its Severe and Negative Impact Upon the
Delivery of Health Care in Plainfield and Its Surrounding Area

In deciding whether to grant a CN application, the Commissioner

of the Department of Health and Senior Services has an “obligation to

satisfy the legislative preference for a regulatory review that will

serve as a check on undue harm to our valuable, and vulnerable, urban

hospitals.” In re Application of Virtua-West Jersey Hospital Voorhees

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June 10, 2008
Page 2

for a Certificate of Need, 194 N.J. 413, 436 (April 23,

2008)(hereafter Virtua-West Jersey).

Obviously, there can be no greater harm to a vulnerable, urban

hospital than to completely shut it down as a full service, acute care

hospital - which is exactly what the Solaris application seeks. It is

therefore equally obvious that the only way this Board can fulfill its

statutorily mandated role in CN review of “maintaining the quality of

certain health care services . . . to protect the viability of the

services as well as the providers now rendering them, to protect the

role of such institutions as urban hospitals, whose importance to the

Statewide health care system is indisputable,” N.J.S.A. 26:2H-6.1(h);

see Virtua-West Jersey, 194 N.J. at 434-435, is to deny the present

application in its entirety and require Muhlenberg to remain open as a

full service, acute care hospital.

As the New Jersey Supreme Court recently stated: “The duty to

guard against severe or pervasive negative impacts on urban hospitals

[in deciding whether to grant a CN application] lies squarely with the

Commissioner.” 194 N.J. at 436.

Thus, the Commissioner is required to “fulfill the CN system’s

promise to provide urban hospitals with protection . . .” 194 N.J. at

435. This Board’s examination of the CN application, therefore, must

focus on the Community’s Need, especially when the community in

question is an urban population of the type served by Muhlenberg and

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June 10, 2008
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where granting the CN for closure will place New Jersey’s “ability to

provide free or low-cost care to a large, indigent population . . . at

risk.” Id.

The present application, however, scarcely addresses Community

Need. Instead, its CN is Corporate Need, i.e., the alleged need of

Muhlenberg’s parent corporation, Solaris, to shut Muhlenberg down -

largely for the benefit of its other hospital, John F. Kennedy in

Edison, a suburban hospital serving a more affluent population and one

which under any rational analysis, such as the type of analysis

recommended by the Reinhardt Commission’s recent report, is

considerably less important to the “statewide health care system” than

is Muhlenberg.

Granting a CN for the closure of Muhlenberg, therefore, would be

directly contrary to the clearly stated legislative purpose of the

entire CN process, which is “to protect the role of such institutions

as urban hospitals, whose importance to the statewide health care

system is indisputable, and to guard against the closing of important

facilities . . .” N.J.S.A. 26:2H-6.1. Granting the CN here would

mean that the urban hospital, Muhlenberg, “whose importance to the

statewide health care system is indisputable,” would be closed and

that the less essential hospital, John F. Kennedy, would remain open.

It would be difficult to imagine a decision that could be more

against the legislative purpose than letting the Solaris Corporation

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June 10, 2008
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make the decision that due to its claimed financial inability to keep

both Muhlenberg and John F. Kennedy in operation it is Muhlenberg that

should be closed. The entire CN process, however, is based upon the

fundamental proposition that matters of such importance are not to be

finally determined by the corporations that own and operate hospitals.

In the unfortunate situation where one of two acute care hospitals

owned by a single corporation may have to be shut down due to that

corporation’s financial problems, the corporation’s decision as to

which hospital should be closed can only be implemented if it is

approved by the Commissioner upon the recommendation of this Board

based upon an analysis of Community Need as required by the

Legislature and the Courts.

This Board is named the State Health Planning Board for a reason.

The reason is that it is supposed to make its decisions based upon

what is best for the entire State of New Jersey, paying particular

attention to the welfare of urban hospitals, rather than upon what is

best for the CN applicant. The State Health Planning Board is

required to make its decisions in accordance with what it believes is

the best plan for the overall delivery of health care services

statewide. Thus, to this Board, CN must stand for Community Need

rather than for Corporate Need.

The Solaris CN application does not even begin to provide a basis

upon which this Board or the Commissioner could conclude that JFK is
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June 10, 2008
Page 5

more important to the statewide health care system than is Muhlenberg.

Indeed, Muhlenberg is presented as if it were a stand-alone hospital,

rather than one governed by a Board that also governs another

hospital, JFK, and several other profit and non-profit entities as

well. The application contains virtually no information about

Solaris’s overall finances, for example, and whether the alleged

losses at Muhlenberg are even a danger to the financial health of the

overall Solaris corporation. The application contains no discussion

of what consideration Solaris gave to closing JFK instead of

Muhlenberg as a means of resolving its financial difficulties while

still delivering those health care services that are most important to

the statewide system. Perhaps most importantly, the application

contains no analysis of the relative importance of Solaris’s two

hospitals to the healthcare needs of the communities that they serve

and of the State as a whole.

All that the CN application provides is a not very well

substantiated assertion that Muhlenberg has rather suddenly become a

major money loser and that they have explored unidentified

alternatives to shutting it down and have concluded for unstated

reasons that those alternatives will not work. While the application

may be well-written, it ultimately fails to address in any meaningful

way any of the issues that this Board and the Commissioner are

required to be most concerned about, namely: what “is necessary to

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June 10, 2008
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provide required health care in the area [served by Muhlenberg],”

Virtua-West Jersey, 194 N.J. at 413; the impact on the delivery of

health care services regionally and statewide; the maintenance of

adequate and effective health care services; and the availability of

facilities that might serve as substitutes for the services provided

by Muhlenberg, N.J.S.A. 26:2H-8.

As the Supreme Court made clear in Virtua-West Jersey, an

unsubstantiated application such as the one proffered by Solaris here,

where none of its key assertions have been tested by vigorous

independent review, can not support the granting of a CN for closure,

particularly where the institution being closed is an important and

valuable urban hospital that serves a large population, much of which

is dependent upon government payment programs or charity care.

While the inadequacies of the record will be more fully discussed

in the second point of this letter brief, it is obvious from even a

cursory reading of the CN application that the only need that Solaris

addresses and is seeking to further by the shutdown of Muhlenberg is

its own perceived Corporate Need. It is equally obvious that the only

way to further the Community’s Needs is to deny the application and to

require Solaris to keep Muhlenberg open.

POINT TWO: A CN for the Closure of Muhlenberg as a Full-Service

Acute Care Facility Must Be Denied Due to the Lack of A Record
Capable of Supporting the “Complete Analysis of the Effects of a
Grant” of Solaris’s Application

In Virtua-West Jersey the Supreme Court reversed the

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June 10, 2008
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Commissioner’s grant of a CN application “because we cannot conclude

that the Commissioner has performed a complete analysis of the effects

of a grant of this CN - specifically in assessing the effect that

granting this CN will have on . . . urban hospital providers.” 194

N.J. at 418. Specifically, the Court said it reversed the

Commissioner because

the Commissioner did not analyze, in any meaningful way, whether

the grant to Virtua will have an adverse impact on the region’s
urban hospitals. That omission is a critical failing in a
proceeding that has, as one of its pillars, avoidance of negative
impacts on the delivery of health care services in the region.

194 N.J. at 436. The Court made clear that this failure occurred

because, “on this important issue”, the Commissioner’s analysis

amounted to “nothing more than an acceptance of Virtua’s proffer . .

.” despite the fact that “[t]hose representations were strongly

contested by the . . . objectors . . .” The Commissioner was reversed

due to the failure to subject Virtua’s proffer “to any apparent

independent evaluation . . . . That, in turn, left unanswered the

question of whether the Camden hospitals’ ability to provide free or

low-cost care to a large, indigent population was at risk.” 194 N.J.

at 435.

Muhlenberg’s ability to continue to provide free or low-cost care

to a large population, much of which is either indigent or dependent

upon government-funded or charity care, will be completely eliminated

if this CN is granted. Plainly, then, this CN can only be granted if

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June 10, 2008
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Solaris’s proffers are subjected to rigorous, independent examination

which yields the conclusion that there is really no choice other than

to close Muhlenberg. To date, no such examination has been

undertaken. For that reason alone, this Board can only recommend

denial of the CN application on the present record.

Solaris likely spent hundreds of thousands of dollars to develop

and present its CN application. They developed it in the dark,

keeping it largely a secret from the general community. When the day

inevitably came when they had to reveal their plan to close Muhlenberg

to the general public, the general outcry from the entire community in

opposition to that plan was virtually instantaneous. That outcry did

not come solely from elected officials of Plainfield and the other

affected municipalities, it arose from the ordinary citizens of the

area who have used and continue to depend on the Hospital. The

communities served by Muhlenberg simply can not accept the proposition

that their beloved, 131 year old hospital, a hospital that continues

to provide the highest quality of care to all of its patients, many of

whom are unable to pay for their care without government support or at

all, is going to be closed due to money problems alleged by its parent

corporation which intends to keep open its other, suburban hospital in

a more affluent area. The people in these communities also can not

understand how the closure of Muhlenberg can have anything other than

tragic, if not horrific, effects upon the delivery of necessary health

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June 10, 2008
Page 9

care to the community that Muhlenberg has long served so well.

Accordingly, the people of the Muhlenberg community, with the

assistance of POP and the local clergy, decided to fight the shutdown

using the only means available to them - protest and petition to

government. At least eleven municipalities have now passed

resolutions opposing the shutdown, and each of the two public hearing

days drew more than a thousand people who, by their very presence,

expressed opposition to this closing.

But the objectors, the people of the Muhlenberg community, have

been unable to present all of the evidence necessary to challenge

Solaris’s glib proffers in its application and to provide the facts

and analyses necessary for the independent review required to be

undertaken by this Board and by the Commissioner in deciding whether

to grant the CN for closure.

The reasons for this are many, beginning with the fact that the

entire CN process as it currently exists was designed to consider

whether hospitals should be permitted to expand or to purchase new and

expensive equipment or to offer specialized services in competition

with other providers and is not at all suited for the consideration of

closure decisions.

Primary among the deficiencies of the process is the lack of any

possibility of an adversary process, such as is available in most

disputed matters, wherein those opposed to the closure have an

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June 10, 2008
Page 10

advocate with the power to take discovery and to build and present a

case as to why there is no need for the closure and to demonstrate

that the applicant has not met its burden of proving the need for the

closure. Instead, the public is given only what the applicant chooses

to provide in its application, its answers to the Department’s

questions, Power Point presentations and paid advertising. Indeed,

Solaris’s case has been a public relations campaign rather than a

presentation of the hard evidence that is required in order to carry

its burden of proving the need for the closure.

Worse still, anyone opposed to the application is only given the

opportunity to speak for three minutes at a public hearing, so it is

not even possible to present any sort of hard evidence, or even a

complete argument, as to why the application should not be granted,

let alone examine the claims made by the applicant through cross-

examination and rebuttal of its claims.

Even worse, insufficient time is granted to the public to permit

all who wish to speak to be heard, even for a mere three minutes each.

On both of the evenings provided for public comment on Solaris’s

application, there were long lists of people who asked to be heard but

who were not permitted to speak due to the lack of sufficient time.

Indeed, on the second night, many people were not even allowed to add

their names to the list because the Department’s staff knew that more

people had already signed up than could ever be reached. Thus, the
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June 10, 2008
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decision to close Muhlenberg, which most of the Muhlenberg community

views as tantamount to a life and death decision, is going to be made

without even giving those who believe they have a stake in the matter

and who want to add their comments to the record an opportunity to be

heard.

The possibility of making written submissions is hardly a

substitute for the poor and working class members of the community,

many of whom only speak English as a second or third language or not

at all. Additionally, this is a community that does not have the

means to hire the types of experts who would really be capable of

conducting the necessary studies so that Solaris’s claims could be

properly examined and so the deleterious impacts of this shut down on

the community’s health needs and the larger economy of the Plainfield

area could be known and all of the problems arising from this shutdown

could be demonstrated to this Board. Indeed, even this brief is

completely dependent upon the undersigned’s unpaid pro bono efforts.

Moreover, even if the people had the means to hire the necessary

experts and attorneys to present a case against the application, those

experts and attorneys would not have any means to explore even

Muhlenberg’s books, let alone the records of Solaris and its many

subsidiaries, nor would they have access to any of the other records

they would need to do a true analysis, because the CN application

process provides no opportunity for discovery of that information,

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June 10, 2008
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which is completely controlled by the applicant.

The Commissioner of Health and some members of the Legislature

have begun to propose new legislation that might improve the process

in the future, but in the case of Muhlenberg, those changes may well

amount to closing the barn door after the horses have fled, or trying

to put Humpty Dumpty together again after his fatal fall.

Thus, it is especially important that this Board insists upon

having the facts and information it needs to make an informed and

rational decision as required by law; facts which the deficiencies of

the CN process and the economic realities of the affected community

make all but impossible for the people to adduce and make a part of

this record. Indeed, as the Supreme Court’s decision in Virtua-New

Jersey makes clear, that is the duty that this Board and the

Commissioner bear on behalf of the citizenry - this Board and the

Commissioner must challenge the applicant’s assertions and conduct a

truly independent review of what the Community Need really is and

whether this closure can be approved in the face of the Community’s

Need.

Thus, this Board must insist upon receiving all of the

information it needs and is, in fact, required to have by law. Virtua-

West Jersey. At a minimum, this means that the following studies and

analyses must be conducted by the Department or by an independent

entity or entities before any recommendation that purports to have a

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sound basis can be made:

1. An essentiality study in accordance with the recommendations

of the Reinhardt Commission. The Reinhardt Commission recognized that

some hospitals in New Jersey would have to be shut down, but it

concluded that “the market” was not the appropriate means to determine

which hospitals should be closed. Among other things, letting “the

market” decide would boil down to maintaining hospitals in those

communities where patients were affluent and closing the hospitals

where patients dependent upon government subsidy or charity care

lived. Rationalizing Beds, Services and Payments for New Jersey

Hospitals, Amoroso and French, p. 13-14 (November 2006, prepared for

the Reinhardt Commission).

Providing health care for the rich while denying it to the poor

hardly amounts to a sound health care plan. Accordingly, to avoid

“market” determinations of which hospitals would close, the Reinhardt

Commission proposed a more rational method of determining which

hospitals were essential and which were not and recommended that

government do whatever is needed to make sure that essential hospitals

stayed open while only less essential hospitals closed. The

Commission even gave the software necessary for such an analysis to

the Department.

A Reinhardt analysis must therefore be performed on this

application, so that this Board’s recommendation can at least bear an

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June 10, 2008
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informed relationship to what the Reinhardt Commission recommended as

necessary for the maintenance of a rational health care system in New

Jersey. Moreover, when a corporation like Solaris owns more than one

hospital and claims that its own financial problems require it to shut

one of them, this Board should require a comparative Reinhardt

analysis to be performed for each of the hospitals owned by the

corporation and refuse to permit the shutdown of the most essential

hospital owned by the group. From what is known about Muhlenberg vs.

JFK in this respect, it seems certain that following the Reinhardt

Commission’s recommendations for analysis of the facts would lead to

the conclusion that Muhlenberg is more essential, more important to

the statewide health care system than JFK, so there should be no basis

to grant the shutdown application for Muhlenberg.

2. An Independent Community Health Needs Assessment. Even

Solaris recognizes the Commissioner’s obligation to condition any

closing of Muhlenberg upon requirements for the amelioration of the

negative impact of the shutdown upon the necessary health care needs

of the community served by Muhlenberg.

It is noted, however, that to date Solaris has failed to even

submit a complete proposal fully detailing what it believes those

needs to be, the basis for its belief and its amelioration plan. For

this reason alone, its application should be denied. The

transportation issues are horrendous and completely unresolved.

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Psychiatric and other services are completely unaccounted for. The

contingency provisions that have been made have been initiated by

others, not by Solaris, and are not without problems of their own.

Release and inclusion of such “alternative scenario” evaluation into

this record must be made prior to this Board taking further action.

But even if Solaris had submitted something which purported to be

a complete plan, it would not be possible for this Board to subject

that proposal to the type of “independent evaluation” required by

Virtua-West Jersey, 194 N.J. at 435, without first obtaining an

independent assessment of the affected community’s health care needs

and the deficits in the community’s ability to meet those needs likely

to result from closing Muhlenberg. Simply put, no one can ameliorate

or cure a problem without first knowing what the problem is that needs

to be solved. One needs a good diagnosis in order to provide

effective treatment. An evaluation of this sort must be done before a

CN for closure can be granted. Performing such an assessment after

Muhlenberg closes will be too little too late - people will suffer

from lack of care in circumstances that might have been easily

prevented but which weren’t due to the fact that no independent

community health needs assessment was done in advance.

3. An Independent Community Impact Statement. Muhlenberg is the

largest employer in Plainfield. Thus, permitting it to close will

obviously impact the economy and many other aspects of life in the
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June 10, 2008
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Plainfield area. Plainfield is a community that is already

struggling. Closing Muhlenberg could well be the straw that breaks

the camel’s back.

Recognizing the importance of hospitals to the communities they

serve, the Reinhardt Commission recommended that, in dialogue with the

affected community, a comprehensive Community Impact Study that would

include a health needs assessment as well as an analysis of other non-

quantifiable social, economic and geographic factors should be

undertaken before a hospital is closed. See Final Report at 165.

Obviously, if the CN application process is to address the broader

Community Need, rather than the narrow Corporate Need underlying

Solaris’s present application, it is necessary for the Board and the

Commissioner to be informed, through an independent study, of exactly

what the impact of the proposed shut down is likely to be upon that

broader community in all of its aspects. That is why the Reinhardt

Commission recommended that such studies be undertaken, and that is

why this Board must insist upn having such information before it

considers granting Solaris’s application.

4. An Independent Audit and and Independent Review of the

Business and Fiduciary Decisions Made By Solaris and All of Its

Related Entities and Foundations Regarding Muhlenberg During the Last

Ten Years, Preferably Conducted By the Attorney General. When a non-

profit hospital seeks to sell or otherwise transfer its assets to a

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June 10, 2008
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for-profit corporation, the CHAPA statute, N.J.S.A. 26:2H-7.11,

requires the Attorney General to “review the application in

furtherance of his common law responsibilities as protector,

supervisor and enforcer of charitable trusts and charitable

corporations.” CHAPA goes on to state that no such sale or transfer

should be permitted and

The proposed acquisition shall not be considered to be in the

public interest unless the Attorney General determines that
appropriate steps have been taken to safeguard the value of the
charitable assets of the hospital and to ensure that any proceeds
from the proposed acquisition are irrevocably dedicated for
appropriate charitable health care purposes; and the Commissioner
of Health and Senior Services determines that the proposed
transaction is not likely to result in the deterioration of the
quality, availability or accessibility of health care services in
the affected communities.

The concerns underlying CHAPA are, if anything, even greater when

the hospital is going to be shut down altogether and completely lost

to the community. At least when a hospital is converted to a profit-

making hospital it remains in the community, providing needed care.

Once a hospital is shut down, it is gone forever.

Complete and thorough fiduciary review is especially appropriate

for Muhlenberg, one of the oldest and finest hospitals in the State

and a hospital that was founded with the express purpose of providing

charity care. Plainfield and its surrounding communities have been

extremely generous in their philanthropy towards Muhlenberg, which

still benefits from the presence of a solvent charitable foundation

and an effective fund-raising operation. Muhlenberg is a much beloved

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June 10, 2008
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institution, and its many donors, large and small, have a strong

feeling that their trust and philanthropy have been betrayed by

Solaris in recent years, and especially by its present application to

close Muhlenberg forever.

It is clear from what little public testimony has been heard that

there are many reasons to question the fiduciary decisions made by

Solaris in recent years with regard to Muhlenberg. Profit-making

departments have been moved to JFK. Reports abound of other means by

which Solaris has depleted the assets of Muhlenberg for the benefit of

JFK. The rapid increase in the losses of Muhlenberg that Solaris

claimed occurred in 2007, and which it points to as the primary basis

of its CN application, has never been fully explained, let alone

subjected to independent scrutiny.

And then there is the entire question of why, even if its

financial concerns are legitimate, Solaris decided to shut down

Muhlenberg rather than JFK. Was the JFK option even considered? If

not, why not? What alternatives to the shutdown were explored by

Solaris and why were they rejected? The CN application says that

there was such consideration, but none of the details have been

released for examination by either the public or this Board.

At least as important is the question of why the fiduciaries did

not involve the community Muhlenberg serves early on in an active

effort to keep the hospital open. Historically, its community has

State Health Planning Board
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rallied to Muhlenberg’s aid many times. Presently, the community’s

will to do whatever it can to keep Muhlenberg open has been clearly

displayed. Plainly the fiduciaries had, and still have, a duty to

work with the community, the beneficiaries of the trust that they have

been given, in a genuine effort to resolve their perceived crisis.

All of these issues, and probably many more, strongly implicate

fiduciary concerns. Insuring proper use of charitable donations and

the proper provision of charitable services was the first regulation

of hospitals recognized at common law. Indeed, the common law

conception of the State’s basic responsibility to insure that

charitable institutions are properly run in the interests of the

public at large is the core principal underlying all hospital

regulation.

Those core public concerns must not be ignored when a private

non-profit corporation seeks to close a hospital. It is the duty of

the State to protect the public from harm arising from poor or illegal

fiduciary decision-making. No hospital should be permitted to close

before this Board is absolutely satisfied that the applicant has fully

satisfied its fiduciary responsibilities. That conclusion can only be

reached after an independent analysis of all of Solaris’s books and

records and its fiduciary decision-making has been conducted,

preferably by the Attorney General.

5. An Independent Review of All of Solaris’s Finances and the

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June 10, 2008
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Alternative Steps That Might Be Employed to Continue to Operate

Muhlenberg. Since Muhlenberg’s planned closing has been announced,

there has been much public discussion about the possibility of some

other entity, public or private, profit-making or non-profit, taking

Muhlenberg over and operating it successfully. There is also much

discussion as to whether Solaris has made the best business decisions

and whether, with a little outside assistance, it might be able to

better run Muhlenberg, or deploy more of its assets from other

operations to Muhlenberg, in order to keep it open. As noted above,

Solaris says that it has explored some of these things, but none of

the details of what it looked at and what it thought about or the

quality of the advice it received regarding these alternatives has

been released for review by the public and this Board.

This Board needs to know whether the shutdown is really

necessary, even from the narrow corporate point of view. A shutdown

requires a Certificate of Need because it is only supposed to be

granted if it is truly needed, i.e., if the hospital is not

“essential” and all avenues for saving it have been exhausted. Only

an independent analysis of the alternatives, including a complete

review of all of the parent corporation Solaris’s finances, can

provide this Board with the information it needs to make that

determination.

Moreover, since many public officials and private individuals are

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June 10, 2008
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actively seeking to find or create an appropriate entity that will

have the ability to take over Muhlenberg and keep it operating as a

full service acute care hospital, this Board and the Commissioner must

insure that these efforts have the time and assistance necessary to

put together a workable arrangement. An independent study of the sort

that must be required here would be of great assistance in that effort

and would also help to provide more time to determine what is

possible.

Certainly no hospital as important as Muhlenberg is to this

community should be closed until the community can be assured that all

reasonable alternative means for keeping that hospital open have been

explored without success.

6. An Independent Evaluation of Whether the Recent Hospital

Closings in New Jersey Amount to a Pattern of Discrimination in the

Provision of Health Care. While there are undoubtedly many economic

and social forces at play which are contributing to the present

circumstances in which so many hospitals in New Jersey have either

closed or are planning to close, and while different entities own the

various hospitals that are closing, the State, acting through the

Department, plays a necessary role in the shutdown of all of them, as

only the State may give the approval necessary for the shutdown. This

is not the first occasion in which an entity that owns hospitals both

in poor Black and/or Hispanic communities and in whiter, more affluent

State Health Planning Board
June 10, 2008
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suburban communities has chosen to keep its suburban facility open

while closing its urban institution.

A pattern seems to be emerging whereby the greatest impact of

these closings is imposed upon Black, Hispanic and poor people. Even

though this pattern is almost certainly unintentional, its disparate

impact against minority groups that have long been the subject of

discrimination should not be tolerated. Indeed, New Jersey law

requires the Commissioner “to develop and implement a comprehensive,

coordinated plan to reduce health disparities between white and racial

and ethnic minority populations in the State . . .” N.J.S.A. 26:2-

167.1; see Strategic Plan to Eliminate Health Disparities in New

Jersey (NJDHSS 2007). Accordingly, this Board must not play any part

in creating a healthcare system for the State that is, for all

practical purposes, separate and unequal for minorities.

This Board can only satisfy this legal responsibility by directly

addressing the question of whether the closing of Muhlenberg will

increase the “health disparities between white and racial and ethnic

minority populations in the State.” This Board must therefore insist

that an independent evaluation be conducted to determine whether such

a discriminatory pattern is in fact emerging by virtue of its own

decisions recommending that CNs be granted to permit so many urban

hospitals to close. Unless this Board is satisfied that there is no

such discriminatory pattern emerging after an independent analysis is

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June 10, 2008
Page 23

conducted, it can not grant Solaris a CN to close urban Muhlenberg

while suburban JFK remains open.

CONCLUSION

The Certificate of Need process exists to insure that private

decision-making does not adversely impact the public interest in

guaranteeing the availability of good health care services to all

citizens of New Jersey. Moreover, the Legislature and the Courts have

made it plain that one of the primary reasons for the CN process is to

preserve, protect and defend urban hospitals like Muhlenberg, which

serve a population with a high proportion of charity and uncompensated

care and a high proportion of care that is undercompensated due to

patients’ dependence upon the various government health insurance

programs and the many Federal and State funding cuts.

Solaris’s application to shut Muhlenberg therefore strikes right

at the heart of the purposes of the CN system and the stated health

care policy goals of New Jersey. Muhlenberg is not one of many

hospitals serving the same urban area. It is the only hospital in

Plainfield, and it is the hospital nearest to a population of 150,000

in the tri-county area it serves. According to a study by the United

Way, submitted and in the record on this application, approximately

250,000 people view it as their primary hospital.

Travel to all of the supposed alternative hospitals is difficult

by car due to congestion and traffic patterns and the fact that
State Health Planning Board
June 10, 2008
Page 24

neither the Parkway nor the Turnpike goes anywhere near Muhlenberg.

Public transportion from Muhlenberg to the other hospitals is almost

unworkable. Public transportation to the nearest hospital, JFK -

seven miles away as the crow flies - requires taking either a bus or a

train to Newark, changing to a train to Metropark, and then boarding a

bus to JFK.

Unlike some other urban hospitals which unfortunately came to

provide poor levels of care as the populations they served grew

poorer, Muhlenberg has maintained the highest quality of care at all

times. Indeed, it continues to attain top ratings, including number

one rankings in evaluations of particular areas of care. Muhlenberg

has deep roots in its community, and as the outpouring of protest from

the entire community demonstrates, it is greatly loved by those it

serves.

It is the purpose of this Board to promote sound planning and

delivery of health care services to all New Jerseyans, explicitly

including those who live in depressed urban areas. No rational plan

with such a goal could possibly consider closing Muhlenberg Hospital.

To the contrary, Muhlenberg is exactly the type of hospital that this

Board, and the State of New Jersey, should be promoting as a model in

serving its community without regard to wealth, race, ethnic origin or

religion.

It may be that Solaris finds itself in a difficult position right

State Health Planning Board
June 10, 2008
Page 25

now, and will have difficulty maintaining Muhlenberg’s operations. If

so, this Board must urge the Commissioner to find a way to keep it

open, provide financing if necessary and appoint a trustee to

supervise its management, taking control away from Solaris. Lack of

money really is no excuse: the $70 Million loan that Solaris is

seeking to help it close Muhlenberg would almost certainly be

sufficient to assure Muhlenberg’s survival for many years.

The means can be found. Muhlenberg must become an example of how

truly essential hospitals can be saved. Muhlenberg must not become

the example on the poster that says “Never Again!”

POP believes that if this Board obtains the studies and

information required for a rational and properly informed decision, it

will find that permitting Muhlenberg to be closed would be directly

contrary to New Jersey’s stated public policies, the recommendations

of the Reinhardt Commission, and any notion of rational statewide

healthcare planning. Accordingly, it is time to draw the line and

make the State’s policies meaningful in the real world.

Solaris’s application for a CN permitting it to close Muhlenberg

as a full-service, acute care hospital must be denied. The State must

insure that Muhlenberg Regional Medical Center remains open.

Respectfully submitted,

/s/Bennet D. Zurofsky

BENNET D. ZUROFSKY
Attorney for POP
State Health Planning Board
June 10, 2008
Page 26

cc: Governor Jon S. Corzine

Commissioner Heather Howard
Nancy Fiamingo, Muhlenberg Regional Medical Center
Lawrence Hamm, POP