The Legislature's failure last week to accept or reject a state commission's plan to close or merge dozens of hospitals around the state means the controversial recommendations will become law and start taking effect in just two weeks.
Or does it? Loopholes are not uncommon in Albany.
Throughout the life of the Commission on Health Care Facilities in the 21st Century, all sides agreed that the mandate was clear: Whatever the panel recommended would automatically become law unless both the state Senate and Assembly killed the entire report.
Lawmakers during a one-day special session last week decided not to strike down the plan, but talk immediately surfaced that the mandate was not quite as set in stone as everyone had been led to believe.
Senate Majority Leader Joseph Bruno opened the door to modifications "if there's pain out there."
And in the Assembly, members talked about "improving" the recommendations next year.
"This is not the end of the process," said Assemblyman Ronald Canestrari, an Albany-area Democrat who is the leading candidate to replace Paul Tokasz of Cheektowaga as majority leader.
"The feeling is that this should be revisited next year with a new perspective from the new governor and the new commissioner of health," he added.
Other legislators last week started to use words like "carve out" and "revisit" to describe what could take place next year to protect individual hospitals and nursing homes from being closed or merged.
In Western New York, Millard Fillmore Hospital in Buffalo and St. Joseph Hospital in Cheektowaga are slated to close. Others will lose services, like DeGraff Memorial Hospital in North Tonawanda, which is supposed to be turned into a long-term care facility under the commission's plan.
And the commission also called for the merger of Erie County Medical Center and Kaleida Health.
All sides agree there are too many hospital and nursing home beds in New York and that is helping to drive up health care costs in the state. Problems arise, though, when specific facilities get targeted and rank-and-file lawmakers feel the wrath back home.
Gov. George E. Pataki last week said that "one of the smart things that I did" in forming the commission in 2005 was to make its recommendations automatic unless the Legislature steps in by the end of this year. There could be only a complete rejection or acceptance of the plan, he noted.
>A chance for changes
That decision was made, Pataki said, "so you wouldn't have political maneuvering over one or two particular institutions."
But then Pataki, in a session with reporters last week, cracked open the door for changes, saying the next governor, Eliot L. Spitzer, and lawmakers could alter what he called a "first step" that "will create the groundwork for a lot more building to continue to improve the system as it goes forward."
Pataki had said that killing the commission plan would force the federal government to pull $1.5 billion it has offered to help right-size the state's health care system if the commission plan goes forward.
But when asked last week if changes next year would jeopardize that money, Pataki said: "They're going to have to take that into consideration. But with respect to a particular facility going forward -- whether they want to close more or restructure things in a different way, there's no prohibition on doing that."
These are uncharted waters. If one hospital on the closing list is saved, does that mean another hospital somewhere else has to be shut down?
Lawmakers said it will take years to implement some of the recommendations, and that gives them a chance to make changes.
Assemblyman Robin Schimminger, D-Kenmore, said there was "very substantial if not overwhelming" support to kill the report in the Assembly.
Lawmakers say that opposition signals the eagerness to alter the commission's plans next year to save some facilities.
"It certainly keeps a door open to somehow improving the recommendations," said Schimminger, a member of the Assembly health committee.
Still, any change requires the Senate, Assembly and new governor to agree, Schimminger noted.
>Spitzer backed plan
Spitzer supported the commission's plan, and while he has talked of it being the beginning of changes to control health spending, he has not signaled whether all the commission's recommendations are set in stone after he takes office.
The main hospital trade groups and a powerful health union did not try to block the plan last week, in part because many of its leading facilities were protected and the cuts had been predicted to be much worse. But those on the close or merge list are challenging the commission's findings, such as the financial data used to determine whether a facility is in the red.
The hospital industry is hopeful the next health commissioner "will be afforded the opportunity to use judgment and flexibility in implementing whatever the final plan is," said William Van Slyke, a spokesman for the Healthcare Association of New York.
"We say it's the beginning, not the end of the process," he added.
At St. Joseph Hospital, one of the Buffalo Niagara region facilities slated for closing, officials aren't ready to breathe easier yet based on some vague signals from Albany.
A recently filed lawsuit against the state to halt the closure of St. Joseph's will stay on track as one of several strategies to keep the facility open, said Joseph McDonald, president of the Catholic Health System in Western New York, which owns St. Joseph.
Still, McDonald embraces any mood at the Capitol that could result in his facility being saved.
"I'm hopeful an issue as critical as this is going to ignite courage in both the legislative branch and the governor's office to relook at those issues and approach it from a strong sense of integrity and a strong sense of strategic thinking. With that, there's going to have to be some remedy or recrafting of the recommendations," he said.