UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JOHN E. ANDRUS MEMORIAL, INC. (d/b/a ANDRUS 

ON HUDSON),

Plaintiff,

-againstRICHARD F. DAINES, as Commissioner of the New York 

State Department of Health,

Defendant.

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2007 Civ. 3432 (CLB)(MDF)

AFFIDAVIT OF BETSY 

BIDDLE IN SUPPORT OF 

PLAINTIFF’S MOTION 

FOR A PRELIMINARY

INJUNCTION

STATE OF NEW YORK )

: ss.:

COUNTY OF WESTCHESTER )

BETSY BIDDLE, being duly sworn, deposes and says:

1. I am the Executive Director of plaintiff John E. Andrus Memorial, Inc., 

d/b/a Andrus on Hudson (the “Andrus”), and have served in that capacity since September 1999. 

The Andrus is a 197 bed not-for-profit nursing home built in 1953, and located in Hastings-onHudson in Westchester County. I am personally and fully familiar with the facts set forth below. 

I submit this affidavit in support of plaintiff’s motion for preliminary injunctive relief enjoining 

the defendant from taking any action to close the plaintiff’s nursing facility pursuant to a 

recommendation made by the New York State Commission on Health Care Facilities in the 21st

Century (“the Berger Commission”).

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A. A Preliminary Injunction is Critical to the Health and Safety

of its Residents of the Andrus and to Preserve the Status Quo

2. Unless a preliminary injunction is issued, the Department of Health will 

force the Andrus to proceed with closure of its nursing facility and surrender its operating 

certificate by June 30, 2008. This would be devastating for the Andrus as a charitable institution, 

which has been meeting the long term care needs of Westchester County senior citizens for more 

than five decades, and is currently successfully operating at 99% occupancy (196 of its 197 

certified beds are occupied). That level of occupancy is remarkable when one recognizes that for 

most Berger Commission facilities recommended for closure, the public disclosure of the closure 

recommendation became a self-fulfilling prophecy. Another casualty of closure would be the 

loss of over 200 jobs at the nursing home. 

3. Most significantly, however, closure would be tragic for the Andrus’ 

residents, as shuttering the Andrus’ nursing home would necessitate the transfer of its 196 

residents to other facilities far away from the Andrus and the support provided by family and 

caregivers. Those transfers would pose a material risk of harm to these frail and elderly 

residents. I know the Andrus’ residents as well as anyone, and sincerely believe that, given their 

advanced age and frailties, many of our residents simply would not survive the trauma of being 

moved from the nursing facility that they consider their “home” to another nursing facility, with 

an entirely new set of caregivers and in an entirely new environment. At the supplemental 

hearing, the Andrus will present the testimony of geriatric medical experts to speak about the 

grave risk of “transfer trauma”. 

4. The “equities” tip decidedly in the Andrus’ favor. The State has 

maintained that the goal of the Berger Commission is to “right size” nursing homes and address 

the excess capacity of nursing home beds on a regional basis. Closure of the Andrus would turn 

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that goal on its head, by forcing the closure of the one nursing facility that has filled virtually 

every one of its beds and has experienced an operating surplus for the past three (3) years 

(excluding the extraordinary legal fees incurred last year in this litigation), while delivering 

quality care to elderly residents equal or superior to that of any other facility in the Hudson 

Valley region. Moreover, recent events since the issuance of the Berger Commission’s final 

report, underscore the irrationality of forcing the Andrus to close. Since November 2006, more 

than 300 nursing home beds have been or will be eliminated in Westchester County due to 

voluntary initiatives by various facilities. This situation presents the prospect that, with the 

closure of the Andrus, there will be too few nursing beds in Westchester County to meet the 

public need.

5. What is more, the Andrus would likely prevail at trial on its claims that the 

State violated due process of law, along with other of the Andrus’ constitutional rights, by 

adopting the seriously flawed Berger Commission recommendation to close the Andrus’ nursing 

home without giving the Andrus notice and opportunity for a hearing. At no time during the 

Berger Commission’s proceedings was the Andrus informed that closure was being considered 

or that the Berger Commission was relying on outmoded data and demonstrably mistaken 

information about the Andrus’ occupancy, financial condition, and resident care. Having never 

received such notice, the Andrus was never made aware that it had to defend itself against a 

recommended closure and the grounds for such a recommendation, either at the Berger 

Commission’s public hearings or in any other setting. That is, the Andrus was kept in the dark 

about the Berger Commission’s plans and its reasons for closing the Andrus’ nursing home. 

6. Thus, whatever “opportunity” there may have been to appear before the 

Berger Commission, the Andrus never had the chance to refute the numerous factual errors and 

assumptions that evidently formed the basis for the Commission’s recommendation to shut down 

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the Andrus, and to present data directly to the Berger Commission showing the substantial 

number of its resident census, its financial stability, and the fine care being provided to its elderly 

residents. 

7. This lack of due process clearly harmed the Andrus: there is a complete 

disconnect between, on the one hand, the troubled facility depicted in the Hudson Valley 

Regional Advisory Committee (“RAC”) report, which was charged with assisting the Berger 

Commission in making recommendations specific to the Hudson Valley, and the Berger 

Commission report and, on the other hand, the true picture of the Andrus. Copies of these 

reports are attached as Exhibits A and B respectively. Without having afforded the Andrus 

notice and a meaningful opportunity to be heard, the Berger Commission, with only the flawed 

report of the Hudson Valley RAC, determined that the Andrus’ nursing home should be forced to 

close, despite available evidence showing that the Andrus was – and to this day continues to be –

a thriving, financially stable not-for-profit nursing facility addressing the care needs of 196 

senior citizens. 

8. What is at stake, however, is more than the Andrus’ property interest; it is 

the continued care and safety of those elderly residing there who call the Andrus their home. 

B. The Andrus

9. The Andrus is a not-for-profit charitable organization established in 1953 

by the family of John E. Andrus to provide a home for elderly individuals. Located in Hastingson-Hudson, the Andrus operates on the same 26-acre campus and in the same original structure 

as it did when it first opened its doors over 50 years ago.

10. In 1969 and continuing for the next 39 years, the Andrus has been licensed 

as a “residential health care facility”, or nursing home by the New York State Department of 

Health, and is currently certified to care for up to 197 residents. The Andrus is a certified 

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provider in the Federal Medicare program, providing subacute and skilled nursing and 

rehabilitative services to individuals aged 65 and over; and in the State Medicaid program, 

providing medical assistance, including long-term nursing home care, to indigent and medically 

needy individuals.

11. The Andrus currently cares for 196 elderly residents, the majority of 

whom are from Westchester County or elsewhere in the Hudson Valley region. More than threefourths of our residents either come from Hastings-on-Hudson or another community within 5 

miles of the Andrus or have a responsible party from that same area.

12. The approximately 170 individuals receiving long-term nursing care at the 

Andrus have each resided there, on average, for roughly four years. 

13. The Andrus’ residents are elderly: their average age is 88 years. The 

Andrus residents are also infirm: only 31 of the Andrus’ current residents can be characterized 

as “low acuity”1and not suffering from dementia. Many of these residents require the 24-hour 

nursing supervision provided only in a nursing facility. The remaining 84% of the Andrus’ 

residents have substantial care needs that cannot be adequately met in any other level of care 

lower than a nursing home. 

14. Finally, the majority of the Andrus residents are both elderly and poor: 

roughly 75% of its long-term care residents financially qualify for Medicaid while 33% of the 

remaining residents, or 8% of its total population, are paid for by Medicare. 

1 The New York State Department of Health has used the term “low acuity” synonymously with those 

nursing home residents categorized as “Reduced Physical Functioning A” or “Reduced Physical 

Functioning B” under the Department of Health’s Resource Utilization Group (“RUG”)-II reimbursement 

classification system. See 10 N.Y.C.R.R. § 86-2.30 and Appendix 13-A.

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C. A Preliminary Injunction Will Prevent Irreparable Harm

to the Andrus and its Residents

1. Submission of a Closure Plan Would Jeopardize

Andrus’ Continued Operation

15. By letter dated January 31, 2007, the Department of Health outlined a 

series of steps to be taken by the Andrus in furtherance of the Berger Commission closure 

recommendation, culminating in the Commissioner of Health’s revocation of the Andrus’ 

nursing home Operating Certificate by June 30, 2008. A copy of the January 31, 2007 letter is 

annexed as Exhibit C. Despite the Court’s denial of defendant’s motion for summary judgment, 

the defendant has informed the Andrus that, absent a preliminary injunction, it intends to move 

forward with implementing the Berger Commission’s closure recommendation during the 

pendency of this litigation. 

16. Absent a continuation of the stay, the next step that the Andrus would be 

compelled to take is the preparation and submission of a closure plan to the Department of 

Health. See Exhibit C. Preparing a closure plan would begin with the sorry task of notifying the 

hospitals and physicians in the Andrus’ surrounding communities, as well as any prospective 

residents inquiring about admission, that it could no longer accept admissions to the nursing 

home. Referral sources and prospective residents would immediately look elsewhere, resulting 

in a self-fulfilling prophecy of reduced admissions and lower occupancy, financial hardship, and 

certain demise. This would be particularly ironic—and tragic—considering that the Andrus is 

the nursing home of choice for many of the elderly residents in Westchester County, operating at 

virtually full capacity.

17. Quite literally overnight, then, the Andrus would be transformed from a

thriving institution and community resource into a moribund facility and pariah in the health care 

provider community. Even if the facility were to remain technically in operation through trial, 

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admissions and occupancy would plummet once word of its closure plan was made public. 

Essentially, there would be no turning back once a closure plan is formulated and submitted. 

Thus, the very act of preparing and submitting a closure plan would irrevocably harm the 

Andrus’ continued viability, making the final act of formally surrendering its operating 

certificate a fait d’accompli.

18. Finally, in its complaint, the Andrus asks for only declaratory and 

injunctive relief against the State, not monetary damages. Even if the Andrus could somehow be 

adequately compensated for the harm it would suffer if the defendant moved forward with its 

closure recommendation -- leaving aside the harm to our residents -- I am advised by our 

attorneys that money damages from the State are unavailable to the Andrus in federal court under 

the Eleventh Amendment to the United States Constitution. Therefore, if a preliminary 

injunction is not granted, the Andrus will be unable to ever obtain any form of meaningful 

redress in federal court for the violation of its constitutional rights.

2. The Andrus’ Residents Would Suffer Transfer Trauma

19. Should the Andrus be forced to proceed with closure, the vast majority of

its 196 current residents would have to be placed in another nursing facility because they will 

continue to require care in a skilled nursing facility setting. Our residents will also be at serious 

risk of suffering psychologically and physically from being uprooted from their “home” and 

community and forced to live and receive nursing home care in an unfamiliar environment. 

20. “Transfer trauma” is a phenomenon that is well recognized in the health 

care community and geriatric medicine. Residents of a nursing home often suffer physical 

and/or mental distress leading up to, during, and immediately following transfer to another 

facility. According to the literature, among the factors that can increase the likelihood of transfer 

trauma are the age of nursing home residents, the level of their cognitive impairment, and the 

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degree of change experienced by the residents, including any changes in the quality of care 

provided as well as changes in the physical environment where the resident lives and receives 

care.

21. The Andrus’ medical experts will testify to the significant role dementia

plays in aggravating the incidence and degree of transfer trauma that elderly nursing home

residents experience. In the Andrus’ case, the impact of transfer trauma will likely be severe and 

broad in scope, as the Andrus’ resident population is both aged, with an average of 88, and 

cognitively impaired, with 115 of them suffering from dementia.

22. The medical literature also suggests that the greater the distance that a 

nursing home resident will be forced to relocate, the greater the likelihood that the resident will 

experience transfer trauma. This factor, too, will also increase the magnitude of transfer trauma 

for residents of the Andrus. The vast majority of the residents currently residing at the Andrus 

have strong ties to Hastings-on-Hudson or the immediate vicinity. Of the 196 current residents, 

108 residents came to the Andrus from a prior address within 5 miles of the facility. An 

additional 42 residents have a responsible party or other family within a 5 mile radius of the 

facility. Many of these residents have resided at the Andrus for several years and have bonded 

with the Andrus as their “home” while maintaining strong ties to the community-at-large.

23. The Andrus also currently cares for 33 Sisters from two religious orders of 

nuns. One group of 14 nuns is from a community located in Dobbs Ferry, Westchester County, 

and they are among the 150 residents with ties to communities within 5 miles of the Andrus, as 

described above. An additional 19 nuns, from a religious order based in New Rochelle, 

Westchester County, are also currently residing at the Andrus. Eleven of these nuns suffer from 

dementia. Because of the exceptional design features offered at the Andrus, the nuns from each 

order have been able to continue living and worshipping together in daily prayer at the Andrus. 

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The Andrus has an auditorium in the nursing facility that is utilized as a chapel. If forced to

relocate, it is highly unlikely that the Sisters could be transferred as a group and continue their 

worship practices together at another nursing facility. I know of no other local nursing home that 

could accommodate our nuns as a group. 

24. Of the remaining 27 residents previously residing beyond 5 miles from the 

Andrus, 24 are either suffering from dementia or are significantly medically compromised with a 

higher case mix index than “Physical A” or “Physical B”. On average, they have resided at the 

Andrus for the past 4 years; transferring them away from “home” also presents great risk due to 

their physical and cognitive impairments. 

25. While most of our residents have close ties to Hastings-on-Hudson and the 

other surrounding communities, only a small fraction could actually be transferred to a nearby 

nursing facility, even assuming they could withstand the stress of such a move. In a survey 

conducted by my staff last month, we could only identify 38 nursing home beds currently 

available within 5 miles of the Andrus. Thus, the vast majority of our residents -- 158 frail, 

elderly individuals -- would have to be moved to facilities beyond 5 miles away to effect the 

Berger Commission’s closure mandate. 

26. Many of our residents would have to be transferred to facilities in New 

York City. However, only 17 of our current residents come from New York City. Of these, 13 

have dementia, 10 have a responsible party within 5 miles of the Andrus, and 6 have a case mix 

index higher than Physical A or Physical B. Thus, transferring them to facilities outside of 

Westchester County would be no less risky given their current ties to the local community as 

well as their cognitive impairments and overall frailty.

27. The current shortage of beds in the communities immediately surrounding 

the Andrus can be explained in part by the voluntary closure of the Guild Home for the Aged 

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Blind, located in Yonkers, New York. This facility voluntarily relinquished all 219 of its 

certified beds -- a significant reduction in nursing home bed capacity in southern Westchester 

County that was not accounted for or known by the Berger Commission or Hudson Valley RAC 

when it recommended the elimination of the Andrus’ beds. One other nursing facility that was 

ordered to downsize from 321 to 181 beds -- Taylor Care Center – is voluntarily agreeing to a 

further reduction of another 91 nursing home beds. Because of these voluntary reductions, there 

will be at least 113 fewer beds in Westchester County than the Berger Commission foresaw 

when it made its closure recommendation – without requiring closure of the Andrus’ 197 beds. 

Upon information and belief, the most recent Department of Health estimates for nursing home

bed need in Westchester County indicate that, in light of these voluntary downsizings, there may 

actually be a deficit of over 100 beds in the County if the Andrus were forced to close, creating 

yet another health care planning crisis, the very opposite of the “over-bedding” issue the Berger 

Commission was supposed to address. 

D. The Andrus’ Constitutional Claims Have Great Merit

28. In its complaint, the Andrus asserted five constitutional claims. First, it 

alleged that its procedural due process rights were violated because the closure recommendation 

was made without first providing the Andrus with notice and opportunity to be heard. Second, it 

maintains that in seeking to close the Andrus’ nursing home and revoke its operating certificate, 

the defendant had violated its substantive due process rights. Third, the Andrus alleges that the 

revocation of its operating certificate would constitute an unconstitutional “taking”. Fourth, it 

alleges that forcing the Andrus to close or convert to an assisted living facility without providing 

funding violates both substantive due process and the Takings Clause. Finally, it alleges that 

implementation of the Berger Commission’s recommendation would impermissibly interfere 

with its existing contractual relationships in violation of the Contracts Clause. In its March 10, 

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2008 Memorandum and Order, this Court denied defendant’s motion for summary judgment 

with respect to all of those claims. 

29. The Andrus submits that the following facts fully support its constitutional 

claims:

1. The June 2006 Meeting With the RAC

30. Regarding any “notice” given to the Andrus, the Andrus’ only substantive 

communication with either the Hudson Valley RAC or the Berger Commission occurred at a 

single meeting held on June 20, 2006, at the Hudson Valley RAC’s office on the campus of 

Westchester Medical College, in Valhalla, New York, which I attended. 

31. Attending the June 2006 meeting were members of the Hudson Valley 

RAC along with a Berger Commission staff member (Alison Silvers). At none of the discussions 

before, during or after the meeting was there any mention or suggestion that the RAC or the 

Berger Commission had already identified the Andrus for right-sizing, or was requesting the 

meeting to discuss why it should be closed for any reason, such as alleged low occupancy level, 

recent history of patient care deficits, low care needs of its residents, and financial problems, 

cited later in their Reports. If the closure of the Andrus’ nursing home was on their agenda, the 

participants kept it completely hidden from me.

32. To the contrary, I was told that the meeting was sought, in the words of 

one Commission representative, to hear the “good story” that the Andrus had to tell about its 

current situation and future plans. With much pride, I obliged the RAC, and explained how the 

Andrus had turned around its operations following the rejection by the Village of its proposed 

CCRC. I told the participants that while the Andrus’ proposal to develop a continuing care 

retirement community (“CCRC”) on the campus was being reviewed, we suspended admissions 

to the nursing home, causing revenue to fall, but that in late 2002 we resumed admissions and 

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over the past few years steadily restored our resident census. I also informed the participants that 

in July 2002, after learning of the decision by the Village of Hastings-on-Hudson authorities to

deny the Andrus the development permit needed to proceed with a CCRC, the Andrus had 

agreed to transfer 50 beds to another not-for-profit nursing facility, Beth Abraham Health 

Services, and reduced its nursing home bed complement to 197 beds. I told them that the Andrus 

also resumed admissions to the nursing home and had increased occupancy from an average 

census of 72 residents in 2002 to a level of 176 residents by year end 2005, reflecting a 90% 

occupancy rate with our existing 197 bed complement. I also noted that our census was 

currently 182 residents, and had even occasionally climbed above 190 residents in the early part 

of 2006. 

33. Lastly, I advised the meeting participants that, with our improved 

occupancy levels, the Andrus had achieved an operating surplus in 2005, and had continued 

operating in the black through 2006.

34. By the discussion at the meeting, I certainly had no reason to suspect that 

the RAC or Berger Commission would recommend that any adverse action would be taken 

against the Andrus.

35. The participants at the June 2006 meeting from the RAC and Berger 

Commission welcomed my offer to provide copies of the Andrus’ 2005 certified financial 

statements and the July 2002 agreement to transfer 50 nursing home beds to another facility.

Later that week, on June 23, 2006, I sent the Andrus’ 2005 certified financial statements and a 

copy of the transfer agreement to the RAC’s Chair. 

36. With no notice of “closure” or any grounds for closure, the Andrus never 

had any meaningful opportunity to defend itself for the simple reason that it did not know it 

needed to defend itself. What is more, in the Andrus’ circumstances, depriving the facility of 

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notice was the worst-possible scenario and especially injurious to the Andrus, precisely because 

the RAC and Berger Commission had apparently already effectively “pre-judged” the Andrus’ 

nursing home for possible closure early on in the process.

37. Following the June 2006 meeting, the Andrus never heard again from 

either the Hudson Valley RAC or the Berger Commission until November 28, 2006, the very day 

that the RAC and Berger Commission simultaneously made public their final reports. 

2. The RAC Report’s Faulty Findings

38. Many of the errors that resulted in the Berger Commission’s 

recommendation to close the Andrus can be traced to the mistaken factual assumptions and 

flawed data relied on by the Hudson Valley RAC in its final report.

39. The Hudson Valley RAC report cited the Andrus’ alleged “low occupancy 

and case mix index (in 2003, 39.2% and .90, respectively)” and “obvious financial problems.” 

Those statements reflect the Hudson Valley RAC’s materially erroneous views about the 

Andrus’ occupancy and financial status, in the following respects:

40. First, the 2003 data cited by the Hudson Valley RAC was stale and 

unrepresentative of the Andrus. The Andrus averaged 97 occupied beds in 2003 due to the 

temporary suspension of admissions pending the Village of Hastings-on-Hudson’s review and 

approval of the CCRC proposal. However, by 2005, that figure rose to an average of 171

residents, reaching 176 residents by year end. Our occupancy continued to improve in 2006. On 

June 20, 2006, the day of my meeting with the RAC, our census stood at 183 residents. I shared 

all of this information with the RAC at our meeting. Despite having timely received this 

information, the Hudson Valley RAC obviously ignored it and preferred to rely on the old data 

instead, evidently because it was more suited to support a closure objective. Meanwhile, other 

Westchester nursing homes were not even supplying information.

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41. Second, the cited occupancy rate of 39%, even for 2003, is inaccurate and 

grossly understates the Andrus’ true occupancy levels, because the Hudson Valley RAC 

mistakenly presumed a bed capacity of 247 certified beds rather than the Andrus’ true 

complement of 197 beds due to the Andrus’ voluntary agreement to transfer 50 beds to another 

nursing facility. That error is inexcusable, as I informed the RAC at our June 2006 meeting of 

the 2002 agreement to move 50 of our beds, and I even provided them with a copy of the transfer 

agreement immediately following the meeting. In 2003, the Andrus’ occupancy rate was 49% 

based on 197 certified beds. By 2005 and 2006, the Andrus achieved average occupancy rates of 

87% and 90% respectively.

42. Third, the RAC’s reference to the Andrus’ “obvious financial problems” is 

also mistaken and ignores the fact that by 2005, the Andrus was operating at a surplus. Again in 

2006, the Andrus continued to operate in the black. This information was also timely shared 

with the Hudson Valley RAC at the June 2006 meeting and confirmed by the Andrus’ 2005 

certified financial statements submitted to the RAC’s Chair that same week. That data, too, was 

ignored.

3. No Notice of the RAC Report’s Faulty Findings

43. The Hudson Valley RAC issued its report to the Berger Commission 

containing its “rightsizing” recommendations on November 15, 2006. However, the RAC 

Report was not released to the public – nor made accessible to the Andrus – until the Berger 

Commission issued its Final Report on November 28, 2006. Consequently, the Andrus was 

never given the opportunity to speak with or present testimony to the Berger Commission 

directly to refute the many flawed assumptions and factual inaccuracies in the Hudson Valley 

RAC Report. Likewise, without affording the Andrus any notice of its contemplated actions or a 

meaningful opportunity to be heard, the Berger Commission issued its Final Report on 

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November 28, 2006, recommending that all of the Andrus’ nursing home beds be eliminated and 

its operating certificate rescinded.

44. The Berger Commission did hold public hearings, which had taken place 

in the early part of 2006 and were concluded by the time the RAC met with me in June 2006. 

45. The “generalized” notice supposedly provided by the passing of the 

Enabling Legislation is insufficient for a number of reasons:

46. First, if it were true that the mere possibility that a hospital or nursing 

facility could be closed were enough to compel a facility to participate in the Berger Commission 

hearings, then virtually every facility in the State (over 1,000 of them) would have availed itself 

of the public hearing process. Such an eventuality would have inundated the Commission and 

brought its work to a screeching halt. Moreover, on information and belief, other facilities were 

clearly informed that they were slated for closure.

47. With so much at stake for targeted facilities, any “burden” of notice and 

hearings would have been modest, but was clearly warranted to ensure (i) that the Berger 

Commission makes its recommendations on the basis of sound, reliable data that can be tested by 

the one party with the most to lose from the Commission’s reliance on faulty information; and 

(ii) that the Commission does not act (as happened here) to revoke an operating certificate 

inconsistently with the facts or the governing statutory factors. Indeed, in this case, it would 

have been no burden at all for the RAC or Berger Commission to have at least alerted the Andrus 

that it was a candidate for closure and identified the “factors” informing its thinking in this 

regard, by simply saying so at the June 2006 meeting. It is the RAC and Berger Commission,

and not the Andrus, that chose not to avail itself of that opportunity.

48. Second, the mere possibility of closure does not inform any adversely 

affected facility of the particular grounds that the Berger Commission may have been relying on 

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as the basis for its recommended action. Thus, a facility like the Andrus would have no way of 

knowing what documents or information it needed to present, if any, to address those grounds. 

Without knowing that basic information, any “opportunity” to be heard is hardly meaningful.

49. Finally, the “generalized notice” to all facilities that they could be forced 

to close by the Berger Commission is also inadequate because the Berger Commission was not

granted the power to select facilities for closure at whim, without regard to any particular facts or 

circumstances. That is, an across-the-board elimination of hospital and nursing home beds in 

New York State was not the Berger Commission’s sole statutory “mandate”. If it were so, then 

one might argue that any and all facilities in the State are “fair game” for closure and are “on 

notice” by virtue of the Berger Commission’s very existence. Instead, the Legislature directed 

the Berger Commission to consider a host of factors when making any “rightsizing” 

recommendations. 

50. As a general matter, unless a facility is notified in advance that the Berger 

Commission is considering closure based on one or more of the statutory factors, a facility would 

have no reason to suspect it was being targeted. This is especially true in the Andrus’ case, 

where it was successfully operating at near-capacity and with a surplus; was caring for a majority 

of Medicaid residents; was meeting the continued demand for its services in the community; and 

was not amenable to ready conversion to any alternative use – all factors that under the Enabling 

Legislation would weigh heavily against the Andrus’ being targeted for closure.

4. The Fundamental Flaws in the Berger Commission’s Report

51. Like the Hudson Valley RAC, the Berger Commission based its 

recommendations on several fundamentally flawed assumptions about the Andrus’ financial 

circumstances and nursing home operations. In so doing, the Berger Commission acted wholly 

inconsistent with the facts about the Andrus as well as the factors set out in the Enabling 

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Legislation that were to guide the Berger Commission before it recommended such drastic action 

as the revocation of a facility’s operating certificate.

52. In the Final Report, the Berger Commission described the Andrus as a 

“247 bed” facility that “has been operating at a significant loss until 2006” and that it only now 

“claims” to be operating in the black. See Exhibit B, page 123. In fact, the Andrus years earlier 

had voluntarily “rightsized” to a 197 bed nursing facility, and has been successfully approaching 

100% capacity. Equally significant, the Andrus’ solid occupancy levels, around 90% or better, 

over the past several years reflect the strong, continued demand for its nursing home services 

among Westchester’s senior citizens. Our occupancy today stands at 196 with only one vacancy. 

On information and belief, no other hospital or nursing home slated for closure by the Berger 

Commission has an occupancy anywhere close to ours 

53. Moreover, several years before the Berger Commission’s report was 

released, the Department of Health knew about the 50 beds transferred to Beth Abraham.2

54. Furthermore, contrary to the Berger Commission’s suggestion, it is more 

than a “claim”, but a fact, that the Andrus was operating at a surplus, not a deficit. Indeed, the 

Andrus’ independent auditors reviewed the Andrus’ financial statements for 2005, certified them 

to be accurate, and reported a surplus (net of grant monies) of $509,179 on the Statement of 

Operations. The 2005 certified financial statements were furnished to the RAC in June 2006, but

neither the RAC nor the Berger Commission even mention them. Instead, the Berger 

Commission dismissed what I told the RAC at our meeting as a mere “claim”, and then only with 

respect to fiscal year 2006, not 2005. In doing so, the Berger Commission contravened the 

2 The Department of Health formally decertified the 50 beds effective as of July 1, 2006, a date four 

months prior to the release of the report.

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statutory mandate that it properly consider the “financial status of a facility” when deciding 

whether closure or other adverse action is warranted. 

5. Assisted Living Is Not A Viable Option

55. The Berger Commission has offered the Andrus the “Hobson’s choice” of 

either closing down its nursing home entirely, or converting to a lower level of care and adding 

140 Assisted Living Program (“ALP”) beds with zero nursing home beds. This latter option, 

however, is simply not viable.

56. Converting the Andrus to an assisted living facility, at best, would yield 

severe operating shortfalls. Here too, the Berger Commission failed to properly consider the 

“economic impact of right sizing”, one of the other factors delineated in the Enabling 

Legislation.

57. Obviously, closing the nursing home would force the Andrus to lay off 

over 200 employees, and would sever our relations with physicians, food vendors and other 

suppliers, and the many other individuals and entities with whom the Andrus does business in 

order to maintain and operate its nursing home. This will no doubt have a negative impact on the 

local economy, a factor that the Berger Commission also should have considered pursuant to the 

Enabling Legislation.

58. In the Final Report, the Berger Commission asserts that the Andrus’ 

conversion to an ALP would be “economical”. Exhibit B, p. 123. In one scenario, the Berger 

Commission recommends that the Andrus complete a floor by floor renovation of its existing 

facility to convert it to an ALP. However, such a statement ignores the reality that any 

conversion of the Andrus’ physical plant – designed and built a half century ago – into a

residence that is both attractive to prospective assisted living residents and fully compliant with 

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ALP regulations, would be a very costly undertaking. In this regard as well, the Berger 

Commission failed to properly consider the “economic impact” of the mandated conversion.

59. As an alternative, the Berger Commission states that the Andrus could 

build additional ALP homes on its campus. However, the Village of Hastings-on-Hudson 

previously refused the Andrus permission to develop its property when it rejected its plan to 

expand the campus to a CCRC. Simply put, the 26 acres on which these ALP homes would be 

built are in all probability essentially untouchable. 

6. “Low Acuity” Does Not Justify Closure

60. In the Final Report, the Berger Commission presumed that the “low” 

acuity of the Andrus on Hudson’s residents relative to other nursing homes meant that a majority 

of its residents “could be better served in an ALP”. Exhibit B, p. 123 Contrary to that 

conclusory assertion, the residential health care facility beds now in use at the Andrus cannot be 

converted to assisted living slots without profoundly disrupting the 24-hour nursing home care 

that many of our residents require. 

61. The RAC and Berger Commission cited to the Andrus’ Physical A and 

Physical B residents to support the assumption that the Andrus’ residents could be safely cared 

for in an assisted living program. These residents comprise a distinct minority of the Andrus’ 

resident population, and close to half of them suffer from dementia or other mental impairment. 

The vast majority of our residents clearly have greater care needs and would require continued 

nursing home care. Thus, it makes no sense that a significant majority of the Andrus’ residents 

would be forced to transfer to another nursing facility – a traumatic event for any chronically ill 

senior – based on the Berger Commission’s belief that some of the Andrus’ low-acuity residents 

could get by with only assisted living. 

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62. Furthermore, the Berger Commission itself assumed that only an estimated 

19% of the Physical A and Physical B nursing home residents in the State could be cared for in 

an alternative level of care setting. See Exhibit B. The Andrus’ Physical A and Physical B 

residents are no different; one-half of them suffer from the onset of dementia and need 24-hour 

nursing supervision.

63. The Berger Commission recommended closing the Andrus’ nursing home

and converting it to an ALP despite – or perhaps because of – the fact that none of the 

Commission’s staff or members ever visited the Andrus’ nursing home, much less performed any 

clinical assessment of the Andrus’ residents and their actual care needs. Indeed, if the Berger 

Commission’s recommendations affecting the Andrus were implemented, most of the Andrus’ 

residents -- largely frail elderly averaging 88 years old who consider the Andrus their home --

would have to be transferred to another skilled nursing facility and consequently endure the 

trauma associated with such a move. 

64. Moreover, transferring most of the Andrus’ residents to another nursing 

home will not only cause “transfer trauma” for these aged, frail residents, but will also actually 

cost the Medicaid program and the rest of the health care system more money – estimated 

conservatively at more than $3.8 million a year.3That is because the Andrus happens to be one 

of the lowest-cost facilities in Westchester County – a fact apparently lost on the Berger 

Commission. Such an outcome is plainly contrary to the aim of “rightsizing”.

65. Furthermore, since most of the Andrus’ residents are covered by the 

Medicaid program, it will end up costing the State three or more million dollars per year in 

3 This estimate is based on an analysis my staff and I performed of the 2006 Medicaid reimbursement 

rates of Westchester County nursing homes promulgated by the Department of Health, and a comparison 

of the Andrus’ rates with the rates of nursing facilities within a five- mile radius of the Andrus.

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additional funds to cover their nursing home care at nearby facilities in Westchester County. In 

this regard, the Berger Commission similarly failed to take into consideration “the extent to 

which [the Andrus] serves the healthcare needs of the region, including serving Medicaid 

recipients”, also a factor in the Enabling Legislation.

7. Overstatement of Survey Deficiencies

66. The Berger Commission made several other factual errors about the 

Andrus in its Final Report. For instance, the Final Report states that “[t]he facility has a history 

of a high number of deficiencies (26 in its 2005 survey), many of which are attributable to the 

building’s deteriorating condition.” Exhibit B, p. 123. 

67. With so many other errors in the Berger Commission’s report, defendant 

has apparently sought to elevate the importance of the 2005 survey results over some of the other 

“factors” underlying the Commission’s recommendation. However, on this factor as well, the 

Berger Commission expressly relied on flatly inaccurate data and proceeded on the demonstrably 

mistaken assumption that the Andrus had a history of patient care deficits, which justified its 

closure. 

68. In the Department of Health’s 2005 resident survey, the Andrus was cited 

for only 8 survey deficiencies related to resident care, none of which involved harm to any 

patients, and 6 other deficiencies for building/environment, for a total of 14 deficiencies, not 26. 

Thus, the Berger Commission’s misstatement nearly doubled the actual number of Andrus 

survey citations. Nor were any of the cited deficiencies at Andrus at a high level of severity or 

scope as to constitute substandard quality of care under the survey regulations. 

69. In all of my eight years with the Andrus, the facility has never been cited 

with as many as 26 deficiencies on any annual resident survey. 

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CONCLUSION

70. In light of the current 99% occupancy level at the Andrus; the grave risk 

of transfer trauma to our aged and often cognitively impaired residents; and the shortage of 

available beds in the surrounding communities; issuing a preliminary injunction is absolutely 

essential to preventing irreparable harm both to the Andrus and to our residents. 

71. Further, our constitutional claims have a substantial likelihood of success 

on the merits. The Berger Commission’s mandate to close the Andrus’ nursing home was made 

without first providing the Andrus with notice and an opportunity to be heard on the matter. 

Further, it was premised on misinformation about the Andrus’ operations and financial status, 

and makes no sense economically, financially, or clinically. As its recommendations also defy 

the factors set forth in the Enabling Legislation, the mandate is wholly without legal justification.

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WHEREFORE, for the foregoing reasons, I urge the Court to grant plaintiff’s 

motion for a preliminary injunction, and to enjoin the defendant from taking any further steps to 

implement the Berger Commission’s recommendations affecting the Andrus.

s/Betsy Biddle____________________

Betsy Biddle

Sworn to before me this

10th day of April, 2008.

s/Notary Public _________________

Notary Public

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