The Time to Act on Medical Costs Was Now!

By Gustave H. Murby

If Governor Baker and Secretary Sudders want to look the other way and ignore the towering negative impacts projected to stem from Boston Children’s Hospital’s $1 billion construction project, we do hope they got something for it on our collective behalf…but we have our doubts.

You may be surprised that Boston Children’s Hospital (BCH) is still locked in a legal battle over their state approval with wimpy safeguards imposed on them and their $1 billion building, which will add over 70 beds to an already over-bedded pediatric inpatient marketplace.

Yes, although the Massachusetts Department of Public Health (DPH) issued a Determination of Need (DoN) allowing BCH to destroy the world-famous Prouty Garden, we want the world to know that the Friends of Prouty Garden are still here.

 Of course, BCH could restore Prouty Garden anytime it comes to its senses. Our fight to save this iconic healing garden, recognized as a model for modern hospitals and other medical facilities, continues for an even more important social and medical purpose. 

Little did we know that we, the Friends of Prouty Garden, would be thrust onto the battlefield as the champions for health care access and affordability in the Commonwealth. Circumstances forced us to become students of health policy. We’ve come to learn as follows:

An incredible market dysfunction exists with our large health care providers. BCH is the poster child for a monolithic institution behaving badly. Rather than advancing something accessible and affordable, this huge project would sponge profits from wealthy international patients, at the expense of Massachusetts residents bearing the burden of BCH’s tax exempt status. To make matters worse, the international and domestic political climate ensures that those international patients will not come, and we will be left footing the bill. “If you build it, they will not come!” Indeed, they’ve stopped coming already.

The system of governmental oversight by Massachusetts DPH has failed. DPH is charged by the Determination of Need law to ensure health care resources will be made equitably available to every person within the Commonwealth. It is one of the most important consumer protection laws on our books.  In addition, this must be done at the lowest reasonable aggregate cost in order to advance cost containment goals and improved public health outcomes. DPH, by its actions, has abandoned that role by kicking the can down the road of the project’s cost impacts.

The Baker Administration abandoned its ‘good government’ pledge. Under the Baker Administration’s control, DPH essentially ignored the grave concerns of its much-better-informed sister agency the Health Policy Commission (HPC). The HPC, charged by statute with monitoring health care spending and market function, exercised its discretion to comment on this DoN because of its significant worry that this project would increase future health care spending and lead to the closure of more efficient, quality providers.

The HPC said so, on the record. DPH went ahead anyway. 

Until this BCH project, that HPC right-to-comment had never before been exercised. Our knowledge grew in February 2016 when former HPC Commissioner, Dr. Paul Hattis, noted worries about the cost growth implications of this massive project, and publicly called for the HPC to review its cost implications and share those with DPH in a transparent way.

 In late September 2016, HPC agreed and, much to its credit, did just that. (Bravely, we are told, because the Baker Administration strongly objected to the HPC even weighing-in with its comments.) HPC’s September 27, 2016 comment letter to DPH noted several things.

 First, HPC rejected flawed conclusions by a BCH-selected consultant that the new proposed beds would be filled by out-of-state patients. As publicly noted by HPC Chair Stuart Altman, “… [it is] very unlikely that Children’s would be able to fill new beds without taking a greater share of local patients.”

 Secondly, in dollars and cents terms, the HPC analysis conservatively projected that commercial health care spending could rise over $18 million a year, due to market share shifts to BCH.

 Thirdly, the HPC predicted that BCH would see its current statewide percentage of pediatric commercial discharges rise from 46% to between 55-65%. This would mean that other pediatric providers—like Tufts Floating Hospital—are at-risk to lose commercial patients due to BCH’s expansions, so much so that they may go out of business.

 The HPC report forced DPH to hastily add conditions to the project approval to try to justify it. Unfortunately, according to policy experts, those conditions are so inadequate they cannot possibly protect against, or even mitigate, the harms that HPC predicted will result from this project. By their nature, even if they were effective, these conditions will document failure AFTER the damage has already been done.

 For example, the conditions do not assure that BCH will continue to serve children on Medicaid with complex illnesses. They do not require that BCH demonstrate that there is adequate out-of-state demand for the new beds, to protect other more efficient pediatric providers from losing market share.

 They do not protect Massachusetts premium-payers from bearing the costs of the new beds that go unfilled by out-of-state patients. This will force BCH, for its own financial stability, to place Massachusetts commercial patients in them instead.

 The DPH’s approval did require BCH to report whether non-Massachusetts patient volume is actually meeting projections to support the new building. As of now, BCH already failed to provide this essential data, frustrating the whole purpose of the monitoring process by ducking the establishment of a baseline against which future trends can be assessed.

 How can Massachusetts expect to have a more affordable health care system, with some hope of taming out-of-control behavior by our providers, if our governmental agencies and leadership simply ignore or flout the oversight work that our legislature charged them to do?

 Our opinion is that the Baker Administration gave Boston Children’s Hospital a pass. We naturally wonder if there was a ‘political deal’ between the executive branch and BCH that translates. We do know that the Governor and the CEO of BCH took a personal meeting at a very opportune time, when both the Determination of Need decision regarding this project and the future willingness of BCH to accept payment terms that would be supportive of the state’s new Medicaid ACO program were pending. We have the agenda of that meeting and those are the only two topics on it.

 In three to five years, when Massachusetts is lamenting its inability to control health care costs, remember this—remember when the state chose not to act on a clear forecasted threat from its own health care costs watchdog agency.

 The time to act was now!

 Gustave H. Murby is a spokesperson for the Friends of Prouty Garden and a member of the plaintiff group that is challenging DPH’s approval of BCH’s proposed building project on the former site of the Prouty Garden    

Suffolk​ ​Superior​ ​Court​ ​to​ ​Hear​ ​Arguments​ ​in​ ​Case​ ​Seeking​ ​to​ ​Overturn State​ ​Approval​ ​of​ ​Boston​ ​Children’s​ ​Hospital’s​ ​$1​ ​Billion​ ​Expansion 

Jim McManus - jim@sloweymcmanus.com; 617-413-9232
Lisa Capone - lcapone@sloweymcmanus.com; 781-589-0326
MEDIA ADVISORY

Suffolk Superior Court to Hear Arguments in Case Seeking to Overturn State Approval of Boston Children's Hospital's $1 Billion Expansion

Focusing on alleged widespread disregard for state law and regulations governing hospital expansions, hearing will take place September 13

What: Suffolk Superior Court Judge Janet L. Sanders will hear arguments on two
closely-related motions filed by the Ten Taxpayer Group comprising Friends of the
Prouty Garden in its pending lawsuit against Boston Children’s Hospital (BCH) and
state public health officials. With the parties' legal briefs already on file with the court, this will essentially be the hearing on the merits of the Prouty Garden court case.

The lawsuit alleges, among several other points, that BCH began
construction activities associated with a massive new $1 billion clinical tower in
violation of state laws and regulations governing hospital expansions in
Massachusetts, as well as in violation of conditions of the Determination of Need
(DoN) the state granted to greenlight the project last October. The lawsuit names as
defendants BCH, as well as DPH Commissioner Monica Bharel and Health and
Human Services Secretary Marylou Sudders, and alleges that DPH “approved the
largest project in DoN program history based on a guess.” Supported by members of
the Friends of the Prouty Garden –a world-renowned healing garden destroyed to
make way for the clinical tower, the lawsuit argues that DPH’s approval of the BCH
project “was arbitrary, capricious, contrary to law, an abuse of discretion, and
illegal,” and urges the Court to vacate the state’s decision. Two motions filed earlier
this summer (motion to amend the lawsuit and motion for judgment on the
pleadings) will be subjects of the same hearing.


When: Wednesday Sept. 13, 2017 2 p.m.
Wher: Room 1017, Suffolk Superior Court, 3 Pemberton Square, Boston
Who: Attorneys for the Ten Taxpayer Group (Gregor McGregor and Michael J. O’Neill of McGregor & Legere)
Attorney for the Commonwealth (Attorney General’s office)
Attorney for Boston Children’s Hospital
Members of the Friends of the Prouty Garden will be available for comment

September Court Hearings Scheduled in Boston Children’s Hospital Case

Through a Ten Taxpayer Group, members of the Friends of Prouty Garden are continuing their fight against Boston Children’s Hospital (BCH), which they allege began construction of its new $1 billion addition before receiving proper state approval—a Determination of Need (DoN). In November, a Suffolk Superior Court judge dismissed our motion for an injunction to stop the hospital from beginning construction, giving the hospital the green light to begin demolition of Prouty Garden and proceed with expansion. We have continued to work on the underlying lawsuit appealing the state’s approval of the DoN, however, and we’re making progress.

Meanwhile, we have filed a second lawsuit under the Massachusetts Public Records Law. That suit came in response to the Massachusetts Department of Health and Human Services’ (HHS) refusal to produce documents with the content of meetings between BCH and other Massachusetts government officials that took place during the DoN process. Specifically, our lawsuit requests communications relating to the state’s desire to have BCH join a pilot program for MassHealth, and whether or not that played a role in the DoN approval.

The main lawsuit is a direct appeal of the DoN, alleging its issuance was arbitrary, capricious, and an abuse of discretion. The hospital, the state Health Facilities Appeals Board, DPH Commission Monica Bharel, and Massachusetts Secretary of HHS Marylou Sudders are all named as defendants in the suit.

In July, members of the Ten Taxpayer Group filed a new motion to amend the DoN appeal to add “Count Four” alleging new violations of the terms of the DoN approval and applicable regulations arising after the DoN approval last October.  It alleges that these are additional grounds to halt construction activities and revoke the DoN.

Suffolk Superior Court has scheduled a two hearings related to the case for September 13 at 2 pm.

The following is a comprehensive timeline of all legal action to date:

DoN Appeal and Relevant Events

October 20, 2016 Public Health Council voted to approve BCH’s DoN, with conditions.

October 28, 2016 Selected members of FPG began filing public records requests with HHS and other agencies for documents relating to the DoN approval. 

November 18, 2016 Select members of FPG filed suit under G.L. c. 30A, § 14, appealing the validity of the DoN (“DoN Appeal”).

Allegations included:

●      DPH effectively admitted that the decision was unsupported by substantial evidence;

●      DPH deferred essential decisions to post-construction monitoring, which is an abuse of discretion and illegal;

●      Condition 8 is impracticable, ineffective, and illusory;

●      The reporting required by Condition 8 violated the procedures required by law;

●      The DPH decision ignored input from the HPC that the project will cause Massachusetts prices to increase and endanger existing health care practices;

●      BCH Application did not satisfy all nine factors of the DoN Regulations.

Complaint sought:

●      Reconstitution of HFAB—review board which would stay the DoN until appeal is fully adjudicated;

●      Review of the DoN under G.L. c. 30A, § 14;

●      A preliminary injunction against the destruction of the Prouty Garden.

November 23, 2016 Court denied Plaintiffs request for preliminary injunction.

December 23, 2016 Plaintiff petitioned court for interlocutory relief (a review of Judge Salinger’s denial of the 11/18 request for a preliminary injunction).

January 6, 2017 Plaintiff’s petition for interlocutory appeal was denied by the court.

December 5, 2016 Plaintiffs receive documents from Governor’s office from a Public Records Request indicating a meeting between the CEO of BCH and the Governor, where they discussed the pending DoN, and BCH’s potential participation in the MA ACO Pilot program.

December 9, 2016 Plaintiffs filed an amended verified complaint in the DoN Appeal and also filed ‘Emergency Motion to Stay Determination of Need,’ adding more counts and information, and requesting the DoN be put on hold.

December 9, 2016 Court denied Plaintiff’s Emergency motion to stay DoN.

December 13, 2016 BCH filed its answer to Plaintiff’s 12/9 amended complaint.

December 29, 2016 MA Attorney General (AG) filed its answer to Plaintiff’s 12/9 amended complaint.

March 8, 2017 AG filed its version of the administrative record.

March 27, 2017 Plaintiff’s file motion to enlarge time for supplementing administrative Record, so they can compile and file the true record, including public hearing transcripts, public comments, and other documents.

April 3, 2017 HHS failed to produce documents in response to public records requests that corroborate the Governor’s office production. HHS barely complied with requests, producing over 20,000 documents, but few which fit the request criteria.

April 4, 2017 Member of the Friends of Prouty Garden filed a lawsuit under the Public Records Law, alleging that HHS failed to produce requested documents in accordance with the law.

April 18, 2017 BCH filed opposition to FPG’s request to supplement the administrative record.

April 24, 2017 AG filed partial opposition to FPG’s request to supplement the administrative record.

May 3, 2017 Plaintiff moved to supplement the administrative record, and consolidate Public Records Suit with DoN Appeal. 2

May 5, 2017 Court allowed Plaintiff’s motion to supplement administrative record—the record before court was then expanded from 531 pages, to 3,564 pages. Court denied Plaintiff’s request to consolidate Public Records action with DoN suit, but both cases continued separately.

June 5, 2017 Plaintiffs served a motion and memo on other defendants, seeking a Judgment on the Pleadings for the DoN Appeal. The request for judgement on the pleadings was not filed in court at this time, pursuant to Superior Court Rule 9A.

June 26, 2017 AG requested an extension to respond to Plaintiff’s June 5 motion and memo.

June 26, 2017 Court granted AG’s extension, and any opposition and cross-motions were due on July 26, 2017, instead of July 5, 2017.

July 11, 2017 Plaintiffs filed amendment to DoN Appeal complaint with opposing counsel, adding:

●      Even with a DoN, BCH was required to file architectural plans with DPH prior to beginning any construction. (G.L. c. 111, sec. 51) BCH has failed to do so, and construction is underway. The request to amend was not filed in court at this time, pursuant to Superior Court Rule 9A.

July 21, 2017 BCH submitted its opposition to the amended complaint to Plaintiffs.

July 26, 2017 Plaintiffs filed a package in court, consisting of:

● Plaintiffs’ Motion to Amend Complaint to Add Count Four;

● BCH’s Opposition to such motion;

● AG’s opposition to such motion; and

● Plaintiff’s rebuttal to BCH’s and AG’s opposition to the motion. Also, BCH and the AG submitted their oppositions to Plaintiffs’ Motion for Judgment on the Pleadings (which was initially served on June 5, 2017), and each also submitted a cross-motion for judgement on the pleadings.

August 4, 2017 The Court scheduled a hearing on the Plaintiff’s Motion to Amend the Complaint to Add Count Four for September 13, 201 at 2 pm.

August 10, 2017 Plaintiffs filed a package in court, consisting of:

● Plaintiffs’ motion and memorandum in support of Judgment on the Pleadings (this is our brief on the merits of the case).

● BCH’s opposition to the motion, and BCH’s cross-motion for Judgement on the Pleadings;

● AG’s opposition to the motion, and AG’s cross-motion for Judgement on the Pleadings; and

● Plaintiffs’ response to BCH’s and AG’s oppositions and cross-motions.

August 16, 2017 The Court scheduled a hearing on September 13, 2017 in Suffolk Superior Court Room 1017, at 2 p.m. on the Motion for Judgment on the Pleadings.  This is a hearing on the merits of the appeal.  This hearing will be consolidated the hearing on the Motion to Amend the Complaint.

Prouty Garden Supporters: Boston Children’s Hospital Violates Condition for Expansion Approval

Leading up to the Massachusetts Public Health Council’s October 2016 approval of a Determination of Need (DoN) for Boston Children’s Hospital’s (BCH) massive $1 billion-plus expansion, much was said about the volume of out-of-state and international patients who would purportedly populate the new clinical tower. Indeed, even though the DoN process is specifically meant to ensure that proposed hospital projects are truly needed to serve in-state patients within given regions of the Commonwealth, the hospital itself acknowledged the new building would largely be supported by a surging volume of out-of-state and foreign children.  The state, for its part, baked a condition into the DoN requiring BCH to file a report by April 1, 2017 containing “information concerning the degree to which the anticipated out-of-state demand is realized.”

The reasoning behind Condition 8 was obvious – if BCH’s projections for the number of out-of-state patients falls short, Massachusetts patients will be left paying the tab for a project that would be not only the costliest in state history but also superfluous. Following the November presidential election, members of the Ten Taxpayer Group legally challenging the project warned that changing attitudes and travel rules could curb the number of international patients coming to Boston for care.

The answer to whether non-Massachusetts patient volume is actually meeting projections and sufficient to support the new building is elusive, however. In response to a petition from the Ten Taxpayer Group, the state Department of Public Health (DPH) produced BCH’s April 1, 2017 report – which covers only Massachusetts patients.  Excluding data on out-of-state and international patients, as required by the DoN, “obviously frustrates the whole purpose of Condition 8,” wrote the Plaintiffs, who on July 27 filed a proposed amendment to their pending lawsuit seeking to rescind state approval of the project.  

The amended lawsuit names the state Health Facilities Appeals Board, DPH Commissioner Monica Bharel, Massachusetts Health and Human Services Secretary Marylou Sudders, and BCH as defendants. In addition to violating Condition 8 of the DoN, the lawsuit alleges that the hospital began construction activities associated with the new tower without written approval from DPH of preliminary and final architectural plans, as required by state law, and that BCH failed to implement a plan for communicating the status of the expansion project to community groups, as required by another DoN condition.

Keep your eye on this space for the date of a possible court hearing on this appeal, and other updates on this far from over story.

Developments in Washington D.C.

This week, two developments in Washington D.C. made a big impact on the proposed destruction of Prouty Garden. The first was the ongoing attempt to tear up the U.S. healthcare system, stripping hundreds of billions of dollars from providers such as Boston Children’s Hospital.

Under the Senate proposal, Medicaid, a major source of revenue for hospitals, would be drastically cut. By 2025, new funding caps for federal contribution to Medicaid will be instituted and states will be forced to reduce their Medicaid payments to hospitals, which have become reliant on the such payments. The Congressional Budget Office predicts Medicaid will be cut by $772 billion. Moody’s Investors Service says that Medicaid provides 52% of revenue for children’s hospitals and 14% for others. Hospitals will need to make tough decisions as their revenue begins to fall; this includes layoffs and cuts to services and closure for some hospitals and clinics.

As BCH President Sandra Fenwick put it in a column in The Hill: “Make no mistake, what is being considered isn’t a ‘fix‘— it’s a demolition and rejection of our commitment to children and their families.”

Whatever the outcome, it is hard to see how BCH can commit $1 billion to a new hospital project when finances are so uncertain.

Also, this week the United States Supreme Court temporarily allowed some of President Trump’s Travel Ban to take effect, until the Court hears the case this fall. The Court said that anyone with “a credible claim of a bona fide relationship with a person or entity in the United States” would be allowed to enter the US. That does not include medical tourists from the Middle East, which comprise a large part of the market for the proposed BCH facility.

Travel from the Middle East to the U.S. in the first quarter of 2017 has dropped 5 percent from 2016, according to the Airlines Reporting Corporation. Now that some of the ban has been upheld, we will watch with great interest the impact this decision has on the patient population at BCH from the targeted countries.












 

Impacts of Travel Ban on Boston Hospitals

 

It has been six months since the state announced its decision to approve the Boston Children's Hospital Determination of Need (DoN) for destruction of Prouty Garden and construction of the $1 billion building that will double the size of the hospital. 

Much has happened since then -- all of which calls into serious question the wisdom of BCH's plan to support the new complex entirely with patients drawn from the Middle East and Asia. The election of Donald Trump has changed the circumstances for hospitals across the country. President Trump has taken steps to bar travelers from the Middle East to come to the U.S. purportedly to keep America safe from terrorists. Regardless of whether such a position is practical or even legal, the reality is that travelers from the Middle East to the U.S. have declined precipitously since the November election.

Emirates Airlines, which operates flights between Boston and the Middle East, recently cut its number of flights by 50 percent because of a decline in demand. 

While it is hard to discern the effect of the administration's trade and diplomatic policies toward China, there is a high probability that travel between the two countries for medical care will decline. Also, China is building more hospitals -- some in partnership with U.S. partners such as Massachusetts General Hospital. This will reduce the need for Chinese citizens to travel to the U.S. for care.

In the aftermath of the election, BCH has not publicly addressed the impact of these developments on its business plan that support the massive new building. 

Another important change in circumstances is that hospitals across the country are re-calibrating their financial positions after the President and House of Representatives have made it clear they will slash federal spending on hospitals. The bill recently approved by the House slashed $880 billion from Medicaid, a major funder of health care at U..S. hospitals. 

While BCH treats a smaller percentage of Medicaid patients than its competitors and peers, it will certainly feel the bite of lower federal spending for healthcare and medical research. Again, BCH has not publicly addressed its financial position under the new circumstances, and how that will impact the need for a new $1 Billion building.

Meanwhile, the lawsuit against BCH and the Commonwealth challenging the legality of the DoN continues in Suffolk Superior Court...

While hospitals across the country are recalibrating their plans for expansion and their financial position in the wake of the Administration's moves on travel restrictions and health spending, BCH blithely continues with its new building. We can only hope the Board of Trustees takes its responsibilities seriously and calls a halt to this untimely and irresponsible expansion.

Prouty Garden Supporters Ask Court to Halt Imminent Closing Of Garden

 

 

Prouty Garden Supporters Ask Court to Halt Imminent Closing Of Garden

 Hearing on Injunction Scheduled for Wednesday in Suffolk Superior Court

Boston Children Hospital Seeks Destruction of Therapeutic Healing Garden as Part of $1 Billion Expansion

 

Boston -- November 18, 2016 -- Supporters of the Prouty Garden today filed for an immediate injunction to halt the closing and destruction of the Garden, as Boston Children’s Hospital threatens to move ahead with its massive $1 billion expansion project. The controversial expansion received approval from the state’s Public Health Council (PHC) on October 20.

The injunction request will be heard Wednesday, November 23, at 11 am in Suffolk Superior Court Room 817.

In the lawsuit, Garden supporters sued the Hospital, the Secretary of the Executive Office of Health and Human Services, and the Commissioner of the Department of Public Health.

The suit was filed as the Hospital has indicated it plans to close the Garden within days.

The lawsuit, the culmination of 10 months of furious opposition to the massive expansion, asserts that the Hospital failed to satisfy the required factors for approval of the Determination of Need (DoN) by failing to submit information about alternatives, cost impact and market impact. The hospital failed to demonstrate that the expansion is needed to serve Massachusetts patients, a fact acknowledged by the DPH.

Large hospital construction projects in Massachusetts require state approval, and there is a DPH review process that is supposed to examine issues of cost impacts, competition within the market, and the feasibility of alternatives. 

The appeal asks that EOHHS appoint members of the Health Facilities Appeals Board, which is currently not filled, to hear an appeal of the DoN approval.   The HFAB has no members and “is not currently constituted,” according to a letter from the DPH announcing the DoN approval. Filing an appeal to the HFAB automatically stays the DoN, according to state law.

If the HFAB is not filled, then the suit asks the Superior Court to rule on the DoN decision.

“The state’s review of this project was so badly flawed that it needs to be scrapped entirely,” said Gus Murby, spokesman for the Ten Taxpayer Group (TTG) that filed the appeal and has standing to intervene in the DoN process. “The Hospital did not meet any of the conditions legally required for approval. Now the hospital wants to close off the Garden in an attempt to accomplish on the ground what it was unable to objectively justify in the DoN process. Should this attempt be allowed to succeed, the irreversible damage to the Prouty Garden will harm patients and will do lasting damage to the very heart of the hospital itself.  Even if the hospital’s proposed course of action were the proper course, which we do not believe it is, this underhanded scheme to move ahead is not the way to do it.”

The Hospital’s superficial and defective application is consistent with its unflinchingly obstinate disregard for the thousands of Prouty Garden supporters, including patients, family members and clinical staff, as well as leading experts in multiple fields, who have all testified to the critical value this world-class therapeutic healing garden provides in the midst of a hospital setting that weighs heavily on the most profoundly ill patients and their families, as well as the hospital staff who care for them,” Murby said. 

Greg McGregor, attorney for the TTG, said: “The state’s review of the Determination of Need application is factually inadequate, biased and concludes, unequivocally, that the hospital expansion is not needed to serve Massachusetts patients.

"We asked Hospital representatives if they would hold off on closing Prouty Garden and maintain the status quo, but they refused, so we need to ask the court to step in and freeze the status quo until a fair and impartial hearing on the dispute can be held in court,” McGregor said.

Earlier this year, supporters of Prouty Garden had filed suit in Suffolk Superior Court to stop the hospital from conducting pre-construction work. That suit is still pending.

 

Prouty Garden Supporters Appeal State Approval of Boston Children’s Hospital $1 Billion Expansion

Boston -- November 11, 2016 -- Supporters of the Prouty Garden yesterday filed an appeal in the Executive Office of Health and Human Services (EOHHS) to stop Boston Children’s Hospital from destroying a world-famous therapeutic healing garden as part of its planned $1 billion expansion project. The controversial expansion received approval from the state’s Public Health Council (PHC) on October 20. The PHC is within the EOHHA.

The administrative appeal is based on Garden supporters’ evidence and arguments that the state Department of Public Health (DPH) and the PHC conducted a flawed and legally insufficient review of the hospital’s application for a Determination of Need certificate (DoN). Large hospital construction projects in Massachusetts require state approval, and there is a DPH review process that is supposed to examine issues of cost impacts, competition within the market, and the feasibility of alternatives. 

The appeal was filed with the Health Facilities Appeals Board (HFAB). The HFAB at present has no members and “is not currently constituted,” according to a letter from the DPH announcing the DoN approval. An appeal to the HFAB is a required before appealing in court. The Prouty Garden supporters expect to appeal the DoN approval by the end of November in Suffolk Superior Court.

Prouty Garden supporters filed this appeal to the HFAB as required under the DoN statute and DPH regulations. Those regulations indicate that a stay of the BCH project is automatically imposed upon filing an appeal.  The group demanded that the EOHHS reconstitute the Board, process the internal agency appeal and make the Hospital postpone construction of the project.

“As we have said for many months, the state’s review of the Determination of Need application is fatally flawed -- it is factually inadequate, biased and concludes, unequivocally, that the hospital is not needed to serve Massachusetts patients,” said Greg McGregor, lead attorney for the Anne Gamble Ten Taxpayer Group, which has standing to intervene in the process. “Our appeal is designed to stop this massive and unnecessary construction project, which will increase healthcare costs, reduce competition, and wipe out an essential natural, historic and human resource that has brought solace to thousands of patients, families and staff at Boston Children’s Hospital.”

The appeal alleges that the DPH’s approval of the hospital’s expansion plan

is an abuse of discretion, erroneous, and in violation of law for numerous reasons, including:

·      The Hospital did not adequately disclose and explain to the DPH that it has viable alternatives to the present location of the expansion project, including alternatives that would spare Prouty Garden.

·      The DPH improperly deferred essential decisions that it is required to make before issuing a Determination of Need, such as the impact of the $1 billion expansion on health care prices in Massachusetts and on existing health care professionals’ practices in Massachusetts, until after the project is already built.  The decision relies on post-construction reporting, monitoring, and possible corrective action to make these essential decisions.  It will be too late at that time to undo the construction.

·      This requirement for post-construction reporting, monitoring, and possible corrective action is set forth in a complicated and cumbersome  “Condition” that is impracticable and inadequate to accomplish the essential goal of the entire Determination of Need program, which is to make health care services reasonably available to every person in Massachusetts at the lowest reasonable aggregate cost and to insure non-duplication of services.

·      This “condition” has a giant loophole for situations outside the control of the Hospital.  This could reduce or eliminate entirely the effectiveness of this “condition.”

For more information please visit Responsible Expansion at Children’s Hospital http://reachboston.com/ or contact Jim McManus at 617-312-6485, or jim@sloweymcmanus.com.

 

Oberservations from Harvey A. Silverglate

As a long-time student of the depredations of out-of-touch bureaucracies, and also of the abuses of power exercised by administrators of academic institutions, I have a pretty clear sense of where the essential problem of the Prouty Garden affair lies. Hospital administrators, closely tied to academic administrators at a “Harvard teaching hospital,” have made a decision that will increase their fiefdom, their degree of control, their budgets, and their numbers. Expansion is the name of the game, even if the expansion is not well thought-through and might in fact be deleterious to a whole range of values, including public health. It is difficult, if not impossible, for the hospital’s administrators to understand why their grandiose plans, aimed to attract wealthy “customers” from Europe, South America and the Middle East, might be deleterious in the long run for the health of the hospital’s patient  population who over many years have benefitted from the therapeutic qualities of the Prouty Garden. The big question we face now is whether the bureaucrats can be stopped in their destructive path and forced to re-evaluate their grand plan. I hope so.

 

                                                                                                                                                Harvey A. Silverglate
Longtime Cambridge resident

Criminal defense and civil liberties lawyer and writer

Statement Regarding Public Health Council Vote - 10.20.16

"We are disappointed that the Public Health Council voted today to allow the Boston Children's Hospital's $1 billion expansion plan to move forward without any substantive or credible analysis of the consequences. 

This massive project would increase the price of hospital care, reduce competition, and expose Massachusetts consumers and taxpayers to untold millions of dollars in additional heath care costs. It would also destroy a beautiful, unique therapeutic healing garden that has given give solace to generations of sick children and their families.

The supporters of the Prouty Garden will appeal this decision and look forward to a fair hearing absent political pressures that clearly influenced this decision today."

Friends of Prouty Garden calls for 60-day delay in Boston Children’s Hospital expansion vote

Friends of Prouty Garden calls for 60-day delay in Boston Children’s Hospital expansion vote

Group says better, cheaper option available and should be assessed before state approves $1 billion expansion plan

Boston (October 18, 2016) – The Friends of Prouty Garden (FPG) today called on the state to delay a vote on the controversial $1 billion Boston Children’s Hospital (BCH) expansion plan to assess a better alternative, the Shattuck Patient Building, that would meet the needs of the hospital and minimize the likely risk of driving up health care costs in Massachusetts.

“The hospital had a plan that would be better for patients, staff, and the pediatric health care community of Boston, and we owe it to all parties involved in this dispute to conduct an independent review of the feasibility of the Shattuck Patient Building option,” said the FPG in a statement.
 
“According to the hospital’s own information, which they have been reluctant to disclose to the public, the Shattuck Patient Building would cost $100 million less than the proposed building to construct, and would require tens of millions of dollars less per year to operate. It would also avoid the need to destroy Prouty Garden, which is an invaluable and irreplaceable resource.” 

FPG called for a 60-day delay in the vote to enable the Public Health Council to appoint a task force to study the Shattuck Patient Building option.

“One incontrovertible fact that has emerged in this debate is that there is no urgent demand to expand BCH, since the number of patients served by the hospital is declining. A delay and thorough review of the Shattuck option is the prudent, responsible step at this point,” the FPG said.
 
“From our initial analysis, the Shattuck Patient Building would meet the hospital’s needs -- to upgrade facilities, expand its capacity to care for patients, and control rising costs.”

The Department of Public Health staff has recommended approval of the hospital’s $1 billion expansion plan but imposed conditions designed to limit cost pressures on patients and insurers. Under those conditions, the state would be required to monitor the project to ensure the costs are not inordinately passed on to Massachusetts patients and payors, or the hospital could be subject to fines.

“The Shattuck option would be preferable for the state and the hospital, without imposing unprecedented, vague conditions that will be impossible to enforce,” FPG said.

The Public Health Council is expected to consider the expansion plan at its October 20 meeting in Boston.

Numerous organizations concerned about rising health costs have objected to the expansion, including the Massachusetts Association of Health Plans, the Retailers Association of Massachusetts, the National Federation of Independent Business, the Greater Boston Interfaith Organization.

 

Supporters of Prouty Garden will hold a rally outside the State House on Thursday October 20 at 12:30-1:30 P.M. and then march to the PHC hearing.

 

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Statement from the Friends of Prouty Garden: 

We call on the Massachusetts Public Health Council to delay a vote on the Boston Children’s Hospital (BCH) expansion plan to assess the feasibility of the Shattuck Patient Building, which appears to be a better option for modernization and expansion.
 
The hospital had a plan that would be better for patients, staff, and the pediatric health care community of Boston, and we owe it to all parties involved in this dispute to conduct an independent review of the feasibility of the Shattuck Patient Building option.

According to the hospital’s own information, which they have been reluctant to disclose to the public, the Shattuck Patient Building would cost $100 million less than the proposed building to construct, and would require tens of millions of dollars less per year to operate. It would also avoid the need to destroy Prouty Garden, which is an invaluable and irreplaceable resource.

It's important to note that one incontrovertible fact that has emerged in this debate is that there is no urgent demand to expand BCH, since the number of patients served by the hospital is declining. A delay and thorough review of the Shattuck option is the prudent, responsible step at this point.

From our initial analysis, the Shattuck Patient Building would meet the hospital’s needs -- to upgrade facilities, expand its capacity to care for patients, and control rising costs.

The Shattuck option would be preferable for the state and the hospital, without imposing unprecedented, vague conditions that will be impossible to enforce.

Rally with us at the State House on Thursday!

Rally with us at the State House on Thursday!

Please join our rally on the sidewalk in front of the State House on Thursday, October 20 from 12:30-1:30 p.m. We need as many Prouty Garden supporters as possible to show the state that Prouty matters, and that the will of the people is to find a way to save it, even as that means sending Boston Children’s Hospital back to the drawing board to come up with a more responsible expansion plan.

We are gathering just hours before the Massachusetts Public Health Council is due to vote on the Department of Public Health’s recommendation to approve Children’s ill-conceived expansion project. This vote represents the final regulatory hurdle for the hospital and a very significant moment in our efforts to preserve the Prouty Garden for future generations.

After the rally, we will march to the Public Health Council’s 2 p.m. meeting at 250 Washington Street.

Please RSVP to our Facebook event if you can make it:
https://www.facebook.com/events/1059862004133160/.

And please feel free to invite your friends from the FB event page! We will have signs, flyers, and buttons for all volunteers. All are welcome.

This event will be co-hosted by our new sister organization, REACH Boston. REACH Boston is dedicated to ensuring that any expansion plan approved for Children’s Hospital heeds the Commonwealth of Massachusetts’ health care cost containment goals, serves the needs of primarily Massachusetts patients and families, and preserves the Hospital’s half-acre natural therapeutic space – Prouty Garden, a national model for hospital healing gardens.

On REACH Boston's website (www.reachboston.com), you will find important documents, legal developments, and media coverage regarding the citizen groups that have formed over the past several months to challenge the proposed BCH project. 

Please follow reach on Facebook (https://www.facebook.com/REACHBCH/) and Twitter (https://twitter.com/REACH_BCH) for more information.

Money is no object for $1.1 billion Boston Children’s Hospital expansion plan

How many millions of dollars is Boston Children's Hospital already diverting from patient care to spend on advertising, lobbying and PR to get its $1 billion expansion plan approved by state regulators? It’s no secret that TV, radio and print ads at the height of an election season aren't cheap. This monument to medical excess needs to be scaled back to fit the genuine space needs of the hospital.

In the wake of the Department of Public Health’s (DPH) staff recommendation to approve Boston Children’s Hospital’s planned $1 billion expansion, a growing chorus of opposition is voicing concerns that the expansion will boost healthcare costs throughout the state, and should be roundly rejected or cut back to a more reasonable size.

The Greater Boston Interfaith Organization, an advocacy group of 50 religious organizations, and the Massachusetts Association of Health Insurers joined the state’s Health Policy Commission, a state-established watchdog group, in warning that Children’s expansion could “increase spending by an estimated $8.5 million to $18.1 million a year for patients on commercial health insurance.” The commission was also concerned that Children’s, which already has the highest hospital prices in the state, could put other pediatric hospitals in the state out of business.

These groups’ concerns are significant and warranted and are only compounded by the manner in which Children's shed its lower-income patients insured through Neighborhood Health Plan earlier this year. Moreover, the hospital is willing to destroy the Prouty Garden - a beloved, historic, outdoor healing space - in order to attract high-rolling patients from overseas with a shiny new building.

The DPH staff supported the expansion on the condition that Children’s not pass on the cost of the project to patients and insurers and that it not reduce accessibility of the hospital to Massachusetts patients. The hospital’s compliance with these requirements would, presumably, be evaluated using reports provided by the hospital on where patients are coming from.

Left unresolved: how will that unrealistic condition be enforced?