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.”