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”).
● 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.
● 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.