Amended lawsuit alleges that BCH’s violation of multiple regulations and the terms of its state-issued Determination of Need certificate warrant revoking the DoN and halting construction activities
Plaintiffs say state public health officials have looked the other way while BCH has consistently flouted the law
Boston – Plaintiffs suing Boston Children’s Hospital and Commonwealth agencies responsible for approving a massive $1 billion expansion project have amended their lawsuit, alleging that the hospital’s violation of state regulations and the terms of the Determination of Need (DoN) certificate approved last October are grounds to stop construction activities and revoke the DoN.
The Ten Taxpayer Group, which intervened in the Department of Public Health’s (DPH) DoN proceeding regarding the BCH expansion last year, yesterday served a motion on defendants to amend an appeal of the DPH’s approval of the DoN, which the Group originally filed in Suffolk Superior Court last November.
Allegations contained in the amendment served on defendants include:
commencing construction activities associated with the new clinical tower without written approval from DPH of preliminary and final architectural plans and specifications, as required by state law and regulation;
failing to submit by April 1, 2017 a financial report needed to establish baseline data regarding the cost of the project, as required by Condition 8 of the DPH-approved DoN;
failing to implement a plan for communicating the status of the expansion project to community groups, as required by Condition 7 of the DoN.
The hospital, the state Health Facilities Appeals Board, DPH Commission Monica Bharel, and Massachusetts Secretary of Health and Human Services (HHS) Marylou Sudders are all named as defendants in the suit. Opposition to the amendment is due in ten days, after which the plaintiffs will file the amended lawsuit in Suffolk Superior Court.
“From the start, this hospital expansion project has flouted state law and regulations set up to ensure health care construction projects are necessary and reasonable,” said Gregor McGregor, attorney for the plaintiffs. “We are asking the Court to force BCH and state officials - finally - to follow the law and revoke the Determination of Need approval.”
The amendment asserts that BCH has failed to comply with binding state regulations and DoN terms regarding the construction of a new clinical tower – the most costly hospital project in Massachusetts history, and one designed to serve primarily out-of-state and foreign patients. Large hospital construction projects in Massachusetts require state approval, and the DPH review process is supposed to examine issues of cost impacts, competition within the market, and the feasibility of alternatives to determine if proposed projects are truly needed to serve patients in a given area of the Commonwealth.
“We have amassed significant evidence, in our opinion, showing not only that the hospital plowed ahead with construction activities without regard to state rules and regulations, but that that the very agencies charged with enforcing those rules and protecting patients and taxpayers have simply looked the other way. This lawsuit asks the Court to revoke the DoN – effectively forcing both the hospital and the Commonwealth to follow the rules before this exceedingly expensive and over-blown project can continue,” McGregor said.
Lawyers for the plaintiffs have repeatedly petitioned the DPH and HHS under the Massachusetts Public Records Act for documents relative to the hospital’s compliance with regulations and DoN terms, but have not received any documents responsive to requests dated June 7, June 19, and June 21, 2017.
In addition to seeking revocation of the DoN, the amendment seeks temporary and permanent injunctions preventing BCH from continuing with construction unless and until it complies with all relevant state laws, regulations, and DoN terms.