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Published online by Cambridge University Press: 06 May 2021
Certificate of Need legislation is one of several regulatory programs designed to control the allocation of health care delivery resources. This paper examines the Massachusetts experience with Certificate of Need, focusing on two major administrative law controversies—the extent of the regulatory agency's power to participate actively in the planning process, and the scope of review of agency decisions permitted under a non-judicial appeals mechanism. The study concludes that any Certificate of Need program may be strengthened by accurately defining the roles of the participants and by providing for safeguards within the system itself.
Study conducted by the Center for Law and Health Sciences of Boston University School of Law. Partial funding of the Center's activities by the Grant Foundation and the Skerryvore Foundation made this research possible.
1 E.g., Fein R., The Doctor Shortage: An Economic Diagnosis (1967).
2 E.g., Margolis, Where Does It Hurt? America's Medical Crisis and the Politics of Health Reform, The New Leader, April 15, 1974, at 3, 6–7Google Scholar.
3 E.g., Ribicoff A., The American Medical Machine 21-22 (1972); Lewis, Statistics Show British Health Care Better, Houston Chronicle, Oct. 5, 1971, § 4, at 6, col. 3Google Scholar; and Lewis, British Tell Horror Stories about U.S. Hospitals, Houston Chronicle, Oct. 7, 1971, § 5, at 6, col. 3.
4 See notes 1-3 supra.
5 The most significant pending proposals involve various plans for national health insurance. See, e.g., H.R. 12684, 93d Cong., 2d Sess. (1974) (sponsored by the Nixon Administration), and H.R. 13870, 93d Cong., 2d Sess. (1974) (sponsored by Senator Edward M. Kennedy, D.-Mass., and Representative Wilbur J. Mills, D.-Ark.).
6 It should be noted that federal legislation parallels this attempt by states to regulate rising health care costs. P.L. 92-603 provides an ‘incentive for states to adopt the federal certificate of need program by absorbing its administrative costs. At this time Massachusetts has not adopted the federal plan as it would require changing certain provisions of the Massachusetts program—most dramatic is the mandate that the administering agency must give notice of a determination at least 60 days prior to the obligation for the expenditure. This time constraint, although obviously designed to allow an applicant to go through the process in'a more expeditious manner, might create an impossible burden on the agency and result in uninformed and poorly reviewed decisions. Further action by the federal government, however, may compel the states to adopt the federal certificate of need program—as well as the other regulatory programs in P.L. 92-603—by threatening to cut off Medicaid reimbursement to states which fail to comply.
7 It has been suggested that only a relatively modest form of national health insurance would “stress the delivery system” and produce a leap in prices. Newhouse, Phelps, and Schwartz, Policy Options and the Impact of National Health Insurance, 290 N. Eng. J. Med. 1345 (1974)Google Scholar.
8 On the acceleration of costs in the last decade, see Klarman, Major Public Initiatives in Health Care, The Public Interest, Winter 1974, at 106Google Scholar.
9 Certificate of need legislation has withstood challenge to its constitutionality on the ground that it is an unreasonable exercise of police power. Attoma v. State Department of Social Welfare, 270 N.Y.S.2d 167 (1966). But see In the Matter of Certificate of Need for Aston Park Hospital, Inc., 282 N.C. 542 (1973). On the Aston Park case, see Curran, A Severe Blow to Hospital Planning: “Certificate of Need“ Declared Unconstitutional, 288 N. Eng. J. Med. 723 (1973)Google Scholar and Note, Hospital Regulation after Aston Park: Substantive Due Process in North Carolina, 52 N. Carolina L.R. 763 (1974).
10 See generally, W. Curran, Special Legislative Report: National Survey and Analysis of Certification of Need Laws: Health Planning Regulation in State Legislatures, American Hospital Association (1972); The Certificate of Need Experience: An Early Assessment, Vols. 1, II & III, Bureau of Health Services Research, Department of Health, Education And Welfare (1974). See also Cohen, Regulating Health Care Facilities: The Certificate-of-Need Process Re-examined, Inquiry, Sept. 1973, at 3.
11 Havighurst, Regulation of Health Facilities and Services by “Certificate of Need,“ 59 Va. L. Rev. 1143, 1155Google Scholar. Professor Havighurst hastens to add that, “whatever their merits, certificate-of-need laws are an attempt to deal merely with symptoms rather than root causes.” Id. His lengthy study of the philosophy behind certificate of need generates several fruitful hypotheses which could be tested by economists and political scientists to determine the effects of these laws. Havighurst's basicconcern is that regulation of facilities expansion could become a process dominated by health care providers who “capture” an administrative agency and achieve market control.
12 See notes 1-3 supra and accompanying text.
13 Posner, Certificate of Need for Health Care Facilities: A Dissenting View, in C. Havighurst, Regulating Health Facilities Construction, p. 117 (1974).
14 For a discussion of the soundness of certificate of need legislation see Havighurst, supra note 11.
15 St. 1972, C. 776 was actually given final approval on July 18, 1972.
16 A “substantial capital expenditure” is defined as any expenditure for construction in excess of $100,000. Mass. Gen. Laws Ann. ch. 111, § 25B.
17 A “substantial change in services” is “a change in kind, rather than degree, of service as further defined by the department.” Mass. Gen. Laws Ann. ch. 111, § 25B.
18 Mass. Gen. Laws Ann. ch. 111, § 25C.
19 The Report of the Joint Special Commission on Health Benefits and Health Services (1972) [hereinafter cited as Foley Report]. In this report the members of the Special Commission on Health Benefits and Health Services expressed concern that underutilization might lead to a lower quality of care due to insufficient staff experience in performing certain specialized procedures —open heart surgery, for example. Id. at 11.
20 Thus the Foley Report stated, “excess capacity (e.g., too many beds), or improperly distributed capacity, also raises quality and ‘accessibility to care’ questions since it appears to place an unnecessary demand on scarce supplies of health care personnel.” Foley Report at 16.
21 This Commission was chaired by Senator Daniel J. Foley (D.-Worcester).
22 Foley Report at 11.
23 See id. It was thought wiser to allocate this administrative power to the Department than to create a new agency for these responsibilities. The Department had been given authority to administer the preceding, temporary statute.
24 See Priest, Possible Adaptation of Public Utility Concepts in the Health Care Field, 35 Law & Contemp. Prob. 839 (1970)Google Scholar.
25 See text accompanying notes 67-81 infra.
26 An important area of discussion, beyond the scope of this paper, is the role of political pressure—from government officials, industry representatives, or consumers—in influencing administrative determination. See note 82 infra for an example of political influence on administrative decisions.
27 Foley Report, supra note 19, at 13.
28 E.g., Krause, Health Planning as a Managerial Ideology, 3 International Journal of Health Services 445 (1973)Google Scholar. See also Health Policy Advisory Center, The American Health Empire (1970); Alford, The Political Economy of Health Care: Dynamics Without Change, 2 Politics And Society 127 (1972)Google Scholar.
29 See Mass. Gen. Laws Ann. ch. 111, § 25A which provides for an inventory of health care resources and related information.
30 See U.S. Department of Health, Education and Welfare, Public Health Service, Health Services and Mental Health Administration, Methodology of Identifying, Measuring and Evaluating Outcomes of Health Service Programs, Systems, and Subsystems (C. Hopkins, ed. 1969).
31 Mass. Department Ok Public Health, Rules and Regulations for Determination of Need, 30.3 (June 29, 1973). New regulations proposed on October 22, 1974 would affect the procedural steps by generally reducing the time periods mentioned in the text.
32 In 1966 Congress passed the Comprehensive Health Planning Act which was followed by the 1967 Partnership for Health Act. These bills amended the Public Health Service Act of 1944 in order to establish state and regional planning agencies. State agencies, popularly known as “A” agencies, Public Health Service Act, § 314(a), are entirely funded by the Federal government. The many regional “B” agencies in each state, Public Health Service Act § 314(b), are funded in equal amounts by the Federal government and local health care providers. Both “A“ and “B” agencies include substantial consumer representation, and their chief function is to review and comment on proposed health facilities construction to ensure conformity with a comprehensive plan. According to Robert P. Jones, national director of the Comprehensive Health Service, “Areawide [regional] agencies are more concerned with individual projects as they impact on the community. State agencies are more concerned with classes of institutions, groups and types of hospitals, services, and facilities.” CHP, Med. World News, Feb. 16, 1973, at 54, 55. Federal funds for comprehensive health planning were to expire on June 30, 1973, but Congress has extended the program on a temporary basis until new federal health planning legislation can be completed. Letter from Jacob A. Getson, Director of Office of Comprehensive Health Planning, Commonwealth of Massachusetts, to the authors, July 30, 1974, on file at the Boston University Center for Law and Health Sciences.
33 Rules and Regulations for Determination of Need , supra note 3 1 , 5 2 . 3 .
34 Id, 50.1.
35 Id., 5 4. 1 .
36 Id., 70.2.
37 Mass. Gen. Laws Ann. ch. 17, § 3 provides that, “[t]he public health council shall consist of the commissioner of public health as chairman and eight members appointed by the governor.” Of these eight, three are to be providers, and five are to be nonproviders. The Commissioner of Public Health acting with the Public Health Council together form the Department of Public Health. Mass. Gen. Laws Ann. ch. 17, § 1.
38 The number represents those applications filed with the Council minus those withdrawn before a decision was made at a hearing.
39 The remaining 69 project proposals were: facility improvement 31 (15.5%), clinics 36 (18.0%), and infirmary 2 (1%). Two other proposals, classified as “special” are not included in this analysis. Also, 15 project proposals were withdrawn before the Council acted. Mass. Department of Public Health, Office of the Commissioner, Analysis of Decisions Made Under Determination of Need Program June 1, 1972-December 31, 1973 (February 1, 1974).
40 The 12 appeals represent only those for which the Board reached a final decision. Appeals filed but withdrawn or dismissed on procedural grounds are not included in this analysis.
41 McCarthy v. Faulkner Hospital, Health Facilities Appeals Board, Mass., January 28, 1973.
42 See Section III, Non-Judicial Review of Administrative Decisions, infra.
43 Proposed regulation 55.3 states that the Department of Public Health may impose conditions “reasonably related to the scope of the project… .” Although the Department seems to have decided not to impose conditions beyond the scope of a project, it remains to be seen how the words “reasonably related” will be interpreted. Mass. Department of Public Health, Proposed Determination of Need Regulation (Oct. 22, 1974).
44 Burlington, Massachusetts, June 26, 1974.
45 Presentation by Cambridge Research Institute, Seminar, supra note 44.
46 Mr. Kinzer mentioned, by way of illustration, the Department's suggestion that Somerville Hospital, a non-profit applicant, purchase Central Hospital, a proprietary neighbor, in order to furnish the Somerville community with more efficient services. This suggestion, the product of an elaborate and lengthy study, was never made a formal condition of Somerville's certification. See text accompanying note 63 infra. However the time required to complete an exhaustive study of the proposed purchase delayed and substantially affected the plans of Somerville Hospital. See note 89 infra. Mr. Kinzer also alluded to the Department's requirement that Somerville Hospital place consumer representatives on its board of directors, a condition which was included in the Public Health Council's eventual decision to grant the hospital a certificate. Mass. Public Health Council meeting of July 9, 1974.
47 The Western Massachusetts Health Planning Council; Holyoke Hospital is in Region I.
48 Notice of Determination of Need, Project No. 1-2035, letter from Mrs. Dorothy A. Zaccaria, Secretary to the Mass. Department of Public Health, to Mr. Harold Pine, Administrator, Holyoke Hospital. On file at the Mass. Department of Public Health.
49 The region has a declining birth rate, and Holyoke's maternity beds, like those of neighboring hospitals, were under-utilized. The resulting inefficiency was responsible for additions to insurance premiums and general out-of-pocket costs. In contrast, the thirteen new medical/surgical beds and six coronary care beds were more consonant with regional needs. For example, in 1972 Holyoke Hospital had a medical/surgical occupancy rate of 93%, a relatively high figure for services of this type. See Mass. Department of Public Health, Holyoke Hospital, Staff Summary for Determination of Need by the Mass. Public Health Council, (1973) on file at the Mass. Department of Public Health, [hereinafter Staff Summary]. But see Commonwealth of Massachusetts, Legislative Research Council, Report Relative to Certificate of Need and a Unified State Hospital System, (1974) at 58-9.
50 Staff Summary, supra note 49 at 2-3. The staff also recommended, for example, construction of a 25-bed psychiatric unit—a facility thought needed by Dr. Jay M. Pomerantz, Assistant Mental Health Administrator, Region I, for the Massachusetts Department of Mental Health.
51 See note 32 supra.
52 Staff Summary, supra note 49, at 2.
53 E.g., Corbett, Some Legal and Political Implications of Comprehensive Health Planning, 64 Am. J. Pub. Health 136 (1974)Google Scholar; Gottlieb, Certification of Need: Potential Threat to Planning, Hospitals, Dec. 16, 1971, at 51. But see Havighurst, supra note 11, at 1181: ”… combining political responsibility for costs and regulatory power over hospital rates in the same agency does succeed in structuring the regulators’ incentives to assure that the public's interest in economy is not sacrificed to the hospitals’ interests.“
54 In California, Nevada, and Oregon, however, the statewide “A” agency has been given final authority over certificate of need awards in addition to its planning role. Curran, supra note 10, at 16. California's delegation of this authority was upheld in Simon v. Cameron, 337 F. Supp. 1380 (CD. Calif. 1970). In Arizona all certification is subject to the veto of the appropriate “B” agency. Curran, supra note 10, at 18.
55 Effective planning at the local level would obviate the need for imposition of conditions by a state agency. MHA President Kinzer has called for a demonstration project to show “we can make something work … to get one regional plan in this state … where the hospitals are involved [to show voluntary use of budgeting incentives].” Seminar, supra note 44. It was the absence or ineffectiveness of such local planning that prompted passage of certificate of need laws in many states. Havighurst, supra note 11, at 1148-51. For an attempt to revitalize decentralized decision-making by returning power to regional planning authorities empowered to disperse a fixed certification budget to bidding local providers, see Kirsch, Thinking about Certificate of Need: Do the Policy Instruments Fit the Policy Problem?, 1973 (unpublished paper from the Harvard Center for Community Health).
56 Cases selected for study in our analysis were chosen to illustrate important issues in the certification process. We make no claim that our illustrations are representative of the process as a whole, as should be clear from the rough character of the data presented in the text accompanying notes 37-42, supra.
57 Ferguson A., Ball A., Habib V., Hospital Capacity in Somerville (1973).
58 Thirteen hours were consumed in one meeting before the Council granted temporary approval of a certificate of need on May 7, 1974. This was merely one of a series of” meetings concerned with the fate of the Somerville application. See notes 59-61 and accompanying text, infra.
59 Somerville Hospital originally requested 216 general medical-surgical beds, 24 pediatric beds, 14 maternity beds and 52 extended care beds. In a later application this was reduced to 160 medical-surgical beds, 38 extended care beds and 8 intensive care beds.
On July 9, 1974 the Public Health Council granted Somerville a determination of need for a 134 bed acute care facility at a cost of $8.5 million. Charles Solari v. Dep't of Public Health and Somerville Hospital, Mass. Health Facilities Appeals Board (Oct. 17, 1974).
60 Somerville Hospital v. Dep't of Public Health, Mass. Health Facilities Appeals Board (1973).
61 On May 7, 1974 t he Council voted 4-2 to tentatively grant certification for a 134 bed project with an estimated cost of $8.5 million. Final approval of the project was given by a 5-3 vote of the Council on July 9, 1974. The Council's original decision to deny certification led to an appeal to the Health Facilities Appeals Board, then to the Supreme Judicial Court. See notes 91-122 and accompanying text infra.
62 See note 46 and accompanying text supra.
63 Interview with William J. Bicknell, M.D., Commissioner, Massachusetts Department of Public Health, in Boston, July 11, 1974.
64 Somerville Hospital exemplifies a type of facility which health regulation will deal with increasingly in the future: an old non-profit hospital, long responsive to community needs, but now in need of modernization. If such a facility is located in an overbedded area, its renovation plans may be denied certification. The resulting situation is poignant and poses for the local community the problem of phasing-out a cherished institution. This problem—a necessary consequence of certificate of need—appears to have generated much of the controversy in the Somerville situation.
65 Whether or not the Department is empowered by statute to use conditions as a regulatory tool is not clear. The Department points to language in the statute that gives it the power to “approve or disapprove in whole or in part, or otherwise act upon every such application … ,” and also notes that the statute provides that the determination of need shall continue in effect only if the applicant complies “with such further terms or conditions as the department reasonably shall require.“ Mass. Gen. Laws Ann. ch. 111 , § 25C (emphasis added). Read in the context of the entire act, however, it is far from certain that this language gives the Department the right to set conditions.
66 Sec notes 5-9 and accompanying text supra.
67 Foley Report, supra note 22 at 11.
68 Rules and Regulations for Determination of Need, supra note 31, Introduction at ix. Mass. Gen. Laws Ann. Ch. 30A is the Massachusetts Administrative Procedure Act.
69 Rules and Regulations for Determination ok Need, supra note 31, Introduction at ix. In its proposed regulations the Department does list factors to be considered in all applications:
In taking final action hereunder, the Department shall consider such of the following factors as it deems relevant to making an appropriate determination of need on a particular application. A finding adverse to the applicant regarding any of these factors shall constitute grounds for denial of an application for determination of need.
(1) Whether the planning process which the applicant has gone through as evidenced by its documented consideration of transfer agreements and referral mechanisms, alternatives to the proposed project including expanding the hours of utilization of its present service, as well as by its willingness to involve the appropriate regional c.h.p., local community groups and other proximate health care facilities in its planning process has been thorough.
(2) Whether the project, when completed, will comply with all relevant state and federal standards for approval licensure or certification.
(3) Whether the existing health care services in the applicable service area are adequately providing the service contemplated by the proposed project so that favorable action on the application would result in a needless duplication of services.
(4) Whether, in accordance with 54.4 to 54.6, there is need for beds in the affected service population.
(5) Whether the applicant, after having been given the procedural safeguards specified in 54.11 has failed to demonstrate to the satisfaction of the Department that it is suitable and responsible to establish or maintain a health care facility or that the project upon completion is unlikely to meet the licensure requirements of the Department.
(6) Whether the applicant has demonstrated, in accordance with G.L. c. 30, §§ 61 and 62 and the regulations promulgated thereunder by the Executive Office of Human Services, that, in executing the project, all feasible measures shall be taken to avoid or minimize damage to the environment. (Sec 16).
(7) Whether the applicant has considered alternative methods of construction design, operating systems and staffing patterns, as well as alternative sources of debt financing, so that the approach chosen is consistent with the Department's objective in making determinations of need. (See 54.2).
(8) Whether the estimated capital expenditure and anticipated operating costs for the proposed project are reasonable both in terms of their likely effect on the facility's per diem rate and in terms of their comparison with costs for similar projects.
(9) Whether, in accordance with 54.7, the applicant demonstrates the financial feasibility and capability to complete the proposed project.
Proposed Massachusetts Determination of Need Regulations § 54.3 (Oct. 22, 1974).
70 Id.
71 MHA President Kinzer has expressed the view that “[Its] changing criteria rather than total lack of criteria that have been giving us trouble.” Seminar, supra note 44.
72 Davis K. C., Administrative Law Text § 2.09 (3d ed. 1972).
73 The problematic relationship between political judgment and a technocratic view of planning is a major theme of D. Bell, The Coming of Post-Industrial Society (1973). See also Habermas, Technology and Science as “Ideology,” in Toward A Rational Society 81 (1970)Google Scholar.
74 The state's “A” agency has produced a report entitled Standards and Guidelines, Acute Inpatient Services (June 1973). The Department has examined this report, but it is apparently free to formulate its own standards and criteria. On the relationship between the Department and the comprehensive health planning agencies, see notes 51-55 and accompanying text supra.
75 Health Systems Regulation Administration bill. H. 6579 (1973).
76 Interview with David W. Rosenberg, Counsel to the Department of Public Health, Commonwealth of Massachusetts, in Boston, June 14, 1974.
77 American Hospital Association, Suggested Model Legislation for Implementation of State Certification of Need (tenth ed. 1972), at 5-6.
78 But see Krausc, supra note 28.
79 See text accompanying notes 56-63 supra.
80 See Brief for Appellants at 11-18, Somerville Hospital v. Department of Public Health, Mass. Health Facilities Appeals Board (January 29, 1974).
81 Id. at 18, quoting A.B. Small Company v. American Sugar Refinery Company, 267 U.S. 233, 239 (1925).
82 The Bessie Burke Memorial Hospital case is an example of political interference with the administrative process. In this case the Burke Hospital in Lawrence, Massachusetts was denied a certificate of need and this denial became an issue in the city's 1973 mayoral election. Community pressure continued to rise, culminating in the introduction of special legislation by the Lawrence state representative. Passed over the governor's veto, St. 1973, ch. 923 directs the commissioner of public health to issue a certificate of need to t he Burke Hospital. Ch. 923 has been challenged by the Department of Public Health and is now before the Supreme Judicial Court.
Not only does this type of legislation have a demoralizing effect on those responsible for administering the certificate of need program, but it would seem to give the larger hospitals, with the superior political strength, a marked advantage over the smaller hospitals. The result of such action could be a blatantly politicized health care delivery system, likely to be more chaotic than the system prior to the enactment of certificate of need legislation. After this article went to press, the Massachusetts Supreme Judicial Court decided that ch. 923 is constitutional. Comm. of Public Health v. The Bessie M. Burke Memorial Hospital, Mass. 1975 Adv. Sh. 253 (1975).
83 For quantitative data about the Board's activity see text accompanying notes 42-44 supra.
84 Davis, K. C., Administrative Law Text § 28:02 (3d ed. 1972)Google Scholar.
85 Mass. Gen. Laws Ann. ch. 111 , § 25G.
86 Mass. Gkn. Laws Ann. ch. 6, § 166.
87 Mass. Gen. Laws Ann. ch. 111, § 25E provides that: “ The board … shall restrict itself to a review of materials on file with the department and to consideration of whether the determination appealed from was an abuse of discretion, without observance of procedure required by law or in violation of applicable provisions of law.“
88 See notes 57-61 supra and accompanying text.
89 Somerville Hospital had been granted Hill-Burton money to finance its proposed renovations. In order to receive the money, however, construction had to begin by June 30, 1974, otherwise the grant was to be retracted. Failure to obtain a certificate of need by June 30,. 1974 would effectively deprive Somerville of its opportunity to utilize the Hill-Burton grant.
90 See generally Hospital Capacity in Somerville, supra note 57.
91 Transcripts of the Public Health Council Emergency Meeting, November 16, 1973 at 14.
92 Somerville Hospital v. Department of Public Health, Mass. Health Facilities Appeals Board (January 29, 1974).
93 Appellants argued that the Board had the power to direct an issuance of a certificate of need. Brief for Appellant at 36, supra note 80. This is a controversy which will be discussed at notes 110-115 and accompanying text, infra.
94 Id. at 2-10.
95 Somerville Hospital v. Department of Public Health at 9, supra note 155.
96 Bicknell v. Annas, 74-27 Eq., Suffolk, SS, Supreme Judicial Court, Mass. (1974). Justice Wilkins sat as a single Justice for the proceeding.
97 Obviously the statutory requirement that the Board make a final decision within 60 days affords an aggrieved applicant a more expeditious remedy than would be available from a crowded court docket.
98 Interview with George J. Annas, Chairman, Health Facilities Appeals Board, in Boston, July 5, 1974.
99 Interview with David W. Rosenberg, supra note 76.
100 Interview with Jack O'Leary, General Counsel to Joint Special Committee on Health Benefits in Boston, July 15, 1974. Mr. O'Leary apparently conceived of the certificate of need process as a cybernetic system in which the Board and the Department engaged in a reciprocal exchange of information designed to improve the administrative process. See generally N. Wiener, The Human Use of Human Beings (1950). On the use of cybernetic models to describe sociopolitical processes, see K. Deutsch, The Nerves of Government (1963).
101 Mass. Gen. Laws Ann. ch. 6, § 166.
102 Interview with Jack O'Leary, supra note 100.
103 In an early draft of the permanent certificate of need law, the Board, in addition to its other powers, was given the power to review decisions of the Public Health Council for substantial evidence. See draft appended to Foley Report, supra note 19. This language, however, was deleted in the final approved statute. It should be noted, however, that the language of § 25E: [t]hc board … shall restrict itself… to consideration of whether the determination appealed from was an abuse of discretion … ,” still gives this substantive review power over the Department to the Board.
104 See, e.g., text accompanying note 97, supra.
105 Mass. Gen. Laws Ann. ch. 6, § 166.
106 Mass. Gen. Laws Ann. ch. 6, § 166. See also Mass. Gen. Laws Ann. ch. 6A, § 16.
107 Mass. Gen. Laws Ann. ch. 6, § 166.
108 Id.
109 On the paradoxes of consumer representation in administrative processes (which, at least in theory, presuppose some degree of expertise) see generally S. Lazarus, The Genteel Populists (1974). Consumers, of course, have input at other points in the certificate of need process. For example, the Public Health Council includes five consumers who form a majority of its nine members. Mass. Gen. Laws Ann. ch. 17, § 3. Decisions of the Council may be appealed to the Health Facilities Appeals Board and to the Superior and Supreme Judicial Courts by any 10 taxpayers in the Commonwealth. Mass. Gen. Laws Ann. ch. 111 , §§ 25, C, E, G. Only three such taxpayer groups have appealed to the Board, and two of these groups represented providers—e.g., 10 dentists, see letters concerning the matter of “Bridge Dental, Inc.,” on file with the Health Facilities Appeals Board—or were concerned with non-health issues, Leo McCarthy v. Faulkner Hospital (Health Facilities Appeals Board, Mass., Jan. 28, 1973). Only the Somerville Hospital case involved intervention by a consumer group with health interests. The membership of the present Health Facilities Appeals Board includes two attorneys, one professor of health planning and two other consumers knowledgeable in the field. The Board has attempted to blend these diverse perspectives into a coherent administrative practice. It should be noted, however, that three of the Board's members are affiliated with a single institution, Boston University, which, among other functions, provides health care services. It is questionable whether a majority of the Board should be composed of members who share such an affiliation. Arguably the Governor should have a right to appoint meritorious persons to the board regardless of their institutional ties, but a conflict of interest may exist when the Board is asked to review an application to which the University is a party or a potential competitor. Also see, Annas, The Role of the Consumer in Appeals from Certificate of Need Decisions: Lessons from Massachusetts, presented at the American Public Health Association Annual Meeting, Oct. 23, 1974.
110 Somerville Hospital v. Department of Public Health, supra note 92.
111 Id. at 8.
112 See notes 107-109 supra and accompanying text.
113 Bicknell v. Annas, supra note 96 at 3-4.
114 Id. at 4.
115 Farren Memorial Hospital had planned to bring this issue before the Board but withdrew its appeal before the Board confronted the issue in a hearing.
116 See Briefs of Final Decisions of the Health Facilities Appeals Board, Health Facilities Appeals Board Memorandum, July 2, 1974. Decisions of the Board are on file at the Boston University School of Law Center for Law and Health Sciences.
117 Del Manor Nursing Home v. Department of Public Health, Mass. Health Facilities Appeals Board (April 25, 1973).
118 McCarthy v. Faulkner Hospital, Mass. Health Facilities Appeals Board (January 28, 1973).
119 Marshfield House Nursing Home v. Department of Public Health, Mass. Health Facilities Appeals Board (January 30, 1974).
120 Milman v. Department of Public Health, Mass. Health Facilities Appeals Board (June 14, 1973).
121 See text accompanying note 100 supra.
122 Another indication of the Board's impact is the number of its cases which eventually were taken to court. Of the cases heard by the Board only two— Bellevue v. Health Facilities Appeals Board, 96906 Eq. (Super. Ct., Suffolk County, Mass., filed Mar. 15, 1973) and Boudrcau v. Greenfield Convalescent Home, 99731 Eq. (Super. Ct., Suffolk County, Mass., May 3, 1974)—were taken to court by an aggrieved applicant. (By contrast, the Somerville Hospital case involved a dispute between the Department and the Board—not an appeal by an applicant.) In the Bellevue case the petitioner has merely filed petition for review; during an 18-month period after filing nothing more has been done. The Boudreau case has been before the court and a decision in which the Board had upheld the Department has been affirmed. It is quite infrequent then for an aggrieved applicant to appeal a Board decision to court, and in the only court opinion reaching the merits of an appeal, the Board has been upheld.
One final aspect of the Board's work should be noted. C. 111, § 25E mandates a final decision by the Board within 60 days. Time can be a crucial variable to any construction plan, and the need for a speedy determination is of the highest interest to an applicant. Despite its lack of staff this mandate has been fulfilled by the Board except for situations where the applicant himself requested or acquiesced in a longer delay. For example, the Board requested a delay in Winchendon Hospital v. Department of Public Health until the Supreme Judicial Court decides Bicknell v. the Bessie M. Burke Memorial Hospital. See note 82 supra. Winchendon Hospital was joined as a party to the Burke case as Winchendon received special legislation similar to that for the Burke Hospital, sec note 82. The outcome of the decision by the Supreme Judicial Court will influence the reviewability of the Winchendon case by the Board. See update of Burke case cited at note 82 supra.