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Community Participation in the Certificate-of-Need Process: A Look at Ten-Taxpayer Groups in Massachusetts
Published online by Cambridge University Press: 24 February 2021
Abstract
Certificate-of-need statutes give designated state agencies veto power over investment in health care facilities. Some states have sought to temper the arbitrary character of this power by expanding the opportunities for community input into the certificate-of-need process. Massachusetts, for example, has enacted a statute that allows groups of ten taxpayers to petition for a public hearing on any certificate-of-need application.
Some observers question whether the benefits of taxpayer-group participation are substantial enough to compensate for the delays and abuses that the statute allegedly invites. To help resolve this question, this Comment examines historical data on Massachusetts taxpayer groups and on their activities and assesses the significance of their composition and tactics to the certificate-of-need process.
Although flaws exist in the Massachusetts ten-taxpayer mechanism, in this writer's view it has succeeded partially in making the certificate-of-need process responsive to community opinion. Many groups lack the skills and qualities needed to make constructive use of the ten-taxpayer mechanism. Nevertheless, it serves a valuable purpose by creating a public forum for and by encouraging public participation in the certificate-of-need process, especially by those who might otherwise try to circumvent that process through use of special legislation, of private pressure, or of other similar means.
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- Copyright © American Society of Law, Medicine and Ethics and Boston University 1979
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This Comment was accepted for publication prior to the appointment of Mr. Lewis to the position of Assistant Managing Editor of the American Journal of Law & Medicine. Research for this Comment was supported in full by the Boston University Health Policy Consortium, with funds from the Health Care Financing Administration of the U.S. Department of Health, Education, and Welfare.
1 Certificate-of-need statutes generally require that health facilities that are planning substantial new construction or changes in service levels obtain prior approval from the state department of public health. See, e.g., Mass. Gen. Laws Ann. ch. 111, § 25 (West Supp. 1979)CrossRefGoogle Scholar, which provides that capital investment in a health facility of more than $150,000, or the addition of more than four beds, must be approved in advance through the certificate-of-need process.
2 States other than Massachusetts have approached this problem in one of three ways. First, some states make no provision for any kind of public hearing. See, e.g., Fla. Stat. Ann. § 381.494 (West Supp. 1979). Second, some states afford a hearing only to parties directly involved in the certificate-of-need process, such as applicants or health systems agencies (HSAs). See, e.g., Mich. Comp. Laws Ann. § 333.22123 (West Supp. 1979); N.J. Stat. Ann. § 26:2H-9 (West Supp. 1979); N.Y. Pub. Health Law §§ 2801a-2802 (McKinney 1977). Third, some states include in their certificate-of-need process an automatic public hearing at which any interested persons may express their views. See e.g., III. Ann. Stat. ch. 111 !4, § 11558 (Smith-Hurd 1977); Tex. Rev. Civ. Stat. Ann. art. 4418h, § 3.09 (Vernon 1976).
3 Mass. Gen. Laws. Ann. ch. III, § 25C (West Supp. 1979).
4 Some states, including Massachusetts, use the term “determination of need” to denote the actual process of considering a project's merits, and the term “certificate of need” to denote the result of a successful application. Most states and most commentators, however, use the latter term for both. For the sake of simplicity and consistency, therefore, in this Comment “certificate of need” applies both to the process and, when a provider has been successful, to the result of the process, that is, to an approved application.
5 W. Bicknell & J. Van Wyck, Certificate of Need: The Massachusetts Experience 54 (unpublished paper). For an example of a delay of over two years, see text accompanying notes 34-39 infra. Although this is an extreme case, substantial delays are frequent; indeed, they are implicit in the system.
6 Bicknell & Van Wyck, supra note 5.
7 This information is kept at the Determination of Need Program Office, 80 Boylston St., Boston, Massachusetts, where it is filed according to the date of the Public Health Council meeting at which it was taken up.
8 Understaffing allegedly precludes keeping complete records of such information. Conversation between staff member and the present writer (December 1978).
9 Ch. 776, § 3, 1972 Mass. Acts 721.
10 Nursing homes were not included in this study because many of them are operated for profit. As a result, their certificate-of-need applications raise issues of public and private interest different from those raised by hospitals, which in Massachusetts are almost always nonprofit.
11 Public Health Council Meeting, Feb. 24, 1976. Application No. 3-2548 (Winchester Hospital Parking Garage).
12 Public Health Council Meeting, May 2, 1978. Application No. 5-4283 (Framingham Clinic, Inc., Abortion Facility).
13 Mass. Gen. Laws Ann. ch. 11, § 25C (West Supp. 1979).
14 Public Health Council Meeting, Nov. 23, 1976. Application No. 8-2595.
15 Public Health Council Meeting, May 2, 1978, supra note 12.
16 In Roe v. Wade, 410 U.S. 113 (1973), the U.S. Supreme Court held that state abortion statutes may not infringe upon the constitutionally protected right to privacy, except under certain limited circumstances.
17 Framingham Clinic, Inc. v. Board of Selectmen, 1977 Mass. Adv. Sh. 1857, 367 N.E.2d 606 (1977).
18 Staff Memorandum, Public Health Council Meeting, May 2, 1978. Application No. 5-4283.
19 The original application date was May 1, 1976.
20 At its new site in Framingham, Massachusetts, the clinic was denied a building permit by the town's Board of Zoning Appeals, allegedly because of pressure by anti-abortion groups who “will do anything to hold us up,” according to clinic director G. Barkin, Boston Globe, Sept. 27, 1979, at 21, col. 2. Issuance of the permit was then ordered by Middlesex County Superior Court, Sept. 26, 1979.
21 Mass. Gen. Laws Ann. ch. 111, § 25G (West Supp. 1979).
22 Of the 260 groups surveyed, 89 exhibited the lack of sophistication concerning the certificate-of-need process that characterizes most ad hoc groups.
23 Mass. Gen. Laws Ann. ch. 111, § 2 5C (West Supp. 1979) reads in part:
The department, in making any such determination, shall encourage appropriate allocation of private and public health care resources and the development of alternative or substitute methods of delivering health care services so that adequate health care services will be made reasonably available to every person within the commonwealth at the lowest reasonable aggregate cost
24 For a statement of the relevant holding of Roe v. Wade, see note 16 supra.
25 These criteria are mandated by the Massachusetts statute itself.
26 To emphasize the grass-roots character of community associations, provider groups, such as medical societies—which, in some instances, might be characterized as community associations—have not been included in this category.
27 Public Health Council Meeting, Dec. 22, 1975. Application No. 6-2433.
28 The application eventually was approved at Public Health Council Meeting, Nov. 18, 1977. 29 Public Health Council Meeting, Sept. 27, 1977. Application No. 6-2646.
30 Acceptance of federal construction funds under the Hill-Burton Act, 42 U.S.C. § 291a-o, obligates a facility to provide a certain amount of free or below-cost care to indigents. 42C.F.R. § 53.111.
31 A virtually identical case is Lawrence General Hospital's project for a new emergency room. Public Health Council Meeting, Aug. 23, 1977. Application No. 3-2647.
32 At least seven of the surveyed applications appear to have been delayed in this manner.
33 Bicknell and Van Wyck felt that groups were of this type “more often than not.” Supra note 5, at 54. The present writer, however, could identify only 7 such groups (out of 260) on the face of the record.
34 Public Health Council Meeting, Oct. 28, 1975. Application No. 6-2434.
35 See, e.g., In the Neighborhood: A Report from the Beacon Hill Civic Association, Beacon Hill News, June, 1979, at 8.
36 Letter to Program Office from R. F. Loverud, attorney for the group (Nov. 7, 1975).
37 Minutes of Public Health Council Meeting, Oct. 28, 1975.
38 Letter to Program Office, supra note 36.
39 Public Health Council Meeting, Feb. 21, 1978.
40 Public Health Council Meeting, Nov. 14, 1978. Application No. 4-2729. The member institutions of The West Suburban Hospital Association involved here are Symmes Hospital, Framingham Union Hospital, Marlborough Hospital, Newton-Wellesley Hospital and St. Elizabeth's Hospital.
41 The Massachusetts certificate-of-need statute provides for intervention by parties other than the applicant only through formation of ten-taxpayer groups. Since the certificate-ofneed process is nonjudicial in nature, no provision is made for submission of amicus curiae briefs. Consequently, the telephone company was using the only means of intervention available and was not necessarily attempting to deceive the Public Health Council.
42 Public Health Council Meeting, April 30, 1975. Application No. 3-2476.
43 Public Health Council Meeting, Feb. 24, 1976. Application No. 3-2548. The sole example of a documented applicant-linked group found in the program files, Public Health Council Meeting, Feb. 22, 1977, Application No. 4-2657, should not be taken as representative of this category, precisely because it was clearly identifiable as such. This was the Chelsea-Revere-East Boston-Winthrop Task Force, which is affiliated, according to its letterhead, with Massachusetts General Hospital. Unsurprisingly, it supported MGHs application to revamp its satellite Chelsea Health Center. The Task Force's participation seems to have had no appreciable effect on the outcome. No community groups opposed this proposal, so this case is further distinguishable from the hypothetical situation in which applicant-linked groups might be used to counteract an impression of neighborhood hostility.
44 Merely collecting names and addresses seems to satisfy the very minimal requirements for formation of a ten-taxpayer group.
45 Public Health Council Meeting, Feb. 28, 1978. Application No. 4-2698.
46 Southborough's creation of a new zoning ordinance is one example of this phenomenon; the cancellation of the Southborough clinic's lease—revealing the application of pressure tactics in a purely private context—is another. For a discussion of the Southborough case, see text accompanying notes 15-18 supra.
47 See, e.g., acts by the Massachusetts legislature directing the Department of Public Health to grant certificates of need for: St. John of God Hospital, ch. 907, 1977 Mass. Acts 1262; The Amesbury Hospital, ch. 721, 1977 Mass. Acts 873; and Bessie Burke Hospital, ch. 583, 1974 Mass. Acts 561.
48 Commissioner of Public Health v. Bessie Burke Hosp., 366 Mass. 734, 323 N.E.2d 309 (1975).
49 Section 1122 of the Social Security Act of 1972, Pub. L. 92-603, 86 Stat. 1386, creates a federal certificate-of-need program with which cooperating states must comply if they are to receive certain federal health care funds. Massachusetts, however, has not implemented this section; instead, it has obtained federal approval of its own certificate-of-need program. Because of this federal approval, although the grant of a certificate by the Massachusetts legislature might not comply with federal requirements, such noncompliance does not result in the loss of federal funds.