AG’s Office steps away from Prouty Garden controversy, but fight continues

April 1, 2016
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By Emily Resnevic and Peter Shanley

Gazette Staff

The state Attorney General’s Office (AGO) has decided not to intervene to stop the demolition of the Prouty Garden, which is to make way for a Boston Children’s Hospital (BCH) clinical building. A group had asked for the AGO to do that under state charity law.

Meanwhile, BCH plans are undergoing a routine review by the state Department of Public Health (DPH), which held a hearing on the matter on Feb. 25 with both opponents and proponents advocating for their side.

BCH plans to replace the Prouty Garden and the 55 Shattuck St. building with a new clinical building at the corner of Shattuck Street and Meadow Lane on its main campus.

The new space would include the creation of the Bader Garden, which would be an indoor/outdoor space next to the clinical building. A three-level, year-round garden would also be built as part of the project, along with a spiritual and meditation space on the top floor of the clinical building. A rooftop terrace for patients would be included with the project.

According to the Massachusetts Horticultural Society website, the garden was a gift from Olive Higgins Prouty, a local author, and opened in 1956. It is described as a “small pocket garden” and as a “quiet oasis” located behind BCH’s main building. The garden, designed by the Olmsted Brothers landscape firm, is modeled after the terrace and garden at the Museum of Modern Art in New York City.

The Friends of the Prouty Garden had petitioned the Boston Landmarks Commission to landmark the garden. That petition was rejected by a 7-1 vote. The group hired a law firm and asked the AGO to stop the demolition, saying it goes against the terms of Prouty’s gift and her will. AGO has the authority to make sure funds to a charity are properly used.

Nora Mann, assistant attorney general and deputy division chief of the nonprofit organizations/public charities divisions, sent a letter to the attorneys representing the group that said, “We do not find a basis to conclude that the AGO’s intervention is warranted or appropriate at this time. As described below, our inquiry does not support the Friends’ contention that Prouty’s monetary gifts which were used to construct and maintain the Prouty Garden were impressed with an obligation that the hospital maintain the garden in its current configuration in perpetuity.”

Gregor McGregor, an attorney hired by the Friends group, said in a statement released to the Gazette that the letter is not a “significant development in the fight to save the Prouty Garden.”

“The state Attorney General has extremely limited jurisdiction over internal decision-making of charitable boards,” said the statement. “The AG’s Office, for example, does not second guess business decisions of charities. The staff letter itself makes clear the limited scope of the AG’s review in the Boston Children’s Hospital matter and confirms the AG does not have legal jurisdiction to review alternative sites for hospital projects. The AG did not do so in this situation.”

On Feb. 25, DPH held a public hearing to review support for BCH’s Determination of Need (DoN) for the construction project.

The DoN program, established by the legislature in 1971, promotes the availability and accessibility of cost effective and high quality health care services to Massachusetts citizens, according to DPH. It also assists in controlling health care costs by eliminating duplication of expensive technologies, facilities, and services, according to DPH.

The DoN program evaluates proposals and makes recommendations to the Public Health Council for approval or denial of the expenditures or new services, and the Public Health Council makes the final decision.

BCH filed the clinical building project with DPH on Dec. 7, 2015, and it is currently undergoing the four month long approval process with up to an additional two month extension, according to DPH.

According to the Children’s Hospital, the new clinical building will update their Neonatal Intensive Care Unit by uncoupling double patient rooms. Soil and many plants from the Prouty Garden have been set aside to be relocated in new gardens that the Hospital plans to create.

“We have a deep appreciation for the role that sunlight, relaxation, and respite play in the healing process, and which is why, central to our clinical expansion will be the incorporation of open and green spaces to support healing throughout our campus, year round,” said Sandra Fenwick, President and CEO of BCH, at the Feb. 25 meeting, according to testimony posted online. “The space we’re creating is about more than just comfort—it’s also about enhancing care.”

Many people spoke in opposition of the BCH plan and in the defense of the Prouty Garden, including one father, Gus Murby, who said according to testimony sent to the Gazette that he could “attest to the critical impact the Prouty Garden had on my son’s quality of life during a time when he faced grave uncertainties about the likelihood of surviving his illness.”

Dr. Michael Rich of BCH said according to testimony sent to the Gazette that “destroying Prouty Garden would cause significant internal problems with staff who provide, and patients and families who receive, care at Boston Children’s Hospital…I and nearly 150 other members of the Boston Children’s staff have signed a petition opposing the destruction of the Prouty Garden, as have more than 13,000 who have benefited from its therapeutic refuge.”

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