Members of the Friends of Prouty Garden group get a court win

Suffolk Superior Court Judge Salinger has allowed a motion to supplement the Department of Public Health’s (DPH) administrative record regarding the approval of Boston Children’s Hospital’s (BCH) Determination of Need (DoN) for a $1 billion clinical tower, according to a spokesperson for the Ten Taxpayer Group.

The motion is in regards to Ten Taxpayer Group’s lawsuit against Boston Children’s Hospital that alleges that the hospital began construction of a new building before obtaining a DoN, violating state law. Ten Taxpayer Group is comprised of members of Friends of Prouty Garden who had advocated for saving the garden, which has since been demolished.

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’s citizens, according to DPH. It also assists in controlling health care costs by eliminating duplication of expensive technologies, facilities, and services.

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. The council gave the project a green light last fall.

The lawsuit seeks an injunction to stop construction and fundraising for the project and the issuance of daily penalties as provided by law against BCH for its violations.

On May 5, the court agreed that the record of the project should be the 13-volume start-to-finish administrative record on the project instead of DPH’s administrative record, according to Lisa Capone of Ten Taxpayer Group. Members of the Friends of Prouty Garden, known in the lawsuit as Ten Taxpayer Group, consider this motion a small victory in their attempt to stop Boston Children’s Hospital (BCH) construction for a new facility that has led to the demolition of Prouty Garden, according to Capone.

Capone of Ten Taxpayer Group said that DPH’s initial record was “paltry” since it only contained the proceeding of the Public Health Council, whereas the record that was allowed by the judge starts with the initial DoN application and includes all comments to the DPH and all reports and analysis submitted by the plaintiffs.

Ten Taxpayer Group will be using the 13-volume administrative record as backup for various arguments in the case. These arguments are that DPH did not consider if the BCH project would duplicate existing services; that the volume of BCH patients is decreasing, not increasing; that the hospital began work on the project before the council granted the DoN; and that all work associated with the project was not included in the DoN application, according to Capone.

Ten Taxpayer Group will file a motion for judgment on the pleadings, which is due June 5, according to Capone.

“In the meantime, this raises questions about the risk BCH may be taking in continuing construction activities, as the appeal is still pending and the Friends have won this important first round,” said Capone.

Boston Children’s Hospital did not respond to the Gazette’s request to comment.