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| This seems like a pleasant backyard. |
2017 VT 56
By: Eric Fanning
Appellants here are a group of neighbors opposed to the placement of a mental health and substance abuse treatment center (called PATH) near their homes in Danby. They ask SCOV to reverse the Green Mountain Care Board’s decision to green-light the proposed project without a certificate of need (CON).
The first question you’re probably asking yourself is- what the heck is a certificate of need? You may also be wondering why is the Green Mountain Care Board involved here? Both perfectly reasonable questions- so let’s tackle those first. The Green Mountain Care Board performs a variety of statutory functions. Most of us are probably most familiar with how they are tasked with regulating insurance rates for Blue Cross Blue Shield and MVP’s Vermont Health Connect plans.
However, this case doesn’t involve that bit of their statutory charge. The Green Mountain Care Board also regulates the development of most proposed health care projects. Proposed projects must go obtain a CON from the Board before moving forward- but only if the CON process is triggered by one of the statutory provisions. A CON is essentially a finding from the Board that the proposed project is necessary to the cost-effective provision of health care services in the state, i.e. it won’t add unnecessary duplication of health care services and won’t add to the overall cost of health care delivery. The statutory trigger relevant here says that a project that has “an annual operating expense which exceeds $500,000 for either of the next two budgeted fiscal years” must obtain a CON.
PATH estimated to the Board that its operating budget for the first three years would be $413,373, $449,871, and $462,219. Therefore, the project was allowed to proceed without a CON. Concerned neighbors said “hold your horses! This facility’s gonna be bad for our town, and PATH’s projections are crazy close to the threshold to trigger a CON process! Isn’t it possible they could be trying to lowball their estimates to get around that step?” PATH submitted a revised estimate that yet again came under budget. The Board’s general counsel was satisfied that PATH’s estimate was reasonable and complete, and so the project again was allowed to go forward without obtaining a CON.
Neighbors argue to SCOV that the Board’s decision should be reversed because (1) the Board improperly delegated its authority to its staff members (i.e. its general counsel); (2) the Board did not make adequate factual findings to support its decision; and (3) PATH’s updated submission warranted further review.
SCOV says that some of these arguments may have teeth, but unfortunately for Neighbors, SCOV can’t hear the case because they lack standing. In order to appeal a decision by the Green Mountain Care Board, a person or organization who is not an applicant (the applicant in this place being, of course, PATH) must first obtain status as an interested party. The law gives you 20 days from when the public notice of the proposed project (the public posting is called the “letter of intent”). PATH’s letter of intent was published on March 22, but Neighbor’s didn’t request interested party status until July 6. Ergo, no right to appeal the Board’s decision.
In addition, SCOV holds that Neighbors didn’t file a timely appeal of the Board’s decision. The timely filing of an appeal is a “jurisdictional requirement,” meaning that if you don’t file an appeal within the time required by rule or statute, the court is without authority to hear the case- plain and simple. You may have the best slam-dunk case in the history of law, but if you don’t file within the appeal deadline, your case is dead as disco. The appeal deadline here is 30 days from the entry of judgment or order. Since the Board’s decision was issued on April 7, Neighbors had until May 7 to appeal. Their notice of appeal was filed on August 12- just a tad late.
Neighbors try to get around this by arguing that the REALdates on which the clock started ticking was the when PATH submitted their updated narrative with changes, and when the Board reaffirmed their determination that PATH’s project didn’t require a CON. SCOV’s not convinced.
SCOV notes that the updated submission by PATH was merely to apprise the Board of changes to the project, but these changes did included substantial increased operating expenses, or otherwise trigger the need for a new letter of intent or application for a CON. The Board’s rules here may sound somewhat strict, but the deal is that you only get one chance to intervene as an interested party, and that is when the project first comes to public light (i.e. posted on the Board’s website). Even if changes are made that the Board must review, you still don’t get another bite at the apple.
As I already mentioned, SCOV admits that some of Neighbors’ arguments may hold water- particularly about the propriety of the Board’s delegation of its power of review to its staff- but nonetheless SCOV doesn’t get to hear this one on the merits. Heed your deadlines, folks.
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