DPH has final say on expansions, but will it use it?

Law is clear that the agency is not meant to be rubber stamp

AFTER RECEIVING input from the attorney general’s office and Health Policy Commission, the Department of Public Health is considering whether to approve or reject a proposal by Mass General Brigham to build ambulatory care centers in Woburn, Westwood, and Westborough.

The department’s pending decision comes at a time when many have questioned whether it has the authority to reject hospital expansions that could raise costs or threaten community providers. That skepticism surrounds the state’s determination of need (DoN) program, which regulates these types of projects. It was established to ensure the proper allocation of health care resources, control costs, and protect community hospitals from losing patients to competitors building facilities in close proximity to their facilities.

Under the current DoN process, a hospital or health system submits an application that details why they think it’s necessary to introduce more services or add facilities in a given geographic area. The DPH’s Public Health Council reviews staff recommendations and renders a decision on whether to allow the proposal to move forward. In recent years, nearly all of these projects have been approved, sometimes with conditions that the hospital would need to meet in order to move forward. Historically the Public Health Council has, where warranted, rejected proposed projects in whole or in part even in the face of staff recommendations for approval.

Yet, in recent months, former members of the Public Health Council have said that “they didn’t feel they had the power to deny projects,” and that they don’t have the staff capacity to make sure hospitals were adhering to conditions. These critiques, suggesting that the DPH rubber-stamps DoN applications, are intensifying as it considers MGB’s controversial expansion plans amid warnings from other regulators that the three clinics could raise health care costs.

As a former attorney for the Department of Public Health’s determination of need program, I was surprised to read about this. Because, to put it quite simply, DPH and the Public Health Council have the authority to reject any expansion proposal as they see fit, either in its entirety or in part.

In clear print, the DoN regulation describes its purpose as encouraging competition, innovation, and ensuring that “resources will be made reasonably and equitably available to everyone in the Commonwealth at the lowest reasonable aggregate cost.” An applicant must also demonstrate that its project “meaningfully contribute[s] to the Commonwealth’s goals for cost containment.” This requirement demonstrates that the Public Health Council’s review goes beyond merely assessing the project’s impact on the applicant’s own patient panel and includes consideration of the impact on overall state health care costs. 

If the Public Health Council finds that a potential project could raise costs, worsen inequities, or come into conflict with the DoN law as supported by all available information, it is well within its power to deny the application.

In the 13 years I spent as a deputy general counsel for DPH, we approved the applications because our analysis concluded that the applications met all of the legal and regulatory requirements for approval and would withstand any challenge on appeal. However, it was always clear that the Public Health Council had the authority to reject an application if, in its judgement, the application was not in compliance with the review standards.

To be clear, any efforts to strengthen the DoN process, like the health care bill that was recently passed by the House of Representatives, should be welcomed and considered. But let’s not kid ourselves into thinking that the state doesn’t already have the power to deny projects that would threaten health equity or drive-up costs.

Meet the Author

Carl Rosenfield

Former deputy general counsel, Department of Public Health
For the DPH and Public Health Council, it’s not a matter of whether they have the authority to stand up to large health systems when needed. Rather, the question we should ask is: how willing are they to take a stand to further the Commonwealth’s objectives of ensuring equitable access to affordable health care while containing costs?

Carl Rosenfield is a former deputy general counsel for the Department of Public Health. Both in this role and in subsequent years of private practice, he has worked extensively with determination of need policy and program operations issues.