In re PATH at Stone Summit, Inc. Concerned Neighbors, Appellants
Appeal from Green Mountain Care Board
Kenlan, Rutland, for Appellants.
William H. Sorrell, Attorney General, and Bridget C. Asay,
Solicitor General, and Benjamin D. Battles, Assistant
Attorney General, Montpelier, for Appellee.
PRESENT: Dooley, Skoglund, Robinson and Eaton, JJ., and
Davenport, Supr. J. (Ret.), Specially Assigned
Neighbors are a group of property owners in the neighborhood
of PATH at Stone Summit, Inc.'s proposed therapeutic
community residence in Danby. They appeal the Green Mountain
Care Board's decision that the proposed project could
proceed without a certificate of need under 18 V.S.A. §
9434(a)(5). We conclude that the appeal is not properly
before this Court because Neighbors failed to timely file a
petition to become interested parties. Accordingly, we
dismiss Neighbors' appeal.
2. To better explain the events that gave rise to this
appeal, we review the relevant aspects of the Board's
certificate of need (CON) process. The Legislature has
charged the Board with regulating the development of health
care projects across the state. 18 V.S.A. §§
9431-9446. Under 18 V.S.A. § 9434, those seeking to
develop a "new health care project" cannot begin
development before obtaining a CON from the Board. The
definition of "new health care project" includes
several triggers, any one of which renders a project a
"new health care project" subject to the CON
requirement. 18 V.S.A. § 9434. The provision relevant to
this appeal requires a CON for a project that has "an
annual operating expense which exceeds $500, 000.00 for
either of the next two budgeted fiscal years."
Id. § 9434(a)(5). If the applicant agrees that
a CON is necessary for the project, the applicant may file a
CON application with the Board without further process.
Id. § 9440(c)(2)(B). Otherwise, the applicant
must file a letter of intent, which the Board reviews to
determine whether the applicant must seek a CON for the
project. Id. § 9440(c)(2)(A), (c)(3). The Board
requires the letter of intent to include, at a minimum, a
summary of the proposed project, its projected expenses, and
any additional information necessary to determine if a CON is
necessary. Certificate of Need Rule 4.301(2), Code of Vt.
Rules 80 280 004 [hereinafter CON Rule],
3. If the Board concludes that a CON is necessary, the
applicant must file an application before beginning
development of the project. 18 V.S.A. § 9440(c)(3). If
the Board determines that a CON is not required, "a
health care facility may commence the proposed project
without risk of penalty or sanction." CON Rule 4.301(4).
To the extent the "project changes from that described
in the letter of intent, the health care facility shall
notify the Board, which shall notify the health care facility
of any further necessary process." Id. "If
the Board subsequently determines that a no jurisdiction
determination was based on partial, incorrect, inaccurate or
misleading information, the Board may rescind its
determination, assert jurisdiction over the project, and may
impose sanctions." CON Rule 4.301(5); see also 18 V.S.A.
§ 9445 (describing Board's enforcement powers).
4. When the applicant files a letter of intent, the Board
must post public notice of the letter on its website within
five business days of receiving the letter. 18 V.S.A. §
9440(c)(2)(A). Pursuant to CON Rule 4.301(2), the applicant is
also required to provide public notice of the letter of
intent. Petitions to intervene as interested
parties must be filed within twenty days of the Board's
public notice of the letter. 18 V.S.A. §
9440(c)(7). The Board grants interested party status
to those "who demonstrate that they will be
substantially and directly affected by the new health care
project under review." Id. Under §
9440(f), "[a]ny applicant, competing applicant, or
interested party aggrieved by a final decision of the
Board" may appeal the decision pursuant to § 9381.
Section 9381 allows parties to appeal Board decisions to this
Court after they exhaust all administrative remedies.
Id. § 9381(b).
5. In this case, pursuant to 18 V.S.A. § 9440(c)(2)(A),
PATH filed a letter of intent with the Board on March 22,
2016. The letter explained that PATH was proposing to open a
residential treatment center for adults between the ages of
eighteen and twenty-nine who are struggling with mental
health issues such as depression, anxiety, bipolar disorder,
substance abuse, and personality disorders. It explained
PATH's approach to treatment, described the facility PATH
would rent in Danby, listed the staff that PATH would employ
and the compensation they would receive, and explained what
fees PATH would charge its residents. It stated that PATH
would initially accept six residents, but would reach its
full capacity of eight residents by year three. PATH also
attached the projected operating costs over the next three
years. It estimated the total expenses for the first year to
be $413, 373, the second year to be $449, 871, and the third
year to be $462, 219.
6. Neighbors do not dispute the Board's representations
that PATH posted notice of the letter in regional newspapers
on March 28 and the Board posted notice on its website.
Although the specific date of the Board's notice is not
in the record, Neighbors have not argued that the Board
failed to post the notice within five business days of
receiving the letter of intent, as required by 18 V.S.A.
§ 9440(c)(2)(A), or that Neighbors requested interested
party status within twenty days of the Board's posting.
7. On April 7, the Board's senior policy analyst notified
PATH that it did not need to apply for a CON. The letter
stated, "[b]ased on the representations contained in the
documents and spreadsheet submitted . . . the annual
operating expenses for the first three years are under the
$500, 000 threshold that triggers review." The policy
analyst added that, "if there are changes in the future
in the type or scope, annual operating expenses or planned
expansions, please notify the [Board] immediately so that we
may determine whether further review is required."
8. On May 12, the Board's general counsel contacted
PATH's lawyer, stating that the Board had received an
inquiry into the accuracy of PATH's expenses. The general
counsel explained that "PATH's cost projections
appear reasonable and inclusive of all anticipated
expenses." However, given the proximity of PATH's
operating expenses to the statutory threshold, she requested
that PATH review its projections and either confirm that
those expenses remained below the $500, 000 threshold or
begin a CON application.
9. On May 13, two Danby residents emailed the Board Chair
about PATH's letter of intent, arguing that the Board
should not allow the project to go forward because PATH had
underestimated its expenses and because the project presented
a risk to the neighborhood. The email included a detailed
list of perceived errors in the narrative accompanying
PATH's letter of intent, arguing that "PATH has
intentionally underestimated ...