A group of neighbors was too late to challenge a decision that paved the way for a therapeutic residential facility to open in Danby, the Vermont Supreme Court ruled.
The decision handed down Friday by the state’s highest court dealt with the neighbors’ appeal of a Green Mountain Care Board determination regarding the now-open treatment residence on Colvin Hill Road, called PATH at Stone Summit. “PATH” stands for “Program for Adult Transition to Health.” The facility is for those with substance abuse and other mental health issues.
Neighbors raised several issues with the proposal, including the projected annual budget of the facility, which was less than $500,000 for each of the first three years. A figure above that $500,000 annual level would have required the operators to apply to the Green Mountain Care Board for a permit called a certificate of need in order to open.
“(The neighbors) appeal the Green Mountain Care Board’s decision that the proposed project could proceed without a certificate of need,” the high court wrote in the ruling. “We conclude that the appeal is not properly before this Court because Neighbors failed to timely file a petition to become interested parties.”
The decision said the neighbors didn’t seek interested party status “until July 6, long after the 20-day window had closed.”
Neighbors contended that the projected budget had been low-balled to stay below that $500,000 level, and that more should have been done to scrutinize that spending plan to ensure it was reasonable and provided adequate supervision for those receiving care.
According to the decision, PATH, in a letter to the board on March 22, 2016, had proposed opening a residential treatment facility for adults between ages 18 and 30 suffering from mental health issues such as depression, anxiety, bipolar disorder, substance abuse and personality disorders.
On April 7 last year, according to the ruling, the board’s senior policy analyst notified PATH that it did not need to apply for a certificate of need. That letter stated, according to the high court, that “[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.”
Then, on May 13, two Danby residents emailed the board’s chair about PATH’s letter. They argued, according to the decision, that the board should not allow the project to go forward, arguing, in part, that “PATH has intentionally underestimated their annual operating expenses in order to keep these costs below the threshold that would trigger” certificate of need review.
Associate Justice John Dooley, who is now retired, wrote in a concurring opinion that the issues the neighbors raised would best be taken up by a different entity, not the Green Mountain Care Board.
“Neighbors oppose the location of the facility near their residences and are concerned with whether the facility will be operated with adequate security to prevent a patient from leaving the facility and interacting with Neighbors in inappropriate or even dangerous ways,” Dooley wrote. “I do not deny the validity of Neighbors’ concerns, or the need for a forum in which to have them considered, but I question whether the Green Mountain Care Board and the CON process is the proper place for these concerns to be addressed.”
The retired associate justice added that the certificate of need process is focused on necessity, cost and quality of health care expenditures, and not on facility siting.
“Moreover,” Dooley wrote, “the concerns may be appropriate for consideration in facility licensing” by the Vermont Department of Disabilities, Aging and Independent Living.
A. Jay Kenlan, a Rutland attorney representing the neighbors, could not be reached Monday for comment. Lawyers for the Vermont attorney general’s office, who represented the Green Mountain Care Board, also could not be reached Monday.
