As soon as January 1, 2009, new construction or gut renovation of a healthcare facility in Massachusetts may need to meet green building standards.
On September 24, 2008, the Massachusetts Department of Public Health ("DPH") approved new guidelines (the "Guidelines") that incorporate the Leadership in Energy and Environmental Design-Health Care ("LEED-HC") and Green Guide for Health Care ("GGHC") green building standards into the Determination of Need ("DoN") process. The Guidelines will apply to all DoN applications filed on or after January 1, 2009 (for hospitals and clinics) or July 1, 2009 (for nursing homes).
Before a healthcare facility (such as a hospital, clinic, or nursing home) may begin construction or substantial capital improvements, Massachusetts requires the facility to obtain a DoN from DPH. Under current DPH regulations, a DoN applicantion must demonstrate that its plan for executing the project will take "all feasible measures...to avoid or minimize damage to the environment". 105 CMR 100.533(B)(8) ("Factor 8"). Until now, the substantive requirements associated with Factor 8 have been largely related to compliance with the Massachusetts Environmental Policy Act. In adopting the Guidelines, DPH vastly expanded the scope of Factor 8, adding an instruction to the DoN application package that applicants "demonstrate their consideration of and commitment to" LEED-HC and GGHC standards and be certifiable as a "silver level" green building.
The Guidelines are organized around seven factors for review under LEED-HC or GGHC (the "Green Building Factors"). Each Green Building Factor consists of a standard that DPH will use to evaluate the DoN application and a series of measures that establish specific criteria for determining when an application meets the standard. Applicants must explain how they will meet each measure, describe the resulting improvements in environmental and human health, and where a measure cannot be met, detail the decision-making that went into that determination.
As part of the DoN application, an applicant must submit a provisional assessment of the likely strategies to be employed to meet the silver level certification. To meet this level, the project plans must achieve at least 50% of the possible number of credits available under LEED-HC or GGHC. However, approval of the DoN application is not contingent on the information contained in that provisional assessment. The final assessment of the credits a project will achieve must be submitted to the Division of Health Care Quality as part of the Plan Review. Unlike DoN approval, which is based on the provisional assessment, Plan Review approval is contingent on the final assessment meeting the credit threshold for a silver level green building.
By incorporating green building standards into Factor 8, DPH affected a significant shift in the environmental impact analysis a DoN applicant must conduct. Meeting the LEED-HC and GGHC credit threshold may require applicants to consider mitigation options that would not otherwise be discussed, such as Brownfields redevelopment, alternative transportation infrastructures, reclaimed water use, or on-site power generation. Even among the environmental issues that are more familiar to healthcare facility developers, such as stormwater discharge and air quality management, the Guidelines introduce new incentives for solutions that go beyond what is required by water or air regulations. In at least some instances, the "greenest" solution under LEED-HC or GGHC will not fall neatly within existing regulations and may require close coordination with state and municipal authorities in order to win approval.
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