Another Price Virginia Pays for Certificate of Public Need – Mediocrity in Cancer Treatment

NYC’s Memorial Sloan Kettering (MSK) has ranked in the top two “Best Hospitals for Cancer” every year since U.S. News & World Report began rating hospitals in 1990.

by James C. Sherlock

In an article titled “60 hospitals and health systems with great oncology programs headed into 2023,” Becker’s Hospital Review gives us a glimpse of one of the greatest costs of Virginia’s decades-long Certificate of Public Need (COPN) program.

The hospitals and health systems featured on this list have earned recognition nationally as top cancer care providers and many are on the cutting edge of novel therapies and researcher to improve outcomes and access to care.

The hospitals and health systems below are among the vanguard of cancer treatment and research in the country. Many of them have earned National Cancer Institute comprehensive cancer center designation and are ranked among the top hospitals for cancer care by U.S. News & World Report.

The list also features cancer centers with busy research institutes, multiple clinical trials and safety designations that exceed national benchmarks.

Hospitals and health systems listed below are dedicated to expanding their oncology departments and regional cancer centers to improve patient care locally and nationally. We accepted nominations for this list. Click here to find the 2023 nomination forms.


leading cancer programs. Not one of them is in Virginia, the 12th largest state. What we get, to be blunt, is state-sponsored and state-protected mediocrity among the nation’s hospitals in that specialty.

Central planning and lack of competition will produce that result. OK at a lot of things, the best at nothing.

If you want in on a clinical trial, Virginia is not the state in which to look for one.

Look at your leisure at COPN rules.

You will find no exception for excellence.

That does not mean, of course, that all of our physicians are mediocre. Or even all of our hospitals. Inova Fairfax, to name one hospital, is superb.

Family members have gotten wonderful treatment at MSK and by oncologists here in Virginia Beach.

It means that we cannot attract national centers of cancer excellence because they have no patience with COPN and regional monopolies.

COPN has never had any room for new out-of-state entrants into this closed market.

So, they ask themselves, why bother?

Congratulate your local Democratic General Assembly Delegate or Senator. Democrats have for as long as I have been keeping track voted as a block to maintain COPN.

Something about campaign donations from state health system incumbents. Donations that don’t only go to Democrats, but draw unquestioning support only there going back decades. Proving once again that Virginia hospitals are the most powerful lobby in the General Assembly.

While you are at it, ask your own General Assembly members where they plan to go if they or a family member needs cancer treatment.

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10 responses to “Another Price Virginia Pays for Certificate of Public Need – Mediocrity in Cancer Treatment”

  1. William O'Keefe Avatar
    William O’Keefe

    The federal COPN mandate was repealed almost 40 years ago and Virginia should have gotten rid of it then. It is anti-competitive and may be a barrier to entry but the notion that it prevents excellence in cancer treatment strikes me as a non-sequitor.
    VCU’s Massey Cancer Center is recognized for its excellence. Of the 1,500 cancer centers in the U.S., only 69 have earned an NCI designation, placing Massey in the top 4 percent nationwide. And, UVA’s cancer center was granted comprehensive status last year. Massey has been recognized by NCI and is on the path to obtain comprehensive status soon.
    James, I generally find your pieces well written and objective. Please don’t sacrifice objectivity if you have an ax to grind.

    1. James C. Sherlock Avatar
      James C. Sherlock

      Got it. We are all defensive of the home team, win or lose.

      But good enough is the enemy of better, and there is no competitive pressure for either VCU or UVa to be world class.

      That is just the truth.

      1. William O'Keefe Avatar
        William O’Keefe

        But national rankings and recognition are incentives. I’m not sure of the difference between world class and the NCI comprehensive designation but clearly the level of funding available helps to make a difference.

        1. James C. Sherlock Avatar
          James C. Sherlock

          It does.

          The two top ranked cancer centers, MSK and M.D. Anderson in Houston, have virtually unlimited endowments. But then again, they earned them with healing in the lives of the philanthropists and their families.

          So chicken or egg.

          But some of the other 60 don’t have the advantages of MSK and MDA and made it to the top anyway.

          Covenant Health in Knoxville is one. 10 hospital system.

          MUSC Hollings Cancer Center (Charleston, S.C.) is another.

  2. f/k/a_tmtfairfax Avatar

    The FCC, pursuant to 47 USC Section 214, used to require every carrier to request approval to build any “interstate lines.” It used to require a healthy showing to demonstrate that the proposal was not an unnecessary investment to increase the rate base and regulated revenues. And the services provided over such facilities were regulated.

    With the growth of competition for all services, the FCC amended its rules to grant any carrier blanket 214 authority to construct and operate interstate lines. And since there is no monopoly, gold plating the network only reduces profits. (A carrier still needs 214 authority to provide international services, but the review process is more focused on security issues.)

    A COPN is appropriate only where there are price/earnings regulation of the entity with the certificate. The GA should either end the COPN process or subject the holders to price/earnings regulation.

    North Carolina has the same type of bad law.

  3. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    You were doing fine until you turned partisan and chose to
    blame it all on the Democrats. I researched COPN legislation back to the 2010 Session. The one clear attempt to repeal the COPN provisions was in 2019 with SB 1361, introduced by Sen. Wagner, R-Virginia Beach. It failed in the Senate Committee on a 12-2 vote. Republicans were in the majority. Of the 9 Republicans on the committee, 7 voted to kill the bill. In 2016, HB 349 would have constituted a partial repeal. It was laid on the table (killed) in committee (Republican majority).
    HB 193 in 2016 would have phased out COPN. It passed the House on a vote of 52-46. Although most of the “no” votes were
    Democrats, 8 Republicans voted against it. Two Democrats voted for it. The bill was left (killed) in the Senate committee (Republican majority).

    There were a few other bills tweaking the COPN, all of which
    ultimately failed, almost all in committees with Republican majorities.

    In summary, since 2010, Republicans were in the majority in both houses in at least four of those sessions. Not only did they introduce few bills repealing or seriously weakening COPN, they killed the ones that were introduced. Support for COPN is bi-partisan.

    1. James C. Sherlock Avatar
      James C. Sherlock

      “HB 193 in 2016 would have phased out COPN. It passed the House on a vote of 52-46. Although most of the “no” votes were Democrats, 8 Republicans voted against it. Two Democrats voted for it. The bill was left (killed) in the Senate committee (Republican majority).”.

      Dick, you are sensitive enough to know how things work in the General Assembly when major political powers, whether it be Dominion Power or our monopoly hospital systems, oppose something.

      It takes a major act of political courage to oppose them.

      Political opposition will only coalesce when private negotiations show that a bill will pass with enough bipartisan support to relatively inoculate the members who vote against the powerful interests in their districts.

      Your protest is very weak.

      By your own analysis it was Democrats who positioned themselves to benefit if the health systems got into the revenge mode against whoever voted against them.

      All of the following bills were introduced in 2016.

      Kathy Byron’s HB59 Certificate of public need; definition of medical care facility; HB347 Laser-assisted in situ keratomileusis (LASIK); HB348 Certificate of public need; exception for certain equipment and services; and HB349 Certificate of public need. As did Del. Head’s HB463 Transfer of medical equipment; certificate of public need not required. And Bob Bell’s HB621 Certificates of public need and Richard Bell’s HB 651 Certificate of public need; increase of beds at certain facilities. Ditto Chris Peace’s HB688 Certificate of public need program and HB689 Certificate of public need; exception for cer- tain equipment and services. Ditto Bill DeSteph’s SB333 Certificates of public need and SB398 Certificates of public need; cataract surgery. Ditto Bill Stanley’s SB 641 Certificate of public need; SB19 Telemedicine; pilot program.

      Of all of those, you somehow picked out John O’ Bannon’s HB 193 Certificates of public need; creates three-phase process to sunset requirements for medical care.

      It got two Democratic votes in a hundred-member House.

      You clearly wanted to make your point without showing the enormous tide of Republican sentiment in 2016 to reduce the impacts of COPN.

      What did all of those bills have in common? All of the sponsors were Republicans.

      Sen. Barker’s SB585 Certificates of public need; conditions was drafted to increase the restrictions of COPN. His was the only Democrat COPN bill. It also failed.

      The 2016 revolt was the high water mark of anti-COPN sentiment in the GA.

      There were a few Republicans, most prominent of which was Sen. Steve Newman, the Chair of the Senate Health and Education Committee, who voted then and votes today with whatever the hospitals want or don’t want. That would be the same committee that killed HB 193. Newman’s political donations explain that divergence.

      So, on balance, I think you would have to admit that Republicans tried to rescue us from COPN and Democrats opposed every reform with the exception of Barker’s bill to make COPN even more restrictive.

      So spare me the fainting spell when I call out Democrats.

      Frank Wagner, who has been a personal friend of mine since 1994, asked me to draft the 2019 bill, even though the most powerful political force in his South Hampton Roads district was Sentara.

      It was an act of political courage that we too seldom see. He knew what the monopoly was doing to his district and wanted to make that statement that he knew had no chance of passage.

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        I picked out O’Bannon’s bill in 2016 for several reasons. The primary one was that it was the only that got traction, although it ultimately failed in the Senate. The other reason was that these bills are complex, I don’t have enough expertise in this area to understand them quickly, and, finally, I did not have the time to take to understand them. Also, they all failed in the Republican majority House.

        OK, so a few Republican legislators introduced bills to repeal or scale back COPN. All those bills got shot down pretty decisively in sessions in which the Republicans were in the majority in both houses. I am not defending Democrats on this issue; I am only saying that, as a whole, Republicans also are unwilling to go up against the big hospitals. Therefore, anyone wanting to reform or repeal COPN needs to talk to a legislator, be he or she Democrat or Republican.

  4. LarrytheG Avatar

    Which states have CON laws?

    In addition to the District of Columbia, the following states have a CON law for healthcare facilities:

    New Jersey
    New York
    North Carolina
    Rhode Island
    South Carolina
    West Virginia

    * As of 2019, Florida general hospitals —including acute care facilities, long-term care facilities, and rural hospitals — are no longer subject to CON approval, though the program still exists for other providers like hospices and children’s hospitals.

    The following states don’t have a CON law:

    New Hampshire
    New Mexico
    North Dakota
    South Dakota

    *Arizona, Minnesota and Wisconsin do not have an official certificate of need program, but maintain various approval processes that function similar to a CON law.

  5. Richard Smith Avatar
    Richard Smith

    I have asked Republican Delegate Keith Hodges (98th legislative district) at several meetings of the Mathews County Republican Committee over the years about getting rid of COPN.
    His stock answer… It’s complicated!!!!
    I’ll be kind at this point and say no more…

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