by James C. Sherlock
Democrats, the primary bulwarks for the Certificate of Public Need (COPN) law in Virginia, took the opportunity last year to create as part of a major revision to COPN law a new 19-member State Health Services Plan Task Force.
That group is to advise the Board of Health on the content of the newly renamed State Health Services Plan (ex-State Medical Facilities Plan (SMFP).
I wish the task force luck. They will need it.
The new task force is apparently a temporary casualty of COVID-19, but it shows how desperate the Democrats (read hospitals) are to revitalize COPN after a 2019 Chesapeake Circuit Court decision and supporting appeals court decision in Chesapeake Hospital Authority d/b/a, etc. v. State Health Commissioner and Sentara Hospitals.
Both decisions exposed it for what it is — a regional monopoly protection racket that is subjectively applied — and found the administration of the COPN system in Virginia to be incompetent at the same time.
And yet those court decisions affirmed a decision of the Health Commissioner that overturned a recommendation by his COPN staff. Why? Because the COPN law and regulations both permit and indeed rely on subjective opinions of the commissioner.
State judges are by precedent required to presume the commissioner knows what he is doing and defer to his judgment in subjective decisions unless there is strong evidence that he has made a mistake. I will write about those decisions this week.
The issue for the pro-COPN forces is that COPN is required to be based on such a state plan. Key portions of the two court decisions linked above hung on the compliance or non-compliance of the Commissioner’s decision with the existing State Medical Facilities Plan (SMFP).
A potential issue not raised in those trials is that Virginia law in force at the time of the 2019 court case required that the SMPF be validated or updated once every four years.
It hadn’t been updated since February of 2009 and there is no evidence that I can find that it was validated in that period. I remember that being a concern in the General Assembly a few years ago.
No healthcare provider to my knowledge has yet sued to void COPN enforcement based on the lack of a valid state plan, but the hospital monopolies who effectively own and operate COPN are concerned.
So the new State Health Services Plan is supposed to provide the baseline for all COPN decisions after it is proposed by the Task Force by November 1, 2022, and approved by the Board of Health.
My opinion is that there is no chance of this new task force achieving its written tasking. Ever.
Read the tasking below and make your own decision.
The Plan is to include:
“specific formulas for projecting need for medical care facilities and services subject to the requirement to obtain a certificate of public need,
current statistical information on the availability of medical care facilities and services,
objective criteria and standards for review of applications for projects for medical care facilities and services, and methodologies for integrating the goals and metrics of the State Health Improvement Plan established by the Commissioner into the criteria and standards for review.”
“Criteria and standards for review included in the State Health Services Plan shall take into account current data on drive times, utilization, availability of competing services, and patient choice within and among localities included in the health planning district or region; changes and availability of new technology; and other relevant factors identified by the Task Force. The State Health Services Plan shall also include specific criteria for determining need in rural areas, giving due consideration to distinct and unique geographic, socioeconomic, cultural, transportation, and other barriers to access to care in such areas and providing for weighted calculations of need based on the barriers to health care access in such rural areas in lieu of the determinations of need used for the particular proposed project within the relevant health planning district or region as a whole.”
The Task force is also tasked:
“To review annually and, if necessary, develop recommendations for revisions to each section of the State Health Services Plan on a rotating schedule defined by the Task Force at least every two years following the last date of adoption by the Board.”
and to ensure:
“1. The availability and accessibility of quality health services at a reasonable cost and within a reasonable geographic proximity for all people in the Commonwealth, competitive markets, and patient choice;
2. Appropriate differential consideration of the health care needs of residents in rural localities in ways that do not compromise the quality and affordability of health care services for those residents;
3. Elimination of barriers to access to care and introduction and availability of new technologies and care delivery models that result in greater integration and coordination of care, reduction in costs, and improvements in quality; and
4. Compliance with the goals of the State Health Services Plan and improvement in population health.”
What will be the makeup of the Task Force?
“The Task Force shall consist of no fewer than 19 (note: up from 15 in the previous iteration – may be someone’s lucky number) individuals appointed by the Commissioner who are broadly representative of the interests of all residents of the Commonwealth and of the various geographic regions, including two representatives of the Virginia Hospital and Healthcare Association, the Medical Society of Virginia, the Virginia Health Care Association, and physicians or administrators representing teaching hospitals affiliated with a public institution of higher education; one representative each of the Virginia Association of Health Plans, the Virginia Association of Free and Charitable Clinics, the Virginia Community Healthcare Association, LeadingAge Virginia, a company that is self-insured or full-insured for health coverage, a nonprofit organization located in the Commonwealth that engages in addressing access to health coverage for low-income individuals, and a rural locality recognized as a medically underserved area; one individual with experience in health facilities planning; and such other individuals as the Commissioner determines is appropriate.”
Will they have contractor support and expert testimony?
Of course. The Task Force is empowered:
“To engage the services of private consultants or request the Department to contract with any private organization for professional and technical assistance and advice or other services to assist the Task Force in carrying out its duties and functions pursuant to this section. The Task Force may also solicit the input of experts with professional competence in the subject matter of the State Health Services Plan, including (i) representatives of licensed health care providers or health care provider organizations owning or operating licensed health facilities and (ii) representatives of organizations concerned with health care consumers and the purchasers and payers of health care services.”
Not addressed is who gets to pick the contractor and who gets to decide what experts to call. Another prediction: Nothing a contractor produces that tries to satisfy the tasking will get broad support from the task force. There will be battles over every comma.
Who will appoint the members of the Task Force?
The same law says “the Board (of Health) shall appoint” and “appointed by the Commissioner.” I am sure that will be sorted out amicably.
How will the Task Force make decisions?
Remember, this Task Force is supposed to “fix” COPN by providing it an extraordinarily detailed roadmap. Interestingly, there is no language defining how the Task Force will come to any decision about any of this.
The reason that is important in this instance is that there is no way on God’s earth that the representatives of organizations listed as providing members of the Task Force will agree on anything.
What will happen?
I think the goals in the law are utterly unachievable by the task force designed to realize them. History supports that judgment.
The old 15-member SMFP task force drifted away.
And we can ask Governor Northam for his experience. In the summer of 2019 he convened a high level task force representing similar interests to review COPN and recommend changes.
It broke up in disarray when the hospital reps walked out.