Tag Archives: James Sherlock

Don’t Blame Northam for Virginia Medicine’s Structural Flaws

Governor Northam when announcing stay-at-home order this morning.

by James C. Sherlock

I have to give Governor Ralph Northam a partial pass on a key issue. Much of the criticism directed at him is for actions or inactions that are based on incomplete data and, as a a consequence, incompletely informed staff assessments concerning the business of healthcare in this state. That is a structural problem in state government, not a leadership problem.

The Department of Health is not designed as a crisis action agency and has no authority to oversee Virginia’s healthcare system as an industry. It administers Certificate of Public Need regulations and oversees the practice of medicine, not the business of medicine. No agency regulates that business except in the narrowly focused and demonstrably failed COPN system. There is no such regulation because Virginia’s integrated health systems don’t want their businesses to be regulated, and not any other reason.

Virginia’s Board of Health is not designed or populated to function in a crisis and it hasn’t in this one (See this post from Feb. 22). The public health issues addressed by the Virginia State Board of Health include the prevention and control of chronic disease, not pandemics. Continue reading

NoVa Physicians List COVID-19 Priorities

by James C. Sherlock

I re-publish here a communication from the Medical Society of Northern Virginia Board of Directors on matters of importance to its member physicians. Their concerns are the public’s concerns.

Dear members,

First, on behalf of the board of directors, I would like to thank our first line responders; primary care physicians, hospital-based physicians and their ancillary staff, who are risking exposure to COVID-19 daily, while taking care of sick patients. In keeping with all the recent advisories and regulation waivers from CMS and the state, we offer the following recap and added recommendations to protect yourself and your practice.

We support Governor Northam’s recent executive order, issuing temporary restrictions to public gatherings to less than 10 people for non-essential business and adherence to social distancing recommendations. Medical services are excluded since we are essential services. However, the shortage of PPEs and COVID-19 testing pose serious impediments to mitigating the spread of this virus. As we indicated to the Governor last week, most independent practices are not equipped to handle specimen collections. Our offices are generally not set up for dealing with the aerosols associated with this highly communicable disease.  Continue reading

COVID-19, COPN, and Strawmen

by James C. Sherlock

Every time the discussion in this space turns to COPN and its relationship to lack of capacity to deal with COVID-19, some commenters accuse the authors of these columns of favoring nonsensical solutions such as forcing hospitals to build excess capacity. Those same commenters then reject those concepts as unworkable. That is the very definition of a straw man. Unfortunately it mirrors what will be a all-hands-on-deck attempt by Virginia’s hospitals and their lobbyists to sweep the damning history of COPN under the rug in the 2021 General Assembly.

No author has suggested building excess capacity to “sit idle”; what we each have suggested is to let commercial businesses, both for-profit and not-for-profit, build what they think is necessary where the think it is necessary without state interference other than enforcement of antitrust and licensing laws. Every one has carefully wrought business plans. If some misjudge demand, then either they will fail or their competitors will. If it existing provider facilities fail, that means that the new entrant offered better care or a better price or both. Any restrictions on such creative destruction must be swept away for the good of all of us.

What about day-to-day non-crisis access for the poor?

“Recent research by Thomas Stratmann and Jacob Russ demonstrates that there is no relationship between CON programs and increased access to health care for the poor. There are, however, serious consequences for continuing to enforce (COPN) regulations. In particular, for Virginia (COPN restrictions) could mean approximately 10,800 fewer hospital beds, 41 fewer hospitals offering magnetic resonance imaging (MRI) services, and 58 fewer hospitals offering computed tomography (CT) scans. For those seeking quality health care throughout Virginia, this means less competition and fewer choices, without increased access to care for the poor.”[1] Continue reading

COPN’s Deadly Quid Pro Quo

The Arlington hospital referral region had the highest ICU capacity gap in the country in this 2018 American Hospital Association survey.

by James C. Sherlock

The Northern Virginia Community Hospital in Arlington was bought by HCA in 2002.  The Arlington facility was closed in 2006 to comply with a 2005 Certificate of Public Need (COPN) decision that required HCA provide “trade-in” beds in the same health region to gain state permission to build a hospital in Loudoun County. (See this Washington Business Journal story. You will see that the business press knew the deal back in 2002.)

Regular Virginians have to ask why in the world HCA was required to buy and close the Arlington facility to build 30 miles away in Loudon County. And why in the world was the state involved in such a business decision in the first place?

In approving that application, the Health Commissioner reversed the recommendation of the DCOPN staff. We don’t know the reasoning for either the staff recommendation or the Commissioner’s reversal. Was some formula used? Why did Arlington, with its population far higher than when Arlington Hospital Center (now the only hospital in Arlington) was built, suddenly need fewer hospital and ICU beds? We know only the outcome.

The Commissioner was presented with a Hobson’s choice as a result of esoteric COPN rules devised by the VDH itself. A hospital in Arlington or a hospital in Loudon?  “Both” was not historically an available decision. After 47 years of COPN, that is what has evolved.

Continue reading

Governor Northam, Don’t Destroy the Future

by James C. Sherlock

The President has just demonstrated strategic command of two ideas, combating the virus and preventing economic disaster, and is pursuing them in parallel.

His background as a successful leader of a large business gives him understanding of the complexity, interdependence and fragility of the economy. He knows that already some businesses will remain shuttered forever. More the longer we wait. Those businesses provide livelihoods not only to their owners, but also to their employees. Not all of them we see. While some are consumer-facing, others supply goods and services without which downstream production and retail can be brought to a halt and the food supply can suffer.

He described wide swaths of the country — the farm belt and many western states — far less impacted by the virus than the great international cities, media centers all, on the coasts.

The President wants the governors, including Virginia’s, to begin to open the economy in their states or parts of their states as soon medical data suggest it is relatively safe to do so. To wait for a declaration of absolute safety by scientists is to misunderstand the standards of scientists. Continue reading

Leadership in the Time of COVID-19

We comment endlessly on the performance of our federal, state and local leaders in the time of COVID-19. It is perhaps time to discuss what successful wartime leadership at the top levels looks like without discussing individual personalities so that we have a common standards with which to measure them.  I offer the following:

The characteristics of success at the highest level leadership in times of crisis include:

  • Remain calm in the face of the enemy.
  • Possess training and experience at lower levels of command to understand the characteristics and implications of leadership success and failure or, less often, find oneself to be naturally gifted without such preparation.
  • Have a strong belief in oneself.
  • Be able to inspire or command the support of enough skilled people to achieve victory.
  • Be able to sort through strategic options offered by staff to choose the right ones in roughly the right order.
  • Be more concerned about strategic results than tactical ones.
  • Maintain the strategic picture in the face of sequential narrow advice by specialists/
  • Be a master of messaging and presence to inspire one’s own forces and create fear in adversaries.
  • Harness personal ambition to deal with an existential threat

All of that adds up to being a supremely skilled patriot. A great leader must not be a master of all of these, but certainly most. Badly implemented, these characteristics can existentially threaten. Appropriately harnessed, they produce greatness.

— James C. Sherlock

COVID-19 Waivers Update

by James C. Sherlock

I provide here an update on the status of waivers of federal health care laws in response to the COVID-19 crisis. All of the source materials are official government websites.

On March 13, the President declared a public health emergency under the authority vested in him by the Constitution and the laws of the United States of America, including the National Emergencies Act and consistent with section 1135 of the Social Security Act (SSA).

Under that proclamation, the Secretary of HHS has exercised the authority under section 1135 of the SSA to temporarily waive or modify certain requirements of the Medicare, Medicaid, and State Children’s Health Insurance programs and of the Health Insurance Portability and Accountability Act Privacy Rule throughout the duration of the public health emergency declared in response to the COVID‑19 outbreak. Continue reading

Options Available for Waiving Federal Healthcare Laws

James C. Sherlock

I provide here an update on the status of waivers of federal health care laws in response to the COVID-19 crisis. All of the source materials are official government websites.

On March 13, President Trump declared a public health emergency under the authority vested in him by the Constitution and the laws of the United States of America, including the National Emergencies Act.

Under that proclamation, the Secretary of HHS has exercised the authority under section 1135 of the SSA to temporarily waive or modify certain requirements of the Medicare, Medicaid, and State Children’s Health Insurance programs and of the Health Insurance Portability and Accountability Act Privacy Rule throughout the duration of the public health emergency declared in response to the COVID‑19 outbreak. Continue reading

Politicians and COVID-19: First, Do No Harm. Second, Do No Harm

by James C. Sherlock

Do Not Regulate Surgical Decisions 

There are things the state should not do during an emergency. Regulating elective procedures is one of them. I agree with the statement of the hospitals[1].  If we had more hospitals and far more physician-owned ambulatory surgical centers, the problem would have an alternative solution. But we don’t because of 47 years of Certificate of Public Need regulation. The decisions of Virginia’s Health Commissioners artificially limiting supply are available in state records for all to see.

A key reason I agree with the hospitals position that decisions on surgery should remain at the local level is that even if some might think such things should be regulated by the state, and I don’t, it is far too late for intervention in a matter that the state is not set up to oversee. Blind regulation is a terrible thing to contemplate.

Deal with the Connected Issues of COPN and State Oversight of the Business of Healthcare

The Governor just waved Certificate of Public Need (COPN) restrictions, but effectively only for certificate holders. The Governor and the General Assembly can heavily reduce the restrictions in COPN or repeal it next year, but there are legislative solutions immediately available that can help. In the upcoming special session, the General Assembly should pass two bills that were laid on the table in the House of Delegates earlier this year: Continue reading

Virginians, Look to State/Local Government for COVID-19 Response

by James C. Sherlock

Our schools generally don’t do as good a job teaching civics education as they used to — that’s an old man talking! — which leaves a lot of people confused as to where to look in a crisis. The conversations we see on Bacon’s Rebellion reflect that confusion even among the sophisticated readership of this blog. Much of the press reporting is devoid of this perspective.

The United States constitution defines a federal system of government in which power is divided among the national government and state governments. Some areas of public life are under the control of the national government and some areas are under control of the state governments. The original reason for the founders choosing that system was maintenance of personal freedom and empowering the governments closest to the people. Those reasons still apply.  To that reason we can now add scale. The profound differences of all kinds among the states ensure that one size truly cannot fit all.

Virginia is a sovereign state under the constitution. The federal government does a lot of things, but it does not have direct responsibility for how well Virginia — or California, or Texas — handles COVID-19.

The Governor of Virginia and the Secretary of Health and Human Resources — physicians both — are responsible for managing the crisis in Virginia. So conversations on this blog regarding the National Stockpile and the capabilities of the Defense Department and pretty much all other issues relative to state utilization of national resources need to start with an understanding that the Governor must request those resources.

Continue reading

COVID-19 Emergency Actions for Consideration

by James C. Sherlock

I was asked yesterday by Christian Braunlich, president of the Thomas Jefferson Institute for Public Policy in Alexandria, to prepare a list of recommended state actions to cope with the emergency. I produced the attached list. The recommendations are offered here as requested with no attempt to prioritize. No attempt has been made to keep up with rapidly changing federal and state actions that may affect this list. I hope it may help.


Subject: COVID-19 Emergency Actions for Consideration by Virginia’s Governor, Attorney General, Insurance Commissioner and General Assembly[1]

A. Health-care and health insurance-related recommendations

1. Department of Medical Assistance Services (DMAS) request from CMS Section 1135 waivers as appropriate. Continue reading

Virginia Lags in COVID-19 Policy Actions

by James C. Sherlock

The Kaiser Family Foundation today reported state COVID-19 policy actions through March 17.  Virginia is one of only 18 of 50 states and the District of Columbia to have taken none of the listed policy actions other than an emergency declaration.

The actions not taken include:

  • Waive cost sharing for COVIC-19 testing
  • Waive cost sharing for COVID-19 treatment
  • Free cost vaccine when available
  • Waiver of prior authorization requirements
  • Early prescription refills
  • Marketplace special enrollment period (N/A in Virginia)
  • Section 1135 waiver[1]
  • Paid sick leave

(To view raw policy action data for each state and the District of Columbia, click here.)

To that list of actions not taken I would personally add two more. Continue reading

Blame COPN for Looming Bed Shortages

by James Sherlock

The hospital bed shortages cited by Jim Bacon in his post, “Not Nearly Enough Hospital Beds, is a direct outcome of how the Virginia Department of Health (VDH) has administered Virginia’s Certificate of Public Need law. Virginia’s scarcity of physicians and nurses also can be traceable in part to COPN’s denial of opportunities to doctors, as I have written previously, but this column will address the impact of the legislation on beds and facilities.

Virginia’s Health Commissioner has sole responsibility under the COPN law for determining how many beds are “needed.” Commissioners since 1973 have taken no discernible action to make sure there are enough beds, only that there are not too many, whatever that means on a given day.

The COPN Process. The VDH COPN Division makes recommendations on each application, and the Commissioner makes the decision. There used to be five regional review authorities that made recommendations before applications reached headquarters, but four of them died out and only the Northern Virginia regional authority survives. The judgments of approval or disapproval are entirely subjective. Continue reading

Money and Chaos in Virginia Politics

by James C. Sherlock

Having watched the flood of money into the 2017 and 2019 Virginia elections and the utter chaos in the 2020 General Assembly, I offer what I hope are two reform suggestions that meet with bipartisan approval.

Limit the money in state politics

I wrote an entire column on the abuses of unlimited campaign donations and their effects on healthcare policy in Virginia. Bacon’s Rebellion has been reporting on the system for years.

Campaign donations in unprecedented amounts in 2016-17 and 2018-19 directly affected our state elections first for constitutional officers and then for the General Assembly. An ocean of out-of-state money now threatens to tilt Virginians’ votes on a constitutional amendment for redistricting reform that was agreed upon by bipartisan majorities in the 2019 and 2020 General Assemblies under Republican and then Democratic leadership. Continue reading

A Military Man Ponders COVID-19

by James C. Sherlock

We can’t click our heels like Dorothy in the Wizard of Oz to avoid the consequences of COVID-19. We have to do the hard work of reducing the spread and working intelligently with what we have.

Two military axioms apply directly:

  • Surprise attacks are come-as-you-are events.
  • Operational plans seldom survive the first contact with the enemy.

But strategic planning does survive first contact. Leadership at all levels does.  Experience does. Training does. Forces held in reserve do. Logistics does. All of those win battles.

The pandemic virus plans are in place or are at least required to be. Inspections of readiness have been done regularly or at least were required to have been done. I have listed those plans and inspections in this space as a public service. We will discover whether leadership, training, staffing, and logistics are sufficiently robust. Continue reading