Virginia Board of Health & the Infrastructure of Influence

by James C. Sherlock

The Virginia Board of Health (the Board) is by law a policy board (§ 2.2-2100) appointed by the Governor with the majority of seats specifically reserved for representatives of interests regulated by the Department of Health.

Virginia law gives the Board broad policy, regulation and enforcement responsibilities and duties to communicate to the General Assembly.

This arrangement puts representatives of regulated businesses in charge of developing and enforcing the regulations that govern their businesses. The Board then assures us they are advocating for the citizens and cites “advocacy concerning health care reform” as one of its core functions.

Really.  I could not make that up.

The Board mission statement reads:

The State Board of Health exists to provide leadership in planning and policy development for the Commonwealth and the Virginia Department of Health to implement a coordinated, prevention-oriented program that promotes and protects the health of all Virginians. In addition, the Board serves as the primary advocate and representative of the citizens of the Commonwealth in achieving optimal health.”

Board of Health responsibilities under the laws of Virginia include but are not limited to:

– “Makes, adopts, promulgates and enforces regulations, and provides for reasonable variances and exemptions therefrom, to carry out its responsibilities or those of the Commissioner or the Department.” (§32.1-12)
-“The Board may make separate orders and regulations to meet any emergency, not provided for by general regulations, for the purpose of suppressing nuisances dangerous to the public health and communicable, contagious and infectious diseases and other dangers to the public life and health.” (§32.1-13)
-“Directs the Department (of Health) to inform the Board regarding health care policy and financing concerns through studies to be conducted with the advice of and in consultation with the Virginia Health Planning Board (invalid reference – no longer in operation); makes recommendations concerning health care policy to the Governor, the General Assembly, and the Secretary of Health and Human Resources (§32.1-13.1)
-Submits an annual report to the Governor and General Assembly §32.1-14).
-Suggests legislative action deemed necessary for the better protection of life and public health (§32.1-15).

So the Board is designed to control not only policy and regulations but also the flow of information between the Department of Health and the General Assembly.

It is hard to identify the alternate source of information on health care law, policy and regulation for the General Assembly other than the ever present industry lobbyists. I suspect that was the idea.

It is uglier yet to contemplate why the General Assembly approved laws that let a Board dominated by regulated industries control the formal flow of healthcare law and policy recommendations from the administration to the General Assembly itself. The pressures of powerful interests in their districts backed by campaign donations worked their magic.

There are public regulatory documents, for instance the 44-page 12 VAC 5-371 Rules and Regulations for the Licensure of Nursing Facilities, floating around under the name of the State Board of Health. That document does not represent a complete set of regulations.

  • It fails to include nursing home regulations written by the Department of Health Professions Board of Nursing.
  • It also fails to include or reference federal rules for Medicare and Medicaid certification of those same facilities, which in nearly every case are more proscriptive.

Indeed, the state licensure and Medicare/Medicaid certification inspections required for 95% of Virginia nursing homes are combined and conducted simultaneously by a single team from the Department of Health.

So as a practical matter, there is a place for state nursing home licensure regulations, but only if they incorporate and comply with federal regulations and exercise state options. Otherwise there is regulatory chaos.

Because the Board is scheduled to meet only four times a year, it clearly can’t carry out all of its broad responsibilities in formal meetings. The public does not know to what degree individual members influence policy and regulations affecting their businesses outside of the formal meetings because there is no public record.

The first Board meeting of this year, scheduled for March 26 in the midst of the COVID-19 pandemic, was cancelled even though by law it is authorized to meet electronically. So much for making

“separate orders and regulations to meet any emergency, not provided for by general regulations, for the purpose of suppressing nuisances dangerous to the public health and communicable, contagious and infectious diseases”.

The Governor may have considered the Board in session something between useless and dangerous in current circumstances.

The Board as constituted and tasked is injurious to our republican form of government. We don’t elect the members, and the staggered 4-year terms of most members exceed the term of the governor that appoints them.

The solution is simple.

Disband the Board of Health and transfer all of its responsibilities to the Secretary of Health and Human Resources to allocate among the Departments under his control where they belong. That one step cures the problems. The only budget impact is positive.

Virginia can do something demonstrably necessary here to start to break down the infrastructure of special interest influence in state government. At least make them work from the outside, not the inside.

Based on the cancelled March Board meeting, I’ll mark the Governor down as a yes.

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18 responses to “Virginia Board of Health & the Infrastructure of Influence

  1. A subject worthy of discussion, debate and hoping Steve and Dick will weigh in.

    Most GOP governance will bring people from regulated industries into the government regulatory framework as a kind of check and balance to help insure that regulation is not so strict that it strangles the industry.

    Lobbyists do their part to “educate” the lawmakers…

    The devil is in the details but if one looks right now at the Trump administration (and before him, Bush) – they do what they can to dismantle some regulation activities of agencies like EPA and OSHA…

    and of course the other side likes to have their concept of regulation put in place when/if they gain control.

    Part of the problem aside from the politics is that some industries – will use their influence and power to hobble competitive industries or even individual businesses and lawmaking is not called sausage-making for a good reason.

    I have no idea how to do it right.. I hear both sides… and I see abuses on both sides…

    Hopefully Dick and Steve give their views.

    • Haven’t had GOP governance for a long time. This essay describes the case today.

      • Nationally? My bet is that some of these boards were set up years ago probably by the GOP when it was in control.

        Typically, the GOP wants industry involved in regulating and the Dems want non-industry, activists, watchdog groups with no experience in the industry.

        It’s ying and yang. Who do you want making rules? Someone who knows nothing about how the industry actually works or someone who knows the industry really well including all the great rent-seeking, crony-capitalism tricks?

        tough choice.. damned if you do, damned if you don’t!

        Would you have the same view if the GOP was running Virginia?

        • Yes. Surrender to powerful pressure groups has always been a bi-partisan endeavor in Virginia.

          As far as rule-making, I expect the elected Governor and his administration to do it, providing accountability.

          I expect the elected General Assembly to oversee the executive and intervene if necessary. More accountability. That is how things are done in a Republic.

          The fact that both are run by Democrats or Republicans is irrelevant to the constitutional issues. That is why we hold elections.

      • Sherlock, I can give you my number and tell you of the APA and the fact people lose their civil and due process rights with them. Its a racket. Its a joke. If people knew that they were nothing more than a way to kick patients, there would be screaming – or maybe not, given “sheeple”.

        I have some humdingers from Sentara. They are all about paying off and keeping it quiet. They want the awards kept quiet so they can keep down the payouts. I had a risk manager get fired/ have to quit because she mucked up something, they are so risk adverse they don’t know medicine. They think they do but I out witted a RN JD there.

  2. I have never paid much attention to that particular board. Didn’t do health issues at the GA. In general I am not opposed to boards including representatives of the covered industries and in that area in particular, I am highly confident that the people who ask to serve do it for the right reasons. Being on one of those board is no picnic (having been booted off one myself for partisan reasons.) Active and annoying members who irritate the covered industry don’t last. (Ahem…)

    Now, is the board doing its job? Maybe not. I’ve said before in this space that the VA Health Department has a reputation for weakness, bureaucratic rigor and disorder. No reason the board cannot be meeting electronically, I agree, and its failure to take hold in this crisis is troubling. But my technical response to the idea of centralizing more control in the Third Floor (the Office of the Governor) would be: Frack No. Just the opposite. The board at a time like this should be more active, not less, more aggressive. And don’t ignore the role of the legislative committees on this issue. They haven’t met either, and can any time.

    But I am totally ignorant of B o H workings, or how this administration uses or ignores it (sounds like it ignores it, but it ignores everybody.) Cap’n, state government isn’t the military and it’s all about checks and balances. Perhaps the board needs to be stronger.

    • Steve, thanks. I care about the Department of Health because it is so important. The Board of Health has my attention because the Code of Virginia is cluttered with sweeping responsibilities for that policy board that seldom meets and the duties assigned it are in disarray.

      I am a little stuck on a chicken and egg problem. The Department of Health is weak and totally captured by the businesses it is supposed to regulate. Is the Department weak in part because:
      a. the Board of Health has quelled initiative; or
      b. the Board of Health has historically done little; or
      c. we have had weak Health Commissioners; or
      d. variations of all of the above?

      Is the Board part of the industry strategy to control the Department? It is clear from the laws that structure the Board and give it its authorities that it is indeed part of that strategy.

      The power of the Health Commissioner is centered in the twin facts that he is the final decision authority on COPN awards and that he controls the Division of Licensure and Inspection.

      Controlling policy, regulations and inspections are the keys to the industry’s control of the Department. So they need to control both the Board and the Commissioner to have clear sailing. For a time a few years ago I had personal connections within Licensing and Inspection, and morale was not good. That speaks to a leadership problem.

      I suspect Health Commissioners have attempted to control the Board by controlling information flow to the degree they can. But most of the Board Members represent their industries, so they know what they want to green light and red light when they get there. From the minutes of the public meetings available online, it is hard to tell what the Board actually does as opposed to what the law directs it to do.

      Conversely, it is clear from the fact that the VHHA maintains a COVID 19 dashboard separately from and with different information than that of the VDH that the health systems maintain some level of control over information flow to the Department. It has been my experience for years that, the VDH contractor data center for health information, is little used by the Department.

      Bottom line, the Department of Health is, as you say, weak, bureaucratic and ineffective. Virginians need it to function much better because what it is supposed to do matters so much.

      I will encourage the GA, among other reasons, to shut down the Board in an attempt to isolate the management problems at the Health Department so that they can be addressed.

      One alternative is to give the responsibilities for regulating the business of healthcare to the SCC. Healthcare is one of the biggest industries in the state and is rife with regional monopolies so that is my favored solution.

      Another is creating a yet more powerful and independent Health Commission on the Maryland model to do the job.

      Under both alternatives the job of COPN administration would leave the Health Department.

      Probably won’t work, but worth a try.

    • Steve they are one of the most corrupt things I’ve ever seen. You should never be in the situation of losing your civil rights to having lawyers be able to examine your case, the lawyers of these rich and powerful corporations, while you are left to be back stabbed and out maneuvered. The reason they do this is to make it look like you get justice but when the big corporations are controlling the outcome, see how many are perverted.
      Btw, I sent an email on purpose to the heads of VDH (the board), several of the health care Senators/Delegates, and showed them out a drug pill pushing doctor was working in the Southwest part of the state as a doctor, while he should have been in jail on federal charges. The judge had gotten a plea from the local hospital and allowed it.
      Those in Richmond knew NOTHING on it. Because I put them on notice in writing, it took them a week to cancel his license. What kind of horsedump oversite committee doesn’t even KNOW about this sort of thing?
      That’s not the only infraction …

  3. Steve, it seems to me JS has identified a board that is nominally, by statute, in charge of formulating and executing State policy for the achievement of “public health” — a damned important task at the present time — but in fact, by statute, that board must be populated by reps nominated by the industry that profits from gutting that State policy.

    That strikes me as contrary to the public interest. Seems comparable to me to having one seat on the SCC set aside for the nominee of the private electric utilities, another set aside for the nominee of the private gas utilities, and a third set aside for the nominee of the private wireless cell phone and cable crowd?

    It seems to me this is one of those situations where Virginia lives up to DJR’s characterizations of the ICS.

  4. This comment is in response to the earlier post that Jim Sherlock had. I I have taken some time to prepare and was unaware that he had substituted a post that was narrower in focus. I apologize in advance for its length–it addresses the main point he is making here as well as those he make in the original post. Generally, I don’t like long comments to posts. However, Jim has done a herculean amount research of this topic and obviously put in a great deal of time and effort on the earlier post and this one. As a result, I think he deserves more than a cursory comment. (Be careful what you ask for, Jim!)

    This critique of the Board of Health and the Commissioner of Health is focused on the business of healthcare, primarily the administration of the certificate of public need (COPN) law and regulation of healthcare businesses. These activities constitute a relatively small percentage of the department’s responsibilities, activities, and budget. Most of the department’s budget is devoted to community health services. This is not a criticism of Jim’s post, because he makes it clear that his concentration is on oversight of the business of healthcare. I just want to put this focus in perspective relative to what the Department of Health does.

    Perhaps because the oversight of the healthcare business is not the prime mission, or even “sort of” an important mission for DOH is good reason to divest the function into a new, separate agency. I will address that issue later in this comment.

    I have just a couple of comments on the first section of the post, relating to COVID-linked threats. I have commented on COPN at length before, so I won’t go over that ground again, except to say that there is a place for COPN. Even the Maryland system that Mr. Sherlock praised has a COPN system. That being said, there is certainly room for improvement in the law and there seems to be momentum in the General Assembly to make changes.

    I, too, am concerned about the consolidation in the healthcare industry. There have been news reports of the financial problems facing small, independent medical practices as a result of the pandemic shutdowns. More consolidation seems inevitable, regardless, and the pandemic will only hasten it.

    Mr. Sherlock wants Virginia’s elected officials to “ensure that the coming healthcare industry consolidation is judiciously and equitably overseen by the state in the peoples’ interests.” I assume that some regulatory body or administrator would have to determine whether Virginia Eye Institute (which is ubiquitous in Richmond) or Bon Secours can open an optometrist or primary care office, respectively, in South Boston or Danville, for example. I am not sure how that would be accomplished without expanding the COPN law or enacting something comparable.

    Mr. Sherlock trains much of his fire and recommendations on the Board of Health. I have been around Virginia state government a long time. With a few exceptions, agency boards have little substantive value; they are veneer. They meet only a few times a year. Agency heads control the information to which boards have access and the boards regularly accept agency staff recommendations on policy and regulations with little question. Some of the exceptions are the Board of Game and Inland Fisheries (it appoints the agency head), the Forensic Science Board, and the ABC Board (it has a judicial function).

    I would eliminate all agency advisory and regulatory boards. For those agencies that deal with complex technical or scientific issues, they could establish specialized committees made up of outside experts, such as the Forensic Science Board has done. Currently, some agencies, such as General Services, State Police, and Motor Vehicles do not have oversight boards and function well without them. Mr. Sherlock and I seem to be in agreement on this score, at least with respect to the Board of Health.

    Mr. Sherlock’s favored proposal is to transfer the regulation of the healthcare business, i.e. COPN and nursing homes, to the State Corporation Commission. At first, my reaction was negative, probably because I instinctively do not like change. However, the more I thought about it, I came to agree with it.

    It is true that regulating the healthcare industry would be a major expansion of the SCC’s mission into an area in which it has no experience. The public is used to thinking of the SCC in terms of public utilities such as electricity and gas, but it also has responsibility for regulating the insurance industry and financial companies in Virginia. There does not seem to be any reason why it should not take on the healthcare industry, as well. It has the infrastructure (financial, administration, etc.) to handle such a responsibility and it has experience in recruiting and hiring specialized staff. Finally, it is governed, not by an appointed board, but by three judges elected for long terms by the General Assembly, thus ensuring some independence.

    Aware of the political obstacles to shifting oversight of the healthcare industry to the SCC, Mr. Sherlock’s alternative proposal is the creation of an independent Health Commission, modeled on a comparable body in Maryland. This one I do not like so much.

    One of my pet peeves or annoyances is the tendency in Virginia to create a new agency when a current agency is not doing its job properly. This proposal falls into that category. Rather than create a new bureaucracy, I would rather fix the one already in place.

    The primary attraction of the Maryland model for Mr. Sherlock, it seems, is that the members of the Maryland commission are independent and “so distinguished” and do not represent their industries, as the Virginia Board of Health members do. The members of the Maryland commission are appointed by the Governor, the same as the Virginia Board members. As far as being “distinguished”, the Maryland members certainly do have impressive credentials. But, the commission’s membership does include individuals from the healthcare industry. They include a vice-president of Blue Cross, two hospital administrators, a nursing home operator, a vice-president of Kaiser Permanente, and the owner of a medically-related business.

    The Maryland commission has a much broader mission than administering the COPN and regulating nursing homes. For example, on its website, the commission has this statement: “One of the priorities for the Maryland Health Care Commission (MHCC) is to support advanced primary care and practice transformation to shift the focus from quantity of care delivered to improved health outcomes and coordinated care delivery.” It is also involved heavily in implementation of health care technology.

    I get the impression from the Maryland commission website that Maryland is moving to a much more centralized regulation of health care than is true in Virginia. I am not necessarily opposed to that, but, on the other hand, I am not an expert in medical care policy. However, if Virginia is going to move to that approach, it would be better to establish a separate agency. Having one agency, the Department of Health, being responsible for both this centralized function and the delivery health services in communities would be too much. One or both of those main functions would suffer.
    Any such major expansion of the Commonwealth’s role in central health planning and policy is probably pretty far into the future. In the meantime, there are reforms that can be enacted that would address the main issues Mr. Sherlock has highlighted.

    The first reform would be the membership of the Board of Health. The statute establishing the board is similar to many such statues for other agencies; it lists specific industry or professional associations or organizations that must be represented on the board. That statute should be amended to delete those specific organizations and require only that the Governor appoint members with healthcare backgrounds and experience.
    Next would be COPN. That needs to be amended so that it continues to protect hospitals from “cherry picking”, while, at the same time, not resulting in monopolies and undue stifling of competition. I am not knowledgeable enough to know if those goals are even compatible and not mutually exclusive.

    The final issue is the regulation of nursing homes. The Board of Health should amend its regulations to include specific staffing standards, i.e. xx number of registered nurses per xx patients. If the Board resists such action, the General Assembly should enact such standards into law. After all, the General Assembly has statutes setting out the minimum number of teachers and counselors localities must have in schools. It could just as well set out the minimum ratio of registered nurses and other staff that nursing homes (and assisted living homes, for that matter) must employ.

    I have one last comment. Mr. Sherlock expressed his frustration over the insufficient response he received regarding information about the financial difficulties of a for-profit health system that he sent to the Commissioner of Health. I understand that frustration. My recommendation is that he appear before the Board of Health at one of its meetings the next time he has such information. The Board has a period for public comment on relevant issues. Such an appearance would get his concerns on the official record. If he also provides each Board member with a copy of his documentation, they could not say they never heard of it.

    • Great work Dick, thanks. I too have come to view replacing the Board of health with the SCC for regulation and oversight of the business of healthcare as the only effective option. Once those duties, including COPN administration, are shifted there they will be better managed and less influenced by the regulated industry. VDH can then get on with the business of doing its other jobs better.
      It will have the additional major value of combining the regulation of the business of healthcare and the business of health insurance in the same place. Splitting up there regulation when they are so entirely intertwined has been a problem for decades.

      • Mr. S: I sent an email on purpose to the heads of VDH (the board), several of the health care Senators/Delegates, and showed them out a drug pill pushing doctor was working in the Southwest part of the state as a doctor, while he should have been in jail on federal charges. The judge had gotten a plea from the local hospital and allowed it.
        Those in Richmond knew NOTHING on it. Because I put them on notice in writing, it took them a week to cancel his license. What kind of horsedump oversite committee doesn’t even KNOW about this sort of thing?
        That’s not the only infraction … people who have had first hand knowledge of these boards know what goes on.

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  6. Contact the Department of Health Professions enforcement division. Those are the right folks to sort this out. [email protected]

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