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.