Virginia’s Board of Health and “the Virginia Way”

Virginia Board of Health meeting. Photo credit: Richmond Times-Dispatch

by James C. Sherlock

You know how sometimes you assume something to be true because you simply can’t imagine an alternate reality? I have been guilty of that. The State Board of Health is charged with overseeing the Department of Health and many other important missions. After spending more than a decade researching and observing the activities of portions of the VDH, it never occurred to me to review the qualifications of the people on the Board. I just finished that review. It is not what I expected.

The Board currently has 14 members representing ten formally organized stakeholder groups as current law requires. An enormous flaw in that law is that it specifies only whom the members represent, not their personal qualifications. The Board includes one local government official, one EMS representative, and two consumer representatives[1].  None of the defined stakeholder groups represents economically disadvantaged Virginians. All members have been appointed by Governor Ralph Northam and his predecessor.

  • Of the current 14, only two are MDs, one is a dentist, one is a veterinarian, and one is a pharmacist. One is EMS qualified, one is an environmental health professor, and two are nurses, although one of those represents the managed-care industry. The other five have none of those qualifications.
  • Neither the Chair nor the Vice-Chair is a physician and both are VCU employees. The Chair, a local politician in Ashland, is an assistant professor of writing at VCU. Before that she was a respiratory technician. The Vice Chair is a nurse who works for Virginia Premier, VCU Health’s managed care subsidiary.
  • The nursing home representative on the Board of Health is CEO of Heritage Hall, a chain of nursing homes. See this for the Medicare ratings of those nursing homes. Of the 17 Heritage Hall facilities in Virginia, one is graded as having average staffing, the rest below average or much below average. In overall ratings, nine of the 17 are rated below average or much below average.  eritage Hall has contributed more than $100,000[2] to political campaigns over the years, mostly through the Virginia Hospital and Healthcare Association (VHHA).
  • The “corporate purchaser of healthcare” representative is a Northern Virginia real estate developer. He was Vice Chair of the Health Systems Agency of Northern Virginia for many years.  That agency is the Northern Virginia cog in the Certificate of Public Need (COPN) machine. State Sen. George Barker, D-Alexandria, led the employees of that agency for years before he retired to join the Senate. Barker has Inova’s former head lobbyist as his policy advisor.
  • One is a former member of the Virginia Senate employed by the Virginia Hospital and Healthcare Association.
  • Another is a former member of the Virginia House who is on the Board as a “consumer” representative.
  • Yet another “consumer” representative can trace her heritage in Virginia back to the founding fathers and two presidents.
  • By now you are sensing a trend.

You can read the Board of Health’s missions, roles, priorities and functions here.  Their responsibilities are listed here. Then go here to see who is carrying out those responsibilities  It is important that you do so. It will give you pause.

The Board consists of “15 residents of the Commonwealth appointed by the Governor for terms of four years each in accordance with Va. Code § 32.1-5”.  We should all thank each member of the current board for their service, but as currently constituted, the board is demonstrably far less qualified than it needs to be. It meets only four times a year in Richmond, and never during a General Assembly session, so the members are really not given sufficient opportunity to carry out their critical responsibilities.

The Governor can go here to see what a real health commission looks like, in this case that of neighboring Maryland. The Maryland Commission is composed of 15 members appointed by the Governor, with the advice and consent of the Senate, for a term of four years. That distinguished panel meets monthly and does real work, including oversight of Maryland’s certificate of need program.

No one can defend the handling of healthcare legislation in the General Assembly. Lawmakers are swamped every year by complex and far-reaching bills written by lobbyists and sponsored by members to whom they are handed. The General Assembly simply does not have enough professional staff to evaluate them.

Among its duties, the Maryland Health Commission takes public positions on bills in the legislature in time for that body to consider their professional inputs, as seen here.  I think every member of the Virginia General Assembly would admit privately that they need the professional help. Deep-pocketed lobbyists will fight the changes to the Virginia “system” to the death. The last thing they want is their legislation assessed by health professionals.

The Governor can start by proposing a change to § 32.1-5 that removes the restriction that Board of Health members be residents of the state, defines their required qualifications, charges them to meet monthly, provides them with appropriate staff, and adds to their duties the review and public assessment of health care legislation and oversight of the Certificate of Public Need program. Members should be paid appropriately for their work. I recommend that Virginia  copy the Maryland Health Commission law and paste it into the Code of Virginia. Then the only major issue that will remain is how to keep the special interests like the hospital lobby from packing that body with their own people. I think that can be done if the General Assembly and the Governor are serious about the health and welfare of Virginians.

James C. Sherlock, a Virginia Beach resident, is a retired Navy Captain and a certified enterprise architect. As a private citizen, he has researched and written about the business of healthcare in Virginia. 



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23 responses to “Virginia’s Board of Health and “the Virginia Way”

  1. Excellent article !

  2. Looks like another example of the Virginia Way: a statutory body that looks good from a distance (and that actually could accomplish some real good if led and staffed by professionals intent on doing so), but which in fact was designed all along to hand the keys-to-the-hen-house to its board of well-connected foxes. Like creating a Utilities Oversight Board to review the SCC’s policies and process, with a Board member from each major utility and generation construction company. Waiting for DJR’s take on this.

    • Isn’t the “Virginia Way” more or less the practice and acceptance of legalized corruption that would get you tossed in jail, or at the least make headlines, in most other states?

  3. Fwiw, the Vice Chair “nurse” employee of VCU is the CEO of an insurance company with $2B in revenue and 1,200 employees, and has 30+ years of experience in Managed Care. I’d say that probably makes her well qualified to be on the board. That’s the only member I’m familiar with, though I’d not be surprised to find they all have similar, defensible, qualifications.

    That said, she’s a crummy CEO, so either the governor’s just stuffing it with cronies, or the boards commission is so toothless they can’t get folks who are truly effective to waste their time.

    • I thanked all of them for their service and I meant it. The board is simply not structured to do the job.

    • I just re-read your post. When I pointed out that the CEO of Virginia Premier is a nurse, that was meant in a way to acknowledge – congratulate really – that at least one person between the Chair and Vice Chair had a medical or nursing degree, not to denigrate her. As for Virginia Premier and its pending 80% sale to Sentara/Optima, I will write a column about that when the Insurance Commissioner, a decent man, makes his final decision on whether to allow that transaction to happen. I gave him an unsolicited list of reasons why it should not be approved, but he and his staff will make a decision within the next month or so I expect.

  4. Looking at the job responsibilities – there is no way they could do a decent job with the time they put in unless there was a competent staff generating the information they need to make decisions.

    I would think most Conservative types who frequent these pages would recoil in horror at the idea of using Maryland as a model for anything, much less COPN!

    And just to point out, the Dept of Health as an agency in Virginia has substantial duties ranging from restaurant inspections to septic fields.

    Here’s the list – it’s pretty impressive:

    no idea how many employees. Perhaps Dick knows.

    • I am a “conservative type” Larry, and it is my idea above to provide competent oversight to the Virginia agencies that deal with healthcare. One of the biggest critiques I have of progressives is that they often think the policies they favor are self-executing. They are not. Policy without competent execution is chaos. Wide swaths of federal and state agencies are in over their heads trying to execute the laws we already have. The Virginia Department of Health is but one of many.

    • The Dept. of Health is authorized about 3,700 employees. That includes folks in local health departments.

  5. I’ve seen and witnessed how the Dept of Health Professions only uses that group to hide its own professions mistakes. Jim B, Mr. Sherlock, go take a look at using their own rules (APA I think it is) vice regular court/state laws. Take a look at how the other side can see YOUR information (and that includes their lawyers) versus YOU can’t. Tons of inequities in the system.

    • The Dept. of Health Professions is different from the Dept. of Health and has an entirely different function. That being said, there is probably some merit to your comments.

  6. This critique of the Board of Health could be made of most, if not all, of the “oversight” boards in the Commonwealth. They are comprised of unpaid citizen members, have no independent staff, and meet infrequently. Their core function is to adopt regulations applicable to the various activities under their purview. The various departments, i.e. Health, Corrections, Education, etc. have the responsibility of administering the programs in their area and implementing and enforcing those regulations. In many instances, the boards do not have the statutory authority to oversee the management of the agencies. Of all the boards, the Board of Education and the Commonwealth Transportation Board are probably the most active. The Board of Health has come under scrutiny in recent years with respect to the adoption of regulations concerning facilities in which abortions are performed, in response to legislation passed by the General Assembly.

    To make the various boards more proactive and relevant, they would need to be given the authority for oversight and an independent staff. Of course, that would result in the creation of another layer of bureaucracy.

    • Agree with Dick that there needs to be some independent staff if the board is to be effective in performing oversight. If a board is intended to be a rubberstamp why have it. There probably needs to be a prohibition for the staff having worked for or moving to work for the agency at issue.

    • Dick, of all of our oversight boards, the Board of Health has been shown by the decades-long maladministration of the Department of Health to be perhaps the most necessary and, as I pointed out if the piece above, one of the least functional. The Board is dysfunctional by design.

      I spent the last years of my professional career as an enterprise architect. I was the architect of projects to design new organizations from scratch and to rearchitect existing ones. For those old enough to remember the Clinton/Gore “Reinventing Government” effort, I participated. Anyway, the lesson of structural change is that it requires an architectural approach.

      The Board of Health in this case has been given missions, functions and responsibilities under law that it has no chance of carrying out. The enterprise architect, facing that task, would start with those missions, functions and responsibilities, design an organizational structure to carry them out, assess the information requirements of each element of the organizational structure, define the sources of that information and finally architect the systems to provide it. An oversight organization like the Board of Health would be structured for oversight and policy development, not for operations. The operational entity, in this case the Department of Health, would be architected to carry out laws and policies efficiently and effectively. The Board of Health would make sure that they did so.

      The reason that I recommended that Virginia to some degree copy and paste the design of the Maryland Health Commission is not that it is perfect, but rather that it demonstrably works and the Virginia Board of Health does not. The Maryland Health Commission has a mix of oversight and quasi-operational roles, but that is what Maryland laws prescribe and the Commission does a first rate job of what it is assigned to do.

      Critics would say that must mean I am a fan of Maryland’s control of the budgets of its hospitals. I am not. But I am most certainly for competence in government. Whatever laws Virginia has, they must be executed with skill, intelligence, efficiency and common sense. Legislating structural incompetence and then appointing Board members without the expertise to either make it work or recommend change, as with the Board of Health and Department of Health, is dangerously irresponsible.

  7. All comments here are well taken. Dick’s add important perspective. Still, something quite odd is going on here:

    All this huge responsibility – from bugs to humans – sitting amid stone cold silence, with lots of money passing hands. I smell a rat. Beyond that, as to the human elderly, and their care, this is a looming crisis, with a long track record of abuse of the vulnerable, while piling up government licensed satrap empires of all cash fortunes.

    Have we seen this play before? All this cash passing hands in the dark while Virginia’s government focuses on pronouns, systemic racism, sexism and whatever other Monty Python shows of great sound and fury the scoundrels can conjured up from nothing for their personal, private advantage.

    James, thanks for shining a light into a dark, musty corner of Virginia’s “government.”

    • Here again, this is not to criticize the members of this board but to criticize the entire system that has been built by others, some long ago, to fail.

      • You are exactly right. The very best thing this board could do for Virginia is to resign publicly and en masse to point out that they have been given important missions and functions without the tools to do the jobs. That won’t happen, because some of the members have too much to lose in retribution from the special interests who nominated them to the posts.

  8. Good post

  9. Jim Sherlock makes some good and important points. His criticism of the lack of action by the Board of Health is part of a larger issue.

    Virginia law (Sec. 2.2-2100, Code of Virginia) sets out three types of boards:

    “Advisory” — A board, commission or council shall be classified as advisory when its purpose is to provide advice and comment to an executive branch agency or office. An advisory board, commission or council serves as a formal liaison between the agency or office and the public to ensure that the agency or office understands public concerns and that the activities of the agency or office are communicated to the public. An advisory board, commission or council does not serve a regulatory or rule-making purpose. It may participate in the development of public policy by providing comment and advice.
    “Policy” — A board, commission or council shall be classified as policy if it is specifically charged by statute to promulgate public policies or regulations. It may also be charged with adjudicating violations of those policies or regulations. Specific functions of the board, commission or council may include, but are not limited to, rate setting, distributing federal funds, and adjudicating regulatory or statutory violations, but each power shall be enumerated by law. Policy boards, commissions or councils are not responsible for supervising agencies or employing personnel. They may review and comment on agency budget requests.
    “Supervisory” — A board, commission, or council shall be classified as supervisory if it is responsible for agency operations including approval of requests for appropriations. A supervisory board, commission, or council appoints the agency director and ensures that the agency director complies with all board and statutory directives. The agency director is subordinate to the board. Notwithstanding the foregoing, the Board of Education shall be considered a supervisory board. (There are few true supervisory boards. Two that come to mind are the Compensation Board and the Board of Game and Inland Fisheries.)

    Under this classification, the Board of Health would be a policy board. I know very little about the Board of Health or the Department of Health. The department may well be “maladministered”, but that is not the responsibility of the board. Under Virginia law, the administration of agencies with advisory or policy boards is, ultimately, the responsibility of the Governor. He appoints the chief administrator of those agencies and they report, through their Secretaries, to the governor.

    Actually, the Board of Health has a fairly high-level platform, if it chose to use it. For example, as one statute (Sec. 32.1-13.1, Code of Virginia) provides, “The Board of Health may direct the Department to inform it regarding health care policy and financing concerns through such studies as the Board may deem necessary and appropriate to be conducted. The Board may make recommendations concerning health care policy to the Governor, the General Assembly, and the Secretary of Health and Human Resources.” As for the frequency of its meetings, the only requirement in law is that it meet at least once a year. It could meet monthly if the members chose to do so

    Efforts by a board to exercise its statutory powers can sometimes backfire. About 10 years ago, newly-appointed members of the Board of Corrections began to request information from the staff of the Department of Corrections and made it plain that they intended to take seriously their authority to regulate some of the department’s actions and oversee the operation of prisons. Alarmed by this activism, which it regarded as intrusive (previous boards had been more passive), the department and the Secretary’s office had legislation introduced that stripped the board of its authority over the department. The General Assembly passed the legislation overwhelmingly. Blindsided (they were not informed of the legislation), the board members were furious, but had no recourse. Today, the activities of the state Board of Corrections is limited to regulating jails and investigating deaths of jail prisoners. The department provides staff assistance, but the director of DOC does not attend board meetings.

    The ability of a board to make policy recommendations, even funding recommendations, does not guarantee that a governor will heed those recommendations. A prime example would be the Board of Education, which made significant funding recommendations last fall, many of which the governor did not include in his proposed budget.

    Virginia law requires agencies to provide staff assistance to their boards and to provide any information and data requested by the boards. So, in theory, the Board of Health does have the resources to carry out its “missions, functions, and responsibilities”. (Remember, supervision or oversight of the department is not one of its functions.) Of course, in reality, this arrangement often makes the boards the captives of the agencies.

    I am not arguing in favor of the current arrangement; I think legitimate arguments could be made on both sides. I am not defending the Board of Health or the Department of Health; I don’t know enough to defend or criticize them. I defer to Mr. Sherlock on this issue. My point is that the perceived weaknesses or failings of the Board of Health are inherent in the system. To remedy that situation would require a major re-engineering of the basic system. I have not done a thorough search, but probably the last effort to look broadly at the system of agency boards was a 1984 JLARC study. All of its recommendations centered around keeping the current system and strengthening it. See:

    • Don, once again, your encyclopedic knowledge of the structure of state government proves invaluable. I was totally unaware of the distinctions between the three types of boards. Also, I found fascinating the story of how the DOC staff neutered its own board by doing an end round through the General Assembly.

  10. Dick, thank you. I am offering four observations and recommendations:
    1. the current board of health does not have the structural ability to carry out its current statutory responsibilities. Even if those responsibilities don’t change, the structure of the Board needs to be re-designed to support the current responsibilities.
    2. I am further recommending that the General Assembly and the Governor change the statutory mission, functions and responsibilities of the Board of Health to update them in consideration of those of the more active and far more distinguished Maryland Health Commission that produces much more effective oversight than does our Board of Health.
    3. In either case, I recommend that the Governor’s appointments be made subject to the advice and consent of the Senate in an attempt to ensure that the appointees bring the backgrounds to the jobs that such responsibilities require.
    4. That will require legislation, which in turn should revise the statutory qualifications for those positions, which currently define members only as interest group representatives rather than defining individual qualifications, so that we minimize the number of socialites, big donors, golfing buddies and retired politicians appointed to the Board of Health.

    • I was surprised that the Governor’s appointments to the Board of Health do not require confirmation by the General Assembly. The appointments for most other, if not all, boards require such confirmation. I don’t think changing the law to require confirmation would result in any substantive change. With rare exceptions, the legislature goes along with gubernatorial appointments.

  11. One of the interesting questions about healthcare costs in Virginia and across the country is that they vary by zipcode.

    The very same service may cost more (or less) in one zip code than another – even in Virginia.

    If you were to go to the ACA (Obamcare) website to find out what policies are available to you – and their cost – one of the very first things you input is zip code.

    Why is that?

    is it simply a reflection of the cost of living?

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