Two big deadlines are looming in the ongoing effort to fix Virginia’s health care laws.
It’s a fight that Mark Baumel has been engaged in for years.
Baumel is a doctor who runs successful clinics in other states, treating patients and giving potentially life-saving colon cancer screenings. He’s come up with an innovative way to screen for colon cancer that doesn’t involve the usual unpleasantness — using a CT scanner instead of requiring a probe up the tail-pipe.
As many as 90 percent of deaths attributed to colon cancer could be prevented with proper screening, but fewer than half of all men at risk for colon cancer get screened. Baumel believes that an easier, less invasive screening process will literally save lives.
Before he can offer that service, Baumel has to buy the CT scanners. Doing that, it turns out, is much easier said than done in Virginia.
Thanks to a little-known provision in 36 states’ health care laws, new hospitals, nursing homes, rehabilitation centers and other medical facilities must obtain a certificate of necessity before opening. The procedure for obtaining the permit varies from state-to-state, but in Virginia (which calls its CON license a “certificate of public need) it can only be granted by the state health commissioner.
“Virginia’s CON program is nothing more than the government’s permission slip to compete, amounting to a certificate of monopoly for favored established businesses,” said Robert McNamara, an attorney with the Institute for Justice, which is representing Baumel in a legal battle aimed at taking down the state’s COPN laws.
“Patients and doctors — not the government — are in the best position to decide what medical services and equipment are needed in Virginia,” McNamara says.
Now, changes could be coming on two fronts: in federal court and in the Virginia Legislature.
The ongoing legal battle between Baumel and Virginia, which has been inching forward since 2012, will go before the Fourth Circuit Court of Appeals for oral arguments Dec. 10.
Lower courts have so far upheld the state law, but the state Legislature might take a different route. Lawmakers in Richmond will hit a key deadline in early December that could determine the fate of the state’s COPN laws.
A review group appointed by Virginia Health Secretary William A. Hazel, the target of Baumer’s lawsuit, has until Dec. 1 to make recommendations to the Legislature for changes to the laws. As part of that process, the working group sought input from the federal government, which made its position very clear: Virginia needs to make some changes.
In October, the Federal Trade Commission and the U.S. Department of Justice issued a joint statement outlining several problems with CON laws in general and with Virginia’s COPN laws specifically.
The laws were enacted as part of an effort to reduce health care costs and improve access to care, the federal agencies reported.
“However, it is now apparent that CON laws can prevent the efficient functioning of health care markets in several ways that may undermine those goals,” they wrote. “CON laws create barriers to entry and expansion, limit consumer choice and stifle innovation.”
The agencies also highlighted the time-consuming and expensive approval process in Virginia, which they said can often take six to seven months to complete. Aggrieved parties can appeal the Department of Health’s decisions into the court system — as Baumel has done — further driving up costs for health providers and taxpayers.
And it’s impossible to know how many potential health care providers took a look at the complicated application process and decided to not even try to gain approval because “the process itself is too costly,” they concluded.
Leaders in the state’s health care industry — who benefit from the restrictive rules that limit competition — have rallied to defend the COPN laws.
“The precipitous deregulation of the system” is risky, John F. Duval, chief executive officer at Virginia Commonwealth University Health System, told the legislative review panel, according to the Washington Post.
Duval worries that loosening the COPN laws will allow newcomers to cherry-pick profitable services while leaving teaching hospitals and others to care for patients who cannot afford to pay
In an op-ed published by the Free Lance-Star newspaper in Fredericksburg, Michael McDermott, president and CEO of Mary Washington Healthcare, argued that hospitals are entitled to protection from competition because there is no such thing as a “free market” for health care.
“The COPN law protects and ensures all Virginians’ access to essential and high-value health care,” he argued. “The core of the law is the recognition that many preconditions for an effective free marketplace just don’t exist for health care.”
But data suggests Virginians do not have the same access to care as residents of states with less-restrictive regulations.
A study by the Mercatus Center, a free market think tank based in Virginia, found there are 131 fewer hospital beds per 100,000 people in Virginia compared to the rest of United States.
Virginia may also offer fewer advanced health care services, including 41 fewer hospitals offering MRI services, and 58 fewer hospitals offering CT scans.
Baumel has spent three years fighting the COPN laws and trying to bring a few more CT scanners into Virginia.
Within the next month — in Virginia courtrooms and the state Capitol — that fight will come to a head.
Eric Boehm