Categorized | News, Opinion


I want to thank (AGAIN!) Wes Messamore, the Humble Libertarian, (actually one of his bloggers, Judy Morris) for this story on an odious law here in the Commonwealth:  The Certificate of Public Need act.  I would not characterize the act as “racketeering” but it certainly is state-endorsed turf wars among doctors and hospitals.  It needs to be abolished.

In short the COPN act requires hospitals and maybe some doctors to get permission from the state department of health to expand beds, add certain new features or equipment.  What happens next is usually a turf war that the state decides who gets the largess.

Well, now it might be beat – by the courts.  Here’s some highlights from the IJ article:

First what is the COPN?

The target of the lawsuit is Virginia’s certificate of need (or CON) program, which actually makes it illegal to offer new medical services or purchase certain types of medical equipment without first obtaining a special permission slip from the government. Under the program, licensed medical professionals who want to offer new services must first persuade government officials that their new service will be “needed”—and they must do so in a process that verges on full-blown litigation in which existing businesses are allowed to participate and oppose new competition. This process can take several years and cost hundreds of thousands of dollars. Frequently, the process results in new services’ being forbidden from operating at all.

Here’s the facts of the IJ lawsuit:

IJ client Mark Baumel is a physician and entrepreneur who is trying to bring an innovative colon-cancer screening and treatment service to Virginia. Every year, 50,000 Americans—and about 1300 Virginians—die from colon cancer. While approximately 90 percent of colorectal-cancer deaths are preventable if caught early, only 50 percent of the at-risk population gets screened, in part because the process can be unsettling and invasive.

Dr. Baumel hopes to fix this problem with a system, Integrated Virtual Colonoscopy, which makes colon-cancer screening and treatment far easier. Integrated Virtual Colonoscopy uses modern imaging technology (called a CT scanner) to take a noninvasive picture of the patient’s lower abdomen, while a team of radiologists and gastroenterologists work together to provide same-day diagnosis and treatment. By reducing the discomfort, risk and inconvenience of colon-cancer screening, the new method has real promise to save lives.

Dr. Baumel has had a great deal of success offering IVC at his flagship office in Delaware and has agreements to expand into New Jersey. But he cannot operate in Virginia because the state’s CON program will not allow him and his partners to open a new colon health center that would offer IVC or even permit them to buy the CT scanners necessary to do virtual colonoscopies.

Dr. Mark Monteferrante, the head of Progressive Radiology, has firsthand experience with Virginia’s CON process. In 2003, Dr. Monteferrante and his partners attempted to simply add a second MRI machine to their busy office. That process took fully five years and cost roughly $175,000 in filing fees, consultant fees and attorney expenses.

Now Progressive Radiology would like to build a top-notch medical facility in Virginia. They are unwilling, however to spend another five years fighting over whether they will be given permission to buy an MRI machine, particularly when there is no way of knowing in advance whether that permission will be granted.  (emphasis added)

I had no idea about politically connected people getting the certificates, but it seems to me that the market ought to take care of this issue.  If there is a fear of too many hospital beds or equipment, I would think market forces would ensure that patients were protected. IJ cites sources to say the COPN process does not protect patients:

The Federal Trade Commission and the Department of Justice have concluded that there is no evidence that these CON programs have any public benefit, and found that they instead create anticompetitive protections for industry insiders.

Don’t take my word for it – take A. Barton Hinkle’s of the Richmond Times-Dispatch:

Last year Planned Parenthood wanted to add two operating rooms to its Virginia Beach facility so it could offer gynecological surgeries to poor women. Anti-abortion activists fought the proposal. The America Life League circulated a notice that “Planned Parenthood…has requested that the Virginia Department of Health approve a Certificate of Public Need…which would allow Planned Parenthood to expand its facility on Newtown Road in Virginia Beach….The final decision…is to be made by Dr. Karen Remley, Virginia Health Commissioner…Please take a few minutes to e-mail Dr. Remley…and ask that Planned Parenthood’s request for expansion be denied.”

Remley granted the permit anyway. Yet the episode provided further proof that the CON approval process, which costs about $20,000 on average, invites abuse. Pro-choice activists are right when they say the government should not make doctors perform particular procedures. Well, prohibiting doctors from practicing is just as bad. It’s time to end Virginia’s CON regime, for the sake of women’s medical choice—and men’s, too.

Here is another article from Sovereign Man that Morris/THL cited on this question.

The Virginia General Assembly should not wait for the courts to act:  Time to abolish the COPN law or replace it with a less intrusive act.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)


  1. Rickie Cheater says:

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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