Denial of Medical Choice: Even Worse Than Activists Think

Abortion advocates fear government bureaucrats could use burdensome rules to reduce access to medical care. That's happening already.

Abortion-rights advocates are seriously cheesed off at Virginia Attorney General Ken Cuccinelli for strong-arming the state’s Board of Health into approving tough new clinic regulations. The advocates fear government bureaucrats could use burdensome rules to reduce access to medical care.

Actually, government bureaucrats are doing that already. And now they have judicial blessing. Last week a federal district judge rebuffed a lawsuit by two doctors who were challenging the state’s arbitrary and capricious control over medical treatment. The state had every right, Judge Claude Hilton said, to restrict patient access to care.

The first doctor, Mark Baumel, performs a less invasive form of colon-cancer screening at his practice in Delaware. But when he tried to offer the same service here in Virginia, the state said no.

The state didn’t say no because it thought the procedure was dangerous; it isn’t. The state just didn’t want Baumel to purchase the requisite CT scanner. Why? Because there were other medical practices nearby that had CT scanners, and the bureaucrats felt letting Baumel have one was – better sit down for this – not necessary.

Much the same thing happened to Dr. Mark Monteferrante. A while back he helped the owners of the Northern Virginia radiology center where he worked buy a second MRI machine. Getting the state’s approval for that took five years of begging and $175,000 in filing fees. Then the radiology center was sold. Monteferrante wants to start one of his own. But that would mean purchasing additional equipment – meaning he faces the prospect of another costly, five-year fight.

All this is the result of something called the Certificate of Need process. Virginia’s CON regime (called the Certificate of Public Need) gives state officials the power to decide whether, in their infinite wisdom, a particular medical facility or device is needed in a particular area. The idea is that by restricting the supply of medical services, state government can hold down overall spending on health care.

That’s the theory. It doesn’t work in practice. As the Federal Trade Commission and the Department of Justice concluded in a report on the issue: Certificate-of-need regimes are "not successful in containing health-care costs" and "empirical studies indicate that CON programs generally fail to control costs and can actually lead to price increases.”

The report warned that CON requirements also can be anti-competitive. Why? Because the process gives existing health-care suppliers the opportunity to strangle competition in the crib.

Case in point: Five years ago, the Richmond Radiation Oncology Center wanted to move a radiation-treatment device already in use at St. Mary's Hospital to a cancer center in Hanover. To do so it needed CON approval. The state said no: VCU's Massey Cancer Center was already providing radiation oncology services in Hanover, and – in the words of a news story about the issue – “VCU officials object[ed] to the project, which could take some of their business.”

A few months ago Baumel and Monteferrante – with an assist from the Arlington-based Institute for Justice – sued to overturn Virginia’s CON system. They argued, among other things, that it denies them equal treatment under the law. Virginia’s CON process applies to some medical services but exempts many others: doctor’s offices, burn care, ambulances, hospice, dialysis, substance-abuse treatment, ultrasound, etc.

They also argued that the CON regime interferes with interstate commerce. It certainly does that, at least according to the logic of Obamacare. If one individual declining to buy health insurance can be said to affect the entire national health-care market, then Virginia’s refusal to approve, say, an entire new hospital affects that marketplace to an exponentially greater degree.

Last week Judge Hilton tossed the case. Economic restrictions need to clear only a ridiculously low bar – the “rational basis” test – even when they affect the right to patient choice. As Hilton explained, all that is necessary to pass the test is the belief that something needs fixing, and “it might be thought that the particular legislative measure was a rational way” to go about it. “[A] legislative choice is not subject to courtroom factfinding, but may be based on rational speculation unsupported by evidence or empirical data.” In other words, courts must uphold any restriction for which there is even the slightest conceivable excuse.

The Institute for Justice says Baumel and Monteferrante will appeal. If they don’t, or if (as seems plausible) higher courts uphold Hilton, then it will fall to the General Assembly to repeal Virginia’s CON system.

Leading the charge for repeal should be the state’s abortion-rights activists, who routinely insist that medical choices should remain between the patient and her doctor. Those activists contend such choices should not be subject to meddling by third parties who impose their own vague idea of the common social good. Those activists are right. But in Virginia, what the patient wants is irrelevant. So long as the CON system remains in place, the final decision is up to the state.

This article originally appeared in the Richmond Times-Dispatch. 

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  • sarcasmic||

    The idea is that by restricting the supply of medical services, state government can hold down overall spending on health care.

    Government can do anything!

    It can even repeal the law of supply and demand!

    Go government!

  • Hneckone||

    I guess the government doesn't get the basic laws of supply and demand. When the demand is the same and the supply is reduced, then prices go up. Duh! Especially if the supply is restricted by artificially.

  • Rasilio||

    Actually I am certain that their logic is that by restricting supply it will drive up price enough to drop demand enough such that total health care spending is lower.

    Something which is an incredibly dumb idea in any world (even though it could technically work) because it is basically saying, "Hey Grandma, we know you need that CT Scan but Fuck You".

    Further it is a rather specious idea that government can/should restrict total PRIVATE health care spending which is based on peoples individual preferences and ability to pay, they could replicate the same idea to control public health care spending by only certifying certain of the medical devices/facilities for use with medicare/medicaid/etc. and allowing those with private insurance tyo have access to as many as the market will bear.

  • ||

    Actually I think the idea is that if people simply are unable to get get the healthcare they need, they will, by inevitable necessity, spend less on it.

    You can't buy something if it doesn't exist right?

    So, according to this brilliant plan, Virginia will be able to save money on healthcare by simply banning cancer treatment. If you can't get cancer treatment, you can't spend money on it.
    Muahahahahahah!

    They are evil geniuses, really.

  • Robert||

    That might be their logic in the absence of 3rd party payment. Actually I think that's what they're telling clinics and hospitals, similarly to taxi drivers with their medallions, i.e. that they'll hold down the competition to keep up their prices and hence profit margins. However, what I think they're really hoping is that fewer people will get CAT scans, so insurers (including Medicaid y Medicare) will pay out less in total.

  • fyodor||

    I think the idea is just that spending more drives up the costs and therefore the prices, so spending less reduces the costs and prices. Of course it's true when the costs are imposed, but not when they're voluntary. That's the subtlety they don't get, cause free market economics is just a theory, dontcha know....

  • Loki||

    Actually I am certain that their logic is that by restricting supply it will drive up price enough to drop demand enough such that total health care spending is lower.

    But without government involvement in healthcare the elderly will literally get sick and die in the streets. /T o n y

  • Ron||

    "Hey Grandma, we know you need that CT Scan but Fuck You".

    Isn't that what Obama said when he ran for president the first time.

  • Raston Bot||

    And now that it's known their policies can't repeal market forces, the pols don't want to relinquish that perceived authority.

  • Loki||

    Next they'll repeal the laws of thermodynamics. Just think of how much more "we" will be able to get done without those pesky nuissances hanging around.

  • dan'o||

    The only reason it doesn't work is those damned greedy doctors and insurance companies. If only the govt could regulate a maximum wage, we'd all eat more pie and get great health coverage. (derrrr)

  • ||

    The idea is that by restricting the supply of medical services, state government can hold down overall spending on health care.

    Because restricting the supply of a price-inelastic good always drives price down. Brilliant.

  • Robert||

    It's like holding a lit match under the thermostat. What do you mean, too cold in here? Look at the reading!

  • Adamsmith1776||

    One of the first cases I worked on in Richmond was an administrative hearing to prevent the openng of a nursing home under the COPN statute because it could take business away from my client (who ironically has since announced that he intended to renounced his citizenship due to the oppressive nature of the government). The professed purpose of the COPN law was to prevent medicare and medicaid from having to pay the capital costs associated with the new facility as part of the payment regime. Why it never occurred to the Gov't to simply reimburse for variable costs is beyond me, but I am sure it had something to do with lobbying by the medical-industrial complex.

  • Loki||

    The idea is that by restricting the supply of medical services, state government can hold down overall spending on health care.

    What the fuck?! Granted I'm not an economist, but I'm pretty sure restricting the supply of a commodity will have exactly the opposite effect. So, I say again, what the fuck?! These fuckers literally have no clue what they're doing.

  • RightNut||

    "Leading the charge for repeal should be the state’s abortion-rights activists, who routinely insist that medical choices should remain between the patient and her doctor. Those activists contend such choices should not be subject to meddling by third parties who impose their own vague idea of the common social good. "

    No, that is exactly the opposite of what libertarians should support. Small government minded people in Virginia should try and get much more burdensome regulations on liberal staples like abortion. Why support something that violates libertarian principles? To convince thick-skulled liberals that government control over healthcare means you might get a government that doesn't like your healthcare choice, and can arbitrarily take it away from you. After Obamacare I'm convinced the hard way is the only way the left will learn.

  • Pi||

    A. Barton Hinkleheimerschmidt!
    His name is my name, too!
    Whenever we go out
    The people always shout,
    "There goes A. Barton Hinkleheimerschmidt!"
    (Lalalalalalala)

  • D guri||

    One of the good things about the law is that it prevents doctors offices from buying scanners of their own and then personally profit from the scans they order for their patients. Many studies have shown that this invariably leads to more tests being ordered. Already happens all the time when cardiologists decide whether or not u need a cardiac nuclear medicine scan, they get interpretation and probably the scanner fees, then of course the cardiac cath comes next.

    Self referral is a huge problem already in medicine, and is rarely ever talked about even though its one of the major contributors to driving up the cost of medical care.

  • FD||

    That is a symptom of a different disease.

    There is nothing good about this law.
    Nothing.
    Nil.
    Nada.

  • Ron||

    The patient can always decide if they want certain test done themselves. Limiting the number of available facilities only means longer wait times for important testing which can be dangerous.
    Producing more objects has never led to higher cost.

  • D guri||

    What are you talking about. The patient can't really decide what tests they need, that's what u go to the doctor for. Plus if ur doctor orders a scan , you are going to want it done, whether its justified or not. And there is no other way to determine that unless u get a second opinion.

    Finally the technical fees if the scan would go down with repeal of the law. But interpretation fee is unchanged. And the volume of scans will increase exponentially if the law is repealed. Again the bigger problem with imaging in medicine is the volume of studies being ordered and less so their individual cost, although that to is inflated , but much smaller factor.

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