By Stephen Smoot
In last spring’s session of the West Virginia State Legislature, Governor Patrick Morrisey put his political weight behind repeal of the state’s Certificate of Need laws. Despite fighting hard to make the case to eliminate them, the effort faltered.
Now those same laws could block the establishment of a major Potomac Highlands-based center for the treatment and care of people challenged by autism, disabilities, and other issues. Hundreds of potential health care and support jobs also await the state to provide Liberty Community Programs a certificate of need waiver.
For a time, that waiver appeared an easy hurdle to leap.
In general, certificate of need laws require State authority to grant approval to the establishment of a new health care facility. Applications require in painstaking detail the potential facility’s plan of action, including who they will serve, where those clients or patients will come from, and much more.
Just over a half-century ago, the National Planning and Resources Development Act urged states to pass certificate of need laws. It speculated that the “massive infusion of Federal funds into the existing health care system has contributed to inflationary increases in health care and failed to produce an adequate supply or distribution of health resources, and consequently has not made possible equal access for everyone to such resources.”
By 1986 a national bipartisan consensus emerged that certificate of need laws “were failing to meet their stated goals” and 15 states repealed them altogether. Many more placed restrictions on them. That bipartisanship was underscored by Jessica Dobrinsky of the Charleston-based Cardinal Institute. She stated that every president since Ronald Reagan has urged states to repeal these laws to broaden access to quality health care and create the kind of competition that holds costs down.
The West Virginia Hospital Association marshaled its resources to fight the legislation last spring. At the time, Jim Kaufman of the WVHA stated that repealing the laws would allow health care companies to “enter West Virginia and cherry pick by developing only profitable lines of service at the expense of rural health care in West Virginia.”
Opponents of repeal also speculate that these companies would establish “feeder facilities” in state that would direct patients to larger establishments across state lines. Kaufman said at the time that “these dollars should remain in West Virginia and flow back into health programs and services for West Virginians.”
Matthew Mitchell from the Mercatus Center at George Mason University wrote a review of West Virginia’s Certificate of Need laws in 2021. He stated that “the purpose of CON regulation is to limit spending by discouraging providers from acquiring unnecessary medical equipment.” but “unfortunately, in practice, the rules appear to protect incumbent providers from competition more than they protect patients from harm or payers from unnecessary costs.”
Which was, essentially, confirmed by Kaufman.
Mitchell remarked that West Virginia’s CON laws placed more restrictions, 24, than any surrounding state. He noted that “the state also requires CONs for facilities and types of care that often go to vulnerable populations, such as substance abuse treatment, intermediate care facilities for those with intellectual disabilities, and psychiatric care.”
And that is where Ladale Jackson of Liberty Community Programs comes in.
“It’s been kind of a nightmare,” said Jackson. “I can’t even begin to tell you.”
After a decade of searching, it seemed that the perfect business match had come to the former United States Navy Base at Sugar Grove. What some national publications called in 2015 “a city for sale” proved difficult to match with a business venture. Several companies brought grandiose ideas that foundered.
For a decade local, state, and federal officials, including members of the state congressional delegation, labored mightily to find a new mission for the former Navy Base. Liberty Community Programs is a for profit company, which means that Pendleton County will get the full benefit of tax revenues from the facility.
Jackson shared last spring that “my C.O.O. had a vision of what that base could offer.” He said that the parent company, Liberty Behavioral and Community Services out of Los Angeles, had the Sugar Grove site “on our radar for several years.”
“We took a visit. I fell in love with the environment,” said Jackson.
Liberty planned a graduated, step-by-step rollout of services with an eventual goal of employing between 350 and 400 in fields from janitorial to health care. They realized, however, that earlier attempts to use the base had brought too much, too quickly and failed as a result.
They have also worked, as they describe, diligently with the West Virginia Office of Health Facility Licensure and Certification.
Delays have come in part as a result of protests from a group called Disability Rights West Virginia. Based near Charleston, the activist group has launched a number of high profile challenges in recent years. Liberty Community Programs has worked to try to satisfy their inquiries, including about program aspects that have little or nothing to do with the certificate of need. One of the stated concerns of the group had to do with a program that Liberty has no plans to offer.
“We made many attempts to contact (Disability Rights West Virginia) to find out what he was protesting,” shared Jackson. Eventually Liberty Community Programs hired counsel to represent their interests in the matter.
Jackson hopes that an October hearing will satisfy all parties and allow Liberty to implement its program as planned.
“The pushback is disappointing,” said Jackson. He said “we need to put it into action and the Legislature needs to step up” and repeal or reform the state certificate of need laws. The goal, Jackson said, lay in “improving health outcomes in West Virginia.”
Future goals include more integration of services for the community at large, including health care, ways to take advantage of the fire fighting facility built prior to the base closure, opening up the restaurant.
“Good will prevail,” stated Jackson.
