- The Washington Times - Tuesday, June 5, 2012

A group of doctors is suing Virginia over a provision in its heath care law that forbids medical professionals from offering certain new services or purchasing certain types of equipment without first getting an official go-ahead from the state Department of Health.

The lawsuit, filed Tuesday in federal court in Alexandria, charges Virginia with violating the Commerce Clause of the U.S. Constitution — ironically the same charge the state is leveling at the federal government in requiring most Americans to purchase health insurance or face a penalty.

Plaintiffs in the case against Virginia argue that they are not able to import goods like MRI machines or CT scanners via interstate commerce because of Virginia’s “certificate of need” requirement for pre-clearance of new services or equipment with the state Health Department, which some say favors already-existing businesses — or the ones with the right connections.

“The nation may be divided over the federal government’s role in healthcare, but we should all be able to agree that state governments should not be harming patients by limiting their options just to funnel millions of dollars to politically connected businesses,” said Chip Mellor, president and general counsel of the Institute for Justice, which joined forces with Colon Health Centers of America and Progressive Radiology in filing the lawsuit.

Founded in 1991, the Arlington-based group describes itself as “the nation’s leading legal advocate for economic liberty.”

The irony of the situation was not lost on Robert McNamara, a lawyer for the group, which has filed a friend-of-the-court brief arguing against the federal health care overhaul. A tremendous amount of attention has been focused on the federal government’s role in health care over the past three years, he said outside of U.S. District Courthouse in Alexandria on Tuesday.

“But all that while, states have been quietly limiting patients’ health options,” he said. “One of the very worst offenders is Virginia. We intend this lawsuit [to be] the first step in a national rollback of these requirements.”

Thirty-five states, plus the District, have so-called “certificate of need” requirements.

Dr. Mark Monteferrante, the head of Progressive Radiology, spent five years and $175,000 in filing, consultant and attorney’s fees in order to add a second MRI machine to a Virginia office his company had sold.

Though Progressive Radiology has multiple offices in the D.C. area, Dr. Monteferrante said he wants to re-establish a presence in Virginia.

“My goal is just to be able to re-open an office,” he said. “I have a 15-year-old record in the community that has just gone by the wayside.”

In addition to the Commerce Clause charge, the doctors argue that the requirements are not enforced uniformly, and therefore violate the 14th amendment as well.

According to the Virginia Department of Health, the program is intended to contain health care costs and avail the entire state of reasonably-priced health care. Criteria for a Certificate of Public Need includes the relationship of the project to the state’s long-term health goals, the need for enhanced facilities to serve the population of a given area, and the extent to which the project is accessible to all residents in that area.

A spokesman for Attorney General Kenneth T. Cuccinelli II said that, based on their initial review, the office believes the program is constitutional and plans to vigorously defend it in court. The office did not comment on differences, if any, between the doctors’ lawsuit against the state and the state’s lawsuit against the federal government.