Does the VCU Health System Authority have absolute sovereign immunity from lawsuits, and is liability capped at $100,000 for employee negligence?

Plain-English summary

Delegate Massie asked the AG to assess the sovereign-immunity status of the Virginia Commonwealth University Health System Authority. Specifically: (1) does VCUHSA itself have absolute or qualified immunity from suit, and (2) is the recovery against it for employee negligence capped at $100,000 under the Virginia Tort Claims Act?

Attorney General Mark R. Herring concluded that VCUHSA likely has absolute sovereign immunity as an arm of the Commonwealth, and that even if it didn't, it satisfies the criteria for a quasi-municipal corporation entitled to immunity for governmental functions. The Virginia Tort Claims Act's $100,000 cap doesn't apply because the Act doesn't waive VCUHSA's immunity at all.

The analysis was lengthy and drew on VCUHSA's unique history. VCUHSA traces back to 1838, became MCV in 1854, merged with the Richmond Professional Institute to form VCU in 1968, and was reorganized as MCV Hospitals Authority in 1996 before being renamed VCUHSA in 2000. It is a public body corporate, public instrumentality, and political subdivision of the Commonwealth, governed by a 21-member board dominated by VCU officials and State appointees.

On absolute immunity, the AG applied the arm-of-the-state analysis articulated in Prendergast v. Northern Va. Reg'l Park Auth., 227 Va. 190 (1984). Three factors pointed to immunity: (1) extensive State control over the board's composition and management (the VCU President chairs the board; 14 of 21 members are State appointees; the CEO is a State employee); (2) substantial State funding (approximately $150 million per year for indigent care, $26 million per year for VCU faculty/staff serving VCUHSA, and capital appropriations); and (3) deep interconnectedness with VCU, which itself enjoys absolute immunity (Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242 (2004)). The AG concluded this combination resembled the UVA Medical Center, which is treated as part of UVA and enjoys absolute immunity.

The AG acknowledged a contrary 2016 ruling by the Richmond Circuit Court in Lisa Stanley v. VCUHSA, which held VCUHSA was not an arm of the Commonwealth but did find it was a quasi-municipal corporation entitled to immunity for governmental functions. The AG disagreed with the arm-of-the-state portion but agreed VCUHSA at minimum qualifies as a quasi-municipal corporation under the six-factor test in City of Richmond v. Richmond Metro. Auth., 210 Va. 645 (1970).

On VTCA, Rector & Visitors of the University of Virginia v. Carter held that the Act waives immunity only for "the Commonwealth (and certain 'transportation districts' not here relevant)," not for agencies of the Commonwealth. The AG applied the same reasoning to VCUHSA: whether characterized as agency or authority, VCUHSA is not waived in the VTCA, so the $100,000 cap does not apply because no waiver exists at all.

The AG closed with the Pike v. Hagaman, 292 Va. 209 (2016), framework for individual employees: a VCUHSA nurse's immunity is assessed under the four-factor test in James v. Jane, 221 Va. 43 (1980), and Pike held that a VCUHSA nurse was entitled to sovereign immunity.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Supreme Court of Virginia has not, as of 2017, conclusively settled VCUHSA's sovereign-immunity status. Subsequent cases may have done so. Title 23.1 has been amended, including subtle changes to VCUHSA's powers and governance. Anyone litigating a current claim against VCUHSA or another State-related health system should consult current case law.

Background and statutory framework

VCUHSA exists at the intersection of Virginia's higher-education and public-health frameworks. The General Assembly created MCV Hospitals Authority in 1996 (1996 Va. Acts ch. 905) as a "public body corporate" and "political subdivision of the Commonwealth," exercising "public and essential governmental functions." The name was changed to VCUHSA in 2000. Current authority is in Va. Code Ann. §§ 23.1-2400 to 23.1-2428.

VCUHSA's purposes (§ 23.1-2401(B)) include providing health care, supporting the VCU Health Sciences Schools, serving as the principal teaching hospital, providing a research site for faculty, and operating teaching hospitals "for the benefit of the Commonwealth and its citizens." Section 23.1-2404(B) provides that the exercise of VCUHSA's statutory powers "shall be deemed the performance of essential governmental functions and matters of public necessity for the entire Commonwealth."

Governance: Section 23.1-2402(A) establishes a 21-member board with substantial State and VCU representation. Section 23.1-2403(A) puts VCUHSA "under the immediate supervision and direction of a chief executive officer" who must be the Vice-President for Health Sciences at VCU. CEO selection and removal are joint VCU/VCUHSA decisions; deadlocks are resolved by the VCU President.

Funding: VCUHSA receives substantial State funding through Medicaid supplemental payments, direct appropriations to VCU for VCUHSA-serving positions, and capital projects. Per the JLARC review of Medicaid rates (2013), VCUHSA and the UVA Medical Center together received 84% of $3 billion in State supplemental payments over a decade because they are "Virginia's two academic health centers."

Sovereign immunity framework: "[T]he doctrine of sovereign immunity is 'alive and well' in Virginia" (Gray v. Va. Sec'y of Transp., 276 Va. 93, 101 (2008)). It "protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities" (City of Va. Beach v. Carmichael Dev. Co., 259 Va. 493, 499 (2000)). Whether an entity is an arm of the Commonwealth depends on the nature of the entity (Jean Moreau & Assocs. v. Health Ctr. Comm'n, 283 Va. 128, 141 (2012); Prendergast, 227 Va. at 194).

Prior AG opinions have looked beyond the formal "political subdivision" label and analyzed the actual functioning of the entity, focusing on State control and funding (2002 Op. Va. Att'y Gen. 281, 282; 1985-1986 Op. Va. Att'y Gen. 336, 336; 1978-1979 Op. Va. Att'y Gen. 305, 308). State agencies are typically subordinate bodies dependent on State appropriations and subject to substantial State control; political subdivisions exercise independent powers and incur their own debts.

The federal court in Stewart v. Virginia Commonwealth Univ. (E.D. Va. 2010) concluded that VCU and "its health system [and] medical center" are "agencies of the Commonwealth of Virginia, arms of the State, and consequently entitled to sovereign immunity from suit." Although vacated in part on Title VII grounds (which separately abrogate state immunity for employment discrimination claims), the broader sovereign-immunity holding was undisturbed.

Quasi-municipal corporation analysis: An entity is a quasi-municipal corporation if it satisfies the six factors in City of Richmond v. Richmond Metro. Auth., 210 Va. 645, 647 (1970): (1) created as body corporate and political subdivision; (2) created to serve a public purpose; (3) power to have a seal, sue and be sued, contract, hold property; (4) power of eminent domain; (5) power to borrow money and issue tax-exempt bonds; (6) management vested in a board. VCUHSA satisfies all six. Quasi-municipal corporations enjoy immunity for governmental (as opposed to proprietary) functions (Jean Moreau & Assocs., 283 Va. at 137).

VTCA: The Virginia Tort Claims Act, §§ 8.01-195.1 to 8.01-195.9, waives immunity only for "the Commonwealth (and certain 'transportation districts' not here relevant)." Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242, 244-45 (2004), held that the VTCA's limited waiver does not reach agencies of the Commonwealth, and UVA retained sovereign immunity. The same reasoning applies to VCUHSA: the VTCA does not waive its immunity, so the $100,000 cap is irrelevant.

Common questions

Q: Is VCUHSA immune from lawsuits?
A: The AG concluded the Supreme Court of Virginia would likely hold yes, with absolute immunity as an arm of the Commonwealth. Even if not, VCUHSA would be a quasi-municipal corporation immune from suits arising from governmental functions.

Q: What does that mean practically for someone injured at a VCUHSA facility?
A: Direct suits against VCUHSA itself face sovereign-immunity defenses. Suits against individual employees turn on the four-factor James v. Jane test (Pike v. Hagaman applied it and immunized a VCUHSA nurse). Recovery requires either an immunity exception or a legislative waiver.

Q: Doesn't the Virginia Tort Claims Act cap recovery at $100,000?
A: The VTCA cap applies only where the VTCA has waived immunity. For VCUHSA, the AG concluded the VTCA doesn't waive immunity at all, so the cap doesn't operate as an authorized recovery.

Q: Why does VCUHSA enjoy immunity if it's a separate authority?
A: Because it functions as a State arm: dominated by State and VCU officials, dependent on State funding, performing essential State functions (teaching hospital, indigent care, biomedical research), and deeply interconnected with VCU.

Q: What happened in Pike v. Hagaman?
A: The Supreme Court of Virginia in 2016 held a VCUHSA nurse was entitled to sovereign immunity under James v. Jane. The Court treated VCUHSA as a "state hospital" performing essential governmental functions, with substantial State control over the nurse's employment.

Q: Has any Virginia court ruled VCUHSA is NOT an arm of the Commonwealth?
A: Yes. The Richmond Circuit Court in Lisa Stanley v. VCUHSA (2016) found VCUHSA was not an arm of the Commonwealth but was a quasi-municipal corporation entitled to immunity. The AG disagreed with the first part but agreed with the second; either way, immunity applies for governmental functions.

Citations and references

Virginia statutes:

• Va. Code Ann. §§ 8.01-195.1 to 8.01-195.9 (Virginia Tort Claims Act)
• Va. Code Ann. § 8.01-195.2 (VTCA definitions)
• Va. Code Ann. § 8.01-195.3 (VTCA $100,000 cap)
• Va. Code Ann. §§ 23.1-2400 to 23.1-2428 (VCUHSA enabling chapter)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Cases:

• Pike v. Hagaman, 292 Va. 209 (2016)
• James v. Jane, 221 Va. 43 (1980)
• Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242 (2004)
• Stewart v. Virginia Commonwealth Univ., No. 3:09CV738-HEH, 2010 WL 1170002 (E.D. Va. Mar. 23, 2010), aff'd in part and vacated in part, 414 F. App'x 555 (4th Cir. 2011)
• Gray v. Va. Sec'y of Transp., 276 Va. 93 (2008)
• Messina v. Burden, 228 Va. 301 (1984)
• City of Va. Beach v. Carmichael Dev. Co., 259 Va. 493 (2000)
• Hinchey v. Ogden, 226 Va. 234 (1983)
• Elizabeth River Crossings OpCo, LLC v. Meeks, 286 Va. 286 (2013)
• Jean Moreau & Assocs., Inc. v. Health Ctr. Comm'n, 283 Va. 128 (2012)
• Prendergast v. Northern Va. Reg'l Park Auth., 227 Va. 190 (1984)
• Va. Elec. & Power Co. v. Hampton Redevelopment & Hous. Auth., 217 Va. 30 (1976)
• Baird v. Stokes, 82 Va. Cir. 56 (Va. Cir. Ct. Norfolk Apr. 5, 2011), aff'd, Record No. 120743 (Va. Apr. 5, 2013)
• Hampton Rds. Sanitation Dist. Comm'n v. Smith, 193 Va. 371 (1952)
• City of Richmond v. Richmond Metro. Auth., 210 Va. 645 (1970)
• County of York v. Peninsula Airport Comm'n, 235 Va. 477 (1988)
• Sculthorpe v. Va. Ret. Sys., 952 F. Supp. 307 (E.D. Va. 1997)
• Croatan Books, Inc. v. Commonwealth, 574 F. Supp. 880 (E.D. Va. 1983)
• Elizabeth River Tunnel Dist. v. Beecher, 202 Va. 452 (1961)
• McDonald v. Hampton Training Sch. for Nurses, 254 Va. 79 (1997)
• Lisa Stanley v. VCUHSA, No. CU 6-3016 (Va. Cir. Ct. City of Richmond Oct. 11, 2016)

Prior AG opinions:

• 1976-1977 Op. Va. Att'y Gen. 319
• 1985-1986 Op. Va. Att'y Gen. 150
• 1985-1986 Op. Va. Att'y Gen. 336
• 2002 Op. Va. Att'y Gen. 281
• 2004 Op. Va. Att'y Gen. 130
• 2006 Op. Va. Att'y Gen. 95
• 2012 Op. Va. Att'y Gen. 96

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2017/17-005-Massie-VCUHSA-sovereign-immunity-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General

Mark R. Herring
Attorney General

December 7, 2017

The Honorable James P. "Jimmie" Massie III
Member, Virginia House of Delegates
Post Office Box 29598
Richmond, Virginia 23242

Dear Delegate Massie:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You have asked whether the Virginia Commonwealth University Health System Authority (the "Authority" or "VCUHSA") has absolute or qualified immunity from lawsuits that may be brought against it. You also have asked whether the amount of any recovery against VCUHSA for damages, loss of property, or personal injury or death caused by a negligent or wrongful act or omission of its employees is limited to $100,000 in accordance with § 8.01-195.3 of the Code of Virginia.

Background

1. History

The origins of the health system now known as VCUHSA date to 1838, and for all but a few years of its history it has served the Commonwealth as a public entity.[1] In 1854, the General Assembly granted an independent charter to the "Medical College of Virginia" ("MCV"), and six years later, MCV transferred its assets to the Commonwealth in return for an appropriation of $30,000.[2] Beginning in 1861, MCV opened and operated a series of hospitals and outpatient clinics.[3] In 1968, the General Assembly merged MCV with the Richmond Professional Institute to form Virginia Commonwealth University ("VCU" or "the University").[4]

In 1996, the General Assembly enacted, and Governor Allen signed, legislation establishing the Medical College of Virginia Hospitals Authority ("MCVHA").[5] Pursuant to that legislation, MCVHA was "created as a public body corporate and as a political subdivision of the Commonwealth" and was "constituted [as] a public instrumentality, exercising public and essential governmental functions."[6] The General Assembly established a deadline of June 30, 1997 "for the transfer of employees to the Authority and for the transfer of hospital facilities, or any parts thereof, to and the assumption, directly or indirectly, of hospital obligations by the Authority."[7]

In 2000, the name of the authority was changed from MCVHA to "Virginia Commonwealth University Health System Authority."[8] Under its current governing statute, recently recodified in Title 23.1,[9] VCUHSA remains "a public body corporate, public instrumentality, and political subdivision of the Commonwealth with such public and corporate powers as are set forth in [Code §§ 23.1-2400 through 23.1-2428]."[10]

2. Governance and Leadership

VCUHSA is governed by a 21-member board of directors (the "Board"), consisting of 19 appointed members and two ex officio members: the President of VCU, and VCU's Vice President for Health Sciences.[11] The rector of VCU appoints five nonlegislative Board members from the VCU Board of Visitors; the Governor appoints six nonlegislative members; the Speaker of the House appoints five Board members; and the Senate Committee on Rules appoints three.[12] Five members of the Board must be physicians who are VCU faculty members with hospital privileges; they are among those appointed by the Governor and General Assembly-two by the Governor, two by the Speaker, and one by the Senate Committee on Rules-"after consideration of names from lists submitted by the faculty physicians of the School of Medicine of the University through the Vice-President for Health Sciences of the University."[13] The President of VCU serves as chair of the Board.[14]

VCUHSA is "under the immediate supervision and direction of a chief executive officer" who is defined as "the individual who holds the title of Vice-President for Health Sciences" at VCU.[15] The selection and removal of the CEO of VCUHSA is "made jointly" by the Board and the VCU Board of Visitors.[16] In the event that a majority of both boards do not agree on the selection, removal, or conditions of employment of a CEO, and representatives of the boards cannot resolve the disagreement, then the President of VCU "shall decide upon the matter."[17]

3. Purposes

You correctly relay that, under § 23.1-2401(B) of the Code of Virginia, the purpose of VCUHSA is "to exercise public and essential governmental functions"-specifically,

to provide for the health, welfare, convenience, knowledge, benefit, and prosperity of the residents of the Commonwealth and such other individuals who might be served by the Authority by delivering and supporting the delivery of medical care and related services to such residents and individuals, providing educational opportunities in the medical field and related disciplines, conducting and facilitating research in the medical field and related disciplines, and enhancing the delivery of health care and related services to the Commonwealth's indigent population.[18]

The General Assembly has further enumerated six purposes of VCUHSA, authorizing it to "perform such public and essential government functions with the power and purpose" to:

1. Provide health care, including indigent care, to protect and promote the health and welfare of the citizens of the Commonwealth;

2. Serve as a high-quality teaching hospital to provide and promote health care by educating medical and health sciences professionals, providing medical services not widely available in the Commonwealth, and treating patients of the type and on the scale necessary to facilitate medical research and attract physicians, faculty members, researchers, and other individuals necessary to maintain quality medical and health sciences education;

3. Facilitate and support the health education, research, and public service activities of the Health Sciences Schools of the University;

4. Serve as the principal teaching and training hospital for undergraduate and graduate students of the Health Sciences Schools of the University;

5. Provide a site for faculty members of the Health Sciences Schools of the University to conduct medical and biomedical research; and

6. Operate and manage general hospital and other health care facilities, engaging in specialized management and operational practices to remain economically viable, earning revenues necessary for operations, and participating in arrangements with public and private entities and other activities, taking into account changes that have occurred or may occur in the future in the provision of health care and related services.[19]

The General Assembly also required that the "Authority shall operate, maintain, and expand, as appropriate, teaching hospitals and related facilities for the benefit of the Commonwealth and its citizens and such other individuals who might be served by the Authority."[20]

4. Powers

The Authority has been given "all the powers necessary or convenient to carry out the purposes and provisions of" its enabling chapter.[21] The Code of Virginia also expressly grants VCUHSA more than two dozen specific powers, including the power to:

• "[s]ue and be sued in its own name";[22]
• "[m]ake and execute contracts, guarantees, or any other instruments and agreements necessary or convenient for the exercise of its powers and functions, including contracts with hospitals or health care businesses to operate and manage any or all of the hospital facilities or operations";[23]
• "[c]onduct or engage in any lawful business, activity, effort, or project consistent with the Authority's purposes or necessary or convenient to exercise its powers";[24]
• exercise all powers granted to corporations not inconsistent with the enabling chapter;[25]
• borrow money and issue bonds;[26]
• seek financing from and enter into contracts with the Commonwealth, the Virginia Public Building Authority, and the Virginia College Building Authority;[27]
• procure insurance or provide self-insurance;[28]
• accept loans, grants, contributions, or other assistance from all sources, including the federal government and the Commonwealth;[29]
• "[e]xercise the power of eminent domain . . . to acquire by condemnation any real property . . . that it may deem necessary to carry out the purposes of this chapter" when it concludes that acquisition is "in the public interest and necessary for public use" and is approved by the Governor;[30]
• "[a]dminister programs to assist in the delivery of medical and related services to the citizens of the Commonwealth and others";[31] and
• "[e]xercise independently the powers conferred . . . in furtherance of its corporate and public purposes."[32]

The General Assembly concluded its recitation of the Authority's powers by underscoring the "governmental" nature of its work for the Commonwealth and its residents:

The exercise of the powers permitted by this chapter shall be deemed the performance of essential governmental functions and matters of public necessity for the entire Commonwealth in the provision of health care, medical and health sciences education, and research for which public moneys may be borrowed, loaned, spent, or otherwise utilized and private property may be utilized or acquired.[33]

Applicable Law and Discussion

I respond to each of your questions in the corresponding sections below.

1. Whether VCUHSA has absolute or qualified immunity from suit.

You ask for confirmation that, "as an agency of the Commonwealth of Virginia," VCUHSA "itself has absolute or qualified immunity." The Supreme Court of Virginia has not had occasion to address either whether VCUHSA is "an agency of the Commonwealth" or whether it is entitled to absolute or qualified immunity. While I note that the Secretary of the Commonwealth categorizes VCUHSA as an "independent agency" for the purposes of the organization of state government,[34] it is not necessary to decide whether, in all circumstances, VCUHSA should be treated as an agency. The Attorney General has previously opined that an authority may be considered an agency for some purposes but not others.[35]

Thus, in responding to your request, it is sufficient to conclude-which I do, for the reasons set forth below-that the Supreme Court of Virginia would likely hold that VCUHSA is an arm of the Commonwealth for purposes of sovereign immunity. Accordingly, it would have absolute immunity from suit. But even if the Supreme Court were to conclude that VCUHSA is not entitled to absolute immunity, it would be entitled to qualified immunity when performing governmental functions.

a. The Supreme Court of Virginia would likely find that VCUHSA is entitled to absolute immunity.

"[T]he doctrine of sovereign immunity is 'alive and well' in Virginia."[36] "Sovereign immunity is 'a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities.'"[37] "Most importantly, the doctrine of sovereign immunity provides for 'smooth operation of government' and prevents 'citizens from improperly influencing the conduct of governmental affairs through the threat or use of vexatious litigation.'"[38]

In determining whether a particular governmental entity is entitled to absolute immunity, the relevant question is whether the entity is properly considered an arm of the Commonwealth.[39] The Supreme Court has "consistently reaffirmed that whether an entity is an arm or agency of the State, and therefore entitled to absolute immunity, depends on the nature of the entity."[40] As the Court explained in Prendergast v. Northern Virginia Regional Park Authority,[41] the "correct approach is the one we have long employed in the Commonwealth: the attributes of the particular entity which seeks immunity must be examined to determine whether it is an 'arm' of the Commonwealth."[42]

Consistent with that approach, when determining the legal status of entities, previous Attorneys General have looked to the particular context and factual circumstances.[43] They have not relied exclusively on whether an enabling statute identifies an entity as a "political subdivision."[44] Instead, they have "distinguished state agencies from independent political subdivisions by reviewing factors that assess the entity's reliance on the state for control and funding."[45]

[A] state agency is an entity that serves as a subordinate or auxiliary body to fulfill a state purpose, is dependent upon state appropriations, and is subject to state control to a great degree. For example, the exercise of powers of an agency is subject to prior approval or postexercise veto by a higher authority of state government.[46]

By contrast, a political subdivision:

is independent from other governmental bodies, in that it may act to exercise those powers conferred upon it by law without seeking the approval of a superior authority. It employs its own consultants, attorneys, accountants and other employees whose salaries are fixed by the political subdivision and it often incurs debts which are not debts of the Commonwealth but are debts of the political subdivision.[47]

There is no doubt that VCUHSA's enabling statute confers on it a measure of independence as well as specific powers that are characteristic of political subdivisions.[48] But based on the factors identified by previous Attorneys General-and in light of VCUHSA's unique history, status, and interconnectedness with VCU-it is my opinion that the Supreme Court of Virginia would likely find that VCUHSA is, like VCU itself, an arm of the Commonwealth entitled to absolute immunity.

First, VCUHSA, which was created by the General Assembly, remains subject to a substantial degree of State control.[49] Every member of VCUHSA's governing board is either a State official or employee or has been appointed by one. The majority of the Board-12 of 21 members-serve because of their positions at VCU as faculty, officials, or members of the Board of Visitors:[50]

• five Board members must be physician-faculty members at VCU, chosen by the Governor and the General Assembly members after considering lists submitted by physician faculty of the VCU School of Medicine;
• five Board members are appointed by the rector of VCU from the VCU board of visitors (who themselves have been appointed by the Governor[51]); and
• two Board members, who are ex officio voting members, are senior officials at VCU: the President of VCU, and the chief academic and administrative officer for VCU's Health Sciences School.[52]

VCU's significant representation on the Board has been amplified in recent years by the General Assembly, which in 2014 inserted a statutory requirement that the VCU president serve as the Board's chair;[53] previously, the Board elected the chair.[54]

Elected State officials also dictate the Board's composition. Fourteen members of the Board-including the five VCU physician faculty-are appointed by the Governor, the Speaker of the House of Delegates, or the Senate Committee on Rules. Although the eight Board members appointed by the Speaker of the House and the Senate Committee on Rules need not be members of the General Assembly themselves, currently three are.[55]

Not only does the Board's composition ensure State control over VCUHSA, so does the management structure, which commits oversight of VCUHSA's operations to a State employee. Under the Code of Virginia, the "Authority shall be under the immediate supervision and direction of a chief executive officer, [who] . . . shall be the individual who holds the title of Vice-President for Health Sciences" at VCU.[56] Decisions about the CEO's appointment or removal are made jointly by the VCU and VCUHSA boards, but if there is a disagreement between those boards that cannot be resolved, the President of VCU makes the final decision.[57]

Thus, both through operational oversight and Board appointments, the State maintains control over VCUHSA. This has led at least one court to conclude that VCUHSA is immune from suit. In Stewart v. Virginia Commonwealth University,[58] an employment discrimination suit, the U.S. District Court for the Eastern District of Virginia concluded that VCU, as well as "its health system [and] medical center . . . are agencies of the Commonwealth of Virginia, arms of the State, and consequently entitled to sovereign immunity from suit . . . ."[59] In arriving at that conclusion, the court reasoned that, under the Code of Virginia, VCU is "under the control of the General Assembly," and that the General Assembly "specifically empower[ed] VCU to operate a medical center . . . , a school of medicine . . . , and [VCUHSA]."[60]

The level of State control distinguishes VCUHSA from other entities that the Supreme Court of Virginia has found not to be immune from suit.[61] For instance, in Virginia Electric & Power Company v. Hampton Redevelopment & Housing Authority,[62] the Supreme Court of Virginia concluded that a municipal housing authority, despite being denominated a political subdivision of the Commonwealth, "is not entitled to the same immunity from tort liability that is enjoyed by the Commonwealth" because it "is an entity purely local in nature."[63] The authority "does not come into existence by state initiative; local activation, optional with each locality, is required."[64] Similarly, in Prendergast, the Supreme Court of Virginia held that the authority was not an "arm of the Commonwealth" because it "was not directly created by the Commonwealth" and "is a creature of one or more localities and is essentially subject to their control."[65] And in Baird v. Stokes,[66] a case involving the Eastern Virginia Medical School ("EVMS"), the Supreme Court found no error in a decision by the Circuit Court of the City of Norfolk that EVMS was not an agency of the Commonwealth in part because its governing board, at that time consisting mostly of appointees by local city councils, "maintained control over EVMS in the selection of leadership, as well as the adoption of rules and regulations."[67] "EVMS was thus subject to substantial local control and functioned independently of the Commonwealth."[68]

Second, although I understand that VCUHSA no longer has an "agency code" assigned by the Commonwealth's Department of Planning and Budget, it is clear that VCUHSA remains dependent on significant financial support from the State.[69] In the 2016-2018 biennial budget, for instance, the appropriations for the Department of Medical Assistance Services included approximately $150 million per year from general and non-general funds "to reimburse the Virginia Commonwealth University Health System for indigent health care costs."[70] As the Joint Legislative Audit & Review Commission has explained, the General Assembly's annual appropriation is unique to VCU Health System and the University of Virginia ("UVA") Medical Center, "the State's two academic health centers":

Virginia's Medicaid program provides VCU Health System and UVA Medical Center with additional funding to recognize the important role that these facilities play in providing a health care safety net for Medicaid and uninsured patients in the State, as well as the public interest in ensuring the financial viability of these centers. The State's academic health centers have been reimbursed for well above their Medicaid costs almost every year over the past decade as a result of the additional funding received, which is designed not only to help offset their Medicaid losses but also to offset the uncompensated care they provide to uninsured patients.

VCU Health System and UVA Medical Center have received 84 percent of the $3 billion over the past 10 years for two primary reasons. As the State's two academic health centers, they treat a higher percentage of Medicaid patients (26 percent and 20 percent, respectively) compared to other hospitals (14 percent). They also treat a high volume of indigent patients. In FY 2012, the General Assembly appropriated approximately $237 million in supplemental payments to these two hospitals as compensation for the provision of indigent care.[71]

In addition, the 2016-2018 budget includes a roughly $26-million-per-year appropriation to VCU to fund positions at VCUHSA. An item denominated "State Health Services" (the same descriptive heading that covers appropriations to the UVA Medical Center in UVA's portion of the budget) provides that the "appropriation includes funding to support 200 instructional and administrative faculty positions and for administrative and classified positions which provide services, through internal service agreements, to the Virginia Commonwealth University Health System Authority."[72]

The General Assembly also has appropriated money to fund VCUHSA building projects. In 2012, in the VCU portion of the budget (also under "State Health Services"), a $250,000 appropriation from the general fund was "designated for the Virginia Commonwealth University Health System to plan for a replacement facility for the Virginia Treatment Center for Children."[73] The funding for that facility came in 2013 when, as part of the Comprehensive Capital Outlay Program, the General Assembly authorized the issuance of over $1 billion in bonds as well as $56 million in higher-education-operating funds for a number of capital projects, including for a "Replacement Facility for the Virginia Treatment Center for Children" at VCU.[74]

The General Assembly also controls VCUHSA's ability to make large capital expenditures. Under § 23.1-2413 of the Code of Virginia, any capital project in excess of $5 million that is approved by the Board must be proposed to the House Appropriations and Senate Finance Committees with information about its "scope, cost, and construction schedule."[75] VCUHSA "may undertake the project unless either Committee raises objections within 30 days of the notification, in which case the Authority shall not undertake the project until such objections are resolved."[76]

Third, the unique history of VCUHSA and its ongoing symbiotic relationship with VCU, which itself enjoys absolute immunity,[77] weigh significantly in favor of concluding that VCUHSA is also entitled to absolute immunity. To be sure, the General Assembly has defined VCUHSA separately in the Code-albeit under the same subtitle of Title 23.1 dealing with "[Public] Institutions of Higher Education"[78]-and conferred on VCUHSA a greater measure of independence from VCU than it previously enjoyed. But the continuing interconnectedness of VCU and VCUHSA make it difficult to conclude that they should be treated differently for purposes of sovereign immunity. In addition to sharing leadership, VCU and VCUHSA jointly employ a number of employees,[79] collaborate on initiatives and projects such as the Virginia Treatment Center for Children, and share a stake in the success of VCUHSA.[80] In these respects, VCUHSA resembles the UVA Medical Center, which is operated by UVA under the supervision of a board of university officials.[81] In Rector & Visitors of the University of Virginia v. Carter,[82] the Supreme Court of Virginia concluded that, as part of UVA, the UVA Health System was entitled to sovereign immunity.[83] Although, based on the Code, VCUHSA exercises its powers with greater independence than does UVA Medical Center, it would be incongruous for these two State teaching hospitals to be treated differently for purposes of sovereign immunity unless the General Assembly expressly intended that result.[84]

VCUHSA's unique history and status call for careful adherence to the well-established principle that "[t]o the extent an entity is entitled to sovereign immunity, there must be clear legislative intent before such immunity may be waived."[85] "A waiver of sovereign immunity will not be implied from general statutory language but must be explicitly and expressly stated in the statute."[86] Although this principle is more often invoked to prevent a general statutory waiver such as the Virginia Tort Claims Act[87] from sweeping more broadly than the General Assembly intended-rather than in analyzing whether a particular entity's governing statute entitles it to immunity-I believe it applies here. In light of VCUHSA's features and functions, as well as its intertwined relationship with VCU, it would be appropriate to expect a clear and express legislative statement before finding that its immunity has been waived, rather than construing that result by implication.

VCUHSA's governing statute does provide that it may "[s]ue and be sued,"[88] but the Supreme Court has held that such language does not abrogate sovereign immunity.[89] Indeed, far from expressly waiving any immunity it has, VCUHSA's enabling statute expressly preserves it: Code § 23.1-2404 permits VCUHSA to procure insurance, but specifies that this "is not a waiver or relinquishment of any sovereign immunity to which the Authority or its officers, directors, employees, or agents are otherwise entitled."[90]

For these reasons, it is my opinion that the Supreme Court of Virginia would likely find that VCUHSA is entitled to absolute immunity. But that issue has not been conclusively settled. I am aware that the Circuit Court for the City of Richmond ruled last year that VCUHSA is not an arm of the Commonwealth for purposes of sovereign immunity.[91] In my view, the court there did not sufficiently account for the factors discussed above. Recognizing that "[t]o determine if a political subdivision is an arm or extension of the state that enjoys absolute immunity, the court must consider factors that assess the entity's reliance on the Commonwealth for substantial control," the court found that VCUHSA has at least "a few attributes of an 'agency.'"[92] But the court placed greater weight on the General Assembly's authorization of VCUHSA to "'exercise independently the powers conferred'" on it.[93] And it distinguished Rector & Visitors of the University of Virginia v. Carter by reasoning that, "[u]nlike colleges and universities, VCUHSA is not subject to control by the Commonwealth . . . . The mere appointment of board members by the Governor or General Assembly does not constitute the control necessary to become an 'agency' or 'arm' of the Commonwealth."[94] In my opinion, that formulation discounts the level of State control over VCUHSA, both at the Board level and in its daily operations, which approaches that of the UVA Medical Center.

I also am aware of other support for the proposition that VCUHSA should not be considered a State agency or arm of the Commonwealth in limited contexts other than the one at issue here. The text of VCUHSA's enabling chapter itself, for example, indicates that it should not be treated as an agency for all purposes: Code § 23.1-2410 authorizes the Auditor of Public Accounts to examine the accounts of VCUHSA, but it stipulates that "the Authority is not a state or governmental agency, advisory agency, public body or agency, or instrumentality for purposes of Chapter 14 (§ 30-130 et seq.) of Title 30."[95] And in 2004, the Attorney General opined that VCUHSA was required to compensate the State Fire Marshal for inspecting its buildings because they are not state-owned.[96] The Attorney General reasoned that, because it is a "'public body corporate' and a 'political subdivision of the Commonwealth,' [VCUHSA] is neither a state agency nor a state institution for the purpose of answering the question you pose."[97]

Those points do not undermine my ultimate opinion that the Supreme Court likely would find VCUHSA to be an arm of the Commonwealth and therefore entitled to absolute immunity. At most, they confirm that, as stated above, an authority may be considered an agency or arm of the Commonwealth in some contexts but not in others.[98] More informative on the question of VCUHSA's immunity is the control that the Commonwealth retains over VCUHSA and its leadership, operations, and funding.

b. VCUHSA is entitled to immunity for performing governmental functions.

If VCUHSA is not an agency or arm of the Commonwealth entitled to absolute immunity, it is at least a quasi-municipal corporation, and therefore entitled to immunity for its governmental, as opposed to proprietary, functions.

"The shield of sovereign immunity does not just apply to the State . . . ."[99] Other entities enjoy immunity in certain circumstances. Among these are municipalities, municipal corporations, and the ill-defined category of "quasi-municipal corporations," which the Supreme Court of Virginia has recognized as entities that are "not municipal corporations in the strict sense of the term" but that have been "created to perform an essentially public service."[100] As the Supreme Court has summarized the rule, "municipal corporations perform two types of functions-governmental and proprietary. Municipal corporations are immune from liability 'when performing governmental functions, but are not when exercising proprietary functions.'"[101]

The Supreme Court's analysis for determining whether an entity is a municipal corporation depends on six essential attributes of a municipal corporation:

(1) Creation as a body corporate and politic and as a political subdivision of the Commonwealth; (2) Creation to serve a public purpose; (3) Power to have a common seal, to sue and be sued, to enter into contracts, to acquire, hold and dispose of its revenue, personal and real property; (4) Possession of the power of eminent domain; (5) Power to borrow money and issue bonds which are tax exempt, with interest on such bonds enjoying the same status under tax laws as the interest on bonds of other political subdivisions of the state; (6) Management of the corporation vested in a board of directors or a commission.[102]

Virginia courts and Attorneys General have found a number of entities to be municipal and quasi-municipal corporations based on these factors and the circumstances of each case.[103]

Applying the six factors here points to the conclusion that VCUHSA is a quasi-municipal corporation, even assuming for argument's sake that it is not a State agency or arm of the Commonwealth.[104] First, VCUHSA was "established as a public body corporate, public instrumentality, and political subdivision of the Commonwealth."[105] Second, as its governing statute repeatedly describes, VCUHSA was created to serve a public purpose, including "to provide for the health, welfare, convenience, knowledge, benefit, and prosperity of the residents of the Commonwealth."[106] Third, VCUHSA has the power to have a seal, to sue and be sued, to enter into contracts, and to control its revenues and property.[107] Fourth, it has the power of eminent domain (although its exercise of that power is subject to gubernatorial approval).[108] Fifth, it has the power to borrow money and issue tax-exempt bonds.[109] Finally, as discussed at length above, VCUHSA's management is vested in a board, albeit one controlled by State officials.[110]

Thus, VCUHSA satisfies all six factors and therefore could qualify as a quasi-municipal corporation entitled to immunity in fulfilling governmental functions, even if it were not considered to be a State agency or arm of the Commonwealth.[111] I do not offer any opinion on the specific functions that would qualify for VCUHSA or its employees to be immune from suit. "Because no bright line rule exists to distinguish between governmental and proprietary functions, whether the exercise of any particular power . . . would be governmental or proprietary would turn on facts not presented."[112]

But I note that the General Assembly has broadly defined the "governmental" nature of VCUHSA's activities. In § 23.1-2401(B) of the Code of Virginia, it stated that the purpose of VCUHSA is:

to exercise public and essential governmental functions to provide for the health, welfare, convenience, knowledge, benefit, and prosperity of the residents of the Commonwealth . . . by delivering and supporting the delivery of medical care and related services to such residents and individuals, providing educational opportunities in the medical field and related disciplines, conducting and facilitating research in the medical field and related disciplines, and enhancing the delivery of health care and related services to the Commonwealth's indigent population.[113]

Moreover, in § 23.1-2404(B), the General Assembly provided that the exercise of VCUHSA's statutory powers "shall be deemed the performance of essential governmental functions and matters of public necessity for the entire Commonwealth in the provision of health care, medical and health sciences education, and research . . . ."[114] The General Assembly also required that the "Authority shall operate, maintain, and expand, as appropriate, teaching hospitals and related facilities for the benefit of the Commonwealth and its citizens and such other individuals who might be served by the Authority."[115]

Whether or not a particular VCUHSA employee shares in VCUHSA's immunity remains, as the Supreme Court made clear last year in Pike v. Hagaman,[116] a separate question determined by application of the test in James v. Jane.[117] In Pike the Supreme Court applied James to conclude that a nurse employed by a VCUHSA hospital was entitled to sovereign immunity.[118] Although VCUHSA's immunity as a State entity was not an issue before the Supreme Court, because the plaintiff had conceded in the court below that VCUHSA itself "was indeed entitled to sovereign immunity,"[119] the Court's decision that the nurse was immune from suit underscores VCUHSA's own immunity. Analyzing the second James factor-the State's interest in the nurse's function-the Court examined VCUHSA's governing statute and held that, in providing the specialized health services offered by VCUHSA, the nurse was "serving an essential governmental function" and "carrying out the express interest of the Commonwealth."[120] Analyzing the fourth James factor-the level of control by the State over an employee-the Court found that the nurse was subject to a high degree of State control because, among other things, the "state hospital pays her wages and determines her schedule and whether she can take leave. This fourth factor also points in the direction of sovereign immunity."[121]

2. Whether recovery against VCUHSA for negligent acts of employees is limited to $100,000.

You also have asked for confirmation that "the amount of any recovery against the VCU Health System Authority for damages, loss of property or personal injury or death caused by the negligent or wrongful act or omission of employees of VCU Health System Authority is limited to $100,000 in accordance with V[irginia] Code § 8.01-195.3." The Code section you cite is part of the Virginia Tort Claims Act (the "VTCA"), which is a limited waiver of the Commonwealth's immunity and provides that:

the Commonwealth shall be liable for claims for money . . . on account of damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his employment under circumstances where the Commonwealth or transportation district, if a private person, would be liable to the claimant for such damage, loss, injury or death . . . . The amount recoverable by any claimant shall not exceed . . . $100,000 for causes of action accruing on or after July 1, 1993 or . . . the maximum limits of any liability policy maintained to insure against such negligence or other tort, if such policy is in force at the time of the act or omission complained of, whichever is greater, exclusive of interest and costs.[122]

An "employee" is defined as "any officer, employee or agent of any agency, or any person acting on behalf of an agency in an official capacity," while "agency" is broadly defined to include "any department, institution, authority, instrumentality, board or other administrative agency of the government of the Commonwealth . . . ."[123]

While the VTCA exposes the Commonwealth to limited liability for the negligent acts of employees of State entities-including authorities-the VTCA does not expose entities such as VCUHSA to liability themselves. Thus, in Rector & Visitors of the University of Virginia v. Carter, the Supreme Court rejected an effort to hold UVA liable for the negligent acts of a resident physician in the UVA Health System. The Court explained:

Absent an express statutory or constitutional provision waiving sovereign immunity, the Commonwealth and its agencies are immune from liability for the tortious acts or omissions of their agents and employees . . . . The limited waiver provided for in the Act will be strictly construed because the Act is a statute in derogation of the common law. Under the plain language of the Act, the Commonwealth (and certain "transportation districts" not here relevant) are the only entities for which sovereign immunity is waived. The Act contains no express provision waiving sovereign immunity for agencies of the Commonwealth, which we have stated repeatedly is a mandatory requirement before waiver occurs. As an agency of the Commonwealth, UVA is entitled to sovereign immunity under the common law absent an express constitutional or statutory provision to the contrary. There is no such waiver in the Act or elsewhere.[124]

For the same reasons, VCUHSA may not be held liable under the VTCA for the negligent acts of its employees, whether it is considered an agency or an authority. And because the VTCA does not waive VCUHSA's immunity, it is not liable for any amount of damages, let alone up to the statutory cap of $100,000 that would otherwise apply.

Conclusion

In response to your first question, it is my opinion that the Supreme Court of Virginia likely would find, in light of VCUHSA's functions and history, that it is a State agency or arm of the Commonwealth for the purposes of sovereign immunity, and therefore is entitled to absolute immunity from suit. Even if the Court were not to agree, however, VCUHSA also satisfies the criteria of a quasi-municipal corporation and therefore would be entitled to immunity for governmental functions. In answer to your second question, the VTCA exposes the Commonwealth, but not VCUHSA, to limited liability for the negligent acts of its employees.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] See VCU School of Medicine, History - Timeline, VIRGINIA COMMONWEALTH UNIVERSITY, http://www.medschool.vcu.edu/about/history/timeline/ (last visited Dec. 5, 2017).

[2] Id.

[3] See id.

[4] 1968 Va. Acts ch. 93 ("The colleges, schools, and divisions heretofore existing as The Medical College of Virginia shall, as of July 1, 1968, be designated The Medical College of Virginia, Health Sciences Division of Virginia Commonwealth University.").

[5] 1996 Va. Acts ch. 905.

[6] Id.

[7] Id.

[8] 2000 Va. Acts ch. 720.

[9] See 2016 Va. Acts ch. 588.

[10] VA. CODE ANN. § 23.1-2401 (2016).

[11] Section 23.1-2402(A) (2016).

[12] Id.

[13] Section 23.1-2402(A) to (C).

[14] Section 23.1-2402(G).

[15] Section 23.1-2403(A) (2016).

[16] Id.

[17] Section 23.1-2403(B).

[18] Section 23.1-2401(B).

[19] Id.

[20] Section 23.1-2401(C).

[21] Section 23.1-2404(A) (Supp. 2017).

[22] Section 23.1-2404(A)(1).

[23] Section 23.1-2404(A)(5). The term "hospital facilities" is defined as "all property or rights in property, real and personal, tangible and intangible, including all facilities suitable for providing hospital and health care services . . . and other related and supporting facilities owned, leased, operated, or used, in whole or in part, by Virginia Commonwealth University as part of, or in connection with, MCV Hospitals in the normal course of its operations as a teaching, research, and medical treatment facility." Section 23.1-2400 (2016).

[24] Section 23.1-2404(A)(6).

[25] Section 23.1-2404(A)(7).

[26] Section 23.1-2404(A)(9). See also § 23.1-2418 (2016) (setting forth in greater detail the Authority's power to issue bonds).

[27] Section 23.1-2404(A)(10), (11).

[28] Section 23.1-2404(A)(12). The provision indicates that the "purchase of insurance, participation in an insurance plan, or creation of a self-insurance plan by the Authority is not a waiver or relinquishment of any sovereign immunity to which the Authority or its officers, directors, employees, or agents are otherwise entitled." Id.

[29] Section 23.1-2404(A)(15).

[30] Section 23.1-2404(A)(16).

[31] Section 23.1-2404(A)(23).

[32] Section 23.1-2404(A)(25).

[33] Section 23.1-2404(B).

[34] The Secretary's state government organizational chart identifies VCUHSA as an "independent agency," along with the Virginia Retirement System (the "VRS"), the State Corporation Commission (the "SCC"), and the Virginia Lottery, among others. See Secretary of the Commonwealth, Organization of Virginia State Government, VIRGINIA.GOV, available at http://commonwealth.virginia.gov/va-government/organization-of-virginia-state-government/ (last visited Dec. 5, 2017). Federal courts have agreed that the VRS and SCC are agencies of the State entitled to immunity. See Sculthorpe v. Va. Ret. Sys., 952 F. Supp. 307, 309-10 (E.D. Va. 1997) (VRS "is an independent agency of the state . . . . [I]t is an 'arm of the state' entitled to immunity . . . ."); Croatan Books, Inc. v. Commonwealth, 574 F. Supp. 880, 885 (E.D. Va. 1983) ("Clearly, the State Corporation Commission has no life other than that derived from the State; rather the agency is the Commonwealth itself in its role as business regulator, not an entity independent of it.").

[35] See, e.g., 1985-1986 Op. Va. Att'y Gen. 150, 151, 152 n.2 (soil and water conservation district defined in the Code as a "governmental subdivision" is a political subdivision but is an agency for purposes of sovereign immunity); 1976-1977 Op. Va. Att'y Gen. 319, 319 (Virginia Port Authority is a political subdivision but is an agency for purposes of statute governing appointment of its administrative head).

[36] Gray v. Va. Sec'y of Transp., 276 Va. 93, 101 (2008) (quoting Messina v. Burden, 228 Va. 301, 307 (1984)).

[37] City of Va. Beach v. Carmichael Dev. Co., 259 Va. 493, 499 (2000) (quoting Hinchey v. Ogden, 226 Va. 234, 240 (1983)).

[38] Id. (quoting Messina, 228 Va. at 308).

[39] See Elizabeth River Crossings OpCo, LLC v. Meeks, 286 Va. 286, 322 (2013) (using the phrase "'arms' of the Commonwealth" to describe "the Commonwealth and certain of its agencies, boards, and commissions").

[40] Jean Moreau & Assocs., Inc. v. Health Ctr. Comm'n ex rel. Cty. of Chesterfield, 283 Va. 128, 141 (2012) (citing Prendergast v. Northern Va. Reg'l Park Auth., 227 Va. 190, 194 (1984)).

[41] 227 Va. 190 (1984).

[42] Id. at 194.

[43] See 2002 Op. Va. Att'y Gen. 281, 283 ("Depending on the context, . . . a political subdivision may be considered a state agency for limited purposes.").

[44] See, e.g., 1978-1979 Op. Va. Att'y Gen. 305, 308 (citation omitted) ("[T]he inquiry must go beyond the statutory provision under which the Authority was created and operated. The actual functioning of the Authority must be reviewed to determine factually whether the Authority is operated as an agency or a political subdivision of the State.").

[45] 2002 Op. Va. Att'y Gen. 281, 282 (citing 1985-1986 Op. Va. Att'y Gen. 336, 336; 1985-1986 Op. Va. Att'y Gen. 149, 150; 1979-1980 Op. Va. Att'y Gen. 5, 5; 1978-1979 Op. Va. Att'y Gen. 305, 307-09; 1977-1978 Op. Va. Att'y Gen. 454, 454).

[46] 2002 Op. Va. Att'y Gen. 281, 282 (footnotes omitted).

[47] 1985-1986 Op. Va. Att'y Gen. 336, 336 (citations omitted).

[48] Section 23.1-2404(A)(25) (VCUHSA may "[e]xercise independently the powers conferred . . . in furtherance of its corporate and public purposes"). See also infra Part 1.b.

[49] The analysis herein regarding State control is offered in the limited context of assessing VCUHSA's entitlement to sovereign immunity and should not be construed as opining on the relationship between any State entities and employees for purposes of determining respondeat superior liability. Cf. McDonald v. Hampton Training Sch. for Nurses, 254 Va. 79, 82 n.1 (1997) (distinguishing between "the status of an individual for purposes of respondeat superior" and "whether a governmental employee is entitled to sovereign immunity"). Nor should this analysis be construed as opining that a principal-agent relationship exists between VCU and VCU Health System or between VCU and any individual acting in his or her capacity as a VCU Health System employee.

[50] See § 23.1-2402(A).

[51] See § 23.1-2303 (2016).

[52] Section 23.1-2402(A). The latter individual holds the title of Vice-President for Health Sciences at VCU and serves as the CEO of VCUHSA. See § 23.1-2403.

[53] Section 23.1-2402(G).

[54] See 2014 Va. Acts ch. 456.

[55] See VCU Health System Authority Board of Directors (2017-2018 Members), VCU HEALTH (Delegate M. Kirkland Cox, Delegate James P. Massie III, and Senator Ryan T. McDougle), available at http://www.vcuhealth.org/about-us/leadership/board-of-directors (last visited Dec. 5, 2017).

[56] Section 23.1-2403(A).

[57] Section 23.1-2403(A), (B).

[58] No. 3:09CV738-HEH, 2010 WL 1170002 (E.D. Va. Mar. 23, 2010), aff'd in part and vacated in part, 414 F. App'x 555 (4th Cir. 2011) (per curiam).

[59] Stewart, 2010 WL 1170002, at *4. The U.S. Court of Appeals for the Fourth Circuit later vacated the district court's dismissal of Stewart's Title VII claim "against VCU and its allied medical facilities" in light of Supreme Court precedent that, "in enacting Title VII, Congress properly abrogated the states' Eleventh Amendment immunity for such [employment discrimination] suits." Stewart, 414 F. App'x at 556.

[60] Stewart, 2010 WL 1170002, at *4.

[61] See, e.g., Baird v. Stokes, 82 Va. Cir. 56, 58 (Va. Cir. Ct. (Norfolk) Apr. 5, 2011) (noting that Eastern Virginia Medical School is a municipality rather than a State agency; EVMS "could not accurately be described as a state university medical school"; control was exerted by localities, who appointed most of the Board of Visitors), aff'd, Record No. 120743 (Va. Apr. 5, 2013) (unpublished).

[62] 217 Va. 30 (1976).

[63] Id. at 33.

[64] Id. at 32.

[65] 227 Va. at 194.

[66] Record No. 120743 (Va. Apr. 5, 2013) (unpublished), available at http://valawyersweekly.com/wp-files/pdf/013-6-030.pdf.

[67] Id., slip op. at 7-8.

[68] Id., slip op. at 8. The Supreme Court also found that, while not an agency, EVMS is a municipal corporation. See id., slip op. at 9.

[69] But see 2004 Op. Va. Att'y Gen. 130, 132 ("[T]he Authority does not directly receive any appropriations from the Commonwealth.") (emphasis added).

[70] 2017 Budget Bill - HB 1500 (Reenrolled), Item 306.B.1, VIRGINIA'S LEGISLATIVE INFORMATION SYSTEM, available at https://budget.lis.virginia.gov/item/2017/1/HB1500/Reenrolled/1/306/ (last visited Dec. 6, 2017). VCUHSA appears to use both "VCU Health System" as well as "VCU Health" to refer to itself more commonly. See Our Leadership, VCU HEALTH, available at https://www.vcuhealth.org/our-story/leadership/our-leadership (last visited Dec. 6, 2017).

[71] JOINT LEGISLATIVE AUDIT AND REVIEW COMMISSION: REVIEW OF THE IMPACT OF MEDICAID RATES ON ACCESS TO HEALTH CARE IN VIRGINIA (Senate Doc. No. 8) at 46-47 (Nov. 2013), available at http://jlarc.virginia.gov/pdfs/reports/Rpt448.pdf (last visited Dec. 5, 2017).

[72] 2017 Budget Bill - HB 1500 (Reenrolled), Item 210, VIRGINIA'S LEGISLATIVE INFORMATION SYSTEM, available at https://budget.lis.virginia.gov/item/2017/1/HB1500/Chapter/1/210/ (last visited Dec. 6, 2017).

[73] 2013 Budget Bill - HB 1500, Item 209, VIRGINIA'S LEGISLATIVE INFORMATION SYSTEM, available at https://budget.lis.virginia.gov/item/2013/1/HB1500/Chapter/1/209/ (last visited Dec. 6, 2017).

[74] Id., Item C-39.40, available at https://budget.lis.virginia.gov/item/2013/1/HB1500/Chapter/2/C-39.40/ (last visited Dec. 6, 2017).

[75] Section 23.1-2413(A) (Supp. 2017).

[76] Id. See also § 23.1-2413(B) (requiring that projects in excess of $5 million "shall be . . . presented again" to the General Assembly's finance committees "[b]efore the Authority materially increases the size or materially changes the scope of any capital project for which construction has commenced").

[77] Cf. Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242, 246 (2004) ("Given the [Virginia Tort Claims] Act's lack of an express waiver of the common law sovereign immunity afforded the Commonwealth's agencies, UVA retains its sovereign immunity from the claim brought by Carter.").

[78] See Virginia Code Title 23.1, Subtitle IV. VCUHSA also retains the power, like public universities, to seek financing from the Virginia College Building Authority. See § 23.1-2404(A)(10) (VCUHSA has power to "[s]eek financing from, incur or assume indebtedness to, and enter into contractual commitments with the Virginia Public Building Authority and the Virginia College Building Authority, which authorities may borrow money and make and issue negotiable notes, bonds, and other evidences of indebtedness to provide such financing relating to the hospital facilities or any project."); § 23.1-1014(A)(2) (Supp. 2017) ("Each covered institution may . . . [s]eek financing from, incur, or assume indebtedness to, and enter into contractual commitments with, the Virginia Public Building Authority and the Virginia College Building Authority, which authorities may borrow money and make and issue negotiable notes, bonds, notes, or other obligations to provide such financing relating to facilities or any project.").

[79] See 2017 Budget Bill - HB 1500 (Chapter 836), Item 210, VIRGINIA'S LEGISLATIVE INFORMATION SYSTEM, available at https://budget.lis.virginia.gov/item/2017/1/HB1500/Chapter/1/210/ (last visited Dec. 6, 2017) (appropriating more than $26 million per year to VCU for "200 instructional and administrative faculty positions and for administrative and classified positions which provide services, through internal service agreements, to [VCUHSA]").

[80] See § 23.1-2428 (2016) (providing that, if VCUHSA is dissolved, "all assets of the Authority, after satisfaction of creditors, shall revert to the University"); § 23.1-2415(A) (providing that the "Authority may issue bonds for any of its purposes, including . . . to refund bonds or other obligations issued by or on behalf of the Authority, the University, or otherwise . . . . The Authority may guarantee, assume, or otherwise agree to pay, in whole or in part, indebtedness issued by the University . . . resulting in the acquisition or construction of facilities for the benefit of the Authority or the refinancing of such indebtedness.").

[81] UVA Medical Center's Operating Board has a composition somewhat similar to VCUHSA's. Its voting members consist of the Rector and five other members of UVA board of visitors (including the chair), all of whom have been appointed by the governor; its non-voting members include eight specific University officials, and up to six "public" members. See Health System Board, UVA BOARD OF VISITORS, available at http://www.virginia.edu/bov/mcob.html (last visited Dec. 6, 2017).

[82] 267 Va. 242 (2004).

[83] Id. at 246 (noting that even though "'agencies' are nothing more than administrative divisions of the Commonwealth . . . [t]he VTCA waives the sovereign immunity of the Commonwealth only. If the General Assembly desired in the Act to waive the sovereign immunity of the Commonwealth's agencies in addition to the immunity of the Commonwealth, it could have easily done so. It did not.").

[84] See § 23.1-2401(B)(3)-(5) (VCUHSA shall support activities of VCU's Health Sciences School, provide a site for faculty research, and "[s]erve as the principal teaching and training hospital for undergraduate and graduate students."); Pike v. Hagaman, 292 Va. 209, 218 (2016) (referring to VCUHSA as a "state hospital"). See also 2017 Budget Bill - HB 1500 (Reenrolled), Item 196.B.3, VIRGINIA'S LEGISLATIVE INFORMATION SYSTEM, available at https://budget.lis.virginia.gov/item/2017/1/HB1500/Chapter/1/196 (last visited Dec. 6, 2017) (ordering UVA and VCUHSA to "establish elective Family Practice Medicine experiences in Southwest Virginia for both students and residents").

[85] 2006 Op. Va. Att'y Gen. 95, 97 (citing 1986-1987 Op. Va. Att'y Gen. 139, 140).

[86] Gray, 276 Va. at 102 (internal quotation marks omitted) (quoting Alliance to Save the Mattaponi v. Commonwealth Dept. of Envtl. Quality ex rel. State Water Control Bd., 270 Va. 423, 455 (2005)). See also 2006 Op. Va. Att'y Gen. at 97 (citing Eriksen v. Anderson, 195 Va. 655, 657 (1954); 1980-1981 Op. Va. Att'y Gen. 317, 318).

[87] See generally VA. CODE. ANN. §§ 8.01-195.1 to 8.01-195.9 (2015 & Supp. 2017).

[88] Section 23.1-2404(A)(1).

[89] Elizabeth River Tunnel Dist. v. Beecher, 202 Va. 452, 457 (1961). See also 2006 Op. Va. Att'y Gen. 95, 97 (footnote omitted) ("[T]he Virginia Supreme Court and the Attorney General consistently have interpreted the power to 'sue and be sued' or to 'contract and be contracted with' insufficient to constitute a waiver of immunity or consent to suit.").

[90] Section 23.1-2404(A)(12). A handful of other statutes contain similar language. See VA. CODE ANN. § 33.2-2608(A)(3) (2014) (Hampton Roads Transportation Accountability Commission); § 23.1-1008(3) (2016) (institutions of higher education covered by the Restructured Higher Education Financial and Administration Operations Act); § 15.2-5340.2 (2012) (hospital authorities); § 62.1-132.1(A)(4) (Supp. 2017) (Virginia Port Authority); § 15.2-5205(19) (2012) (hospital or health center commission); § 15.2-5374(19) (Supp. 2017) (Southwest Virginia Health Authority). I do not suggest that the General Assembly intended any particular level of immunity by this language-only that, combined with the other factors discussed, this language makes an express waiver of sovereign immunity more critical.

[91] See Lisa Stanley v. Virginia Commonwealth Univ. Health Sys. Auth. a/k/a Virginia Commonwealth Univ. Health Sys., No. CU 6-3016 (Va. Cir. Ct. (City of Richmond) Oct. 11, 2016). It nonetheless found that it is entitled to sovereign immunity "because it is a municipal or quasi-municipal corporation that perform[s] a governmental function." Id., slip op. at 4.

[92] Id., slip op. at 2.

[93] Id. (quoting former version of statute).

[94] Id., slip op. at 3.

[95] Section 23.1-2410(C) (2016) (emphasis added).

[96] 2004 Op. Va. Att'y Gen. 130, 132.

[97] Id. (emphasis added) (footnote omitted).

[98] See, e.g., 1985-1986 Op. Va. Att'y Gen. 150, 151, 152 n.2; 1981-1982 Op. Va. Att'y Gen. 337, 338, 339 n.2.

[99] Jean Moreau & Assocs., 283 Va. at 137.

[100] Hampton Rds. Sanitation Dist. Comm'n v. Smith, 193 Va. 371, 374-75 (1952). See also Baird, slip op. at 8 ("Political subdivisions, commissions, authorities and other entities established by the General Assembly have been labeled . . . as 'quasi-municipal corporations.'").

[101] Jean Moreau & Assocs., 283 Va. at 137 (quoting Carter v. Chesterfield Cty. Health Comm'n, 259 Va. 588, 590 (2000)).

[102] City of Richmond v. Richmond Metro. Auth., 210 Va. 645, 647 (1970).

[103] See, e.g., Baird, slip op. at 8-9 (Eastern Virginia Medical School is a municipal corporation entitled to sovereign immunity); 2012 Op. Va. Att'y Gen. 96, 98 (Warm Springs Sanitation Commission a municipal corporation entitled to sovereign immunity). See also Hampton Rds. Sanitation Dist. Comm'n, 193 Va. at 377 ("While it is true that the more attributes of a municipal corporation an agency has the more likely it is to be treated as a municipal corporation, the final decision rests on the specific issue of each case.").

[104] Cf. County of York v. Peninsula Airport Comm'n, 235 Va. 477, 481 n.1 (1988) ("It is true that when participating localities retain substantial local control over an entity they have created, local activation negates its status as a state agency or an 'arm' of the Commonwealth. However, such an entity, although not an arm of the Commonwealth, still may be a municipal corporation (and, thus, a political subdivision) if it possesses enough of the essential attributes.") (internal citations and certain punctuation marks omitted).

[105] Section 23.1-2401(A).

[106] Section 23.1-2401(B). See also § 23.1-2404(A)(25) (authorizing VCUHSA to exercise its powers "in furtherance of its corporate and public purposes").

[107] Section 23.1-2404(A)(2) (power to "[h]ave and alter an official seal"); § 23.1-2404(A)(1) (power to "[s]ue and be sued in its own name"); § 23.1-2404(A)(5) (power to "[m]ake and execute contracts"); § 23.1-2408(A) (Supp. 2017) (providing that "[a]ll moneys of the Authority derived from any source shall be paid to the treasurer of the Authority"); § 23.1-2404(A)(14)(a), (b) (power to own and sell land).

[108] Section 23.1-2404(A)(16).

[109] Section 23.1-2404(A)(9); § 23.1-2418 (setting forth in greater detail the Authority's power to issue bonds); § 23.1-2411(B) (2016) (providing that "[a]ny bonds issued by the Authority . . . are exempt from taxation").

[110] Section 23.1-2402.

[111] See Stanley, slip op. at 4 (finding that "VCUHSA is entitled to sovereign immunity because it is a municipal or quasi-municipal corporation that performed a governmental function").

[112] See 2012 Op. Va. Att'y Gen. 96, 98. See also 2006 Op. Va. Att'y Gen. 95, 97.

[113] Section 23.1-2401(B).

[114] Section 23.1-2404(B).

[115] Section 23.1-2401(C).

[116] 292 Va. 209, 215 (2016).

[117] 221 Va. 43, 53 (1980) (establishing a four-factor test to determine whether a State employee is entitled to immunity, based on the employee's function; the extent of the State's interest and involvement in that function; whether the employee's act involved the use of judgment and discretion; and the degree of control and direction exercised by the State over the employee).

[118] 292 Va. at 212, 219.

[119] Pike v. Hagaman, 90 Va. Cir. 138, 139 (City of Richmond 2015), aff'd, 292 Va. 209 (2016).

[120] Pike, 292 Va. at 217 (punctuation and citations omitted).

[121] Id. at 218.

[122] Section 8.01-195.3 (2015).

[123] Section 8.01-195.2 (2015).

[124] See Carter, 267 Va. at 244-45 (citations omitted).