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CON Certificate of Need State Laws

Certificate of Need: State Health Laws and Programs

Updated: January 2011;  material added July 2014

Certificate of Need (C.O.N.) programs are aimed at restraining health care facility costs and allowing coordinated planning of new services and construction.  Laws authorizing such programs are one mechanism by which state governments seek to reduce overall health and medical costs.  Many "CON" laws initially were put into effect across the nation as part of the federal "Health Planning Resources Development Act" of 1974.  Despite numerous changes in the past 30 years, about 36 states retain some type of CON program, law or agency as of December 2013.

Finance healthHISTORY

In 1964, New York became the first state to enact a statute granting the state government power to determine whether there was a need for any new hospital or nursing home before it was approved for construction. Four years later the American Hospital Association expressed an interest in Certificate of Need laws. The AHA started a national campaign for states to generate their own CON laws.  By 1975, 20 states had enacted CON laws; by 1978, 36 states had enacted them.

The 1974 federal Act required all 50 states to have a structures involving the submission of proposals and obtaining approval from a state health planning agency before beginning any major capital projects such as building expansions or ordering new high-tech devices. Many states implemented CON programs in part because of the incentive of receiving CON federal funds.

The federal mandate was repealed in 1987, along with its federal funding.  In the decade that followed, 14 states discontinued their CON programs.  However, 36 states currently maintain some form of CON program, and even the 14 that repealed their state CON laws still retain some mechanisms intended to regulate costs and duplication of services.  Puerto Rico and the District of Columbia also have CON programs.

States that have retained CON programs currently tend to concentrate activities on outpatient facilities and long-term care.  This is largely due to the trend toward free-standing, physician owned facilities that constitute an increasing segment of the health-care market.

In some states, the debate regarding the future of CON remains intense.  For example Georgia spent 18 months examining the role of CON, with a final Commission report issued in December 2006.   See GA Final CON Report by the State Commission on the Efficacy of the Certificate of Need Program online.  They state, "The Commission has been able to reach consensus on a number of ways to improve upon Georgia’s Certificate of Need Program. However, sharp disagreement remains with regard to a number of areas of regulation, most notably, regulation of ambulatory surgery centers and free-standing imaging centers." [ PDF, 267 pages]

INTENT AND STRUCTURE OF CON

The basic assumption underlying CON regulation is that excess capacity (in the form of facility overbuilding) directly results in health care price inflation. When a hospital cannot fill its beds, fixed costs must be met through higher charges for the beds that are used. Bigger institutions have bigger costs, so CON supporters say it makes sense to limit facilities to building only enough capacity to meet actual needs.

CON programs originated to regulate the number of beds in hospitals and nursing homes, and to prevent overbuying of expensive equipment.  Mandatory regulation through health planning agencies determined the most urgent health care needs, contributed to solutions for these needs, and attempted to manage the fluctuations in prices often caused by a competitive market. The idea was that new or improved facilities or equipment would be approved based only on a genuine need in a community. Statutory criteria often were created to help planning agencies decide what was necessary for a given location.  By reviewing the activities and resources of hospitals, the agencies made judgments about what needed to be improved. Once need was established, the applicant organization (corporation, not-for-profit, partnership or public entity) was granted permission to begin a project. These approvals generally are known as "Certificates of Need."

 C.O.N. SUPPORTERS' VIEWS  C.O.N. OPPONENTS' VIEWS
Advocates of CON programs say that health care cannot be considered as a “typical” economic product. They argue that many “market forces” do not obey the same rules for health care services as they do for other products. In support of this argument, it is often pointed out that, since most health services (like an x-ray) are “ordered” for patients by physicians, patients do not “shop” for these services the way they do for other commodities. This makes hospital, lab and other services insensitive to market effects on price, and suggests a regulatory approach based on public interest.

The American Health Planning Association (AHPA) is the professional group of state agencies responsible for regulation and planning.  They identify three factors that suggest the need for CON programs. The primary argument is that CON programs limit health-care spending. CONs can promote appropriate competition while maintaining lower costs for treatment services. The AHPA argues that by controlling construction and purchasing, state governments can oversee what expenditures are necessary and where funds will be used most effectively. This helps eliminate projects that detract attention from more urgent and useful investments and reduces excessive costs.  A study conducted by the "big-three" automakers claims lower health care costs in CON states then in non-CON states. AHPA also asserts that CONs have a valuable impact on the quality of care. When facilities and equipment are monitored, hospitals and other treatment centers can acknowledge what sort of services are in demand and how effectively patients are being taken care of.

Additionally, according to supporters, the programs distribute care to areas that could be ignored by new medical centers. CON programs are a resource for policymakers. CON regulations are described as a reliable way to implement basic planning policies and practices, and aid in distributing health care to all demographic areas. The CON process can call attention to areas in need because planners can track and evaluate the requests of hospitals, doctors and citizens and see which areas are underserved or need to be improved and developed. 

CON programs also have been subject to wide criticism. To start, opponents argue that "it is not clear that these state-sponsored programs actually controlled health care costs." For example, by restricting new construction, CON programs may reduce price competition between facilities, and may actually keep prices high. Barriers to new building are seen as unfair restrictions, sometimes by both existing facilities and their potential new competitors. There is little direct broad proof that overcapacity or duplication leads to higher charges. In 2004 the Federal Trade Commission (FTC) and the Department of Justice both claimed that CON programs actually contribute to rising prices because they inhibit competitive markets that should be able to control the costs of care and guarantee quality and access to treatment and services. (1)

Some opponents felt that changes in the Medicare payment system (such as paying hospitals according to Diagnostic Related Groups – “DRGs”) would make external regulatory controls unnecessary, because health care organizations would be more subject to market pressures.  Some pointed out that the CON programs are not consistently administered.  A 'flexible' program could allow development, to the dismay of competitors. A 'restrictive' program could limit competition, with the same effect. Many argued that health facility development should be left to the economics of each institution, in light of its own market analysis, rather than being subject to political influence.

Some evidence suggests that lack of competition paradoxically encouraged construction and additional spending. Some opponents of CON programs believe an open health care market, based on quality rather than price, might be the best principle for containing rising costs. Proponents of CON programs disagree. This debate rests on the same arguments as many other “Regulated market” vs. “Open market” discussions.

In theory, Certificates of Need are granted based on objective analysis of community need, rather than the economic self-interest of any single facility. However, opponents of CON programs claim that the programs have not worked this way. They cite examples in which CONs were apparently granted on the basis of political influence, institutional prestige or other factors apart from the interests of the community. Furthermore, it is sometimes a matter of debate what sort of development is actually in the community’s interest, with people of good will sharply divided on how to determine this.

Other Approaches

Many approaches have been tried to controlling health care costs, including government and industry regulation, provider incentives, “free market” incentives and educational efforts.  Some of these include:

  1. Limitations on physician referrals to facilities in which they or a family member have a financial interest (so-called "Stark regulations").
  2. Supervision by insurers to make sure a treatment request is necessary (precertification, concurrent or retrospective medical necessity review).
  3. Prepayment for insured or covered services (“managed care”)
  4. Fixed payments for defined services (“Information Individual Programs DRGs”- uniform Diagnostic-Related Groups)
  5. Providing information to patients about the costs and necessity of certain tests and treatment (includes "transparency" and disclosure programs)
  6. Providing information to patients about the quality of and outcomes at certain medical facilities.

CON In the News

  • Michigan: "States limit Costly Sites For Cancer Radiation" - NY Times, April 30, 2008.
  • Iowa lawmakers quietly passed a bill in the final hours of the 2008 legislative session that would allow most of the state's hospitals to bypass public approval for the construction of new facilities. The bill eliminates a requirement for Iowa's 82 small, rural hospitals to submit to public hearings and obtain state approval before relocating to newly constructed replacement hospitals. "One of the biggest contributors to the growth in health care costs is the rapid expansion of these facilities," Hatch said. "This legislation allows 80 or so Iowa hospitals to replace their hospital without any citizen input and without any justification of the cost. It's just another reason why our health care costs are going up." DesMoines Register, 5/4/08.

Footnotes:

1. The Federal Trade Commission, Department of Justice, Improving Health Care: A Dose of Competition (Washington D.C.: FTC, DOJ, 2004) 361 pages PDF.

Map of 50 states with or without CON programs

STATES WITH CON PROGRAMS (2013)

State/District with CON Programs

Dates of Programs

Certificate of Need Contact Information

Individual CON Websites

 Alabama

1979-present

James E. Sanders, Deputy Director
Phone: 334-242-4103; Fax: 334-242-4113  
james.sanders@shpda.alabama.gov

http://www.shpda.state.al.us
News Article: AL: Bill introduced in Alabama House that would abolish the Certificate of Need process for health services 2/12/09.

Alaska

1976-present

Karen Lawfer, CON Coordinator
Phone: 907-465-8616; Fax: 907-465-6861
Karen.Lawfer@alaska.gov

Alaska's Certificate of Need Program 

Arizona

1971-1985

 

No CON Program; see planning agency below

Arkansas

1975-present

Deborah Frazier, Director
Phone: 501-661-2509; Fax: 501-661-2399
Deborah.Frazier@Arkansas.gov

http://www.arhspa.org

California

1969-1987

 

No CON Program; see planning agency below

Colorado

1973-1987

 

No CON Program; see planning agency below

Connecticut

1973-present

Melanie Dillman, Director, CON & Compliance
Phone: 860-418-7060; Fax: 860-418-7053
melanie.dillman@ct.gov

Connecticut's Certificate of Need Program

Delaware

1978-present

Francis Osei-Afriyie, Management Analyst
Phone: 302-744-4555; Fax: 302-739-3313
francis.osei-afriyie@state.de.us

Delaware's Certificate of Public Review Program

District of Columbia

1977-present

Vacant, Chief, Project Review
Phone: 202-442-5875; Fax: 202-442-4822

DC Certificate of Need Website

Florida

1973-present

Jeff Gregg, Bureau Chief
Phone: 850-412-4402; Fax: 850-413-7955
jeffrey.gregg@ahca.myflorida.com

Florida Licensing and Certification

Georgia

1979-present

Matthew Jarrard, Health Planning Director
Phone: 404-656-0467;  Fax: 404-656-0442
mjarrard@dch.ga.gov

Georgia's Certificate of Need Program

Hawaii

1974-present

Darryl Shutter, Regulatory Branch Chief
Phone: 808-587-0788; Fax: 808-587-0783
darryl.shutter@shpda.org

Hawaii's website for Certificate of Need

Idaho

1980-1983

 They are attempting to pass CON legislation; Contact Steve Millard or Toni Lawson 208-338-5100 or sammillard@teamiha.org, tlawson@teamiha.org

No CON Program; see planning agency below

Illinois

1974-present

Courtney Avery, Administrator
Phone: 312  814-4825; Fax 312 814-1503
courtney.avery@illinois.gov

www.hfsrb.illinois.gov

Indiana

1980-1996, 1997-1999 

 

No CON Program; see planning agency below

Iowa

1977-present

Barb Nervig, Program Manager
Phone: 515-281-4344; Fax: 515-281-4958
bnervig@idph.state.ia.us

www.idph.state.ia.us/do/cert_of_need.asp

Kansas

 1972-1985

 

No CON Program; see planning agency below

Kentucky

1972-present

Shane O'Donley, Policy Advisor
Phone: 502-564-9589; Fax: 502-564-0302

http://chfs.ky.gov/ohp/con

Louisiana

1991-present

James Taylor, Facility Need Review Manager
Phone: 225-342-5457; Fax: 225-342-3893
jhtaylor@dhh.la.gov

www.dhh.state.la.us/

Maine

1978-present

Phyllis Powell, Manager Division of Licensure & Regulatory Services Phone: 207-287-9338; fax: 207-287-5807
Phyllis.Powell@maine.gov

Maine Certificate of Need Program

Maryland

1968-present

Paul Parker, Chief
Phone: 410-764-3261; Fax: 410-358-1311
pparker@mhcc.state.md.us

Maryland Certificate of Need Program

Massachusetts

1972-present

Joan Gorga, Director
Phone: 617-753-7340; Fax: 617-753-7349
Joan.Gorga@state.ma.us

 

Michigan

1972-present

Scott Blakeney, Manager
Phone: 517-241-3344; Fax: 517-241-2962
blakeneys@michigan.gov

www.michigan.gov/con
The Michigan Certificate of Need Program (68 pp)- an in-depth analysis by CRC-Michigan

Minnesota

1971-1985

 

No CON Health Program; see planning agency below.  For non-health see Minn. Certificate of Need Program for public utilities.

Mississippi

1979-present

Rachel Pittman, Chief
Phone: 601-576-7874; Fax: 601-576-7530
rachel.pittman@msdh.state.ms.us

Mississippi Certificate of Need Program

Missouri

1979-present

Karla Houchins, Program Coordinator
Phone: 573-751-6403; Fax: 573-751-7894
Karla.Houchins@health.mo.gov

health.mo.gov

Montana

1975-present

Kathy Lubke, Project Manager
Phone: 406-444-9519; Fax: 406-444-1742
klubke@mt.gov

Administrative Rules of Montana CON

Nebraska

1979-present

Claire Titus, Program Manager
Phone: 402-471-4963; Fax: 402-471-3577
claire.titus@nebraska.gov

www.hhs.state.ne.us/crl/need.htm

Nevada

1971-present

Luana J. Rich, Bureau Chief
Phone: 775-684-4155; Fax: 775-684-4156
lritch@health.nv.gov

www.health2k.state.nv.us/vs/letter.htm

New Hampshire

1979-present

Cynthia Carrier, Managing Analyst
Phone: 603-271-4606; Fax: 603-271-4141
ccarrier@dhhs.state.nh.us

www.nhha.org/nhha/state_law/con.php

New Jersey

1971-present

John Calabria, Director
Phone: 609-292-8773; Fax: 609-292-3780
john.calabria@doh.state.nj.us

www.state.nj.us/health/forms/cn-7.pdf

New Mexico

1978-1983

 

No CON Program; see planning agency below

New York

1966-present

Christopher Delker, Program Research Specialist
Phone: 518-402-0966; Fax: 518-402-0971
cpd02@health.state.ny.us

www.health.state.ny.us/nysdoh/cons/index.htm

North Carolina

1978-present

Craig Smith, Chief
Phone: 919-855-3873; Fax: 919-733-8139
craig.smith@dhhs.nc.gov

http://facility-services.state.nc.us/

North Dakota

1971-1995

 

No CON Program

Ohio

1975-present

Joel Kaiser, CON Director
Phone: 614-466-3325; Fax: 614-752-4157
joel.kaiser@odh.ohio.gov

Ohio CON webpage

Oklahoma

1971-present

Darlene Simmons, Director
Phone: 405-271-6868; Fax: 405-271-7360
darlen@health.state.ok.gov

Oklahoma CON Abstract

Oregon

1971-present

Jana Fussell, CON Coordinator
Phone: 971-673-1108; Fax: 971-673-1299
jana.fussell@state.or.us

Oregon CON Webpage

Pennsylvania

1979-1996

 

No CON Program; see planning agency below

Puerto Rico 1975-present
 
   

Rhode Island

1968-present

Michael K. Dexter, Chief, Office of Health Systems Development 
Phone: 410-222-2788; Fax: 410-222-1797

michael.dexter@health.ri.gov

www.health.ri.gov/hsr/healthsystems/index.php

South Carolina

1971-present

Beverly A. Brandt, Chief
Phone: 803-545-4200; Fax: 803-545-4579
brandtba@dhec.sc.gov

www.scdhec.gov/hr/cofn/

South Dakota

1972-1988

 

No CON Program; see planning agency below

Tennessee

1973-present

Melanie M. Hill, Executive Director
Phone: 615-741-2364; Fax: 615-741-9884
melanie.hill@tn.gov

http://tennessee.gov/hsda/cert_need_sum.html

Texas

1975-1985

 

No CON Program; see planning agency below

Utah

1979-1984

 

No CON Program; see planning agency below

Vermont

1979-present

Donna Jerry, Health Policy Analyst
Phone: 802-828-2900; Fax: 802-828-2949
donna.jerry@bishca.state.vt.us

Vermont CON program

Virginia

1973-present

Erik Bodin, Director
Phone: 804-367-2126; Fax: 804-527-4501
erik.bodin@vdh.virginia.gov

www.cvhpa.org/COPN.htm

Washington

1971-present

Janis Sigman, Manager
Phone: 360-236-2956; Fax: 360-236-2901
janis.sigman@doh.wa.gov

Washington CON program

West Virginia

1977-present

Timothy E. Adkins, CON Director
Phone: 304-558-7000; Fax: 304-559-7001
tadkins@hcawv.org

 

Wisconsin

1977-1987, 1993-2011

 

No CON Program

Wyoming

1977-1989

 

No CON Program; see planning agency below

HEALTH PLANNING AGENCIES IN STATES WITHOUT CURRENT C.O.N. PROGRAMS

State Dates of CON law Planning Agency & Contacts  
Arizona 1971-1985

Patricia Tarango, Chief
Phone: 602-542-1436; Fax: 602-542-2011
tarangp@azdhs.gov

No CON Program

California

1969-1987

David M. Carlisle, Director
Phone: 916-326-3600; Fax: 916-322-2531
OSHPD_DO@oshpd.ca.gov

No CON Program

Colorado

1973-1987

Christopher E. Urbina, Executive Director and Chief Medical Officer
Phone:  303-692-2011;  Fax: 303-691-7704; In-state: 800-886-7689
christopher.urbina@state.co.us

No CON Program

Idaho

1980-1983

Richard Armstrong, Director
Phone: 208-334-5500; Fax: 208-334-6581
armstrongr@idhw.state.id.us

No CON Program

Indiana

1980-1996, 1997-1999

Terry Whitson, Assistant Commissioner
Phone: 317-233-7022; Fax: 317-233-7053
twhitson@isdh.in.gov

No CON Program
Kansas 1972-1985

Robert Moser, Director
Phone: 785-296-1086; Fax: 785-368-6368
rmoser@kdheks.gov

No CON Program
Minnesota

1971-1985

James G. Koppel, Deputy Commissioner
Phone: 651-201-5810; Fax: 651-215-5801
jame.koppel@health.state.mn.us

No CON Program
New Mexico

1978-1983

Sam Howarth, Director
Phone: 505-476-1732; Fax: 505-827-2942
sam.howarth@state.nm.us

No CON Program
North Dakota 1971-1995

Terry Dwelle, M.D., State Health Officer
Phone: 701-328-4727; Fax: 701-328-4727
tdwell@nd.gov

No CON Program
Pensylvania

1979-1996

Dr. Eli N. Avila, M.D., J.D., M.P.H., F.C.L.M., Secretary of Health
Phone: 717-787-6436; Fax: 717-705-6525
eavila@state.pa.us

No CON Program
South Dakota

1972-1988

Doneen Hollingsworth, Secretary
Phone: 605-773-3361; Fax: 605-773-5683
doneen.hollinsgworth@state.sd.us

No CON Program
Texas

1975-1985

Ramdas Menon, Director
Phone: 512-459-7261; Fax: 512-458-7344
ramdas.menon@dshs.state.tx.us

No CON Program
Utah

1979-1984

David N. Sundwall, Executive Director
Phone: 801-538-6111 Fax: 801-538-6301
dnsundwall@utah.gov

No CON Program
Wisconsin 2011-present   No CON Program

Wyoming

1977-1989

Thomas O. Forslund, Director
Phone: 307-777-7656; Fax: 307-777-7439
tforslund@state.wy.us

No CON Program

Contact information obtained from American Health Planning Association National Directory, 2011 edition.

FACILITIES AND SERVICES REGULATED BY C.O.N.

Regulated Services

Number of States

 States, Districts & Commonwealth 

Acute Hospital Beds

28

AL, AK, CT, DE, FL, GA, HI, IL, IA, KY, ME, MD, MI, MS, MO, NV, NH, NJ, NY, NC, RI, SC, TN, VT, VA, WA, WV, DC

Air Ambulance

5 +DC

AL, ME, MA, MI, VT, DC

Ambulance Services, Ground
(generally note counted as a CON state)
1  AZ

Ambulatory Surgical Centers (ASC)

27

AL, AK, CT, DE, GA, HI, IL, IA, KY, ME, MD, MA, MI, MS, MT, NV, NH, NY, NC, RI, SC, TN, VT, VA, WA, WV, DC

Burn Care

11

AL, HI, ME, MD, NJ, NY, NC, TN, VT, WA, DC

Cardiac Catheterization

26

AL, AK, CT, DE, GA, HI, IL, IA, KY, ME, MD, MI, MS, MO, NH, NJ, NY, NC, RI, SC, TN, VT, VA, WA, WV, DC

Computed Tomography (CT) Scanners

13

AK, CT, HI, ME, MI, MO, NY, NC, RI, VT, VA, WV, DC

Gamma Knives

15

AL, AK, GA, HI, ME, MA, MI, MS, MO, NC, RI, SC, VT, VA, DC

Home Health

18

AL, AR, GA, HI, KY, MD, MS, MT, NJ, NY, NC, SC, TN, VT, WA, WV, DC

Hospice

18

AL, AR, CT, FL, HI,  KY, MD, MS, NY, NC, OR, RI, SC, TN, VT, WA, WV, DC

Intermediate Care Facilities/Mental Retardation (ICF/MR)

22

AR, FL, GA, HI, IL, IA, KY, LA, MD, MS, MO, MT, NV, NJ, NC, OK, SC, TN, VT, VA, WV, WI

Long Term Acute Care (LTAC)

26 +DC

AL, AK, CT, DE, FL, GA, HI, IL, IA, KY, ME, MD, MI, MS, MO, NH, NJ, NC, OR, RI, SC, TN, VT, VA, WA, WV, DC

Lithotripsy

14 +DC

AK, DE, GA, HI, ME, MA, MI, MO, NY, NC, SC, TN, VT, VA, DC

Nursing Home Beds/Long Term Care Beds

36 +DC

AL, AK, AR, CT, DE, FL, GA, HI, IL, IA, KY, LA, ME, MD, MA, MI, MS, MO, MT, NE, NH, NV, NJ, NY, NC, OH, OK, OR, RI, SC, TN, VT, VA, WA, WV, WI, DC

Medical Office Buildings

1 +DC

VT, DC

Mobile Hi Technology  (CT / MRI / PET, etc)

15 +DC

AK, CT, HI, KY, ME, MI, MO, NH, NY, NC, RI, SC, VT, VA, WV, DC

Magnetic Resonance Imaging (MRI) Scanners

18 +DC

AK, CT, HI, KY, ME, MA, MI, MS, MO, NH, NY, NC, RI, SC, TN, VT, VA, WV, DC

Neo-Natal Intensive Care

23

AL, AK, CT, FL, GA, HI, IL, KY, ME, MD, MA, MI, NJ, NY, NC, RI, SC, TN, VT, VA, WA, WV, DC

Obstetrics Services

15

AL, AK, CT, GA, HI, IL, ME, MD, NY, RI, VT, VA, WA, WV, DC

Open Heart Surgery

25

AL, AK, CT, GA, HI, IL, IA, KY, ME, MD, MA, MI, MS, NH, NJ, NY, NC, RI, SC, TN, VT, VA, WA, WV, DC

Organ Transplants

21

AL, AK, CT, FL, HI, IL, IA, KY, ME, MD, MA, MI, NJ, NY, NC, RI, VT, VA, WA, WV, DC

Positron Emission Tomography (PET) Scanners

20

AK, CT, DE, GA, HI, KY, ME, MA, MI, MS, MO, NH, NC, RI, SC, TN, VT, VA, WV, DC

Psychiatric Services

26

AL, AK, AR, CT, FL, GA, HI, IL, KY, ME, MD, MA, MI, MS, NH, NJ, NC, OK, RI, SC, TN, VT, VA, WA, WV, DC

Radiation Therapy

23

AL, AK, CT, DE, GA, HI, IA, KY, ME, MA, MI, MS, MO, NH, NY, NC, RI, SC, TN, VT, VA, WV, DC

Rehabilitation

25

AL, FL, GA, HI, IL, KY, ME, MD, MA, MS, MO, MT, NE, NH, NJ, NY, NC, RI, SC, TN, VT, VA, WA, WV, DC

Renal Failure/Dialysis

12

AL, AK, HI, IL, ME, MS, NY, NC, VT, WA, WV, DC

Assisted Living & Residential Care Facilities

5

AR, LA, MO, NC, VT

Subacute Services

13

AK, FL, HI, IL, NC, OK, RI, SC, TN, WA, WI, VT, DC

Substance/Drug Abuse

19

AL, CT, FL, GA, HI, KY, ME, MD, MA, MS, MT, NH,  NC, RI, SC, TN, VT, WV, DC

Swing Beds

12

AL, HI, IL, ME, MI, MS, MT, OR, TN, VT, WA, DC

Ultra-Sound

4

HI, ME, VT, DC

Exemptions from CON    
“Certificate of public advantage" 
Source: WestLaw, 9/2011
  11 states with statutes:  Idaho, Kansas, Louisiana, Maine, Mississippi, Montana, Nebraska, North Carolina, North Dakota, South Carolina, Texas, and Wisconsin.

Source: AHPA, 2011; NOTE: The categories listed above are for general information.  See state-specific limitations, exceptions and requirements.

Certificate of Need (CON) Moratoria and Duration of Statutes (2011 data)

Table compiled by NCSL - March 22, 2012

State

Hospital Bed Moratorium

Long Term Care Moratorium

Other Moratorium

CON in place (dates)

Comments on Moratoria

Alabama

No

Yes

Yes

1979 - present

Moratorium is on nursing homes and in-patient hospice beds.

Alaska

No

No

No

1976 - present

No moratoria. Hospitals include two military, six PHS/ANH, three rural primary care, two psychiatric facilities.

Arkansas

No

No

Yes

1975 - present

Moratoria by date of implementation: ICF-MR since 1994; Residential Care Facilities since 2005; Psychiatric Residential Facilities for Children/Adolescents since 2008.

Connecticut

No

Yes

No

1973 - present

Statewide moratorium on long term care (nursing home facilities).

Delaware

No

No

No

1978 - present

No additional hospitals offering medical/surgical or obstetrical beds shall be established for five years (2014).

D.C.

No

No

No

1977 - present

 

Florida

No

Yes > No

Yes

1973 - present

Moratorium through June 2014 on the issuance of CON for additional community nursing home beds.  Repealed effective 7/1/2014

Georgia

No

No

No

1979 - present

 

Hawaii

No

No

No

1974 - present

 

Illinois

No

No

No

1974 - present

 

Iowa

No

No

No

1977 - present

 

Kentucky

No

No

No

1972 - present

 

Louisiana

No

Yes

No

1991 - present

Moratorium on long term care nursing facilities and ICF/DD.

Maine

Yes

Yes

No

1978 - present

 

Maryland

No

No

No

1968 - present

 

Massachusetts

No

Yes

No

1972 - present

 

Michigan

No

No

No

1972 - present

 

Mississippi

No

Yes

Yes

1979 - present

Home health agencies; long term care facilities.

Missouri

No

No

No

1979 - present

Long term care moratorium in effect from 1983 through 2002, expired January 1, 2003.

Montana

No

No

No

1975 - present

 

Nebraska

No

Yes

Yes

1979 - present

Moratoria on nursing home and rehabilitation beds.

Nevada

No

No

No

1971 - present

 

New Hampshire

No

Yes

Yes

1979 - present

Physical rehabilitation beds.

New Jersey

No

Yes

No

1971 - present

LTC applications subject to the issuance of a call for applications.

New York

No

No

No

1966 - present

 

North Carolina

No

No

No

1978 - present

 

Ohio

No

Yes/No

No

1975 - present

Prohibition on adding new nursing home beds through June 31, 2009.

Oklahoma

No

Yes

No

1971 - present

 

Oregon

No

No

No

1971 - present

 

Rhode Island

No

Yes

No

1968 - present

Moratorium on nursing home beds in place since 1996.

South Carolina

No

No

No

1971 - present

 

Tennessee

No

No

No

1973 - present

 

Vermont

No

No

No

1979 - present

 

Virginia

No

No

No

1973 - present

 

Washington

No

No

No

1971 - present

Nursing home beds include 1,580 banked (alternate use) and 2,158 beds banked - full facility.

West Virginia

No

Yes

Yes

1977 - present

Moratorium on skilled/intermediate nursing homes since 1987.

Wisconsin

No

Yes

Yes

1977-87; 1993 - present

 


 Source: American Health Planning Association, National Directory State Certificate of Need Programs Health Planning Agencies 2011

CON Online Sources & Resources:

  1. http://www.ahpanet.org/articlescopn.html Articles and essays collected from American Health Planning Association
  2. http://www.washingtonpolicy.org/sites/default/files/FullCONBrief.pdf Opponent view of CON Program using Washington State as example.
  3. * Ambulatory Surgery Center Association (ASC) - trade association representing interests of Ambulary surgical centers nationwide.  http://ascassociation.org/
  4. www.ftc.gov The Federal Trade Commission website
  5. http://www.ahpanet.org/websites_copn.html American Health and Planning Association with other planning related websites and a list of websites for the CON programs of each state. http://www.ahpanet.org/index.html
  6. http://content.healthaffairs.org/cgi/reprint/hlthaff.25.w337v1
  7. 'Monopoly is not the Answer' an abstract of how regulations have affected the markets. Health Affairs, August 9, 2005.
  8. 'Effects of Physician-Owned Limited Service Hospitals: Evidence from Arizona' an abstract. Health Affairs, October 25, 2005.
  9. 'Political Evolution of Federal Health Care Regulation' Health Affairs, Copyright 1992.
  10. 'Specialty Versus Community Hospitals: What Role for the Law?' Health Affairs,  August 9, 2005.
  11. 'Rules of the Game: How Public Policy affects local Health Care Markets' Health Affairs, Copyright 1998.
  12. http://www.law.fsu.edu/journals/lawreview/issues/231/mcginley.html

Diagnostic Imaging on Rise in Managed Care -Use of radiology imaging tests has soared in the past decade with a significant increase in newer technologies, according to a new study that is the first to track imaging patterns in a managed care setting over a substantial time period. Study results are reported in the November/December 2008, Health Affairs.

2009 - 2010 Passed Bills/Signed Laws: CON State Legislation

State/Bill/Web link/Sponsor      

 Descriptions of Bills/Excerpts of bill text

MD
SB 1039, HB 1486
Sen. Currie
Rep. Hubbard
 
Allows the Maryland Health Care Commission to issue an exemption from Certificate of Need and waive the requirements of the State Health Plan in order to facilitate a recommendation by the authority to relocate beds or services of all or part of a facility.  Any health care entity that acquires all or part of the Prince George's County health care system shall be recognized as a merged asset system for certificate of need purposes.
(filed 3/2/09; signed into law by governor as Chapters 116 & 117, 4/14/09)
NJ
AB 3389
Assm. Barnes
The termination of provision of hospital acute care services shall not preclude the commissioner from issuing a new Certificate of Need with respect to the provision of hospital acute care services at the location to a party unrelated to the party to whom the Certificate of Need with respect to the termination of the provision of hospital acute care services was issued. 
(filed 10/23/08; signed into law by governor as Chapter 2009-2, 1/15/2009)
VA
HB 1768
Rep. Dance
Exempts medical care facilities of the Department of Corrections from the definition of medical care facility for purposes of the Certificate of Need process. (filed 1/14/09; signed into law by governor as Chapter No.67, 2/25/09)
VA
SB 1162
Sen. Watkins
Provides that when a certificate of need holder fails to satisfy the conditions of the certificate, the certificate holder shall file a plan of correction with the Department of Health; relates to methods to satisfy the certificate, which may include direct payments to a private nonprofit foundation that funds basic insurance coverage for indigents or other documented efforts to provide primary or specialized care to underserved populations. (filed 1/14/09; signed into law by governor as Chapter 711, 3/30/09)
VA
HB 1598
Rep. Hamilton
Sets guidelines for the issuance of certificate of need by the Commissioner of Health.
(filed 1/14/09; signed into law by governor as Chapter No. 175, 3/25/09)
VA
HB 1605
Rep. Purkey
Authorizes the Commissioner of Health to accept and approve a request to amend the conditions of a certificate of need issued for an increase in beds in which nursing facility or extended care services are provided to allow such facility to continue to admit persons, other than residents of the cooperative units, to its nursing facility beds when created in connection with a real estate cooperative or offers residents a level of continuing care.
(filed 1/14/09; signed into law by governor as Chapter No. 394, 3/27/09)
WA
SB 5423
Sen. Pflug
Exempts from the certificate of need process up to a specified number of swing beds in a critical access hospital that is located in a city or town without a nursing home in the city or town limits.
(filed 1/21/09; signed into law by governor as Chapter 54, 4/10/09)
WA
HB 1926
Rep. Cody
Exempts hospice agencies from the certificate of need process if the agencies provide services designed to meet the religious or cultural needs of religious groups or ethnic minorities.
(filed 2/3/09; signed into law by governor as Chapter 89, 4/15/09)
WV
SB 321
Sen. Prezioso
Modifies certificate of need process and review; sets standards for ambulatory health care facilities not subject to certificate of review; provides that electronic health records are not subject to certificate of review; provides that nonhealth-related projects are subject to certificate of review; modifies the fee structure for certificate of review.
(filed 2/20/09; signed into law by governor, 4/13/09)

Additional Professional Reports and Opinions:

State Legislation Relating to Transparency and Disclosure of Health and Hospital Charges - NCSL report, updated 2014.

Medical/Surgical Bed Occupancy Rate Targets - AHPA Newsletter, 2007 (page 7)

DaimlerChrysler Corporation. Certificate of Need: Endorsement by DaimlerChrysler Corporation, February 2002:

Illinois: Hospital Approval Laws Criticized by U.S. Antitrust Agencies - SHN, 9/15/08.

"Certificate of Need: Protecting the Public Interest" Slides by Thomas Piper, Director MO CON Program. 8/06. [link updated 7/2014]

Ambulatory Surgery Center Payment Information Now Available - report by CMS, 11/06

Hospital Inpatient Payment Information Now Available - report by CMS, 8/06.

Authors: 2007-14 edition research and updates by Richard Cauchi, Health Program Director, Denver, Colorado
Additional research and writing contributed by Karmen Hanson (2006-07) and Andrew Thangasamy (2008) and Ariel Victoroff (2006).  Earlier material and editions by Elana Mintz (2000), Andrew McKinley (2004)

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