In 2013, Mary Carol Akers, a retired Army officer and certified nurse midwife tried to open a freestanding birth center in Elizabethtown, Kentucky. Akers, who has delivered thousands of babies at military hospitals all over the world, was crestfallen when state regulators denied her request. Why was it denied? Because area hospitals protested the addition of a new facility in the area.
The COVID-19 pandemic illustrates with stark clarity the cost of that decision: With health care facilities expected to be stretched to the limit, the additional option of a freestanding birth center could have offered people with low-risk pregnancies a safe and accessible place to give birth outside of a hospital or their home.
Thanks to overly burdensome regulations in Kentucky and other states, legitimate midwives are often being blocked from providing services to those who want them. Given the urgency of the moment, Kentucky should move quickly to free skilled midwives to open facilities — because the babies are going to keep coming.
Kentucky hospitals were able to stymie Akers’ proposed Kentucky birthing center, thanks to the state’s Certificate of Need (CON) law, which requires new health care providers to prove why their new facility or service is “necessary.” State regulators then allow existing businesses to weigh in on whether the applicant is needed. In Akers’ case, the existing hospitals easily killed her facility by claiming it wasn’t necessary.
There’s a reason CON laws are tagged as the “competitors’ veto,” because they allow existing service providers to block new providers. That’s great for the existing service providers — but bad news for entrepreneurs and consumers, because it restricts choice. The process can be so lengthy and costly that many potential service providers don’t even bother — for Akers, it was four years and her life savings.
The rigidity of the CON system makes it difficult for our health care system to shift and expand capacity as needed. In the current pandemic, we’re seeing the costs of that corrupt system more clearly.
So what would a more effective system look like? As the current pandemic illustrates, allowing people with low-risk pregnancies to deliver at freestanding birth centers would free up other health care personnel and resources to focus on acute crisis response.
Some reform efforts are already under way. Last year, the Kentucky Birth Coalition (KBC) supported legislation that passed, which allows certified professional midwives to operate in Kentucky. The KBC also supports legislation sponsored by Jason Nemes (HB 311) to remove CON requirements for freestanding birth centers. If only these reforms had happened years ago.
In the more immediate term, both North Carolina and Connecticut have chosen to suspend portions of their CON laws to get more beds. This will allow greater flexibility into their health care systems — which, given the urgency of the current pandemic environment, is desperately needed. Kentucky and other states where CON laws restrict expansion should follow their example.
A dynamic, responsive health care system should embrace all available resources to ensure that pregnant people, COVID-19 patients, and others receive the care they need. Getting rid of the laws and regulations that stifle skilled practitioners is one clear step Kentucky should take now so that the state will have the capacity needed to meet the needs of pregnant people in the future.
Angela C. Erickson lives in Louisville and works for Pacific Legal Foundation, which litigates to enforce the Constitution’s guarantee of individual liberty.
Mary Kathryn DeLodder lives in Louisville and runs the Kentucky Birth Coalition.