Certificate of need (CON) laws have remained controversial since their inception in 1964. But the chaos resulting from limited hospital capacity during the COVID-19 pandemic urgently brought the argument to the forefront.

According to CON laws, medical professionals must prove to the government and often to their own competitors that they are needed by the community. Not safe, not licensed, but needed. Obviously, competitors often decline the new competition, just as Walmart would likely turn down a new Target in town if given the opportunity.

Visible Danger

When COVID-19 swept across the United States in 2020, states scrambled to find both room and medical workers to serve the sudden influx of patients. And the 38 states that had CON laws at the time had two obvious disadvantages.

First, they had already operated with restricted capacity. CON states have, on average, 30% fewer hospitals per capita than non-CON states. During a health crisis requiring emergency care for numerous patients, having fewer hospitals obviously limits the ability to care for them. 

Second, no matter how quickly they could erect a new healthcare facility, anyone wishing to do so after seeing the need at the start of the pandemic had to apply for CON, then go through the lengthy legal process involved. This process can take years. By that point, the COVID-19 surge had declined substantially.

Hidden Danger

To combat these problems during the pandemic, 20 states eventually paused some of their CON laws as deemed “necessary” for COVID-19 care. But states that already failed to predict hospital need for even normal circumstances clearly should not have been trusted to predict what services would be “necessary” for a pandemic. 

Actual COVID-19 patients were not the only patients coinciding with COVID-19. Although the exact causes are debated, violent crime rates went up drastically during the pandemic. Hospital beds and staff were “necessary” for those patients.

As evidenced by this increase in violent crime, the staggering rise in homicide numbers, and the depression statistics, mental health problems during the pandemic reached crisis proportions. Prior to the pandemic, wait times for mental health care were already often more than 2 months. Predictably, that increased during the pandemic, as the American Psychological Association reported. In a CON state, people struggling with mental health issues were stymied. Mental health facilities and staff were “necessary” for those patients.

During the pandemic, some medical centers halted or postponed “elective” services such as mammograms in order to “save healthcare resources for people diagnosed with COVID-19.” This led to a drastic decrease in diagnosis of breast cancer. Early diagnosis of many conditions, including cancer, can mean the difference between life and death. Staff members to perform these diagnostic tests were “necessary” for these patients.

Future Danger

With COVID-19, states with CON laws witnessed how dangerous restricting health care could be. Some of the results were readily apparent; some were not as easy to recognize. 

With the CDC reporting another increase in COVID-19 cases, the 35 states that still hold on to their CON laws will get another unwelcome chance to see how this red tape can kill. Only time will tell if any more states finally abolish their requirements, or if they will make patients suffer through yet another round of unnecessary frustration and tragedy.