In 1964, New York became the first state to enact certificate of need (CON) legislation for health care. These laws require any potential new medical businesses to persuade the government (and often their own competitors) that their services are needed by the community before they can begin operating. Some CON laws also prohibit existing providers from expanding facilities or even buying new equipment unless they can prove community need.

Within two decades of New York’s adoption of CON legislation, the federal government went from essentially mandating to actively discouraging individual states from maintaining CON laws. Healthcare accessibility and quality declined, by multiple metrics, in the very areas CON was supposed to improve. For example, CON states had 30% fewer rural hospitals than non-CON states, exacerbating the very lack of rural access that had supposedly justified CON legislation. 

Both the federal government and medical organizations that had initially supported CON laws now called them a “failed experiment.” Many states quickly relaxed theirs, and 15 states eliminated theirs entirely.

But throughout the dizzying reversal, New York retained some of the most restrictive and sweeping CON legislation in the country. As of 2020, the New York Department of Health (DOH) had 22 CON requirements. In other words, 22 individual changes or additions by any care provider required proof of need.

In August 2023, New York added to its already lengthy list of CON rules. The DOH adopted a measure mandating medical businesses to include a Health Equity Impact Assessment (HEIA) in a CON application. Medical providers must now show how they will “enhance health equity and contribute to mitigating health disparities, specifically for medically underserved groups.”

What is health equity?

The World Health Organization (WHO) defines equity as “the absence of unfair, avoidable or remediable differences among groups of people.” Note that the definition, stripped of qualifiers, is simply “the absence of differences.” It does not necessarily include improvement.

Health equity, in and of itself, can mean equally good or equally bad. And in practice, trying to make anything equal is most easily achieved by lowering the ceiling, rather than raising the floor. This has devastating consequences when lives are at stake.

Theory vs. Reality

Proponents may point out that New York’s new regulation does contain an additional prerequisite for anyone applying for a CON to explain “how the project will improve access to services.” But not only is such language sparse compared to the extensive talk of equity, this phrase is vague at best. Improved access to services for a handful of “medically underserved” people appears to meet the HEIA criteria contained in the application form, even if it limits access to numerous others. 

A 2014 study found that existing HEIAs tended to be ineffective “for a variety of reasons, including inadequate guidance, absence of definitions, poor data and evidence, perceived lack of methods and tools and practitioner unwillingness or inability to address values like fairness and social justice.” 

And already, New York has demonstrated the very tendency the study found so prevalent. The New York DOH received multiple requests to clarify what organizations would meet the definition of “independent entities” allowed to conduct the health equity assessments, and it failed to do so. It implemented the new rule without ever stating who would be deciding whether a business received a certificate

New York’s extensive CON law history provides a particularly illustrative case study for voters and lawmakers interested in learning about potential outcomes. It was the first state to implement CON laws. It has more of them than almost any other state. And despite obvious failures that have led to repeals in other places, it has doubled down and added more. 

With this latest addition, it seems almost inevitable that New York is going to provide yet another example of why these laws are overwhelmingly counterproductive. But given that its DOH has demonstrated such devotion to CON laws, anyone attempting to achieve a change in course for New York will likely be fighting an uphill battle.