Certificate of need (CON) laws operate in 35 states, requiring healthcare businesses to prove their proposed facilities are needed by the community before opening or expanding. Local residents—the potential customers—often enthusiastically support the arrival of new facilities. But unsurprisingly, existing providers tend to insist that more healthcare options—their competitors—are not necessary. 

Wealthy existing providers can afford the lawyers to persuade CON boards. Patients and fledgling businesses cannot. Consequently, the government often sides with the incumbent medical practices, stifling both competition and medical access.

This presents a problem no matter what types of expansions require a certificate, but CON laws restricting mental health facilities lead to uniquely disturbing consequences. There are currently 25 states with CON laws for mental healthcare facilities. Patients with mental illness face the same lack of medical treatment other ill individuals face, but they also risk unnecessary and unwarranted diversion into the criminal justice system. 

Jail Is Not A Treatment Facility

Approximately 44% of inmates in the U.S. have a psychiatric disorder, and 63 percent have a substance use disorder. Many of the incidents that result in incarceration are related to mental health. According to Sheriff Tim Fuller, “The number one mental health facility in the state of Tennessee, unfortunately, is the county jail.” 

As Fuller and other law enforcement officials know, they are not equipped to treat patients. Many people having a mental health crisis benefit from therapy and/or medication, and getting the right dose of either one sometimes alleviates a crisis entirely. But when medical facility beds are not available, individuals who present a danger to themselves or others end up with a criminal record instead of a prescription. 

Nobody would consider this acceptable for a patient having a seizure or a contagious disease. Being a hazard to oneself or others due to an illness requires medical intervention, and using mere legal measures instead is both counterproductive and cruel. 

Jail Is Not Cost-Effective

Quantifying the real cost of jail instead of medical care is impossible, but an individual who returns to society in good health the day after a psychiatric incident costs less to everyone than a person who goes to jail, ending up embroiled in the often-endless loop of the criminal justice system. 

An inmate in Michigan with severe mental illness costs taxpayers almost $100,000 per year to house; an inmate with no such issues costs approximately a third of that. 

It is also important to note that people in the throes of mental illness cost taxpayers money before they even enter the criminal justice system. Fuller has seen mentally ill individuals wait up to nine days in a hospital emergency room. A brief ER visit for a minor problem averages almost $2,000 in Tennessee, so housing someone there for nine days is hardly a frugal way to manage a medical crisis. Providing appropriate care for an acute episode saves everyone time, money, and anguish.

Jail Is Unnecessary

What is the solution? Someone having a psychiatric crisis needs a bed in a psychiatric care facility. Why are the only beds available in jail?

CON laws obviously can’t be blamed for this entire problem, but they are indeed responsible for some of it. This problem recently manifested itself in Michigan and Tennessee, noteworthy because those are two of the states with CON laws for mental health facilities. 

Law enforcement officials, patients, family members of people suffering from psychiatric issues, and overwhelmed emergency room workers can all play a part in eliminating this needless complication. Legislators need to hear from affected constituents that mental health facility CON laws have no place in their state. Untangling this complex problem may require more than this one measure, but allowing medical care providers to provide medical care is a good start, and it is not too much to demand.