Because health care is a time-sensitive commodity, any legislation that unnecessarily delays its delivery results in unnecessary suffering. Certificate of need (CON) laws, which require healthcare practitioners to prove their services are needed by their community before they can operate or expand, contribute to such unnecessary delays. 

These practitioners have already proven their competence by obtaining healthcare licenses and complying with safety regulations. Adhering to these rules takes time, and patients or doctors may chafe at some individual mandates, but most patients are presumably willing to defer treatment until they can be reasonably certain their doctors will provide quality care. 

CON laws, by contrast, are not directly related to safety or efficacy, but are a form of economic planning (purportedly to avoid the waste or over-prescription of healthcare resources). Americans for Prosperity aptly refers to these certificates as “permission to care.” 

Worse, they are a form of regulatory capture. Existing doctors predictably fight the new potential competition, claiming no additional medical services are required in the community, even when the community at large emphatically disagrees with that analysis. This battle between existing and hopeful medical practices can last indefinitely, with the court cases sometimes dragging on for at least a decade. In a state like Washington, the best-case scenario lasts eight months.

The CON system could be likened to a retail law allowing Walmart to insist a new Target is unnecessary, no matter how many community members expressed a desire for one. This would cause annoyance among fashion aficionados, as customers waited years for their desired pair of Target shoes; in the healthcare sector, this principle causes genuine agony. Patients languish in limbo, wondering if they will ever receive treatment that perpetually feels just out of reach.

All forms of CON laws have deleterious impacts and are supported by logical fallacies, but each law has a unique set. It behooves anyone arguing for CON abolishment to know how each area of medicine is impacted by each individual CON law. Nowhere is this more important than in hospice CON regulation, as it involves several unique aspects that do not apply to other CON rules.

Time Is Always Of The Essence At The End Of Life

General practitioners typically advise a yearly checkup for a healthy patient. But these patients at least have little reason to panic if a new hospital room will take months to be built, and they have to wait a little longer to get their temperature checked and their knees tapped with an elf-sized hammer. 

Contrast that with a patient seeking hospice care. 

Hospice exemplifies a field in which CON laws have a permanent effect. The National Institute on Aging (NIA) describes this treatment as a “focus on the care, comfort, and quality of life of a person with a serious illness who is approaching the end of life.” 

Hospice is the final option for a person who has very little time left. The median length of service (MLOS) for a hospice patient is 18 days. More than half of patients who enter hospice die within a month.

Elizabeth Hillman, director of social work and care coordination at a hospital in Washington—a state with CON regulations for hospice—said 12 weeks was the normal wait time for prospective patients. “Most people would already be dead, if they had to wait that long to be admitted.” 

And hospice patients certainly cannot wait eight months, much less a decade, for a hospice provider to even receive “permission to care” for them. In Hillman’s case, their wait time only shortened when the government waived CON regulations due to the COVID-19 pandemic, finally allowing another hospice provider to operate. 

The Risk Of Overutilization Is Negligible

Although the subject remains hotly debated, CON proponents insist that healthcare practitioners will overutilize expensive procedures if they are allowed to buy expensive equipment. They posit that a hospital administrator who sees a $3 million MRI machine collecting dust will put pressure on doctors to get more use out of it. Businesses, understandably, do want to recoup their expenditures.

This argument makes little sense when dealing with the realities of hospice care. Greedy administrators would not encourage patients paying exorbitant hospital fees to go home and pass away under inexpensive hospice care. Hospital care costs approximately 44% more than home-based hospice.

Outcomes Statistics Are Moot

As noted, CON laws have nothing to do with the competence of prospective medical practitioners. However, uniformed (or disingenuous) CON supporters continue to conflate certificates of need with certificates of safety. That tendency seems unlikely to end as long as proponents keep getting away with it unchecked, but hospice discussions can easily avoid the subject entirely.

A discussion of hospice requires delicacy, but it also demands bluntness. And the hard fact of hospice is that the outcome is death, 100% of the time. Patients looking for hospice options are not seeking miracle cures. They are not looking for added hours or even days. The only outcome they seek is peace instead of chaos during the brief period they have to experience it. They need the facilities available now.

It would be difficult to imagine more cruel circumstances under which the government and healthcare competitors could put bureaucratic obstacles in the way of the patients for whom they claim to care. If your state is one of the 14 that maintain hospice CON laws, demand that your legislators remove them before any more people have to die while needlessly suffering.