Certificate-of-need laws were established in 1964 when New York became the first state to pass legislation, and since then have had a constant and highly-politicized presence in the healthcare realm, according to the National Conference of State Legislatures.
In 1974, the federal government required all states accepting Medicare and Medicaid to implement CON laws. This mandate resulted in every state except Louisiana adopting some sort of CON law by 1982.
The mandate was repealed in 1987, but the programs have largely stood untouched. Today, 35 states have formal CON programs. Proponents of the laws argue CONs protect rural hospitals and keep charitable care programs afloat by restricting competition. Opponents argue the laws protect profits of existing facilities by limiting competition.
Here's a breakdown of the 35 states with certificate-of-need laws, as well as recent actions in those states:
Alabama: Alabama Gov. Kay Ivey temporarily suspended the state's CON program after issuing an executive order in late April related to the COVID-19 pandemic, the Times Daily reports. Alabama's 5th Congressional District Advisory Committee voted in late April to consider legislation that would eliminate all CON laws in the state, according to the Alabama Political Reporter.
Alaska: The Alaska legislature tried to eliminate CON laws for the third time in 2019, but the bills never advanced past committee. The measures could be considered this year. The state recently suspended its CON laws temporarily to combat COVID-19.
Arkansas: No recent action taken to repeal CON laws.
Connecticut: Connecticut temporarily suspended its CON laws March 14 to allow expansion to combat COVID-19, but has taken no permanent action to repeal CON laws.
Delaware: Delaware-based Caesar Rodney Institute, a liberterian think tank, started a campaign in July 2019 to encourage legislators to repeal the state's CON laws, according to the Delaware Business Times, but no formal legislation was introduced.
Florida: Florida's legislature repealed a portion of its CON law in June 2019. Hospitals, complex medical rehabilitation beds and tertiary hospital services no longer need to seek CON approval. CON requirements for specialty hospitals will be repealed on July 1, 2021. However, nursing homes, skilled nursing facilities, hospital programs and intermediate care facilities will still be subject to CON laws, according to the National Law Review.
Georgia: A lobbying campaign killed CON repeal in the state in mid-2019, but legislators passed a significantly stripped-down CON law repeal targeting Cancer Treatment Centers of America in Atlanta later in the year. Hospitals received expanded veto power, which could hurt future outpatient expansion. Recently, the state also temporarily waived its CON laws to combat COVID-19.
Hawaii: No recent action taken to repeal CON laws.
Illinois: No recent action taken to repeal CON laws.
Indiana: Indiana repealed its CON laws in 1994, but passed a bill in 2018 reestablishing the program for nursing home projects in the state. Legislators wanted to restore the CON law program in its entirety in February 2019, but ran out of time in the legislative session, according to the Indianapolis Business Journal. The state temporarily waived its CON laws to combat COVID-19 March 17.
Iowa: The U.S. Court of Appeals for the 8th Circuit ruled Iowa's CON law did not violate the 14th Amendment, upholding a lower court's opinion April 17. The ruling could be challenged in a higher court, but no action has been taken. The state also temporarily suspended its CON laws to combat COVID-19 March 17.
Kentucky: No recent action taken to repeal CON laws.
Louisiana: Louisiana has a facility need review process, which it does not consider a CON requirement but which functions similarly to a CON process. Louisiana suspended the review process March 24 to combat COVID-19.
Maine: The state began issuing emergency CONs April 10, but has taken no action to repeal CON laws.
Maryland: Maryland Gov. Larry Hogan waived the state's CON program temporarily to combat COVID-19 March 18.
Massachusetts: No recent action taken to repeal CON laws.
Michigan: The Michigan Senate passed an adjustment bill Feb. 27 that would cut covered capital expenditures from the CON process if approved, The Center Square reports. The state also allowed emergency CON expansion through April 15 to combat COVID-19.
Minnesota: Minnesota has no formal CON program, but requires facilities to apply for expansions in a CON-like fashion.
Mississippi: No recent action taken to repeal CON laws.
Missouri: CON repeal legislation passed through a House committee in 2019 but never advanced to the House floor, reports The Heartland Institute, a conservative-leaning think tank.
Montana: No recent action taken to repeal CON laws.
Nebraska: The owner of a home healthcare and transportation company in Nebraska filed a lawsuit in April challenging the constitutionality of the state's CON laws. The owner is being represented by the Institute of Justice, a nonprofit libertarian law firm. The state also waived its CON laws temporarily to combat COVID-19.
Nevada: No recent action taken to repeal CON laws.
New Jersey: New Jersey waived its CON laws temporarily March 13, but has taken no long-term actions to repeal the laws.
New York: New York Gov. Andrew Cuomo suspended CON laws for projects deemed necessary for a COVID-19 response March 20, but has taken no long-term actions to repeal the laws.
North Carolina: North Carolina legislators considered a pair of actions to repeal CONs in the state in mid-2019, but the actions never advanced past the initial stages. The state suspended its CON laws temporarily March 12 to combat COVID-19, and then revised its CON review schedule for the rest of the year, JD Supra reports.
Ohio: Ohio reworked its CON program through a budget bill in July 2019. The state's health department may only accept CON applications for a comparative review process, continuous county bed relocations, and two processes that relate to long-term care facilities, JD Supra reports.
Oklahoma: The state suspended its CON program temporarily for hospital beds April 8, but no recent actions have been taken to repeal the state's CON program.
Oregon: No recent actions have been taken to repeal CON laws, but legislators in the state recently encouraged Gov. Kate Brown to waive the CON process for COVID-19-related projects, Pamplin Media reports.
Rhode Island: The state suspended its CON program temporarily April 10, but has taken no recent action to repeal CON laws.
South Carolina: No recent action taken to repeal CON laws.
Tennessee: The state suspended its CON program temporarily through May 18 to aid in a COVID-19 response.
Vermont: Vermont has one of the most restrictive CON processes in the U.S. The Vermont Green Mountain Care Board created procedures to consider emergency CONs until April 15.
Virgina: The state suspended its CON program temporarily to combat COVID-19 on March 20.
Washington: The state suspended its CON program for nursing homes and assisted living facilities through April 30.
West Virginia: Legislators are considering some form of CON repeal after a merger of the state's two largest healthcare companies fell through in January, The News and Sentinel reports.
Wisconsin: Wisconsin repealed its CON program, but does have an approval process for long-term care facilities; moratoriums for hospital, psychiatric, chemical dependency and nursing home beds; and a certificate of public advantage program.
Note: The Pacific Legal Foundation created a comprehensive database tracking states that temporarily suspended their CON programs to combat COVID-19.