'Certificate-of-need laws are holding them back': Behind states' recent reform

Certificate-of-need laws, which govern where providers can build facilities, including ASCs, are considered by some as an obstacle to ASC development.

States including Georgia, North Carolina and Mississippi have taken steps to amend these laws. 

Jaimie Cavanaugh, an attorney at the Institute for Justice, recently joined Becker's to discuss certificate-of-need reform. The Institute for Justice is a law firm representing a surgeon challenging North Carolina's certificate-of-need laws in a suit that alleges he cannot perform procedures at his ASC. 

Editor's note: This response was edited lightly for length and clarity.

Question: Why do you believe certificate-of-need reform is so important?

Jaimie Cavanaugh: A few different things are happening. I think there are some areas that are seeing population growth — which could be because the boomers are retiring and they're moving south, for example. And with that means we need different access to different types of healthcare. We will need lots of surgery centers for things like joint replacements. There just might not be enough supply, and certificate-of-need laws were originally adopted specifically to reduce the number of hospitals and the number of hospital beds. So that's the purpose of the program.

When people say it's built to increase access to care, it just can't do that. It's not built to do that. The fact that we saw 25 states loosen their certificate-of-need requirements during the COVID-19 pandemic shows that the government knows that it's a restriction on increasing access to healthcare. These states are trying to keep up with the demand in healthcare. I think a lot of states are realizing certificate-of-need laws are holding them back, and they're wanting to do something about it. 

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