The push to change certificate-of-need laws

More states have been looking to repeal or reform their certificate-of-need laws with the intention of increasing access to care. 

Jaimie Cavanaugh, an attorney at the Institute for Justice, joined Becker's to discuss where intensity regarding the issue is increasing. 

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

Question: Where is the fight to repeal certificate-of-need laws the most contentious?

Jaimie Cavanaugh: There's really a lot of attention right now in Kentucky. There's at least four bills that have already been introduced in the state, and there was a task force that met in the summer all the way through November or December. Unfortunately, the recommendation coming from all of that was just to have a second task force. 

We were hoping there would at least be some suggestions for reform, and they did receive so much information through all these hearings that they had, so that's really disappointing to see. We've seen that in so many states where legislators are unsure about making a decision, they can really just keep using these committees or task forces to just delay and delay and not make any changes.

In Kentucky, we're seeing a lot more just citizens involved in this issue, especially in Northern Kentucky, where they're unhappy about having only one option, which is St. Elizabeth's system.

Q: Why is there so much constituent involvement in Kentucky?

JC: During COVID-19, people in Northern Kentucky were very unhappy with some of the hospital's policies — especially with policies like not being able to visit loved ones as they were dying and employees who were upset about different mandates related to COVID-19 vaccines. I think the community started learning that the reason they only have one option is because of certificate-of-need laws. And another reason it's so dark there is because they're very close to Cincinnati, which has three hospital systems because there's no certificate of need for hospitals in Ohio. And on top of that, now there are hospitals in Ohio saying they'd be happy to come across the river and provide more options in Northern Kentucky, but they can't. 

Q: Who are the big parties involved?

JC: The hospital association is very active in Kentucky. I think some of the medical associations are usually silent on this issue. And when we talk to physicians themselves, they often don't like a certificate of need, or they recognize that it's harming their patients, but they just feel conflicted or they're employed by the hospital and the hospital tells them they can't really support reform.

We're seeing bills all across the country on both coasts — Washington, Oregon, Maryland, Maine — most states in the Southeast, Michigan, Iowa. Everyone's really taking a hard look at this issue right now. So I think ever since COVID-19 and states were able to suspend their certificate-of-need laws, regardless of the pressure from hospitals to keep these laws in place, there's enough momentum that the legislatures are being forced to take a harder look at this issue. 

We're also seeing a lot of interesting stakeholders to be involved that weren't before. The AARP is considering getting involved in some states. Homeless organizations as well, and veterans organizations — there's something called the Community Care Program where when the wait times are too long or you're too far from a VA facility, veterans can use their benefits at non-VA facilities.

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