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INQUIRY

End the Competitor’s Veto The anticompetitive characteristics of CON are its most con troversial aspects. As discussed above, incumbent providers are often allowed to take part in the CON review process. They may object to an applicant’s CON request, submit writ ten comments opposing the application, request a hearing on the application, and appeal the final decision. If a hearing is requested, they are often allowed to question the applicant and argue the case for denial. Together, these attributes of the process amount to a “competitor’s veto.” And from the per spective of the public’s welfare, none of them are justified. Six CON states—Indiana, Louisiana, Michigan, Nebraska, New Jersey, and New York forbid competitors from taking part in the CON evaluation process and others could consider following suit. 29(pp. 4, 61, 75, 89, 117, 131) Geographically Limit Provider’s Objections If lawmakers are unwilling to end the competitor’s veto, a small conciliatory gesture would be to impose a geographic limit on competitors’ involvement. States, for example, can forbid anyone from objecting to a CON if the new provider is more than, say, 10 miles from the objector’s location. Lower the Costs of Compliance Another way to ease the burden of CON is to lower its com pliance costs. Direct costs could be reduced by lowering the fees that states charge applicants and indirect costs might be reduced by streamlining the paperwork burden of the process. A Duty to Follow-Up on Denied Applications It is difficult to know what might have been in the absence of a supply restriction. One way regulators can better under stand the effects of their decisions is to follow-up with appli cants whose CONs have been denied. They might ask them to estimate the forgone provision of services or they might ask them to report any difficulties they’ve encountered in providing care as a result of the denial. Require Providers to Use CONs or Lose Them In recent years, a number of states have begun requiring pro viders to use their CONs within a certain time period. This stops a provider from obtain a CON (that will limit its com petitor’s chances of getting their own) without bothering to actually provide the service. Increase Transparency Finally, lawmakers might pave the way for future reforms by increasing the transparency of the system. Regulators,

for example, could be required to track certain statistics and report them to the public on a regular basis. It would be especially helpful to know the percentage of applications that are opposed by competitors, the percentage of applica tions approved by the department, the percentage of approved applications broken down by whether they were opposed by competitors, and the average length of time until a final decision. The state might also enlist applicants in gathering infor mation that will help the public understand the costs of the regulation. For example, applicants might be asked to esti mate the amount of time and money they have spent on their applications, and/or the number patients they have not been able to treat as they waited for approval of their CONs. It is difficult to know how many providers never apply for CONs because they are discouraged by the process. The Department might survey all existing providers to gather this information. Conclusion Due to their unique history, there is great variation in health care CON laws across the country. This variation has given rise to an enormous literature, with over 120 peer-reviewed assessments, most of which contain multiple empirical tests. The balance of this evidence suggests that CON laws do not work as advertised. In fact, they seem to undermine each of the worthy goals that motivate them. In this article, I have offered a brief overview of the history of CON laws and their current status. And for those who are interested in acting on the evidence presented, I have also offered a menu of options for reform. Declaration of Conflicting Interests The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article. Funding The author received no financial support for the research, author ship, and/or publication of this article. Ethical Approval This project did not require approval by an ethical board because it involved neither human nor animal subjects.

ORCID iD Matthew D. Mitchell

https://orcid.org/0000-0002-9145-9962

References 1. McGinley P. Beyond health care reform: reconsidering certifi cate of need laws in a “managed competition” system. Florida State Univ Law Rev . 1995;23(1):141-188. 2. Simpson JB. State certificate-of-need programs: the current sta tus. Am J Public Health . 1985;75(10):1225-1229. doi:10.2105/ AJPH.75.10.1225