Research & Commentary: West Virginia Bill Would End Certificate of Need

Published February 5, 2018

West Virginia is one of 35 states that limit the ability of health care providers to expand their businesses through an approval process known as certificate of need (CON). West Virginia’s certificate of need program is one of the most onerous in the country, restricting 21 devices and services, including organ transplants, psychiatric services, and acute hospital beds. West Virginia’s CON law covers more services than the national average (14), giving the state a ranking of 6thin the Mercatus Center’s study examining the restrictiveness of state CON laws.

A new bill introduced in West Virginia by Del. Michael Folk (R-District 63) would repeal the state’s certificate of need law by declaring health care facilities “not be required to obtain a certificate of need or similar authorization before operating in this state.” The bill defines health care facilities as a “publicly or privately owned facility, agency or entity that offers or provides health services, whether a for-profit or nonprofit entity.” If approved, this legislation would significantly change the health care market in West Virginia, opening up the state to new health care services, improving the quality of care, reducing costs, and making the state a better target for increased health care investment.

A recent state profile of West Virginia’s CON laws conducted by the Mercatus Center, which relied on existing data of the costs of CON laws in other states, estimates total health care spending could drop by $232 per person if CON laws were repealed.

In addition to lowering health care costs, eliminating West Virginia’s certificate of need law would improve the quality and access of health care. According to the Mercatus study, West Virginia would have 17 more health care facilities in the state, including 11 additional rural hospitals, if it did not have CON requirements. Patients would also have access to more imaging tests outside a hospital setting, thus requiring less travel to obtain care.

A study by Thomas Stratmann and David Wille of the Mercatus Center analyzed the effect of CON laws on specific metrics for nine different quality indicators at 921 hospitals and found the health care quality measures were significantly lower in CON states compared to states without CON laws.One of the biggest discrepancies identified in the study is difference in the rate of mortality resulting from complications in hospitals. In CON states the mortality rate was about 5.5 percent higher than the average rate in non-CON states.

In testimony before the West Virginia Senate Health and Human Resources Committee in 2017, Christopher Koopman of the Mercatus Center argued West Virginia’s CON laws hurt residents of the state more than CON laws do in other states.

“Our research suggests that folks in places like Charleston, Huntington, Parkersburg, Wheeling, and Martinsburg have fewer options, are forced to travel farther, and face higher costs than those living in cities across Ohio and Pennsylvania,” Koopman said. “It also means that doctors and providers may choose to open and expand their practices outside the state, rather than subject themselves to the certificate of need process, thereby increasing the gap between what is available here and what is available outside the state.”

A full repeal of burdensome and unnecessary regulations in West Virginia, including CON laws, would benefit all health care providers and their patients. In an article in Antitrust, Maureen K. Ohlhausen, a commissioner at the Federal Trade Commission, argued CON laws are not the right mechanism for encouraging a proper distribution of health care facilities. “States that still have CON laws on the books should repeal them. States that deem indigent care mandates necessary should fund them directly and publicly, rather than through an opaque transfer of those costs onto the insured public. Good government demands both transparency and political accountability,” wrote Ohlhausen.

The West Virginia Legislature would be wise to consider ending these disruptive laws.

The following documents provide additional information about certificate-of-need laws.

Certificate of Need Laws: West Virginia State Profile
This state profile from the Mercatus Center examines West Virginia’s CON laws and compares the health care outcomes and costs in other states to those in West Virginia. The studies attempt to give some insight into what is likely to happen in West Virginia if the state were to eliminate its CON laws.

Certificate-of-Need Laws and Hospital Quality
Thomas Stratmann and David Wille of the Mercatus Center at George Mason University challenge the claim CON laws improve hospital quality. “Using a broad dataset, the study finds no evidence that CON laws improve hospital quality. In fact, there are more deaths and serious postsurgery complications in hospitals in states with CON laws,” wrote Stratmann and Wille.

Certificate-of-Need Laws Lower Quality of Care, Study Finds
Shelby Livingston of Modern Healthcare examines a new study from the Mercatus Center that argues certificate of need laws that govern the construction and development of health care facilities do not raise the quality of care at hospitals and may even lead to higher readmission rates.

Certificate of Need Laws: A Prescription for Higher Costs
In this article published in Antitrust Magazine, Maureen Ohlhausen examines CON laws and argues for their repeal. “Regardless of one’s perspective on the proper balance between state and federal power, there are some very good reasons to repeal state CON laws,” wrote Ohlhausen.

Do Certificate of Need Laws Increase Indigent Care?
Thomas Stratmann and Jacob Russ of the Mercatus Center at George Mason University examine certificate of need laws and their effects on pricing and health care access. “While certificate of need laws significantly reduce available health care services for everyone, they do not lead to an increase in care for the needy.”

The Great Healthcare CON
Jordan Bruneau of the Foundation for Economic Education finds CON laws raise health care prices and reduce availability. He advises, “Rather than pinning our hopes on grand plans to overhaul the system, we should first look at where we can make changes on the margin that would move us in the right direction. Abolishing CON laws – a barrier to entry that drives up price, restricts access, and is maintained by cronyism – would be a great place to start.”

Certificate of Need: State Health Laws and Programs
The National Conference of State Legislatures outlines the various state CON laws and the positions of CON law proponents and critics.


Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this subject, visit The Heartland Institute’s website and PolicyBot, Heartland’s free online research database. 

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