Certificate of Need Laws in Health Care: Past, Present, and Future

Abstract

Certificate of need (CON) laws limit the supply of health care services in about two-thirds of U.S. states. The regulations require those who wish to offer new services or expand existing services to first prove to a regulator that the care is needed. While advocates for the regulation have offered several rationales for its continuance, the balance of evidence suggests that the rules protect incumbent providers from competition at the expense of patients, payors, and would-be competitors. In this article, I review the history of CON laws in health care, summarize the large literature evaluating them, and briefly sketch options for reform.

JEL Classification: I11, I18, H75

• What do we already know about this topic?

• Certificate of need laws in health care vary significantly across time and across state in the U.S.

• How does your research contribute to this field?

• This article reviews the past, present, and future of CON laws, summarizes the empirical evidence evaluating these regulations, and offers a menu of options for reform.

• What are your research’s implications toward theory, practice, or policy?

• Neither theory nor evidence suggest that CON laws work as advertised. But for policymakers who wish to increase access to higher quality, lower cost care, there are plenty of options for reform.

Past

The Origin of Certificate of Need Laws in Health Care

Certificate of need laws were introduced in transportation markets as early as the Great Depression. ¹ It wasn’t until 1964, however, that New York State enacted the first CON law in health care. By the end of the decade, 25 additional states had similar regulations.^{2(p. 1225)} These early programs required providers to obtain regulatory approval for capital expenditures exceeding $100 000 to $150 000.^{2(p. 1225)}

In late 1974 Congress passed the National Health Planning and Resources Development Act (hereafter NHPRDA). It encouraged states to adopt CON regulations by threatening to withhold federal funds from any state without such a program. ³ In the run-on-sentences that characterize federal legislation, the NHPRDA lamented the “massive infusion of Federal funds into the existing health care system [that] has contributed to inflationary increases in the cost of health care and failed to produce an adequate supply or distribution of health resources, and consequently has not made possible equal access for everyone to such resources.” ³ The authors of the NHPRDA thought that CON programs would stop providers from introducing expensive and potentially unnecessary services, saving taxpayers and other payors from the burden of paying for such care. They also thought that the regulation would encourage “the use of appropriate alternative levels of health care, and [provide] for the substitution of ambulatory and intermediate care” which, presumably, would be less-costly than other modes of care.^{3(p. 2)}

Lawmakers also believed that CON programs would ensure an adequate supply of care, especially for “underserved populations,” including “those which are located in rural or economically depressed areas.”^{3(p. 3)} Finally, they hoped to “achieve needed improvements in the quality of health services.” ³ (p. 4) These aims—cost containment, greater access (especially for underserved populations), and quality improvement—continue to be widely-shared goals of health policy and nearly every state CON website cites them as the main purposes of the program.

The intellectual origins of CON can be traced back to 1959. In that year, UCLA health researcher Shain and Roemer ⁴ published a coauthored study reporting a positive correlation between the number of hospital beds available per capita and the number of used hospital days per capita. The finding became known as “Roemer’s Law” and was shortened to the pithy characterization that “in an insured population, a hospital bed built is a hospital bed filled.” ⁵ Lawmakers hoped CON laws would cause hospitals to acquire fewer beds, fill them with fewer patients, and therefore spend less money. As we will see, there are some problems with this theory. But it was evidently convincing enough for President Ford, who signed the NHPRDA in early 1975.

The Federal Inducement Disappears

The NHPRDA’s threat to withhold funding from non-CON states never materialized as Congress repeatedly postponed the financial penalty.^{6(p. 2)} But the Act achieved its goal of encouraging state CON programs. By the 1980s nearly every state in the country had a CON program in health care. ⁷ At the same time, the political and economic arguments that had produced CON began to unravel.

This was a time when thinkers on both the left and the right were increasingly emphasizing the potentially anticompetitive effects of regulations, especially regulatory barriers to entry.^8,9 These authors pointed out that while regulatory barriers to entry were often sold as public interest measures, they tended to serve the narrow interests of producers by limiting competition, raising prices, and driving more customers to the large, incumbent firms. As one regulatory economist put it, the economics of regulation often brought together strange bedfellows: those who emphasized the public benefits of such measures and those who actually stood to gain from them. ¹⁰

Out of this intellectual milieu, Presidents Carter and Reagan began to deregulate several sectors, including finance, telecommunications, and transportation.^11,12 At the same time, the early research suggested CON was not working as intended. Researchers were finding that at best, CON failed to significantly restrain spending. ¹³ At worst, it seemed to be associated with higher spending.^14-18

As this evidence was emerging, Congress was making important changes to Medicare reimbursement practices. Medicare had originally reimbursed hospitals on a “retrospective” basis. “Under this system,” explained healthcare researchers Guterman and Dobson, ¹⁹ “hospitals were paid whatever they spent; there was little incentive to control costs, because higher costs brought about higher levels of reimbursement.” Because it encouraged hospitals to over-spend, the system was sometimes called “cost-plus” reimbursement. Recognizing the problem, Congress switched to “prospective” reimbursement in 1983. ²⁰ Botti of the Antitrust Division of the Department of Justice noted the implications of this change in testimony before the Georgia State Assembly in 2007:

In addition to the fact that CON laws have been ineffective in serving their original purpose, CON laws should be reexamined because the reimbursement methodologies that may in theory have justified them initially have changed significantly since the 1970s. The federal government no longer reimburses on a cost-plus basis. ²¹

Three years after Congress switched from retrospective to prospective reimbursement, it elected to do away with the CON mandate. ²² Almost immediately, 12 state eliminated their CON programs. Representative Roy Roland (D-Ga.), a physician representing the largely rural center of Georgia, captured the sentiment of his colleagues noting a few years after repeal that:

At first glance, the idea [of certificate of need] may have looked pretty good. In practice, however, the effect of certificate-of-need on health care costs has been dubious, at best. And the program has certainly been insensitive in many instances to the true needs of our communities. ²³

Representative Rowland urged his colleagues to go further, asserting that “it’s now time to abolish it throughout the nation.” ²³

Present

The States Experiment with CON Reform

Representative Rowland didn’t get his wish. Still, without the federal threat, 15 states had eliminated CONs for most or all aspects of health care as of 2021. ⁷ Since then, several other states have pared their programs back. Florida, for example, enacted significant reforms in 2019, eliminating CONs for most technologies and investments. ²⁴ The global pandemic of 2020 to 2021 sparked interest in eliminating barriers to health care and as evidence mounted that these rules were associated with bed shortages, 24 states eased or suspended their CON regulations.^25-27 In 2021, Tennessee, Washington, and Virginia passed modest CON reforms while Montana eliminated all but 2 CON requirements. In 2023, South Carolina enacted sweeping reforms, eliminating 16 CON requirements upon enactment and phasing out its hospital CON requirement over 3 years (In addition, the hospital CON requirement will not be enforced in counties that currently lack hospitals).

Figure 1 shows the number of health care services requiring a CON in each state in late 2023 while Table 1 shows which services are most-frequently regulated by CON. In Arizona, Minnesota, and New Mexico, CONs are only required for ambulance services. In Indiana, Ohio (and soon, South Carolina) CONs are only required for nursing homes. Hawaii, which requires a CON for 28 services and technologies, regulates more activities than any other state.

Figure 1.

Number of health care services in which a CON is required (2023).

Table 1.

Services Regulated by CON (2023).

Regulated services	Number of states that require CONs for the service
Nursing Home Beds/Long-Term Care Beds	34
Psychiatric Services	31
New Hospitals or Hospital-Sized Investments	29
Intermediate Care Facilities (ICFs) for Individuals with Intellectual Disabilities	28
Hospital Beds (Acute, General, Med-Surg, etc.)	27
Long-Term Acute Care (LTAC)	25
Ambulatory Surgical Centers (ASC)	24
Cardiac Catheterization	24
Rehabilitation	24
Substance/Drug Abuse	24
Open-Heart Surgery	22
Radiation Therapy	21
Magnetic Resonance Imaging (MRI) Scanners	20
Positron Emission Tomography (PET) Scanners	19
Neonatal Intensive Care	18
Organ Transplants	18
Home Health	17
Obstetrics Services	16
Computed Tomography (CT) Scanners	15
Hospice	15
Linear Accelerator Radiology	15
Mobile Hi Technology (CT/MRI/PET, etc.)	15
Renal Failure/Dialysis	13
Burn Care	11
Assisted Living & Residential Care Facilities	10
Swing Beds	10
Lithotripsy	9
Gamma Knives	8
Ultrasound	2
Subacute Services	1

Source. Mitchell et al, ²⁸ updated by author.

The most common CON requirement, found in 34 states (including DC), is for nursing home beds. The next-most-common requirements are for psychiatric services (regulated in 31 states), new hospitals (29 states), and intermediate care facilities for those with intellectual disabilities (28 states). The least-common CONs are for ultrasounds (required in 2 states) and subacute services (only regulated by Illinois).

The investment thresholds that trigger a CON requirement vary from state to state. In New York, for example, projects undertaken by general hospitals in excess of $30 million necessitate a CON, while in Iowa projects in excess of just $1.5 million require a CON.^{29(pp. 64, 139)} The thresholds that trigger a CON review are typically lower for non-hospital providers than for hospitals. In Maine, for example, hospitals must obtain a CON when they undertake capital expenditures in excess of $12.365 million, while ambulatory surgery centers must obtain a CON for expenditures in excess of $3 million.^{29(p. 79)}

CON application fees also vary (see Table 2). Arizona charges a flat fee of $100 while Maine charges a flat fee of $250 000.^{29(p. 4)} Many states charge fees that are in proportion to proposed capital expenditures. Hawaii, for example, charges a fee equal to 0.1% of the cost of the project. This applies to the first $1 million of the project; it charges an additional 0.05% for any costs above this amount.^{29(p. 49)} At $15 000, Tennessee has the highest minimum fee. At the other end of the spectrum, most states cap fees, but 8 states have no limit.

Table 2.

CON Fees by State (2023).

State	Formula, if applicable	Minimum	Maximum
Alabama		$3500	$12 000
Alaska		$2500	$75 000
Arizona	$200 per ambulance	$100	No limit
Arkansas		$3000	$3000
Connecticut		$500	$500
Delaware		$100	$10 000
Florida		$10 000	$50 000
Georgia		$1000	$50 000
Hawaii	$200 + 0.1% of first $1 m cost + 0.05% of costs in excess of $1 m	$200	No limit
Illinois		$2500	$100 000
Indiana		$5000	$5000
Iowa		$600	$21 000
Kentucky		$1000	$25 000
Louisiana		$200	$200
Maine	0.1% of capital costs	$5000	$250 000
Maryland		No fee	No fee
Massachusetts	0.2% of project cost	$500	No limit
Michigan		$3000	$18 000
Minnesota		No fee	No fee
Mississippi		$500	$25,000
Missouri	0.1% of project cost	$1000	No limit
Montana	0.3% of capital cost	$500	No limit
Nebraska		$1000	$1000
Nevada		$9500	$9500
New Jersey	$7,500 + 0.25% of project cost for projects in excess of $1 m	No minimum	No limit
New York		$500	$3000
North Carolina		$5000	$50 000
Ohio	1.5% of capital cost	$5000	No limit
Oklahoma		$1000	$10 000
Oregon		$5000	$90 900
Rhode Island	$500 + 0.25% of capital cost or $10,000 + 0.25% of capital cost	$500	No limit
South Carolina		$500	$500
Tennessee	0.575% of project cost	$15 000	$95 000
Vermont	0.125% of project cost	$250	$20 000
Virginia		Unknown	Unknown
Washington		$770	$46 253
Washington, D.C.	3% of project cost	No minimum	$300 000
West Virginia		$1500	$35 000
Wisconsin	0.37% of project cost, with $1850 minimum	$1850	$37 000

Source. Cavanaugh et al. ²⁹

Compliance and opportunity costs appear to be more significant than fees. While we lack systematic data on compliance costs, we do know that providers can spend months or even years preparing applications and that they may employ the services of boutique consulting firms to help them. Beyond these direct costs, providers lose the opportunity to provide services and generate revenue. This lost revenue can amount to hundreds of thousands of dollars in opportunity costs. ³⁰ We lack systematic data on approval rates across all states, but one analysis found that the approval rate in Virginia was 51%, that of Georgia was 57% and that of Michigan was 77%. ³¹

There are several anticompetitive characteristics of CON regulation. First, and most obviously, the regulation limits supply, ipso facto limiting the number of providers. Second, in many states, the decision to grant a CON is made by a board whose members may work for incumbent providers. For this reasons, critics sometimes refer to CON as a “competitor’s veto.”^32,33 Even when the decision is made by an agency rather than a board, agency staff are likely to have been drawn from the industry itself since only industry insiders will have the requisite knowledge and interest in serving. ³⁴

Third, in all but 6 CON states, incumbent providers are allowed to participate in the process and object to the application of a would-be competitor. Opposition can trigger an expensive and time-consuming process with hearings that are akin to legal proceedings. Incumbents may drop their objections after the applicant agrees not to encroach on the territory of the incumbent, a type of territorial collusion that would be a per se violation of the Sherman Antitrust Act were it not facilitated by the state.^{35(Ch 20, Sec.7)}

Fourth, even when potential competitors don’t object to an application, statutory language and regulatory guidelines encourage local health care monopolies. This is because this language often requires regulators to deny a CON if they believe that the new service will “duplicate”—that is, compete with—an existing service.

Fifth, CONs for some services such as birthing centers will often be denied if the center cannot convince of a major hospital to sign a transfer agreement. By refusing to sign such an agreement these hospitals can virtually guarantee that a would-be competitor will be denied his or her CON. ³⁶

Finally, the regulatory formulas used to assess need discourage competition. The formulas require regulators to account for the utilization of current health care services when assessing whether a new service is needed. For example, if the share of beds currently being used is low enough, regulators will determine that no new beds are needed and reject any new applications. Incumbent providers are thus incentivized to keep a certain share of their beds unoccupied since doing so will encourage the rejection of CON applications from would-be competitors.

The Economics of CON

Were state and federal lawmakers correct to think that CON laws would reduce spending, increase access, improve quality, and ensure care for underserved populations? Neither economic theory nor decades of empirical evidence offer much support for these claims. First consider spending. As economists Ford and Kaserman ³⁷ put it in 1993, “To the extent that CON regulation is effective in reducing net investment in the industry, the economic effect is to shift the supply curve of the affected service back to the left. . .. The effect of such supply shifts is to raise. . .[the] equilibrium price” (p. 783). Given the anticompetitive features of the regulation, it may also give providers some degree of pricing power,^38,39 insulate them from the incentive to contain costs, ⁴⁰ and encourage wasteful efforts to seek and maintaining the privilege. ⁴¹ All these features suggest that CON is more likely to increase than decrease health care spending per service. And, in fact, that is just what the evidence shows. To date there have been 45 empirical assessments of CON and spending per service. Sixty percent associate CON with higher spending per service, while just 7% associate CON with lower spending per service. The rest find negligible results. ⁴²

Among other things, researchers find that:

• CON laws are associated with 10% higher variable costs in general acute hospitals ⁴³ ;

• Hospital charges in states without CON are 5.5% lower 5 years after repeal ⁴⁴ ;

• In Ohio, reimbursements for coronary artery bypass grafts fell 2.8% following repeal of CON and in Pennsylvania, they fell 8.8% following repeal ⁴⁵ ;

• Acute care costs rise with the rigor of CONprograms from the most resource-intense diagnoses ⁴⁶ ;

• CON laws are associated with higher Medicaid costs for home health services ⁴⁶ ; and

• There is some evidence that CON is associated higher Medicaid long-term care costs. ⁴⁶

It is possible that the architects of CON were not interested in reducing spending per service but were instead concerned with limiting total expenditures. A supply restriction might decrease total spending by rationing care; after all, an extremely restrictive CON that outlawed all health care would cause expenditures to fall to zero. But supply restrictions are most likely to reduce total expenditures if marginal health care services are elastically demanded.^47-49 Most health care services, however, are inelastically demanded. ⁵⁰ So even this theoretical possibility seems unlikely. The evidence is consistent with this expectation. Among 52 empirical tests, 44% associate CON with higher overall spending, 40% obtain negligible results, and just 15% associate CON with lower overall spending. ⁴²

Among these tests, researchers find:

• Per capita hospital expenditures are 20.6% higher in states with CON laws ⁵¹ ;

• Stringent CON programs are associated higher expenditures per admission ⁵² ; and

• Nursing home CONs are associated with higher expenditures per resident. ⁵³

What about the goal of increasing access to care? As a supply restriction, one would expect CON to reduce access to regulated health care services. It is possible, however, to imagine scenarios in which CON might increase the availability of some specific services. For example, if CON applies to certain services and not to others, or if regulators are more restrictive with some services than others, then we might expect to see the latter become more available. Despite this possibility, the data suggest CON limits access to care. To date, there have been 190 tests assessing the effect of CON on access to care; 52% of them find CON is associated with diminished access, 38% find negligible results, and just 10% associate it with greater access. ⁴²

Among these tests, research finds that patients in CON states:

• Have access to 30% to 48% fewer hospitals^54,55;

• 30% fewer rural hospitals and 13% fewer rural ambulatory surgery centers ⁵⁴ ;

• 25% fewer open-heart surgery programs ⁵⁶ ;

• 20% fewer psychiatric care facilities ⁵⁷ ; and

• Fewer dialysis clinics and reduced capacity at existing clinics. ³⁷

Several studies associate CON with fewer hospital beds.^43,58,59 And others associate the regulation with fewer imaging devices, ⁵⁹ longer wait times, ⁶⁰ longer driving distances, ⁶¹ and more out-of-state care. ⁶²

In determining need, CON regulators do not typically assess a provider’s qualifications. Nor do they evaluate their safety record or outcomes. The advocates of CON nevertheless maintain that the regulation can increase quality by creating more high-volume providers. If CON results in fewer providers with each performing more procedures, and if providers get more competent at a procedure they more they perform it, then it is possible that the regulation might indirectly enhance quality. On the other hand, CON might undermine quality by limiting provider competition.^63,64 In total, 114 tests have assessed the effect of CON on quality and just under half—46%—associate the regulation with lower quality. Thirty-nine percent of tests find insignificant or neutral results, and just 16% associate the regulation with better quality. ⁴²

Among these tests, researchers find that in states with CON laws there are:

• Higher mortality rates for heart attack, heart failure, and pneumonia^65,66;

• Higher mortality rates for natural death, septicemia, diabetes, chronic lower respiratory disease, influenza/pneumonia, Alzheimer’s, and COVID-19 ⁶⁷ ; and

• Lower nursing staff-to-patient ratios and greater use of physical force in nursing homes. ⁶⁸

Finally, the architects of CON hoped that regulators might be able to divert health care resources from overserved populations to underserved populations. The evidence suggests that CON laws have not achieved this goal. To date, there have been 17 tests assessing whether CON has encouraged the financing or provision of care to rural or otherwise underserved populations. Eight-two percent of them find that CON undermines the provision of care to these groups while 18% find no significant effects. No tests associate CON with enhanced provision of care for underserved populations. ⁴²

Among those tests that assess the effect of CON on underserved populations:

• Substance use treatment centers in states with CON laws are less likely to accept Medicaid patients ⁶⁹ ;

• Uninsured patients are more likely to pay out of pocket in states with CON laws ⁴⁶ ;

• A large black-white disparity in the use of angiography disappeared when the procedures were exempted from CON^70,71;

• There is no evidence of cross-subsidization and no evidence that CON laws increase charity care ⁵⁹ ; and

• Safety-net hospitals in states without CON had higher margins than similar hospitals in states without the regulation. ⁷²

Future

What options do policy makers have in addressing the deficiencies of this regulation?

Full Repeal

One-in-three Americans live in a state without CON laws in health care. Most of what we know about the regulation’s effects comes from studies comparing outcomes in these non-CON states with those in CON states. If CON benefits anyone, it benefits incumbent providers by enhancing their market share and profits. Interestingly, however, these benefits may be illusory or short-lived. Early research found that hospital profits fell following the enactment of CON. ¹³ More recent studies find that safety net hospitals have higher margins in non-CON states than in CON states. ⁷² And while hospital margins initially fell following Pennsylvania’s repeal of CON, hospitals soon regained profitability and were, in fact, more profitable than comparable hospitals within a few years. ⁷³

Phased Repeal

The earliest states to eliminate their CON laws did so immediately. More recently, however, states have chosen to phase out their CON programs over time. In 2019, for example, Florida immediately eliminated several CON requirements, but phased out hospital CONs 2 years later. One benefit of phased repeal is that it reduces transition costs. For example, a provider who has recently purchased an expensive piece of imaging equipment may have been counting on having a near monopoly in the provision of imaging services. Lawmakers might immediately eliminate the CONs for services with minimal capital requirements such as psychiatric care but then phase out the CONs for more capital-intensive services over a number of years.

Eliminate CONs that Harm Vulnerable Populations

Another option for reform would be to eliminate those CONs that disproportionately limit care for vulnerable and underserved populations. For example, states might eliminate CON requirements for psychiatric services, substance use facilities, or intermediate care facilities for those with intellectual disabilities.

Eliminate CONs for Low-Cost Alternatives to Care

Given the stated goal of encouraging low-cost alternatives to care, another option would be to eliminate any CON that limits lower-cost modes of care. Prime candidates include CON requirements for ambulatory surgical centers (which are associated with savings of 17%-43%), ⁷⁴ home health care services (which are widely found to save money), ⁷⁵ and hospice care (which can save $2309 per user). ⁷⁶ And because the federal government currently pays higher rates for procedures performed in hospital outpatient departments than it pays for the same services at ambulatory surgery centers, these savings could be amplified in the presence of federal reforms such as site-neutral payment, which could save up to $150 billion over a decade. ⁷⁷

Eliminate CONs on Procedures That are Unlikely to be Over-Prescribed

Since CON was originally conceived to stop providers from over-prescribing expensive and/or unnecessary procedures, another option for repeal would be to eliminate those CONs that limit the supply of services that are unlikely to be over-prescribed. Good candidates include CONs for burn care, radiation therapy, dialysis, substance use treatment, cancer treatment, and neo-natal intensive care.

Raise Thresholds

A simple way to exempt more procedures from CON review would be to raise the thresholds that trigger a CON and require that these thresholds automatically adjust to inflation. In Illinois, for example, the threshold for such purchases is over $3.5 million and it is annually updated to account for inflation.^{29(p. 57)}

Alter the Standards for Assessing Need

Several of the standards used to assess need are problematic. I have already noted the problems that arise when regulators look at the utilization rates of current providers. In other cases, regulators are encouraged to consider the effect of a new facility on existing providers. This standard serves the narrow interest of incumbents and not the broader interests of the community. Statutes and regulations also often direct regulators to deny an application if it can be shown that a new provider will “duplicate” the work of an existing provider. Since duplication is another word for competition, this language serves no public purpose.

End the Competitor’s Veto

The anticompetitive characteristics of CON are its most controversial 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 written 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 perspective 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 compliance 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 understand the effects of their decisions is to follow-up with applicants 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 providers to use their CONs within a certain time period. This stops a provider from obtain a CON (that will limit its competitor’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 applications 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 information that will help the public understand the costs of the regulation. For example, applicants might be asked to estimate 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.