Hospitals Just Got Easier to Build in West Virginia

West Virginia just repealed their Certificate of Need requirement for hospitals and birthing centers. Until now anyone wanting to open or expand a hospital needed to apply to a state board for permission. The process took time and money and could result in the board saying “no thanks, we don’t think the state needs another hospital”.

Now anyone wanting to open or expand a hospital and birthing center can skip this step and get to work. This means more facilities and more competition, which in turn leads to lower health care spending relative to trend.

Of course, the rest of West Virginia’s Certificate of Need requirements remain in place; if you want to open many other type of health care facilities, or purchase major equipment like an MRI, you must still get the state board to approve its “necessity”. In some cases, you shouldn’t even bother applying; West Virginia has a Moratorium on opioid treatment programs. Ideally West Virginia would join its neighbor Pennsylvania in a complete repeal of Certificate of Need requirements.

But making it easier to build hospitals and birthing centers is a major step. Hospitals are the largest single component of health spending in the US, and improved facilities might help reduce West Virginia’s infant mortality from its current level as the 4th worst state.

Update 4/7/23: A knowledgable correspondent suggests that the law may only allow existing hospitals to expand without CON (while totally new hospitals would still require one), citing this article. The text of the bill itself seems ambiguous to me. The section “Exemptions from certificate of need” adds “Hospital services performed at a hospital”. For birthing centers by contrast, new construction is clearly now allowed by right: exemptions from CON now include “Constructing, developing, acquiring, or establishing a birthing center”.

A Theory of Certificate of Need Laws and Health Care Spending

I just published a paper on CON laws and spending in Contemporary Economic Policy. As frequent readers of this blog will know, CON laws in 34 states require healthcare providers in 34 US states to get permission from a state board before opening or expanding, and one goal of the laws is to reduce health care spending. The contribution we aim for in this paper is to lay out a theoretical framework for how these laws affect spending.

There have been many empirical papers on this, typically finding that CON laws increase spending, but the only theory explaining why has been simple supply and demand. Health care markets are hard to model for a few reasons, but one big one is that most spending is done through insurers, so the price consumers pay is typically quite a bit lower than the price producers receive. This leads to “moral hazard”- i.e. overuse and overspending by consumers. Normally economists hate monopolies because they lead to underproduction, so in a market with overuse its fair to ask (as Hotelling did about nonrenewable resources)- could two market failures (moral hazard overuse and monopoly underuse) cancel each other out?

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South Carolina Certificate of Need Repeal

The South Carolina Senate just voted 35-6 to repeal its Certificate of Need laws, which required hospitals and many other health care providers to get the permission of a state board before opening or expanding. The bill still needs to make it through the house, and these sorts of legislative fights often turn into a years-long slog, but the vote count in the senate makes me wonder if it might simply pass this year. That would make South Carolina the first state in the Southeast to fully repeal their CON laws, although Florida dramatically shrunk their CON requirements in 2019.

Source: Mercatus Center at George Mason University

This seems like good news; here at EWED we’re previously written about some of the costs of CON. I’ve written several academic papers measuring the effects of CON, finding for instance that it leads to higher health care spending. I aimed to summarize the academic literature on CON in an accessible way in this article focused on CON in North Carolina.

CON makes for strange bedfellows. Generally the main supporter of CON is the state hospital association, while the laws are opposed by economists, libertarians, Federal antitrust regulators, doctors trying to grow their practices, and most normal people who actually know they exist. CON has persisted in most states because the hospitals are especially powerful in state politics and because CON is a bigger issue for them than for most groups that oppose it. But whenever the issue becomes salient, the widespread desire for change has a real chance to overcome one special interest group fighting for the status quo. Covid may have provided that spark, as people saw full hospitals and wondered why state governments were making it harder to add hospital beds.