South Carolina Repeals Certificate of Need

Last week South Carolina Governor McMaster signed a bill repealing almost all Certificate of Need (CON) laws in the state. If you want to open or expand a health care facility in South Carolina, you can now do so faster, cheaper, and with more certainty.

This is a bigger deal than West Virginia’s reform earlier this year because it applies to almost all types of facilities, and applies to both new facilities and expansions of existing facilities. Only two parts of the CON system remain: a 3-year sunset where hospitals still need special permission to add beds, and a permanent restriction on nursing homes (why? see my recent post on why states hate nursing homes).

As is often the case, this reform took years to enact. I wrote last year about a repeal bill passing the SC Senate; it didn’t make it through the House then, but did this time. As I said then:

This seems like good news; here at EWED we’ve 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 economistslibertariansFederal antitrust regulatorsdoctors 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.

Why did reform succeed this time in South Carolina? From where I sit in Rhode Island I can only guess, but here are my guesses. First, the reform side really had their stuff together. See this nice page from SC think tank Palmetto Promise on why to repeal CON, and this paper from Matt Mitchell that does a comprehensive review of the literature on CON and explains what it means for South Carolina. Legislative supporters like Senator Wes Climer just kept pushing.

Second, the biggest opponent of CON reform is usually the state hospital association, but in this case they did not formally oppose repeal. Why not? Here I’m really speculating, but in general it has been faster-growing states that repeal CON. Population growth makes it obvious that new facilities are needed, and it means that existing facilities are thinking about how to grow to take advantage of new opportunities, rather than thinking about lobbying to maintain their share of a static or shrinking pie. You can see some hospital CEOs say they don’t mind repeal in this article (where I’m also quoted). South Carolina has been growing at a decent clip, as is Florida, which also almost-entirely repealed CON in 2019. On this theory, the next big CON reform would happen in a fast-growing CON state like Montana, Delaware, North Carolina, Georgia, or Tennessee. If I had to pick one, I’d say North Carolina.

Update: Apparently Montana already repealed all non-nursing home CON in 2021 and I missed it!