A North Carolina health care provider wants to open a new emergency room in a town with a serious shortage of emergency care. Approving the new facility should be straightforward, right? Wrong. Thanks to North Carolina’s outdated health care laws, opening the new ER has become a grueling battle. 

Mission Health, a health care provider in western North Carolina, is trying to open a new ER just south of Asheville. The new ER will help Mission Health alleviate the significant wait times its ER in Asheville is experiencing. However, up until last week, the plan was on shaky ground. 

North Carolina and 34 other states make it illegal for doctors or other health care providers to open new facilities, services, or equipment without first receiving a special permit (also known as a certificate of need) from a government board controlled by industry insiders. This cartel of sorts has broad powers to decide whether communities in North Carolina need more health care services. They can approve, deny, or constrain any proposal that comes before them, even when the plan presents a clear conflict of interest (committee members are not subject to North Carolina’s State Government Ethics Act). 

Mission Health applied to North Carolina’s health care cartel and received a CON. But a month later, two competing health care systems sued. They argued Mission Health’s decision to host “extended opportunity for written comment” rather than a public hearing violated their rights. Now, two years after Mission Health received its CON, the North Carolina Court of Appeals ruled 3-0 that a lack of a public hearing wasn’t enough by itself to require DHHS to restart its review process.  

The ruling helped keep Mission Health’s plans alive for now, but the entire situation is completely unnecessary. Doctors and other health care providers shouldn’t have to traverse mountains of red tape, withstand years of litigation from competitors, and spend tens of thousands of dollars to bring new life-saving services to areas that need them. 

Decades of research has proven CON laws do little more than reduce Americans’ access to critical health care resources, causing costs to rise due to the limited supply. In North Carolina, that’s meant doctors have repeatedly been stopped from offering services to patients that are cheaper and more accessible.  

In Winston-Salem, Dr. Gajendra Singh offered MRI scans at roughly a fourth of what it cost to perform them at a hospital. But when Dr. Singh wanted to purchase a permanent MRI scanner rather than spend thousands of dollars a day renting a mobile MRI scanner, he was stopped by North Carolina’s CON law. Dr. Singh and the Institute for Justice (IJ) sued to end North Carolina’s CON law. However, the lawsuit ended prematurely after Dr. Singh was forced to close his imaging center, in part because of the enormous costs of the CON law. 

Across the state in New Bern, Dr. Jay Singleton wants to perform outpatient surgeries at his state-of-the-art facility rather than at the local hospital, CarolinaEast. Doing so could save patients thousands of dollars. But like Dr. Singh, North Carolina’s CON law stands in the way. Dr. Singleton and IJ sued the state in 2020. The case is awaiting a decision from the North Carolina Supreme Court. 

Dismantling CON laws gives communities more access to critical health care services. Just look at what Dr. Singh and Dr. Singleton could accomplish if North Carolina’s CON law wasn’t standing in their way. Hopefully North Carolina’s courts will recognize that and decide it’s time to stop letting the government get in the way of doctors who just want to provide safe, affordable health care to their patients. 

Tell Us About Your Case 
The Institute for Justice is a nonprofit, nonpartisan, public interest law firm. Our mission is to end widespread abuses of government power and secure the constitutional rights that allow all Americans to pursue their dreams. IJ has represented individuals who faced retaliatory code enforcement for public comments they made, were arrested for posting jokes about their local police departments on social media, or had baseless lawsuits filed against them because of their criticisms of government officials. If you feel the government has abused your constitutional rights, tell us about your case. Visit https://ij.org/report-abuse/.  

About the Institute for Justice  
Through strategic litigation, training, communication, activism, legislative outreach and research, the Institute for Justice advances a rule of law under which individuals can control their destinies as free and responsible members of society. IJ litigates to secure economic liberty, educational choice, private property rights, freedom of speech and other vital individual liberties, and to restore constitutional limits on the power of government.