How to Read this Report

It was the intent of the authors to provide a comprehensive picture of the remaining healthcare CON regimes. It is one thing to study the near-universal consensus of government officials, academics and lawmakers concluding CON laws have failed to produce any positive outcomes. It is another thing entirely to read, line by line, the existing CON requirements around the country.

Alternatively, the report is just as useful for those who want to learn about their home state and compare its CON program to a neighboring state. Each state profile can be read alone, as a straightforward snapshot of how a state’s CON program functions.

Each profile: (1) introduces the state; (2) explains whether the state suspended its CON laws in response to COVID-19 by May 15, 2020; and (3) describes the state’s application process, including how long the application process takes and how much it costs. This information allows for uniform comparisons across these areas. 

Next, each state page has a Types of CONs table. Again, to allow for broad comparisons, this table classifies CONs into six broad categories—hospital beds, beds outside hospitals, equipment, facilities/buildings, services and emergency medical transport. Eight states maintain CONs across all six broad categories. Nineteen of the 39 CON jurisdictions maintain CONs across five categories. Because there is a high degree of variation within each category, the table also clarifies which subtypes of CONs a state requires within each category.

1. Hospital beds. Hospitals are required to get CONs for many types of beds, such as swing beds, hospice beds, psychiatric beds or neonatal intensive care beds (sometimes called bassinets). In some states, CONs are required for adding beds at specialty hospitals like a tuberculosis care hospital, but not general care hospitals or a state-run hospital. Thirty-four states maintain a CON in this category.
2. Beds outside hospitals. This category includes CONs for adding beds in nursing homes, intermediate care facilities or ambulatory surgical centers. Many states take a piecemeal approach to this category, picking and choosing which facilities require CONs and which do not. Thirty-six states maintain a CON in this category.
3. Equipment. This category includes devices and machines such as imaging scanners or radiation therapy equipment. This is a common place to find minimum expenditure requirements, where a CON is required for any type of equipment that costs over a predetermined amount. Twenty-eight states maintain a CON in this category.
4. Facilities/buildings. This category includes freestanding buildings like dialysis centers, hospice centers or mental health facilities. Even remodeling a facility sometimes requires a CON. Like the equipment category, facilities and buildings are sometimes subject to catch-all CONs that apply whenever a provider will spend more than a predetermined amount on a project. Thirty-seven states maintain a CON in this category.
5. Services. This category includes the most varied types of CONs, ranging from specialties like open heart surgery and organ transplants to primary care and pediatric services. Even established providers must continue to get CONs to offer their patients new services. Thirty states maintain a CON in this category.
6. Emergency Medical Transportation. This category applies to ground and air ambulances and is the least utilized CON category. Overall, 12 states maintain at least one emergency medical transport CON.

A note about moratoria. Eleven states maintain moratoria. Moratoria are more dangerous than CONs—they completely prohibit new facilities or services. Although most CON processes allow for the possibility that new facilities could open if certain conditions are met, moratoria do not even allow an applicant to prove a need exists. Moratoria apply most commonly to specific facilities or specific types of beds.

The last piece of information given for each state is the CON Exceptions table. This table lists all the state’s exceptions to its CON laws. Some states have only a few exceptions, while other states, like Kentucky and New Jersey, maintain dozens of exceptions. States with a high number of exceptions should consider whether broadly repealing CON laws would be an easier way to regulate the healthcare industry.