In 2018, the U.S. Department of Health and Human Services, Department of the Treasury, and Department of Labor published a report providing:

Studies have found no empirical evidence that CON laws have restricted ‘over-investment.’ However, CON laws can restrict investments that would benefit consumers and lower costs in the long term and are likely to increase, rather than constrain, healthcare costs. 1   

The Federal Trade Commission (FTC) and the Antitrust Division of the U.S. Department of Justice (DOJ) have held the same position for decades. 2  In testimony submitted in support of a 2016 South Carolina bill to repeal CON laws, the two agencies described “decades” of FTC studies beginning in the late 1980s showing that CON laws lead to higher healthcare costs. 3  Federal agencies have publicly supported CON repeal across both Republican and Democratic administrations. 4

At the state level, most of Kentucky’s neighboring states have recently enacted reforms:

  • In 1999, Indiana repealed its CON program. In 2018, it reenacted CON for nursing homes only. 
  • In 2012, Ohio repealed most of its CON laws. Since then, Ohio has regulated only long-term care homes. 5
  • In 2021, Tennessee overhauled its CON laws by:
    • exempting mental health hospitals and psychiatric services from CON;
    • allowing critical access hospitals to reopen without CON;
    • easing requirements to re-open a closed hospital;
    • relaxing the requirements for adding nursing home beds or opening home health agencies;
    • imposing a one-year expiration on all CONs;
    • and updating the CON application process.
  • In 2023, West Virginia amended its CON laws to eliminate CON for birth centers and allow existing hospitals to add services without a CON.

Many states recognize that applying CON laws to rural hospitals hurts communities. That is why states including Alabama, Oregon, Tennessee, and Washington exempt rural hospitals from their CON laws. Kentucky exempts rural clinics from its CON laws.

Other recent CON reforms of note include:

  • In 2019, Florida repealed most of its CON requirements. CON remains in place for nursing homes, hospice, and intermediate care facilities for the developmentally disabled. 
  • In 2021, Montana repealed its entire CON program except for nursing homes.
  • In 2022, North Carolina State Treasurer, Dale Folwell, an elected official, filed an amicus brief with the North Carolina Supreme Court arguing that:

CON laws contribute to consolidated healthcare monopolies in North Carolina by distorting market power in favor of large institutional hospitals. This illegal distortion of market power then results in higher prices, lower quality, and less availability of healthcare services. In turn, large institutional hospitals create incredible excess revenue while failing to earn their tax-exempt status through the provision of charity care and engage in business practices harmful to North Carolinians. 6  

  • In 2023, Connecticut repealed its birth center CON law.
  • In 2023, North Carolina overhauled its CON laws by:
    • exempting psychiatric and chemical dependency treatment facilities;
    • increasing expenditure minimums that trigger CON review; and
    • repealing CON requirements for ASCs and MRIs in counties with more than 125,000 people.
    • In 2023, South Carolina repealed its entire CON program, except for nursing homes. 7