In 1974, President Gerald Ford signed the National Health Planning and Resources Development Act that withheld federal funds from states that failed to adopt certificate-of-need (CON) laws regulating health care facilities. CON laws require providers who want to open or expand a health care facility to first prove to the government that the community needs the planned services. For some reason, lawmakers believed that adding government bureaucracy and reducing competition would somehow lower health care costs, while increasing health care quality and access. With federal dollars on the line, it’s no surprise that by the early 1980s almost every state had implemented some type of a CON program. And a con it was.

A dozen years later, in 1986, when it became clear that CON laws were having negative consequences for health care price, access, and quality, Congress repealed the federal act, doing away with incentives to maintain state CON programs. Since then, 15 states have eliminated their CON systems. Maine should be the next one to do so by passing L.D. 1554.

Reducing competition always drives up prices and lowers quality. This is the exact reason we have laws against monopolies. Yet, when it comes to something as vital as health care, government regulation is protecting monopolies. This is nonsensical.

Of all the states and the District of Columbia, Maine ranks 10th in per capita health care spending. Nine of these top 10 most expensive health care locales have CON laws. The Kaiser Family Foundation found that health care costs are 11% higher in states with CON laws.

It would be worth spending more, however, if health care quality were better. But it isn’t. In fact, it’s just the opposite.

Scholars at George Mason University discovered that mortality rates from heart failure, pneumonia, and heart attacks are all significantly higher among hospitals in CON states than in non-CON states, and “there are more deaths and serious post-surgery complications in hospitals in states with CON laws.”


As for the availability of services, CON laws reduce the availability of dialysis clinics and hospice care, and the number of MRI scans, CT scans, and PET scans are 34%-65% lower. Furthermore, they decrease the number of acute care beds in hospitals by 36%.

According to the latest census data, Maine leads the country in population living in rural areas at 61.3%. Surely this majority of Mainers deserves access to health care. But one study showed that a CON program results in 30% fewer rural hospitals and 13% fewer rural ambulatory surgical centers (ASCs) per 100,000 rural population.

None of this comes as a surprise to me. I saw how things worked firsthand when I served as the chairman of the Certificate of Need board in New Hampshire. And I have devoted a lifetime to bringing community wellness and access to affordable health care to the residents of neighboring New Hampshire, where I operate three ASCs and two imaging centers, all of which have helped reduce health care costs and increase access to care in the southern part of the state. I’ve even considered expanding into Maine but have held off because of the unlevel playing field created by the state’s CON law. It’s unfortunate that the CON law is limiting the growth of independent health care facilities since studies have found that ASCs, for example, can offer surgical procedures at costs 35% to 50% lower than hospitals.

Given Maine’s CON program, if a new hospital, ASC, imaging center, or some other provider wanted to open, they would need to get approval from the Department of Health and Human Services. Naturally, the legacy facilities already in place fight it.

Competition makes providers work harder to offer better services at lower prices. So, when you’re weighing the pros and cons, given the lower health care quality, worse access, and higher costs, the CON program is a definite con for Maine. The Maine Legislature should pass L.D. 1554 and dismantle the state’s CON program to allow more affordable and accessible care options into the state.

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