Commentary: Pandemic shows it’s time to repeal certificate of need laws

Asher Gross is one of the happiest little girls you will ever meet, despite the daily struggles she faces. A hypoxic brain injury has left her with developmental disabilities, and she suffers from congestive heart failure and a cleft palate. She cannot speak, she has to be fed through a tube, and she has limited motor skills.

As you can imagine, she requires intensive hands-on care around the clock. When her mom Michelle felt like her home health provider wasn’t cutting it, she was told bluntly, “Good luck finding another provider. We’re the only one.”

Michelle soon discovered that she was in fact unable to find another provider in her small rural town. No other provider was approved to serve Michelle’s community. How could this possibly be the case? The main culprit is the existence of certificate of need laws requiring government permission to add new healthcare services.

Back in the 1970s, Congress required states to impose certificate of need laws in an effort to curb skyrocketing costs. The idea was that requiring government approval for new healthcare services would prevent providers from adding costly and unnecessary services that would go unused. As such, there would be less waste, and costs would go down.

But because Tennessee providers seeking to add new services must get a government permission slip, there is a lengthy and costly bureaucratic process to obtain a certificate of need, which is required for anything from a new hospital bed to a new MRI machine. Between the fees and the cost of hiring attorneys, these battles for permission cost tens of thousands of dollars. Those who get a certificate will have to pass that cost on to patients in the form of higher prices for services. Those who are denied a certificate or who do not even bother to go through this onerous process represent one less hospital bed, one less MRI machine, one less cancer treatment option, one less home health provider, and on and on.

Never has limited healthcare access become more apparent than during the COVID-19 pandemic. Facing a shortage of hospital beds, Gov. Bill Lee had to suspend regulations that required a certificate of need to literally add a single new hospital bed. Had he not done so, hospitals’ ability to fight the pandemic would have been severely hamstrung. If a regulation purportedly designed to protect health and safety must be suspended so that we can protect health and safety, it shouldn’t exist in the first place.

Permanently repealing certificate of need laws could make a tremendous difference, especially for our rural residents. For example, research shows that Tennessee’s certificate of need laws have led to 63 fewer hospitals, 25 of which would be in rural communities. Lifting these restrictions could also lead to greater access to MRI machines, cancer treatments, and yes, home health services like those Asher so desperately needs.

That’s precisely why many states have scrapped their certificate of need laws entirely. Tennessee has also taken positive steps in this direction. In 2016, the state repealed a number of its certificate of need laws but remains among the worst in the nation with the most restrictive regulations still on the books.

Even after the pandemic subsides, Tennesseans will still struggle with access to care issues. The question is, will state legislators stand with patients like Asher and continue their efforts to eliminate certificate of need barriers that stand in the way?