‘It’s antitrust. We all know it’: The case for killing certificate-of-need

Ambulatory Surgery Centers (ASCs) streamline procedures, routinely offering better prices than hospital systems.

Enter Michigan's stifling MDHHS regulatory regime called Certificate of Need (CON), often considered for repeal as detailed in this MHF blog.

Federal mandates for CON no longer exist, and federal ASC reforms have helped somewhat. However, state legislators need to step up for affordable options to truly meet market demand and thrive.

Top health industry news source Beckers Health nails it in this interview.

https://www.beckersasc.com/leadership/its-antitrust-we-all-know-it-the-case-for-killing-certificate-of-need/

‘It’s antitrust. We all know it’: The case for killing certificate-of-need

Patsy Newitt

If Janet Carlson could change one thing about the regulatory landscape for ASCs, it would be to abolish certificate-of-need laws immediately.

To Ms. Carlson, a veteran ASC leader who recently founded her own ASC consulting company, Vertex Surgical Solutions, CON is a market protection scheme, one that hospital systems have spent decades and enormous lobbying dollars keeping in place.

With courts pausing repeal efforts in some markets, others raising cost thresholds or carving out ASC exemptions, CON policy is increasingly influencing expansion strategy, competition and patient access nationwide.

Ms. Carlson joined Becker’s to discuss how CON laws function as a bureaucratic wall that keeps affordable surgical care out of reach, particularly in rural communities, while preserving hospital dominance over outpatient volume.

Editor’s note: This interview was edited lightly for clarity and length.

Question: If you could change one policy or regulatory rule to accelerate the shift to ASCs, what would it be?

Janet Carlson: We really need to get rid of certificate-of-need everywhere. It’s antitrust. We all know it. Let’s call it what it is. It was intended for hospital settings, not for ASCs. All it’s doing is keeping control in the hands of very few, in states that are still clinging to it with their cold, dead hands. It’s bureaucracy for the sake of bureaucracy. It’s not there to help patients or providers. It’s just a barrier to entry — and honestly, you could argue it’s prohibiting patient access. With all the problems we have in healthcare access in America, especially in rural areas, and with so many clinicians retiring early because the grind isn’t worth it — CON is a barrier to affordable, accessible, reproducible surgical outcomes for patients throughout the United States.

I’ve maintained that to this day. In a CON state with a two-room limit, you end up with all these small, single-service-line ASCs competing against each other for staff — when if you had a multispecialty ASC, you could combine all of that talent under one roof and do more collectively. You’ve created a false market for competition, and it becomes a negative feedback loop.

Q: Can you talk about the strategies health systems use to leverage CON laws to maintain market power?
JC: They lobby hard, and they give big dollars at the state and federal level, because they want to remain in the driver’s seat. It’s an antiquated way of thinking. The horses are already out of the stable. You can’t put the toothpaste back in the tube. ASCs are not trying to replicate hospitals — we’re just trying to be the best at what we do and take care of people.