West Virginia has the highest prevalence of heart attacks, lung cancer, and drug overdose deaths of any state. However, red tape in the form of “certificate of need” (CON) laws and regulations obstruct the provision of health care services to treat these ailments.
These laws empower government bureaucrats, rather than the market, to decide whether new health care services are needed. CON is an ineffective and outdated regime that only serves to protect incumbent care providers from competition. And it can have dire consequences for people needing critical care.
First, imagine rushing to the closest hospital with a heart attack and being told you need to be transferred to another facility because the State of West Virginia has not authorized that hospital to treat cardiac emergencies. But the other facility cannot see you because they are full — or you cannot get there because an emergency medical vehicle is not available to transport you.
This is the reality, as most patients experiencing a heart attack in West Virginia arrive at community hospitals not authorized to provide adequate treatment and must be transferred to another facility. Cardiac patients have a much higher chance of survival if they receive treatment in the first “golden hour” following a cardiac event; however, court records show that these transfers often occur after the golden hour.
Every year thousands of West Virginians die from heart disease. Research indicates that without certificate of need, patients in West Virginia would have access to more hospitals and open-heart surgery programs and experience lower mortality and readmission rates after receiving treatment for heart attacks and heart failure.
West Virginia’s certificate of need law requires health care providers to receive permission from the state Health Care Authority (HCA) before adding or expanding health care services, including cardiac catheterization, open-heart surgery, lung cancer screening, and opioid addiction treatment. The HCA claims certificate of need is a “regulatory element” to control costs, improve quality, ensure access, and encourage collaboration in the health care industry. In reality, it does none of those things.
Rather than “encourage collaboration,” the CON scheme pits providers against each other to fight for the government’s favor. Its enabling statute empowers providers to challenge others’ CON applications and litigate the HCA’s decisions, delaying or preventing the development of critical care provisions.
For example, in 2018, the West Virginia University Cancer Institute announced its intent to launch “LUCAS,” a mobile lung cancer screening program to serve 42 counties that lacked access to a Medicare-certified screening provider. LUCAS’ purpose is to detect lung cancer early — when it’s easier to treat and patients have a higher probability of survival. The project is partly funded by donations so that no eligible patients are turned away due to lack of insurance or ability to pay.
The HCA granted a certificate of need for LUCAS in 2019 over two competitors’ objections. One competitor then embroiled the project in litigation opposing the HCA’s approval for LUCAS. Ultimately, the Circuit Court affirmed the certificate of need in March 2022. But red tape unnecessarily held LUCAS’ lung cancer screening services in limbo for three years. Ask yourself: were West Virginians really served by this?
In addition to these types of delays, Americans for Prosperity Foundation’s recently published a report analyzing CON applications submitted from 2017–2020. The report found providers withdrew at least 20 applications totaling $43 million in new health care investment after facing opposition from rival providers. Application fees are non-refundable, so these providers decided it made more sense to forfeit thousands of dollars rather than fight in administrative and state courts.
Despite being the epicenter of the opioid epidemic, West Virginia health care providers cannot even apply to offer new opioid treatment services. In 2007, the state legislature passed a bill barring the HCA from issuing new certificates of need for opioid treatment programs. The Mountain State is the only state with a moratorium on opioid treatment programs. Since 2014, West Virginia’s drug overdose death rate has more than doubled.
A Cardinal Institute report notes that West Virginia has one of the nation’s most expansive certificate of need regimes, especially compared to our Appalachian neighbors. In a state where heart disease is the leading cause of death, lung cancer is the leading cause of death from cancer, and the opioid epidemic is devastating thousands of families, the certificate of need regime hinders the adequate and timely provision of care for the state’s most pressing health care needs.
Kimbrell is an analyst with Americans for Prosperity Foundation, and Dobrinsky is a policy analyst for the Cardinal Institute for West Virginia Policy.
