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Lawmakers promise review of CON process next session

Two recent rulings from the Mississippi Supreme Court have healthcare policymakers vowing to take a look at the state’s certificate of need process come the next legislative session.

University of Mississippi Medical Center

The state’s high court ruled June 14 that University of Mississippi Medical Center in Jackson was subject to the CON law, but the Mississippi State Department of Health could make “teaching exceptions” that would exempt the hospital from the process.

A week later, the court said that a 2011 law that allowed for a direct appeal from MSDH to the supreme court was unconstitutional. Each decision could have major implications in how CONs are applied going forward.

Exactly what those implications are and what can be done policy-wise to make them as equitable as possible is something lawmakers should be ready to consider when they get to the Capitol in January, said Sen. Dean Kirby.

“It’s something we definitely need to review,” said Kirby, a Pearl Republican who chairs the Senate Public Health and Welfare Committee.

Kirby said the CON process operates as it should most of the time, adding that he has not formulated any specific ideas about how it should change or otherwise be modified. “There have been times when I personally thought a certificate should have been granted that wasn’t. There have been other times when they’ve helped control costs. Some of the cities have complained about University Medical Center opening clinics for other than teaching purposes. Their reasoning being that if UMC is going to have a clinic, they should pay property taxes. But if they can operate like that and provide less expensive medical care, that’s obviously the other side of the coin.

“I have real mixed feelings about it. We want to be fair. As long as we’re doing the right thing and the fair thing, that’s all that can be expected.”

Rep. Sam Mims, R-McComb, chairs the Public Health and Human Services Committee, and shares Kirby’s view that the CON process is in need of an evaluation.

“The process has gotten very political,” Mims said. “A lot of times, what’s happening is entities are appealing the process from the Department of Health, and bringing those projects over to the Legislature. That’s how politics gets into the CON process. We have to get our arms around that. It’s something we’ll have to eventually address.”

Like Kirby, Mims said the CON process meets its stated goals — the most obvious of which is to control healthcare costs — most of the time. The problems with it, he said, inevitably arise when an aggrieved party decides to seek relief at the Capitol, and not at the courthouse.

“Again, there are times when we think a CON is needed and we pass legislation that allows that to happen,” Mims said. “But the Department of Health should play a large role in deciding which ones are valid and which ones aren’t. We just have to continue to evaluate it. There are valid concerns on the public side and on the private side.”

As of last year, according to the National Conference of State Legislatures, 15 states had done away with CON laws altogether. Wisconsin was the last, eliminating its version in 2011. Some states have modified their CON laws to where they only apply when healthcare entities are seeking certain types of equipment or certain types of facilities.

Vermont and Washington, D.C., for example, only use CONs to regulate medical office buildings. Mississippi’s CON law, which was first enacted in 1979, is set up to regulate a number of healthcare functions – everything from acute hospital beds to home health agencies and hospice facilities.

Eliminating that oversight sounds good in theory, said Rep. Steve Holland, D-Plantersville, former Public Health and Human Services chair, but there would be negative consequences to doing so.

“There would be too much cherry-picking, is my biggest problem with it,” Holland said in an interview last week. “You would have hospitals go only where the affluent people are and say the hell with the rest of the state that’s either vast-majority Medicaid or otherwise low-payer. I’m not nearly ready to just totally get rid of the CON process.

“The thing that disturbs me is that any movement toward progress in healthcare is the people who feel like they’re at a competitive disadvantage – and even the people who enjoy an advantage – have this train of thought that thinks there’s politics in the process. I’m not displeased at all with the state health officer doing CONs. You have to have some bureaucracy out there to do that.”

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