Meridian Star

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February 3, 2014

Analysis: Miss. legislator says CON law outdated

JACKSON, Miss. — A Republican state lawmaker thinks it's time for Mississippi to ditch its certificate-of-need requirement that limits where hospitals, nursing homes and other health care facilities can open and what services they can offer.

Rep. Mark Baker of Brandon filed a CON repeal bill this year, and while he concedes it has little chance of survival, he wants to prompt a discussion about government regulation.

It's not unusual for competing health care facilities to get bogged down in protracted legal battles when one facility is approved for a CON and another challenges that approval.

"I just feel like we're spending millions of millions and millions of dollars over turf wars when we could better spend it on infrastructure and patient care," Baker told The Associated Press in an interview this past week.

Defenders of the CON process say it's a safeguard against wasteful spending on health care because it requires facilities to prove that the services they want to offer would not duplicate those offered by competitors nearby. For example, if a nursing home wants to add beds or if a medical office wants to add a magnetic resonance imaging machine, each would need to file a CON application that lists details of the proposal, including the cost.

On its website, the Mississippi State Department of Health publishes a timetable for trying to get a certificate of need ( ). It's a lengthy process. Even without opposition from a competing facility, it can take months. With opposition, it can drag on for years, and there is, of course, no guarantee that an applicant will be granted a CON.

According to the National Conference of State Legislatures, a 1974 federal law required all states to have some sort of process requiring prior approval by a health planning agency for all major medical projects, such as hospital construction or addition of expensive equipment. The federal law was repealed in 1987, but NCSL says that as of this past November, 36 states — including Mississippi and all of its surrounding states — still had some sort of CON process.

In 1999, Republican Gov. Kirk Fordice proposed repealing Mississippi's CON law, but that idea went nowhere.

Baker's CON repeal proposal is in House Bill 457 ( ), which is among hundreds of bills expected to die this week under the first major deadline of the 2014 legislative session. It's not unusual for bills on complex topics to be filed year after year, and Baker said this could be one of those issues.

Baker said nobody asked him to file the bill. He's an attorney and said none of his clients would have a financial interest in either keeping or repealing the CON law. He said he wants legislators to at least consider some questions.

"Are we, the government, kind of in the way here?" Baker said. "Are those that are already in place kind of complicit in this?"

In other words, he said, do facilities that already have CONs have a financial interest in keeping the system in place to minimize their potential competition?

Baker was among the lawmakers who joined Republican Gov. Phil Bryant on a trip to Texas a few years ago to see how Houston has developed as a medical hub with numerous hospitals, clinics and research facilities. Texas does not have a CON law, and Baker said he believes that has helped smooth the way for such development there.

While Mississippi's largest city, Jackson, is only a fraction the size of Houston, Baker said repealing the CON law in this state could lead to more competition.


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