Certificate of Need hurts West Virginia and the patients that depend on reliable, accessible, high-quality, low-cost healthcare. West Virginia is forty years overdue in repealing a long-outdated law that has worsened every healthcare struggle our people see today.
A previous op-ed sought to defend the law, referencing California: a state that has repealed Certificate of Need and now has “serious complaints and inspection concerns” about hospice care. But the framing of this statistic is grossly misleading. In 1986, the federal government repealed its national mandate of Certificate of Need laws—due to widespread agreement that the laws were making healthcare worse—and California followed when federal funds and programs formally tied to CON law were expired in 1987.
The argument in the op-ed made on California’s CON repeal tries to paint current concerns in California hospice as a result of repeal, decades after repeal occurred. In reality, California’s health department was given the legal authority to write hospice regulations starting in 1991—but never did. Since then, almost anyone could get a hospice license with no oversight on who was running the operation and how. The crisis cited also ballooned and occurred between 2015-2022, a 30-year gap between repeal and fraud explosion. This was not the result of deregulation; this is a licensing agency that failed to do its job.
Importantly, licensing and Certificate of Need are not the same tool. Licensing is supposed to ask whether an operator is fit to operate the hospice: background checks, staffing standards, and safety and quality of care set into law by state and federal governments. Certificate of Need asks none of that. It asks whether providers already in the market object to a new competitor. A hospice facility may clear every licensing safety and quality threshold and still be blocked under Certificate of Need for the sole reason that an existing provider filed a challenge as an “affected party.” California’s crisis is a failure of government and safety, not Certificate of Need.
Dozens of other states have operated without hospice Certificate of Need for decades and do not have a pattern of California’s fraud—fraud that was motivated by high Medicare reimbursement rates creating adverse profit incentives and an opening created by poor licensing enforcement, not by the absence of Certificate of Need.
In fact, nationally, 86% of all U.S. hospices operate in non-CON states. Research shows hospice care in CON states only perform better on 4 of 8 quality metrics. If the lack of CON in environments with hospice care truly created a crisis, we’d hear about it.
The same op-ed offers West Virginia’s Certificate of Need law as reassurance for West Virginia’s positive hospice quality scores, but these surveys “directly from the families who experienced the care first-hand” fail to consider those who were unable to access or afford vital hospice care. A law can look successful by the metrics it collects of those who it serves, while failing every person the metrics fail to count.
Competition drives the best results for consumers: the patients. Providers already in the market benefit from protecting their turf, but those who need—and deserve—accessible, high-quality, low-cost care suffer the consequences.
None of this is a knock on the current providers; it is a question about who isn’t getting it. Families in rural communities without a provider, patients who cannot wait for a bed, and those who cannot afford the higher cost of no competition. That’s who these debates should be about. Not the law’s age. Not the providers defending it. The patients it was supposed to serve, and it doesn’t.
