Emergency Rooms Are Overwhelmed—Bureaucracy Is to Blame
Emergency rooms across the country are overcrowded, forcing patients suffering from severe illnesses to wait hours for treatment. Worse, when there are sudden increases in illness—say from an influenza outbreak—hospitals are unable to address the problem. That is because many state governments have adopted Certificate of Need (CON) laws that prevent healthcare providers from quickly adapting to abrupt increases in demand. that prevent healthcare providers from quickly adapting to sudden increases in demand.
CON laws prevent growth in the healthcare industry by requiring providers to ask the government for permission before expanding or improving facilities, providing new services, or even adding beds. In many states, existing hospitals routinely veto attempts to expand healthcare access. After all, if they can restrict the supply of healthcare, they can raise prices on the consumers. These “competitor’s veto” provisions are written into the text of laws.
This creates a perfect storm of inefficiency, making it virtually impossible for hospitals to respond to sudden patient increases or even take advantage of the latest medical technology. For example, if a healthcare provider needs to add beds during flu season, they must go through an application process that can take months or even years. They must prove to state bureaucrats that there is a “need” for the increase in beds. However, by the time the application is approved—if at all—flu season will likely have ended.
When describing the problem in Maryland, a Johns Hopkins professor of Health Policy and Management described the problem like this: “The cause for our ER traffic jam is not that we have too many patients going to ER, but we allow too few roads to be built.”
But it’s not just a problem that arises during flu season. The traffic jam also happens when states don’t have enough inpatient mental health facilities or substance use treatment facilities. Often, patients in need of these services are forced to wait in emergency departments—sometimes for weeks—until they can find an available bed in an appropriate facility.
It doesn’t have to be this way.
A few years ago, during the COVID-19 pandemic, several states suspended their CON laws or expedited CON procedures to allow hospitals to respond effectively to the crisis. Connecticut, Maine, Massachusetts, Rhode Island, and Vermont, to name a few, suspended or reduced the burden of at least some of their CON law requirements.
In Vermont, for example, the Green Mountain Care Board, the agency that oversees the state’s CON program, issued a temporary waiver of CON requirements for certain COVID-19-related projects. Connecticut’s Office of Health Strategy allowed hospitals to temporarily increase bed capacity without obtaining a CON.
As it turns out, having more healthcare options is good for patients. States that temporarily loosened their CON laws saw better health outcomes for patients suffering from COVID-19. They also saw better outcomes for a wide variety of ailments, including septicemia, diabetes, chronic lower respiratory disease, influenza or pneumonia, and Alzheimer’s disease.
Now that the pandemic is over, these states have all reinstated their full CON programs, yet spikes in other illnesses and the lack of mental health and substance use facilities continue to cause bed shortages and longer wait times. For example, in 2022, two Michigan hospitals were forced to use emergency CON procedures to request additional beds to handle a surge in RSV cases.
It shouldn’t take a state of emergency for legislators to realize that CON laws are a burden on the healthcare industry, making it more difficult for providers to innovate, expand, and respond to emergencies. Proponents of CON laws argue that they are necessary to increase access to care, but if CON laws made good on this promise, states would have wanted more CON laws during COVID-19, not fewer.
Luckily, legislators in Connecticut, Maine, Maryland, Rhode Island, Vermont, and other states are currently considering CON law repeals and reforms. There are bills pending in Connecticut and Rhode Island to fully repeal their CON programs, while the bills in Maine and Maryland would repeal CON for mental health facilities to help ease ER wait times and increase access to needed care.
These states should act now to free their healthcare systems from the burden of bureaucratic interference. After all, patients and their doctors, not government officials, know what’s best for their health.
