May 25, 2017

Georgia’s Certificate of Need laws harm patients

By Jeffrey W. McCoy Attorney

Usually a medical practice that provides innovative, cost-effective, and relatively less invasive care for patients would be seen as a benefit to the community it serves. But that is not the case in Georgia, where Women’s Surgical Center, LLC, has had to fight the state’s anti-competitive Certificate of Need (“CON”) laws in order to expand their practice. Today, PLF filed a friend of the court brief at the Georgia Supreme Court in support of Women’s Surgical and their fight against Georgia’s CON laws.

Women’s Surgical specializes in conducting outpatient procedures for traditionally inpatient surgeries.  Their expertise allows them to provide medical care for women that is less expensive and less invasive than other medical practices. The practice has done well, and they wish to build more operating rooms and contract with more doctors. But before Women’s Surgical could expand, they had to get permission from competing medical practices.

The problem is Georgia’s CON laws. Those laws prohibit Women’s Surgical’s expansion without first getting a CON from the Georgia Department of Community Health. Under those laws, competing medical practices are permitted to object to the issuance of a CON, triggering a hearing by the Department to determine whether there is a “need” in the community for the applicant’s proposed new services. The applicant may not speak at the hearing to rebut arguments made by the established businesses that oppose the new competition. That was the case for Women’s Surgical, which was unable to secure a CON over the objection of competing medical facilities.

Women’s Surgical challenged the CON laws as unconstitutional under both the state and federal constitutions. Fortunately, Georgia’s Constitution provides strong protections for economic liberty, and Georgia courts have traditionally been skeptical of laws that restrict economic competition. The trial court failed to follow this tradition, however, and acquiesced to the government’s purported justification of the CON Laws. The case is now before the Georgia Supreme Court. Hopefully, the Supreme Court will strike down the CON laws, and ensure that innovative medical practices like Women’s Surgical can provide medical care to more Georgians.

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Women’s Surgical Center, LLC v. Reese

Women’s Surgical Center specializes in conducting outpatient procedures for traditionally inpatient surgeries, which benefits patients by providing less expensive and less invasive operations. Women’s Surgical wants to expand its practice, building more operating rooms and contracting with more doctors. However, Georgia’s Certificate of Need law allows competing medical practices to object to the issuance of a Certificate of Need and triggers a hearing by the Department of Community Health to determine whether there is a “need” in the community for the applicant’s proposed new services. As amicus, PLF urged the Georgia Supreme Court to strike down this unconstitutional law.

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