Court upholds CON restrictions

A Cartersville case challenged a law requiring state approval to build or expand a medical facility.

The Georgia Supreme Court ruled against a Cartersville surgical center to uphold the state’s “certificate of need” laws.

Under CON regulations, permission from the state is required before building a medical facility or expanding one.

The Georgia General Assembly enacted the statute in 1979 to guard against unnecessary duplication of services that could financially weaken a community’s existing facility.

Most recently in Rome, the Georgia Department of Community Health rejected Redmond Regional Medical Center’s plans to add a 24-bed inpatient psychiatric and substance abuse unit.

Floyd Medical Center had objected to the project, contending the Northwest Georgia region’s needs are fully served by its 53-bed Willowbrooke at Floyd and facilities at Hamilton Medical Center in Dalton.

In the Cartersville case, Drs. Hugo D. Ribot Jr. and Malcolm Barfield sought to add a second operating room to their outpatient clinic, The Georgia Advanced Surgery Center for Women, 958 Joe Frank Harris Parkway.

The doctors sued DCH in 2016, saying the CON requirements violate the state constitution by restraining competition, economic liberty and consumer choice. The trial court rejected the argument, and they appealed to the state Supreme Court.

In the opinion written by Presiding Justice Harold D. Melton last week, the court said the plaintiffs misunderstood the constitutional protection — which bars the Legislature from authorizing contracts and agreements that may encourage monopolies.

“By its plain terms, (the law) does not authorize monopolistic ‘contracts’ relating to providers of new institutional health services,” the opinion says. “It only requires that all such providers obtain a certificate of need before adding new services.”

In a footnote, the high court emphasizes that “this is a case about the General Assembly’s ability to regulate healthcare,” and that there are few other private sector markets so dominated by government regulation as healthcare.

“Nothing in (the) opinion should be understood to support sweeping economic regulation of this sort beyond this unique context,” the footnote says.

According to the National Conference of State Legislatures, 34 states currently maintain some form of CON program. Puerto Rico, the U.S. Virgin Islands and the District of Columbia also have CON programs.

However, there are several bills pending in the Georgia General Assembly that would revise or eliminate the program, including a proposed exemption for the for-profit Cancer Treatment Centers of America.

The House and Senate bills were filed in February and still await hearings in their original committees. The General Assembly reconvenes on Jan. 8.