Antiquated Law Potentially Contributing to ICU Bed Shortages

By Sean Singel
January 27, 2021

One of the many significant challenges that have arisen since the start of the COVID-19 pandemic is the threat of running out of ICU (Intensive Care Unit) beds. This issue is important because the inability to treat severely ill patients on an effective and timely basis unnecessarily increases the incidence of lasting complications or death.

In addition, if COVID does consume all available beds, patients with other critical care needs (e.g., heart attack, stroke, pneumonia, etc.) may be underserved due to capacity limitations. Following are findings on whether Mississippi has sufficient ICU beds and an examination of one of the causes of the potential shortage: outdated Certificate of Need (CON) laws.

Last November, the media increasingly reported that ICU beds were at maximum capacity in Jackson, the state’s capitol and largest city. The State Health Officer, Dr. Thomas Dobbs, tweeted: “Zero ICU beds in Jackson. Very few elsewhere. Please protect yourself and your family.” In July, headlines similarly raised the alarm that “Mississippi’s five largest hospitals are out of ICU beds.” Likewise, in August, we were told that Mississippi’s largest hospital (UMMC) was “negative 14 ICU beds.”

As of January 16, 2021, the Mississippi Department of Health (MDoH) stated that there were 2,680 new reported COVID-19 cases and 70 deaths, bringing the total since June 21, 2020, to 250,869 cases and 5,481 deaths. For the same period, MDoH reported that there were 885 total adult ICU beds, 332 adult COVID patients in ICU, and 65 available adult ICU beds. That means that coronavirus patients were taking up 37.51 percent of all adult ICU beds.

If we go by these news reports and the official data, it seems clear Mississippi is suffering from a shortage of ICU beds. When we look at the big picture, however, questions arise. For instance, in 2019, the Harvard Global Health Institute found that Mississippi had 931 ICU beds available. Short of actually losing the health care professionals needed to operate the ICU beds, it’s worth asking how the total number of ICU beds decreased from 931 in 2019 to 885 on January 16, 2021.

According to the Kaiser Family Foundation’s 2018 study on the total number of hospital beds per 1,000 people in every state, Mississippi had 4.0 beds per 1,000. That is the fourth highest number of hospital beds in the country (the national average is 2.4) followed by North Dakota (4.3); the District of Columbia (4.4); and South Dakota (4.8). Further, Becker’s Hospital Review reported in 2019 that the Kaiser Family Foundation found that Mississippi ranked 7th in the nation for states with the most rural health clinics (186 clinics). There are so many rural clinics in Mississippi that, according to a Mississippi Today article, rural clinics are on the verge of shutting down because of low patient volumes.

Of course, ICU beds and standard hospital beds (not to mention rural health clinics) are not equivalent. ICU beds have more specialized equipment and accompanying staff. However, it does seem that we are better off than most states in terms of the number of ICU and standard hospital beds. Yet, according to Johns Hopkins University’s COVID-19 Mortality Analysis, the United States has a case-fatality ratio of 1.7 percent. In Mississippi, the case fatality ratio is 2.18 percent.

Presuming COVID is the immediate cause of an ICU bed shortage, there are other health care policy factors at play: one of which is Certificate of Need (CON) laws.

In Mississippi, a CON is a law that requires current and potential medical providers to apply to the MDoH in order to expand existing medical facilities, purchase new medical machines, and build new hospitals/health care practices. This requirement, even with an emergency CON process in place, discourages new and existing health care providers from opening facilities to expand medical services and access.

The rationale behind a CON is to ensure that there isn’t an overabundance of medical services/facilities offered within the same area, the idea being that too much competition could drive providers out of business. The first CON law was passed in New York in 1964. In 1974, Congress accelerated the process by tying federal funding to CON health care planning regulations, with the result that every state, except Louisiana, had passed a CON law by 1982.

In a sudden turn of events, the federal CON requirements (and funding) were repealed only five years later. This repeal marks one of the rare occasions when the federal government has retreated from a new regulatory regime and funding structure, suggesting that the economic theory behind CON state planning is, to put it simply, erroneous. Similarly, recent research confirms that CON laws contribute to fewer hospitals per capita.

Since the beginning of the COVID-19 outbreak, 20 states have suspended CON laws, with several others enacting emergency CON provisions. To date, Mississippi has not. This alone is a powerful reminder that CON restrictions are inhibiting health care access, sometimes with fatal consequences.

In conclusion, the limited data available shows that there is a shortage of ICU beds in Mississippi. The coronavirus accounts for 37.51 percent of ICU bed utilization. No data is available to break down the remainder of ICU bed utilization. Repealing or suspending Mississippi’s archaic CON laws, however, would surely help meet the urgent needs of Mississippians.

Sean Singel holds a Master of Public Health from Texas A&M University and a BS from Texas Tech University Health Sciences Center.  His policy interests lie in clinical practice, health insurance, health care administration, and general health policy. Sean enjoys hiking, reading, and spending time with friends and family.


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