Only 7% of CON applications denied, largely out of state providers

By Steve Wilson
January 15, 2020

According to an analysis of data by the Mississippi Center for Public Policy, an overwhelming majority of certificate of need applications were recommended for approval by the state Department of Health in the last decade.

From 2009 to 2018, 91.45 percent of the applications passed the first hurdle of a health department staff review. 

During the 2009 to 2018 timeframe, there were 234 analyses performed by department staff for CON applications. The Department of Health recommended authorization on 214 without conditions, two received conditional approval and one received a partial approval.

Only 17 applications were recommended for disapproval (7.26 percent) and most of these were for new providers, largely from out of state, seeking to provide services in the state.

Mississippi is one of 35 states that requires a certificate of need, which requires health care providers to seek approval from the state Department of Health to build a new facility, add beds or diagnostic equipment to an existing facility, or any other capital-related project. 

The regulated areas include:

  • Hospital and nursing home beds.
  • Inpatient psychiatric beds for children.
  • Beds in chemical dependency centers.
  • Home health services.

CON approval is even mandated for non-care related capital projects such as medical office buildings, the installation of hurricane wind-resistant windows at one hospital on the Gulf Coast and authorization for a hospital to repair damage from a tornado. Thirty six applications (15.3 percent) were from providers seeking approval for cost overruns on capital projects.

Providers are also required to provide updates on whether a project goes over budget. Any capital project by a provider is mandated to provide updates on progress every six months and at the project’s completion.

When providers apply for a CON or an amendment to an existing one, this starts a 90-day process. First, the application is reviewed by the Department of Health’s Division of Health Planning and Resource Development to see if it is in compliance with the State Health Plan. This document is a blueprint composed by health department officials to centrally plan the health care needs of the state’s population. 

Among the criteria reviewed by the division include:

  • Need for the project.
  • Economic viability.
  • Possible alternatives.
  • Access to the facility for underserved and indigent people.
  • Relationship with existing providers in the area and in the state.
  • Anticipated quality of care.

Then the division staff makes a recommendation on whether the CON should be awarded. The provider appears before an independent hearing officer who makes findings of fact and issues a second recommendation. The state’s health officer makes the final call on whether a provider receives a CON. 

The only way to dispute the decision is to file an appeal in chancery court within 20 days.

CONS originated from the National Health Planning and Resources Development Act of 1974 that was signed into law by then-President Gerald Ford. This act was intended to reduce annual increases in federal health care spending and one of the cost control measures was to require states to institute CON laws to regulate health care facilities. 

This requirement was later done away with by Congress. Florida was the most recent state to eliminate its certificate of need regime in June. Florida’s House Bill 21 was signed into law by Gov. Ron DeSantis on June 26 and repealed CONs for general hospitals, complex medical rehab beds and tertiary hospital services such as neonatal intensive care units and organ transplant centers. 

The new law also sunsets CON requirements for specialty hospitals on July 1, 2021. The state’s CON requirements on nursing homes and hospices were not affected by the new law.


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