The evidence indicates that CON laws are counterproductive to the goals of reducing costs and improving quality.
Nursing home residents have been among the hardest hit by the COVID-19 pandemic. According to data from the COVID Tracking Project, nursing home residents account for 38% of COVID-19 fatalities nationwide despite only making up less than 1% of the population.
The Florida Agency for Health Care Administration health finder website shows 29 nursing homes in Sarasota County, though more might be unlisted. ProPublica’s Nursing Home Inspect website, which “compares nursing homes based on the deficiencies cited by regulators and the penalties imposed in the past three years,” includes 22 facilities in Sarasota County, all of which had moderate to severe deficiencies.
The tragedy unfolding in America’s nursing homes highlights the need to address long-standing failures in the industry. A new policy study authored by one of us, "Protecting Florida’s Most Vulnerable: Market-Based Reform to Improve Nursing Home Care," published this month by the James Madison Institute, offers recommendations for reform.
Between state and federal requirements, nursing home care is among the most highly regulated industries in the U.S., but quality issues remain rampant. Considering the vulnerability of nursing home residents and the potential for neglect and abuse, some degree of regulation and oversight is necessary and appropriate. However, policymakers must acknowledge the limitations and tradeoffs associated with regulation.
Importantly, regulation only establishes minimum standards of care — it does not provide incentives to go beyond those minimum standards. As in any other industry, the best mechanism to create incentives to improve quality is competition. Unfortunately, state-level policies often restrict competition in the nursing home industry.
For example, state-level Certificate of Need laws require health care providers to receive government approval in order to construct new facilities, expand existing ones, or offer new medical services. These laws were implemented under the misguided theory that restricting supply would control health care costs by preventing over-investment. However, the bulk of evidence suggests that CON laws do not achieve this goal.
Several states, including Florida, have repealed or reformed their CON programs in recent decades. In 2019, Florida passed CS/HB 21, which eliminated CON laws for general hospitals, comprehensive rehabilitation, specialty hospitals and tertiary health services. CON requirements were maintained for nursing homes, skilled nursing facilities, hospice programs and intermediate care facilities for the developmentally disabled.
Despite overwhelming evidence that CON laws do not reduce health care costs, proponents argue that limiting the number of nursing home beds will control Medicaid costs. However, that assertion is not supported by research on the subject. A 2016 study in the journal Medical Care Research and Review found that while nursing home Medicaid spending per enrollee declined in all states between 1992 and 2009, the rate of decline was actually higher in states without CON laws. As the authors noted, “by 2009, compared to states without CON, Medicaid spending per enrollee on nursing home care was 1.8 times higher in states with nursing home CON.”
Proponents of nursing home CON also argue that CON requirements improve quality by ensuring high occupancy rates. They suggest that eliminating Florida’s CON program would lead to a dramatic increase in the number of nursing home facilities and beds. As a result, facility occupancy rates would decline, revenues would fall, and care providers would be unable to cover the costs required to provide quality care. Again, the available research does not support these claims.
A September study in the journal Healthcare found that both CON requirements and higher occupancy rates are actually associated with lower quality of care. The authors used scores from the National Nursing Home Survey, which measures facility cleanliness, staffing adequacy and satisfaction ratings from a sample of residents in each facility. After controlling for other relevant factors, the authors found that survey scores are about 18%-24% lower in states with CON requirements. Moreover, a one-point increase in the occupancy rate was found to result in a 0.5% reduction in survey scores on average.
Although CON laws do not achieve their goals of reining in costs or improving quality, they do have significant distortionary impacts that benefit incumbent care providers to the detriment of consumers and potential competitors. For example, Florida’s CON program tends to lead to older, larger nursing facilities by protecting existing providers from competition and favoring expansions over the construction of new, state-of-the-art facilities. As a result, more than 30% of Florida’s nursing homes were built before 1981, and about 16% are more than 50 years old.
Florida also tends to have larger facilities on average than other states, especially compared to those without CON requirements. Data from the Kaiser Family Foundation indicate that Florida has approximately 120 beds per facility compared to the national average of 106 beds. States with CON laws have an average of 101 beds per facility while states without CON have an average of 89 beds per facility (see graph). This is important because research by the Kaiser Family Foundation suggests that smaller facilities tend to be associated with higher quality than larger facilities.
In sum, the evidence indicates that CON laws might actually be counterproductive to the goals of reducing costs and improving quality. They also protect incumbent care providers from competition that would otherwise create incentives to improve quality beyond the minimum standards set by regulation. It is therefore reasonable to conclude that repealing CON laws would encourage greater competition without increasing costs or compromising on quality.
The COVID-19 pandemic has highlighted long-standing problems in the nursing home industry. In response to the crisis, it is incumbent upon us to rely on evidence-based policy decisions and abandon the top-down approach of the past to ensure high-quality care for Florida’s growing elderly population.
Vittorio Nastasi is a policy analyst at Reason Foundation and lives in Tallahassee. Dr. Adrian Moore is vice president of Reason and lives in Sarasota.
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