Balancing the Scales a Complex Proposition in Hospice CON Laws

The intricacies of state certificate of need (CON) laws can shape a hospice’s growth trajectory as well as quality of care.

CON laws regulate the influx of new providers stepping into a particular market. These laws are often in flux and their details vary from state to state. Some states have developed a stricter approach, whereas, others are more lax.

Designing CON progressively

As of December, 35 states and the District of Columbia had some type of CON program in place, reported the National Conference of State Legislatures (NCSL). Of those, 14 states have CON laws that include hospices.


The formulation of these rules has a significant influence on how patients receive end-of-life care, according to Tim Rogers, president and CEO of the Association for Home & Hospice Care of North Carolina and the South Carolina Home Care & Hospice Association. Both North and South Carolina are CON states.

Both of the Carolinas have taken a “progressive methodology” in their approach to CON development that centers around evolving population needs and health care advances, Rogers said. The design of CON laws can make a “world of difference” when it comes to accessibility and quality of hospice care, he added.

“Our states have a progressive methodology that has really adapted and looked at the evolving needs of our communities and addressed issues like access, quality, safety and cost effectiveness of care provided,” Rogers told Hospice News. “We have really tried to take a microscopic look at what’s going on in each and every service area that is affected by certificate of need. We look at shifting changes in the number of patients being served, demographics of aging populations and where they are geographically. We also allow the public to have a viewpoint and say in certificate of need policies.”


The general public can petition for CONs to address special areas of need, added Rogers. This input can include insight from nurses and licensed independent practitioners, law makers, legislatures, senior and end-of-life care advocacy organizations, local companies and community groups, among others.

The “progressive” approach to CONs in the Carolinas is designed to evaluate a host of factors on an annual basis, Rogers continued. This includes new or changing health care technology and its impact on care delivery, utilization, access and cost effectiveness.

Other examples include any “seismic changes” that shift the health care industry, such as staffing shortages that have created a “volatile” labor market, Rogers said.

These laws can also be designed to improve access for underserved populations, he told Hospice News. This involves analysis of statewide demographic data, including variables such as ethnicity, culture, religious affiliation, disability, and levels of health literacy and education, said Rogers.

Unique to hospice CON design is establishing a certain threshold that supports a “new need” for providers to step into a regional market, which can be a delicate balance, according to Rogers.

“When you’re approximating the anticipated need of services against existing resources, there are a lot of factors considered in the big equation,” said Rogers. “Our mathematical type of formulation in North Carolina looks back at previous years’ mortality rates, hospice admissions, utilization rates, lengths of stay and projected population growth. It’s also examining the number of inpatient beds available against the number of aging senior homeowners. It’s making sure that we have an adequate inventory of providers, services and other facilities in each of the CON chapters that addresses that population in its own way.”

CON design differences in access, quality

Hospice providers have kept their finger on the pulse of evolving CON regulation in order to grasp impacts on patient access, along with their ability to grow and sustain operations.

On one side of the coin, CON laws can limit access to hospice and their growth potential. On the other side, CONs can prevent market saturation and help smaller organizations compete with industry giants.

Some CON methodologies can create barriers for patients that live in regions without any nearby hospices, or with few provider options, leaving people without “optimal end-of-life care,” according to Dr. Suzana Makowski, chief of palliative care at Unity Hospital in Rochester, New York.

“In many states where I’ve worked, CON can impact access and innovation in hospice,” Makowski told Hospice News. “In areas with rigid certificate of need laws, it can mean that some patients simply don’t have hospices. As a referring physician, I really got to see what competition can bring to the table of hospice.”

Before joining Unity Hospital, Makowski was chief of palliative medicine at Exeter Hospital in New Hampshire, and also served as co-chief of the palliative medicine division at UMass Memorial Healthcare in Massachusetts. She trained as a hospice and palliative care fellow in San Diego, California.

New York and Massachusetts both have CON programs in place, while New Hampshire and California do not. However, California last year placed a moratorium on new licenses in the state.

“Some hospices have folded in rigid CON areas because the demand may be high, but their patient numbers may be low without the staffing and financial bandwidth,” said Makowski. “Proving a need for new providers can be difficult in this case. These rigid rules are preventing hospices from moving into communities where there’s virtually no end-of-life care.”

CONs can be “a Catch 22” for hospices, said Makowski.

Regions without CON laws — or have rules that are more flexible — can have a higher concentration of hospices. This can help referring physicians connect patients with end-of-life services more quickly, Makowski said. This also means patients have a wider spectrum and diversity of hospice programs available to them, she said.

On the flipside, the larger range of choices can make it more difficult to establish long-term referral relationships as those upstream providers decipher which hospices offer the highest-quality care in their market, Makowski continued.

The greater degree of competition in these states can also foster a more intense focus on quality, she added.

“Finding the right balance of CON is a challenge, but it could be beneficial to loosen these up a bit in some areas at the threat of losing true hospice gems,” Makowski said. “Competition challenges hospices to compete with each other for quality excellence. There’s a real push to provide that and set themselves apart.”

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