Hospice Providers: CON Laws Need Overhaul in Some States

Some hospice providers have hit roadblocks when it comes to navigating needs determination methodologies certificate of need (CON) laws in certain states, citing outdated processes for assessing underserved populations.

Determining an unmet need for hospice can be a challenging feat that includes many variables beyond the scope of some current CON policies in place, according to Heart’n Soul Hospice COO Kevin Allison.

The data driving certain CON determinations could be flawed and lack vital information around access and utilization among underserved communities, Allison said.


“The data used to determine the barriers to entry, that methodology is antiquated,” Allison told Hospice News. “Some committees use state budget numbers and census volumes that don’t look at race and ethnicity in a more progressive way as more people identify as more than one – that’s not always taken into account in that CON process. They might conflate utilization of one group with another, or a different group altogether and essentially reflect higher minority utilization than actuality.”

CON laws need revisions to better identify and address unmet needs across diverse racial and ethnic groups, Allison added.

Some states operate within a “limited scope” when it comes to health equity, Allison said. Opportunities exist to improve patient data collection methodologies for CON needs assessments, he stated.


Nashville-based Heart’n Soul Hospice also serves communities in Seattle, Washington. Among the hospice provider’s strategic goals is to improve utilization among underserved populations.

Heart’n Soul recently sought to establish services in the Mecklenburg County region of North Carolina. The hospice’s CON application was ultimately denied.

Mecklenburg County has six licensed hospice providers, according to data shared with Hospice News by the Association for Home Care & Hospice of North Carolina (AHHC-NC). About 28 Medicare-certified hospices have established services in the community and surrounding areas, serving roughly 1.175 million individuals.

The CON methodology in North Carolina is in part based on annual patient demographic information submitted by hospices in a region, according to Matt Wolfe, office manager shareholder, Baker Donelson, Bearman, Caldwell & Berkowitz, PC. The advisory firm represents clients across the United States, including AHHC-NC and the South Carolina Home Care & Hospice Association (SCHCHA), among others.

“[The methodology] takes into account how counties are growing [and] how hospices are serving the residents of those particular counties. It takes into account whether there’s any need for an additional hospice office to provide care to residents of a county that may not be fully served,” Wolfe told Hospice News. “There is an opportunity for anyone to be able to petition for what’s called an adjusted need determination or a special needs petition, and that allows the petitioner to be able to provide information that may not be publicly available, or to provide insight to aspects that may not be addressed in the methodology to be able to request a need determination in the forthcoming plan.”

Projections of need for the various health care facilities and services are used in conjunction with other statutes and rules in reviewing CON applications for establishment, expansion or conversion, according to the North Carolina State Health Coordinating Council, a division of North Carolina Department of Health and Human Services (NCDHHS).

The CON processes are continually evaluated and open to public review and comment, representatives from the coordinating council told Hospice News in an email.

New hospices seeking to establish services in a region must demonstrate not only a need, but also the ability to sustain and grow services alongside demand, Wolfe indicated.

“It’s a competitive process – it has to be, and it has to be done by law,” he said. “All sorts of different walks of life are in hospice, from large national companies to mom-and-pops and minority-led companies as well. We’re very sensitive to the need to improve health equity in North Carolina and in the hospice and home care industry. We also want to make sure it’s done in a way that actually accomplishes that goal of health care that is available and utilized equally, regardless of race, ethnicity or any other background character.”

Hospice utilization among Medicare decedents in North Carolina reached 47.9% in 2020, which is in line with the national average that year, the National Hospice and Palliative Care Organization (NHPCO) reported.

Demographics are driving up demand in the state. Seniors 65 and older represent 17.4% of North Carolina’s population, according to the U.S. Census Bureau. Approximately 2.7 million people will fall into this age group statewide by 2040, nearly double the current total of 1.8 million seniors, reported North Carolina’s Office of State Budget and Management.

Meanwhile, many providers are struggling to keep up with demand in light of staffing shortages plaguing the industry.

The labor pressures can have an adverse impact on diversity, equity and inclusion efforts. Underserved populations have been hit with particular force, an element that CON needs determination methodologies don’t always incorporate, according to David Turner, CEO and co-founder of Heart’n Soul Hospice.

Overall African Americans, Asians and Hispanics combined made up less than 20% of all Medicare hospice patients in 2018, while Caucasians represented the remaining 80%, NHPCO reported.

“The people that this issue really harms and impacts are the citizens and those underserved populations,” Turner said. “Our hope is that we have made enough noise and shone enough light on these [CON] issues to open up a dialogue and discuss some of the flaws in these systems to better determine clear, unmet needs. It’s making recommendations and hoping that future certificate of need applicants are able to demonstrate how they’re going to be involved in health equity.”

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