The US Certificate of Need Sourcebook

Certificate of Need Sourcebook - 2005Certificate of Need (CON) has had a broad impact on healthcare providers and markets for over three decades. As the bibliographies and other resources in this book illustrate, there is a large amount of literature documenting CON regulation over the years. However, the literature is sporadic in its coverage of certain key aspects of CON including: directories and data for individual state CON programs and their impact, private studies on CON, legal and case law analyses, and several other areas. This work is the result of over two years of dedicated, focused research resulting in a comprehensive reference manual and sourcebook encompassing the statutory, regulatory, administrative, and legal aspects CON regulation from its inception in the late 1960s to the present.

The U.S. Healthcare Certificate of Need Sourcebook provides detailed descriptions, on a state-by-state basis, of CON regulatory requirements, including application thresholds, contact information and utilization data. Comprehensive bibliographies are also included with thousands of published monographs, serials, professional and trade journals, as well as general press articles, research studies, published case law, law review articles, and bar journal coverage of CON. The work also includes compendiums of Internet-based and other data resources, a thorough glossary of CON terminology, and reviews of major research organizations and economists. The book is supplemented with numerous appendices. Based on a proprietary database, the work is designed to support periodic publication updates.

The U.S. Healthcare Certificate of Need Sourcebook is unique in its scope and comprehensive treatment of the topic of CON, which is a growing and increasingly contentious competitive, political, and legal healthcare policy issue.

 Table of Contents


Front Matter

  • Disclaimer
  • Dedication
  • Preface
  • Acknowledgements
  • About the Author
  • Foreword
  • Table of Contents

Background and Quick Reference Information

  • CON Narrative History and Background
  • States with CON Programs
  • State CON Status Maps
  • Contact Information – Regulatory / State Agencies
  • Contact Information – Research Groups
  • Leading CON Healthcare Economists
  • CON Related Websites

Bibliographies of CON Related Resources

  • Book Bibliography
  • Article Bibliography
  • CON Case Law Bibliography

Case Law Indexes

  • CON Case Law Table of Cases – Indexed by State
  • CON Case Law Table of Cases – by Underlying Cause of Action 
  • CON Case Law Table of Cases – Indexed by Classification of Regulated Asset

State by State Regulatory Data Analysis of CON Programs

  • State CON Statutes and Regulations
  • Application of CON Laws to Assets and Services by State


  • Glossary


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Reviews from the Experts


”As a young attorney in the general counsel’s office of the U.S. Department of Health and Human Services during the late 1970s, I first learned of the federal government’s quixotic efforts to rein in the rapid growth of our nation’s healthcare industry. With its whimsical acronyms and labyrinth of regulatory protocols, the Certificate of Need (CON) program became my ticket out of government service into the private practice of law. Indeed, for much of the next ten years I found myself in the middle of a fierce battle between regulators and competing healthcare organizations fighting over who should receive the government’s franchise for the newest technology or facility to put it in.

Looking back from the vantage of today’s healthcare system, it seems remarkable that at one point almost every state had some form of CON program and had accepted the premise that governments could do a better job of matching supply and demand than the healthcare marketplace. Although a large number of states have either abandoned or fundamentally revised their CON programs, where they exist, CON programs remain a major hurdle for providers seeking to expand, modernize or reshape their service capabilities.

Success in scaling this hurdle requires a combination of resources including the expertise of professionals like Bob Cimasi who have dedicated their careers to understanding the inner workings of the regulatory process and its effect on the private sector.  When CON was a larger part of my legal practice than it is today, there was no single source containing a reliable summary of each state’s law and how it has been interpreted and applied. Nor was there a directory of the contact people who ran the CON programs or were available for consultation or representation on a project. Those of us who did quite a lot of this work treated such information as highly proprietary and only shared it with our clients. Mr. Cimasi’s book The U.S. Healthcare Certificate of Need Sourcebook fills that void in the literature and provides a useful research tool for both the neophyte and seasoned professional.  Healthcare providers, both institutional and non-institutional, whether for-profit or not-for-profit, will find this work to be a vital part of their libraries. Having had the pleasure to work with Bob Cimasi on many occasions, I know first-hand the depth of his knowledge and experience with complex subjects. I am delighted that he has taken the time to share some of his wisdom through this excellent book.”

  • Peter A. Pavarini, Esq., Schottenstein, Zox & Dunn

“Established more than 30 years ago by the federal government and state governments, the Certificate of Need (CON) program was intended to be a primary way to control healthcare costs by regulating major capital expenditures and modifying healthcare service capacity. According to the author, the CON program is based on the premise that, “in an unregulated market health-care providers will provide the latest costly technology and equipment, regardless of duplication or need.” 

With healthcare costs continuing to rise inexorably, CON programs are being reconsidered and reviewed by federal and state regulators and healthcare agencies. The CON program is still used by most states to control healthcare costs, although some states have abandoned the program or substantially modified it. The number of states with CON programs peaked at 49 in 1980 and remained in the high 40s for most of the 1980s. In 1988, the number dipped to 39 and has held steady in the high to mid 30s since then. In 2004, the number was at 36. Regardless, the CON program has significantly affected the delivery of healthcare in this country and still does.

The U.S. Healthcare Certificate of Need Sourcebook is encyclopedic in scope and content, which reflects the author’s breadth of knowledge about the subject matter. For over 20 years, Cimasi has helped clients in nearly every state understand and comply with the requirements of the CON program. He is a leading authority on CON issues, practices, procedures, regulations, and standards, and he has an incomparable background in healthcare consulting, litigation, and mergers and acquisitions. Cimasi draws upon his formidable experience and his record of helping healthcare businesses adapt to market and regulatory changes to present a great amount of information, cases, and developments relating to the CON program.

The book offers readers an overview of CON program basics and a history of its development. This overview is complemented with a discussion of federal and state court cases and state administrative cases and decisions affecting the program’s application. The author’s treatment of these cases is thorough – the cases categorized by states alone cover nearly 120 pages. The multitude of state cases are cited and annotated according to different levels of state courts, and also by their underlying causes of action and classification of regulated asset. For example, 20 underlying causes of action are offered under seven headings. The classifications for causes of action include procedural due process violations, arbitrary CON board decisions, establishment/challenge to new need requirements for state health plans, and definition of regulatory terms. The classifications for regulated assets include medical equipment such as magnetic resonance imaging and computerized tomography; ambulatory surgery centers; cancer treatment centers, dentist offices, hospitals, and other facilities; and services, including ambulances, cardiac catheterization, and dialysis. 

While the book is extraordinarily comprehensive in its treatment of the subject matter, it is also interactive and user friendly. From his experience with clients, Cimasi understands what is most important to impart to readers about the numerous cases cited throughout the book. The utility of this work is reflected in the “abstracts” of each case. The abstracts are categorized by state and include complete, consistent identification of each case according to standard legal annotation. Each abstract describes the grounds of the action, states the findings of the court, and gives the court’s decision. For example, a sample abstract of the 1987 case Platte County Medical Center Inc. v. Missouri Health Facilities Review Committee describes the circumstances leading up to a final decision by an appeals court – “Denied applicant appealed to the Circuit Court, Cole County after Committee denied its applicant for CON” – along with other specifics of the case. The finding of the appeals court, which ended the litigation, was that the “Committee’s failure to issue decision in a timely manner (under 120 days) indicated approval of CON.” This information is useful for readers not only for decisions in particular states, but also for rulings for compliance with CON statutes and regulations by both healthcare organizations in the private sector and the government.

Cimasi’s book offers several other resources. One is a bibliography of hundreds of books and articles on CON. The Sourcebook also lists CON statutes and regulations by state and contact information for state agencies responsible for program implementation. Useful websites are also provided. This thorough guide and reference is invaluable to anyone who will be or is involved in the CON program in any of the states where it is still in place. Readers will also find it uniquely informative on government policies concerning healthcare”.

  • Henry Berry, Nightingale's Healthcare News

“The (U.S. Health Care) Certificate of Need Sourcebook is as insightful as it is comprehensive. A must-have resource for the business or legal professional who plays in the health care arena.”

  • John M. Callahan, Esq., Partner, McDermott Will & Emery, LLP:

“The U.S. Healthcare Certificate of Need Sourcebook is a welcome new resource for health law attorneys working with CON. Its comprehensive treatment of the subject is a valuable practice aid.”

  • Doreen Dodson, Esq., Partner, The Stolar Partnership

“Finally, an urgently-needed comprehensive guidebook on a difficult topic from a trusted source. This book fills a gap in the libraries and knowledge-base for those of us wresting with CON issues. The contact-list alone is invaluable!”

  • Keith Borglum, Principal, Professional Management and Marketing

“When I founded an ambulatory surgery center more than two decades ago, I was told a Certificate of Need (CON) was required, but knew little about governmental rules and regulations. In response, my local hospital embarked on a ferocious battle to thwart our mission. The Sourcebook would have helped. My suggestion is to read this valuable resource and reap the benefits.”

  • David Edward Marcinko, MD, MBA, CFP, CMP, Chief Executive Officer, Institute of Medical Business Advisors

“The U.S. Healthcare CON Sourcebook is a critical resource for any healthcare planner in a time of 'shifting CON sands' in many states. Understanding where CON is and where it may go can make or break key decisions at the hospital or physician level.”

  • Jacque Sokolov, MD, Chairman Sokolov Sokolov Burgess

“Physicians know CON as a policy that entrenches the status quo, stifles competition and innovation and fails the patients it professes to serve. This carefully researched work provides the facts to overturn it state by state.”

  • Alan H. Pierrot, M.D. Chief Executive Officer, FSC Health Inc.

“Bob's expertise in Certificate of Need helped Kansas City Cancer Centers develop two cancer centers and one PET/CT project in a CON state, despite sometimes heavy opposition from competitors. Anyone who operates in a CON state can benefit from this book, whether you intend to pursue capital projects or not.”

  • John E. Hennessy, CMPE, Executive Director, Kansas City Cancer Centers

“Over the years, Bob Cimasi and Health Capital Consultants (HCC) have compiled a wealth of research and information on the subject of Certificate of Need issues related to states across the U.S. Their experience and background in assisting U.S. Oncology and other clients with their consulting services in this important area makes the The U.S. Healthcare Certificate of Need Sourcebook a welcome addition to the resources on CON available to healthcare providers and their professional advisors.”

  • Leo Sands Executive Vice President and Chief Administrative Officer, U.S. Oncology