Commissioners Christine S. Wilson and Noah Joshua Phillips of the Federal Trade Commission (“FTC”) used a recent FTC enforcement action challenging a hospital acquisition as an opportunity to issue a statement (“Statement”) broadly condemning the existence of Certificate of Need (“CON”) laws. Despite acknowledging that the CON process incorporates an “extensive application” requiring applicants to “justify the need” for the increase (or decrease in many cases) of the provision of services, and that “state regulators rightly weigh a variety of interests, including public health, safety, and security,” the Statement labels CON laws as categorically harmful “because they prevent health care providers from responding quickly to meet market demand.” In addition, the Statement condemns efforts by health care providers to lobby against a competitor’s CON application, and justifies relatively recent additions to FTC orders that prohibit such conduct.

Advocating for the inclusion of a review of potential competitive effects in the CON process has merit, but arguing that CON laws should be abolished because they impede providers from responding quickly to market demands, particularly in the context of a challenge to a hospital transaction, does not. Most states with CON laws generally have the ability to expedite consideration of a CON application, particularly in the presence of exigent circumstances, such as the recent pandemic.

Finally, forcing providers to relinquish their rights under the First Amendment to petition the government (including the immunity from antitrust actions judicially affirmed under the Noerr-Pennington doctrine) is a sanction often disconnected from the conduct under investigation, and provides fodder to critics who rail against the federal intrusion into the state regulatory process.

For additional information about the issues discussed above, or if you have any other antitrust concerns, please contact the Epstein Becker Green attorney who regularly handles your legal matters, or one of the authors of this Antitrust Byte:

E. John Steren
Member of the Firm

Patricia Wagner
Chief Privacy Officer

Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.