House Bill 370 was sponsored by Representative Mary Sue McClurkin (R) of Pelham, who represents District 43 in Jefferson and Shelby counties.
“The bill sends appeals directly to the Court of Civil Appeals rather than requiring them to go through Circuit Court,” McClurkin said. “Our goal is to speed the process to help future applicants get a definite answer faster without burdening providers and their patients with the expense of a long series of legal battles.”
Unlike legislation proposed by McClurkin last year, this bill does not have a retroactive provision. It would apply only to future CON applications, which could make it more likely to pass the senate and become law. It would not affect the outcome of Trinity Medical Center’s plan to move to Highway 280, which has been hotly contested by Brookwood Medical Center and St. Vincent’s.
McClurkin says she first became aware of the long delays in the current CON process when she was involved in helping Shelby Baptist Medical Center with an application.
“It took five years and cost half a million dollars just to deliver babies,” McClurkin said. “Patients shouldn’t be left waiting so long for needed services.”
Originally, like other legislators who have sought to abolish the CON process altogether, McClurkin thought health care in Alabama might be better off without a CON requirement. She has since decided that a middle ground is more likely to be a more effective approach to get services where they are needed without the process becoming a competitive tactic that can have a negative effect on both providers and patients.
Alabama’s CON laws were enacted in 1977 as a response to the National Health Planning and Development act that was passed by Congress in 1974. It was originally intended to help contain medical costs by avoiding expensive duplication of services. According to the US Health Policy Gateway, it was also supposed to be a tool to prevent “cream skimming” by one provider, leaving others with a disproportionately high load of uncompensated care.
Since that time, two opposing schools of thought have been debating the subject. Free market advocates suggest that limiting supply through a CON process creates and maintains artificially high pricing, where removing limits would increase supply and drive prices down, as is the case with most other products and services under classic supply/demand economics.
CON proponents say that the economics of health care function in a very different manner. Patients who are sick may not be in a position to shop for health care, and most do not shop for treatment facilities but are referred by their physicians.
They also point out that unlike a store or brand that can go out of business and easily be replaced by another, if physicians and hospitals have to cut back on services or close their doors due to lack of demand to pay for expensive equipment or facilities, patients can be negatively impacted and left without access to care.
A study by Duke University and others sponsored by the big three automakers on behalf of their employee health plans have found that health care costs in states with CON programs do tend to be lower than non-CON states. Another study published in JAMA also found a link to better outcomes in CON states.
However, CON programs have led to controversy in legal battles between providers where one side uses the CON process against another to delay expansion and defend market share.
Another measure in the bill that could streamline the CON process is verification by the Statewide Health Planning and Development Agency (SHPDA) that judges hearing CON appeals are well versed in health care law and the health care field and have the experience and qualifications to hear the case.
At press time, the bill had moved to the state senate where it was pending committee action and awaiting a voting date to determine whether it will become law.
McClurkin is optimistic that it will pass the senate this year, particularly since it will apply only to future CON cases.
“We worked with the hospital association in developing this bill, and it’s something that can benefit everyone. Most of all, it can give us a faster way to bring needed health care services to the patients who need them.”
Among other health-related legislation before Alabama lawmakers in 2012 are bills related to limiting smoking in public and employee areas, insurance coverage of autism spectrum disorders to age 8 under certain conditions, funding for spinal cord injury research, and a measure authorizing physician’s assistants, chiropractors and nurse practitioners to refer patients to physical therapy.