Cavanaugh & James: Mass. patients need choices, not roadblocks

Expectant mothers need quick access to care when labor begins, but their options are dwindling in Massachusetts. If UMass Memorial Health receives regulatory approval to close its Leominster maternity ward on Sept. 22, the shutdown would continue an alarming trend.

Birth centers, midwifery practices and hospital obstetric units have disappeared across the state in recent years, along with behavioral health and primary care clinics. Policymakers have vowed to intervene to stop the bleeding, but proposed solutions are upside down.

Rather than making it easier for health care investors to launch and run new facilities in Massachusetts, state lawmakers want to make it harder for existing providers to close. One measure, S.736/H.1175, would extend the mandatory wait time to shut down “essential health services” from six months to one year — not counting 30 days of advance notice for hospital staff, labor unions and local officials.

Before filing any of this paperwork and starting the clock, providers would have to gather community feedback and give affected municipalities a chance to challenge decisions. Realistically, the process could take 18 months or longer. Even then, the final answer could be no, triggering additional rounds of bureaucracy.

Similar interference in any other industry would be outrageous. Struggling restaurants, auto repair shops and other enterprises can close, relocate or scale back services when they fall on hard times. “Going out of business” sales are common. So are grand openings. But Massachusetts treats health care differently.

Providers must obtain a government permission slip called a determination of need or “DON” before making almost any business decision. In some cases a nursing home cannot even replace carpet, install a new roof or upgrade an HVAC system without a DON. Medical clinics cannot purchase MRI machines without a DON. And independent doctors cannot open low-cost surgery centers without a DON.

The application process is slow, complex and expensive.

Health care providers in many states don’t have to worry. New Hampshire dumped its version of the DON, called a certificate of need or “CON,” in 2016, joining California, Texas and nine other states. Elsewhere, lawmakers have passed substantial CON repeals in Arizona, Ohio, Indiana and Montana.

Three more states, North Carolina, South Carolina and West Virginia, followed in 2023. Even Connecticut, which maintains aggressive CON enforcement, agreed to release birth centers from the burden in 2023.

Most other states, which continue to cling to their CON laws, don’t require government permission to end services. But Massachusetts hinders its health care providers in both directions — coming and going.

“Conning the Competition,” a 2020 report from our public interest law firm, the Institute for Justice, shows Massachusetts is one of only eight states that requires a DON or CON within six broad categories: hospital beds, beds outside hospitals, equipment, facilities, services and emergency medical transportation.

Massachusetts even allows business rivals to intervene in the DON application process, giving established providers special protection from competition. Rather than backing off and opening the market to all-comers, state lawmakers want to double down with even more DON restrictions.

Massachusetts patients would pay the price. Multiple studies and decades of real-world experience show DON and CON laws do not contain costs, increase access or improve quality of care. The opposite happens, which should be obvious by looking at the spate of Massachusetts closures. Continuing in the same direction — propping up a failed regulatory regime — is not the answer.

Massachusetts should reverse course instead by backing off its DON laws and reducing other regulatory burdens. Freestanding birth centers, for example, do not need a DON to open but must navigate pages of onerous licensing rules that often have nothing to do with health and safety. Seven Sisters Midwifery and Community Birth Center needed five years to clear the red tape in Northampton. And Neighborhood Birth Center, a planned facility in Roxbury, has struggled to get off the ground for more than eight years.

Regulators and lawmakers should work together to streamline these processes. Labor and delivery can be painful. But launching a health care business does not need to be.

Jaimie Cavanaugh is the lead author of “Conning the Competition” and an attorney at the Institute for Justice.  Daryl James is an Institute for Justice writer