Georgia’s Certificate of Need (“CON”) program,[i] administered by the Georgia Department of Community Health (“DCH”) Office of Health Planning, controls the creation and expansion of health facilities in Georgia.[ii] With the goals of measuring need, controlling costs, and guaranteeing access to healthcare, the CON program regulates most health care facilities in Georgia, including hospitals and long-term care facilities.[iii]
In recent years, states have begun enacting legislation repealing or limiting the applicability of CON laws.[iv] For example, in 2019, Florida amended its CON requirements for many types of health facilities to limit its regulation to nursing homes, hospices, and intermediate care facilities for the developmentally disabled.[v] Similarly, South Carolina repealed its CON requirements for most health facilities, notably excluding nursing homes.[vi]
Georgia followed suit with the Georgia General Assembly considering legislation to change the CON requirements during the 2023 legislative session.[vii] Critics of the CON program argued that it is outdated and stifles access to healthcare in rural areas.[viii] While no changes were made to the CON program during the 2023 legislative session, both the Senate and House created special study committees tasked with reviewing Georgia CON laws and recommending reform for the 2024 legislative session.[ix]
The Final Report of the Senate Certificate of Need Reform Study Committee recommended sweeping changes to Georgia’s CON program.[x] Finding that the CON laws prevented competition and limited advancement in health care delivery, particularly in rural communities, the Senate Committee proposed that the legislature fully repeal Georgia’s CON laws.[xi] And if not a full repeal, the Senate Committee recommended limiting the scope of the program by removing certain facility types and bed expansion from CON regulation and eliminating the cost thresholds.
Following the Senate Committee’s recommendation, the Senate will again consider legislation altering the CON requirements this legislative session. The Senate read and referred SB 442 on January 31, 2024, to the Senate Regulated Industries and Utilities committee.[xii] The bill repeals all existing CON requirements for any new or existing health care facilities in counties with a population of less than 35,000.[xiii] Also, on January 8, 2024, the Senate recommitted last year’s proposed legislation addressing CON reform, SB 162, to the same committee.[xiv] The current version of SB 162 limits the certificate of need program to a narrower set of health care facilities, including skilled nursing facilities, intermediate care facilities, personal care homes, and home health agencies.[xv]
FH2’s corporate team will continue to monitor proposed CON legislation and other Certificate of Need developments in Georgia and is available to assist healthcare providers with Certificate of Need questions and issues, including how these changes may impact both operations and asset transfers and sales for healthcare providers in Georgia. If you have questions regarding Georgia’s Certificate of Need reform and its potential impacts on your business, please contact Andrew Hazen (ahazen@fh2.com; 770-771-6818) or Anne Marie Simoneaux (asimoneaux@fh2.com; 770-771-6811) or visit fh2.com to learn more about how the attorneys at Friend, Hudak & Harris, LLP can help.
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[i] See O.C.G.A. § 31-6-40 to 31-6-50; Ga. Comp. R. & Regs. § 111-2-2.
[ii] Certificate of Need (CON), Ga. Dep’t of Cmty. Health, https://dch.georgia.gov/divisionsoffices/office-health-planning/certificate-need-con (last visited Jan. 31, 2024).
[iii] See Certificate of Need (CON), supra note ii; O.C.G.A.§ 31-6-2(17).
[iv] See, e.g., Certificate of Need State Laws, Nat’l Conference of State legislatures (Jan. 1, 2023), https://www.ncsl.org/health/certificate-of-need-state-laws.
[v] See Certificate of Need State Laws, supra note iv; Hedy Silver Rubinger & Charmain A. Mech, No Need for Certificate of Need: Florida Eliminates Certificate of Need Review for Specialty Hospitals, Arnall Golden Gregory (June 22, 2021), https://www.agg.com/news-insights/publications/no-need-for-certificate-of-need-florida-eliminates-certificate-of-need-review-for-specialty-hospitals/.
[vi] Partial Repeal of Certificate of Need (CON) Program, S.C. Dep’t of Health and Envtl. Control (June 8, 2023), https://scdhec.gov/sites/default/files/media/document/CON-DHEC-Board-Presentation-Jun-8-2023.pdf.
[vii] See SB 162, Ga. Gen. Assembly, https://www.legis.ga.gov/legislation/64324 (last visited Feb. 7, 2024); SB 99, Ga. Gen. Assembly, https://www.legis.ga.gov/legislation/64040 (last visited Jan. 31, 2024).
[viii] See, e.g., Donovan J. Thomas, Georgia Laws for Opening or Expanding Hospitals Getting Review by State Senate, AJC (June 13, 2023), https://www.ajc.com/news/health-news/georgia-laws-for-opening-or-expanding-hospitals-getting-review-by-state-senate/N7QEGENJRNFCLBQNFSHLFBSMXU/; Greg Bluestein, Ariel Hart & Zachary Hansen, A Burt Jones-backed Hospital Overhaul Draws Scrutiny, AJC (Mar. 20, 2023), https://www.ajc.com/politics/burt-jones-family-could-benefit-from-new-hospital-overhaul/V6FQ67MLBNAHJNL7YPDOZ6SEBQ/.
[ix] See SR 279, Ga. Gen. Assembly, https://www.legis.ga.gov/legislation/65179 (last visited Jan. 31, 2024); HR 603, Ga. Gen. Assembly, https://www.legis.ga.gov/legislation/65620 (last visited Jan. 31, 2024).
[x] Final Report of the Senate Certificate of Need Reform Study Committee (SR 279), Ga. State Senate Office of Policy & legislative Analysis, 14 (Nov. 29, 2023), https://www.senate.ga.gov/committees/Documents/CONFinalReport11.29.23.pdf [hereinafter Senate Committee Final Report]. Note that the House report did not specify any recommendations. See Final Report: House of Representatives Study Committee on Certificate of Need Modernization, House Budget & Research Office (Dec. 11, 2023), https://www.house.ga.gov/Documents/CommitteeDocuments/2023/Certificate_of_Need/HR_603_Final_Report_w_signatures_12.11.23.pdf.
[xi] Senate Committee Final Report, supra note x, at 14.
[xii] SB 442, Ga. Gen. Assembly, https://www.legis.ga.gov/legislation/66565 (last visited Feb. 7, 2024); Senate First Readers: Thirteenth Legislative Day, Ga. Gen. Assembly, 4 (Jan. 31, 2024), https://www.legis.ga.gov/api/document/docs/default-source/senate-calendars/20232024/first-readers-2024-ld13.pdf?sfvrsn=b7d427d4_2.
[xiii] SB 442 (as introduced LC 33 9624), Ga. Gen. Assembly, 1–2, https://www.legis.ga.gov/legislation/66565 (select “Current Version”) (last visited Feb. 7, 2024).
[xiv] See also SB 162, supra note vii.
[xv] SB 162 (as introduced LC 33 9350), Ga. Gen. Assembly, 6, https://www.legis.ga.gov/legislation/64324 (select “Current Version”) (last visited Feb. 7, 2024)
