Jessica Dobrinsky, chief of staff at the Cardinal Institute for West Virginia Policy, is sworn in Tuesday for her briefing on the proposed repeal of certificates of need requirements for health care facilities. (Photo Courtesy/WV Legislative Photography)

CHARLESTON — Lawmakers received a preview Tuesday of the fight coming to the 2025 legislative session beginning Wednesday over whether to keep, reform or repeal West Virginia’s certificate of need program for health care facilities.

The Joint Standing Committee on Health heard from supporters of eliminating the state’s certificate of need program regulated by the West Virginia Health Care Authority, as well as representatives of the West Virginia Hospital Association who believe the repeal will hurt rural hospitals and health care providers.

States began implementing CON programs to help control health care costs and prohibit duplicative or unneeded medical services in communities. West Virginia’s CON law was put in place by lawmakers in 1977, making it one of 35 states with such laws. According to the National Conference of State Legislatures, only 12 states have fully repealed their CON programs.

Justin Cox, executive director of the West Virginia Health Care Authority, told committee members that his agency reviewed 35 applications for CONs in 2024 which were approved, along with 239 exemption requests.

Supporters of repealing CON believe ending the program will give residents more options for health care, increase the number of rural hospitals in the state, provide more savings in health care costs and possibly save more lives.

“Health care providers wishing to open or expand must prove to an unelected body that their services are needed,” said Jessica Dobrinsky, chief of staff at the Cardinal Institute for West Virginia Policy, a conservative think tank. “The methodology fails to consider meaningful measures of quality and instead examines economic viability.

“(CONs) limit access, they increase cost, they fail to improve quality, and they stifle innovation, forcing health care providers to receive approval before opening medically necessary businesses, creating artificial barriers for new health care providers,” Dobrinsky continued. “Health care should be driven by innovation and patients.”

Opponents of repeal include the West Virginia Hospital Association, which believes the current CON process ensures that regions of the state have appropriate levels of health care and helps protect rural hospitals from unfair competition.

David Goldberg — vice chairman of the West Virginia Hospital Association and president/CEO of Mon Health System and Davis Health System and executive vice president of Vandalia Health — explained that more than 75% of the income hospitals receive comes from reimbursements from Medicare, Medicaid and the Public Employees Insurance Agency. Goldberg said eliminating the CON program would cause hospitals around the state to fail due to competition for patients.

“Every day, we’re operating to be able to provide for the constituents you represent, and the economics are very tough,” Goldberg said. “The margins are very lean in this environment. From a CON perspective, we’re a very rural state. … There’s reasons why our rural state needs some of those opportunities to keep balance.”

Last year, the House of Delegates’ Health and Human Resources Committee recommended for passage House Bill 4909 on a 13-9 vote. HB 4909 would have eliminated CON requirements for all health care services except hospice care services. HB 4909 was never taken up by the full House, remaining in the inactive calendar for the rest of the 2024 session.

But conservative free market groups — such as Cardinal, the West Virginia chapter of Americans for Prosperity and the Pacific Legal Foundation — have been advocating for CON repeal for years and see this year as a prime opportunity to get a bill on the desk of Gov. Patrick Morrisey, who campaigned on repealing CON.