EP444: Two State Healthcare Laws Often Don't Go as Planned: CON and COPA, With Ann Kempski

Certificate of Need (CON) laws and Certificates of Public Advantage (COPA) laws are two state-level attempts to control healthcare costs and competition — and, as is often the case with well-intentioned policy, the results in practice haven't matched the intent. Ann Kempski, an independent health policy consultant, joins Stacey Richter to dig into why roughly 35 states still operate CON programs designed to prevent costly oversupply but that often end up entrenching the market power of already-dominant health systems, and why the newer COPA laws — which trade antitrust scrutiny for state oversight of hospital mergers — drew a formal warning from the Federal Trade Commission.

WHAT YOU'LL LEARN

✅ Why Certificate of Need (CON) laws, designed to prevent costly oversupply, often end up favoring the biggest, already-consolidated health systems instead

✅ The four recurring problems that lead states to repeal their CON laws, even though the original intent behind them was reasonable

✅ How Certificate of Public Advantage (COPA) laws immunize hospital mergers from antitrust review by substituting state oversight for competition — and why the FTC formally warned states against enacting them

✅ Why weak state oversight after a COPA-approved merger, as seen in Tennessee with Ballad Health, can leave a newly dominant health system with little real accountability

✅ Why a systematic review of 90 studies found that the costs of CON laws tend to exceed their benefits

WHY THIS MATTERS

CON and COPA laws are reminders that good intentions in healthcare policy aren't the same as good oversight. Both were designed to control costs — CON by limiting supply, COPA by allowing state-sanctioned hospital mergers — but both tend to produce the same outcome: bigger, more consolidated health systems with less competitive pressure to keep prices in check. States retain real leverage to shape competition in their own healthcare markets; the CON and COPA experience shows that leverage has to be paired with sustained oversight of outcomes, not just good intentions at the point of passage.

MENTIONED IN THIS EPISODE

EP224 with Suzanne Delbanco, PhD: Apple Podcasts | Spotify | Other Apps

EP437 with Brian Klepper, PhD: Apple Podcasts | Spotify | Other Apps

=== LINKS ===

🔗 Show Notes with all mentioned links: Episode Page

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00:00 Introduction.

06:20 Ann remembers Suzanne Delbanco.

06:55 EP224 with Suzanne Delbanco.

07:40 What are state Certificate of Need laws?

08:44 Why are states getting rid of these CON laws?

13:26 Why CON laws are created.

15:43 EP437 with Brian Klepper, PhD.

16:09 What are the conflicts of interest and problems that arise when CON laws are created?

20:55 What happens when states get rid of these CON laws?

24:10 How are Certificate of Public Advantage laws different from CON laws?

27:58 Why does the research show that COPAs don't usually accomplish their goals?

31:34 What encouraging current events are happening in the realm of COPA laws?

32:08 Gloria Sachdev, PharmD, of Employers' Forum of Indiana.