FTC and Department of Justice Written Testimony Before the Illinois Task Force on Health Planning Reform Concerning Illinois Certificate of Need Laws

This statement draws from testimony delivered on behalf of the Antitrust Division to the General	1
Assembly and Senate of the State of Georgia on February 23, 2007; to the Committee on Health of the
Alaska House of Representatives on January 31, 2008; and to the Florida Senate Committee on Health and
Human Services Appropriations on March 25, 2008. It also draws from testimony delivered on behalf of
the Federal Trade Commission to the Committee on Health of the Alaska House of Representatives on
February 15, 2008 and to the Florida State Senate on April 2, 2008.
This statement responds to an invitation from Illinois State Senator Susan Garrett, co-chair of the	2
Illinois Task Force on Health Planning Reform, dated June 30, 2008.
This extensive hearing record is largely available at http://www.ftc.gov/bc/healthcare/research/	3
healthcarehearing.htm.
F ED ERAL T RAD E C O M M ISSIO N AN D THE D EPARTM EN T O F J USTICE , I M PROVING H EALTH C ARE : A	4
D O SE O F C O M PETITIO N (July 2004), available at http://www.usdoj.gov/atr/public/health_care/204694.htm
(hereinafter A D O SE O F C O M PETITIO N ).
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COMPETITION IN H EALTH CARE AND CERTIFICATES OF NEED
Joint Statement of the Antitrust Division of the U.S. Department of Justice
and the Federal Trade Commission
Before the Illinois Task Force on Health Planning Reform
September 15, 20081
The Antitrust Division of the U.S. Department of Justice and the Federal Trade
Commission appreciate the opportunity to share our views on the impact of Certificate-of-
Need (“CON”) laws on health care markets. 2
The Antitrust Division and the FTC (together, the Agencies) have investigated and
litigated antitrust cases in markets across the country involving hospitals, physicians,
ambulatory 	surgery 	centers, 	stand-alone 	radiology 	programs, 	medical 	equipment,
pharmaceuticals, and other health care goods and services. In addition to this enforcement,
we have conducted hearings and undertaken research on various issues in health care
competition. For example, in 2003, we conducted 27 days of hearings on competition and
policy concerns in the health care industry, hearing from approximately 250 panelists,
eliciting 62 written submissions, and generating almost 6,000 pages of transcripts. 	As a	3
result of that effort, the Agencies jointly published an extensive report in July 2004 entitled,
Improving Health Care: A Dose of Competition. 	We regularly issue informal advisory	4
letters on the application of the antitrust laws to health care markets, and periodically issue
reports and general guidance to the health care community. Through this work, we have
developed a substantial understanding of the competitive forces that drive innovation, costs,
and prices in health care.
The Agencies’ experience and expertise has taught us that Certificate-of-Need laws
impede the efficient performance of health care markets. By their very nature, CON laws

U.S. Department of Justice and Federal Trade Commission, Statements of Antitrust Enforcement	5
Policy in Health Care, August 1996, Introduction, at 3, available at http://www.usdoj.gov/atr/public/
guidelines/1791.htm.
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create barriers to entry and expansion to the detriment of health care competition and
consumers. They undercut consumer choice, stifle innovation, and weaken markets’ ability
to contain health care costs. Together, we support the repeal of such laws, as well as steps
that reduce their scope.
We have also examined historical and current arguments for CON laws, and conclude
that such arguments provide inadequate economic justification for depriving health care
consumers of the benefits of competition. To the extent that CONs are used to further non-
economic goals, they impose substantial costs, and such goals can likely be more efficiently
achieved through other mechanisms. We hope you will carefully consider the substantial
costs that CON laws may impose on consumers as you consider eliminating or otherwise
amending Illinois’s CON requirements.
I. 	Scope of Remarks
Although we do not intend to focus on specific aspects of the CON program in
Illinois, we are generally familiar with the issues before you and recognize them as issues
that CON laws present in other states and markets. Also, please note that it is not the intent
of the Agencies to “favor any particular procompetitive organization or structure of health
care delivery over other forms that consumers may desire. Rather, [our] goal is to ensure a
competitive marketplace in which consumers will have the benefit of high quality, cost-
effective health care and a wide range of choices . . .” 	Our mission is to preserve and	5
promote consumer access to the benefits of competition, rather than any 	particular
marketplace rival or group of rivals.
II. 	Importance of Competition and the Harm Caused by Regulatory Barriers to
Entry
A. 	The Benefits of Competition in Health Care
Our concerns about the harm from CON laws are informed by one fundamental
principle: market forces tend to improve the quality and lower the costs of health care goods
and services. They drive innovation and ultimately lead to the delivery of better health care.
In contrast, over-restrictive government intervention can undermine market forces to the
detriment of health care consumers and may facilitate anticompetitive private behavior.
In our antitrust investigations we often hear the argument that health care is
“different” and that competition principles do not apply to the provision of health care
services. 	However, the proposition that competition cannot work in health care is not

See, e.g., F.T.C. v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411 (1990); National Society	6
of Professional Engineers v. U.S., 435 U.S. 679 (1978).
317 U.S. 519, 528, 536 (1943) (holding that a group of physicians and a medical association	7
were not exempted by the Clayton Act and the Norris-LaGuardia Acts from the operation of the Sherman
Act, although declining to reach the question whether a physician's practice of his or her profession
constitutes "trade" under the meaning of Section 3 of the Sherman Act).
A D O SE O F C O M PETITIO N , Executive Summary, at 4.	8
Id.; see also id., Ch. 3, §VIII.	9
Id., Ch. 3 at 25.	10
M EDICARE P AY M ENT A D VISO RY C O M M ISSIO N , R EPORT TO THE C O N GRESS : M EDICARE P AY M EN T
	11
P O LICY § 2F, at 140 (2003), available at
http://www.medpac.gov/publications/congressional_reports/Mar03_Entire_report.pdf.
A D O SE O F C O M PETITIO N , Ch. 3 at 24.	12
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supported by the evidence or the law. Similar arguments made by engineers and lawyers –
that competition fundamentally does not work and, in fact is harmful to public policy goals
– have been rejected by the courts, and private restraints on competition have long been
condemned. 	Beginning with the seminal 1943 decision in American Medical Association	6
v. United States, the Supreme Court has come to recognize the importance of competition
and the application of antitrust principles to health care. 	The Antitrust Division and the	7
Federal Trade Commission have worked diligently to make sure that barriers to that
competition do not arise.
During our extensive health care hearings in 2003, we obtained substantial evidence
about the role of competition in our health care delivery system and reached the conclusion
that vigorous competition among health care providers “promotes the delivery of high-
quality, cost-effective health care.” 	Specifically, competition results in lower prices and	8
broader access to health care and health insurance, while non-price competition can promote
higher quality. 9
Competition has also brought consumers important innovations in health care
delivery. For example, health plan demand for lower costs and “‘patient demand for a non-
institutional, friendly, convenient setting for their surgical care’” drove the growth of
Ambulatory Surgery Centers. 	Ambulatory Surgery Centers offered patients more	10
convenient locations, shorter wait times, and lower coinsurance than hospital departments. 11
Technological innovations, such as endoscopic surgery and advanced anesthetic agents, were
a central factor in this success. 	Many traditional acute care hospitals have responded to	12
these market innovations by improving the quality, variety, and value of their own surgical
services, often developing on- or off-site ambulatory surgery centers of their own.

A D O SE O F C O M PETITIO N , Executive Summary at 22.	13
See A D O SE OF C O M PETITIO N , Ch. 8 at 1-2.	14
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This type of competitive success story has occurred often in health care in the areas
of pharmaceuticals, urgent care centers, limited service or “retail” clinics, and the
development of elective surgeries such as LASIK, to name just a few. Without private or
governmental impediments to their performance, we can expect health care markets to
continue to deliver such benefits.
B. 	CON Laws Create Barriers to Beneficial Competition
CON laws are a regulatory barrier to entry, which, by their nature, are an impediment
to health care competition. 	Accordingly, in A Dose of Competition, we urged states to
rethink their CON laws. 13
1. 	Original Cost-Control Reasons For CON Laws No Longer Apply
We made that recommendation in part because the original reason for the adoption
of CON laws is no longer valid. Many CON programs trace their origin to a repealed federal
mandate, the National Health Planning and Resources Development Act of 1974, which
offered incentives for states to implement CON programs. 	At that time, the federal
government and private insurance reimbursed health care charges predominantly on a “cost-
plus” basis, which provided incentives for over-investment. There was concern that, because
patients are usually not price-sensitive, providers engaged in a “medical arms race” by
unnecessarily expanding their services to offer the perceived highest-quality services,
allegedly driving up health care costs. 	The hope was that CON laws would provide a	14
counterweight against that skewed incentive.
Thus, it is important to note that:
C 	CON laws were not adopted as a means of cross-subsidizing care;
C 	CON laws were not adopted to have centralized planning of health care
markets as an end in itself;
C 	CON laws were not adopted to supplant or augment state-law licensing
regulations designed to protect the health and safety of the population from
poor-quality health care.
Since the 1970s, the reimbursement methodologies that may in theory have justified
CON laws initially have significantly changed. The federal government, as well as private
third-party payors, no longer reimburse on a cost-plus basis. In 1986, Congress repealed the

A D O SE O F C O M PETITIO N , Ch. 8 at 1-6.	15
A D O SE O F C O M PETITIO N , Ch. 8 at 1-6; C HRISTOPHER J. C ON OVER & F RANK A. S LOAN ,	16
E VALU ATIO N O F C ERTIFICATE O F N EED IN M ICHIGAN , C ENTER FOR H EALTH P OLICY , L AW A ND
M AN AGEM EN T , T ERRY S AN FO RD I N STITU TE O F P UBLIC P OLICY , D U KE U N IVERSITY , A R EPO RT TO TH E
M ICH IGAN D EPT . O F C O M M U N ITY H EALTH , 30 (May 2003); David S. Salkever, Regulation of Prices and
Investment in Hospital in the United States, in 1B Handbook of Health Economics, 1489-90 (A.J. Culyer &
J.P. Newhouse eds., 2000) (“there is little evidence that [1970's era] investment controls reduced the rate of
cost growth.”); W ashington State Joint Legislative Audit and Review Committee (JLARC), Effects of
Certificate of Need and Its Possible Repeal, I (Jan. 8, 1999) (“CON has not controlled overall health care
spending or hospital costs.”); D AN IEL S HERM AN , F ED ERAL T RAD E C O M M ISSIO N , T H E E FFECT O F S TATE
C ERTIFICATE - O F -N EED L AW S O N H O SPITAL C O STS : AN E CON OM IC P O LICY A N ALY SIS , iv, 58-60 (1988)
(concluding, after empirical study of CON programs’ effects on hospital costs using 1983-84 data on 3,708
hospitals, that strong CON programs do not lead to lower costs but may actually increase costs); M ON ICA
N O ETH ER , F ED ERAL T RAD E C O M M ISSIO N , C O M PETITIO N A M ON G H O SPITALS 82 (1987) (empirical study
concluding that CON regulation led to higher prices and expenditures); K EITH B. A N D ERSO N & D AVID I.
K ASS , F ED ERAL T RAD E C O M M ISSIO N , C ERTIFICATE O F N EED R EGU LATIO N O F E N TRY IN TO H O M E H EALTH
C ARE : A M U LTI -P RO D U CT C OST F U N CTIO N A N ALY SIS (1986) (economic study finding that CON regulation
led to higher costs, and that CON regulation did little to further economies of scale).
See C ON OVER & S LOAN , R EPO RT TO M ICHIGAN , supra note 15, at 30.	17
The Lewin Group, An Evaluation of Illinois’ Certificate of Need Program, prepared for the	18
Illinois Commission on Government Forecasting and Accountability (February 15, 2007), at 31 (hereinafter
Lewin Group).
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National Health Planning and Resources Development Act of 1974. And health plans and
other purchasers now routinely bargain with health care providers over prices. Essentially,
government regulations have changed in a way that eliminates the original justification for
CON programs.15
CON laws also appear to have generally failed in their intended purpose of containing
costs. Numerous studies have examined the effects of CON laws on health care costs, 	and	16
the best empirical evidence shows that “on balance . . . CON has no effect or actually
increases both hospital spending per capita and total spending per capita.” 	A recent study	17
conducted by the Lewin Group for the state of Illinois confirms this finding, concluding that
“the evidence on cost containment is weak,” and that using “the CON process to reduce
overall expenditures is unrealistic.” 18
2. 	CON Laws Impose Additional Costs and May Facilitate Anti-
Competitive Behavior
Not only have CON laws been generally unsuccessful at reducing health care costs,
but they also impose additional costs of their own. First, like any barrier to entry, CON laws
interfere with the entry of firms that could otherwise provide higher-quality services than

A D O SE O F C O M PETITIO N , Ch. 8 at 4 (citing Hosp. Corp. of Am., 106 F.T.C. 361, 495 (1985)	19
(Opinion of the Commission) (stating that “CON laws pose a very substantial obstacle to both new entry
and expansion of bed capacity in the Chattanooga market” and that “the very purpose of the CON laws is to
restrict entry”)).
W ith regard to hospital markets, see, e.g., U N ITED S TATES D EPT . O F H EALTH AN D H UM AN
	20
S ERVICES , F IN AL R EPORT TO THE C O N GRESS AN D S TRATEGIC I M PLEM ENTING P LAN R EQU IRED U N D ER
S ECTIO N 5006 O F THE D EFICIT R ED U CTIO N A CT O F 2005 (2006), available at
http://www.cms.hhs.gov/PhysicianSelfReferral/06a_DRA_Reports.asp (reporting at specialty hospitals a
“quality of care at least as good as, and in some cases better than, care provided at local competitor
hospitals” for cardiac care, as well as “very high” patient satisfaction in cardiac hospitals and orthopedic
specialty hospitals) (citations omitted). In addition, specialty hospitals appear to offer shorter lengths of
stay, per procedure, than peer hospitals. See also M EDICARE P AY M ENT A D VISO RY C O M M ISSIO N , R EPORT TO
THE C O N GRESS : P HY SICIAN -O W N ED S PECIALTY H O SPITALS , vii (M ar. 2005), available at
http://www.medpac.gov/documents/Mar05_SpecHospitals.pdf (hereinafter M ED PAC).
See, e.g., M ED PAC, supra note 19, at 10 (observing both administrative improvements – “Some	21
community hospital administrators admit that competition with specialty hospitals has had some positive
effects on community hospitals’ operations” – and other qualitative improvements – “W e heard several
examples of constructive improvements sparked by the entrance of a specialty hospital into a market,
including extending service hours, improving operating room scheduling, standardizing the supplies in the
operating room, and upgrading equipment.”).
Paul Joskow and Nancy Rose, The Effects of Economic Regulation, in 2 H AN D BO O K O F
	22
I N D U STRIAL O RGAN IZATIO N (Schmalensee and W illig, eds., 1989).
See, e.g., Armstrong Surgical Ctr., Inc. v. Armstrong County Mem’l Hosp., 185 F.3d 154, 158	23
(3rd Cir. 1999) (an ambulatory surgery center alleged that a competing hospital had conspired with nineteen
of its physicians to make factual misrepresentations as well as boycott threats to the state board, allegedly
causing the board to deny the center its CON); St. Joseph’s Hosp., Inc. v. Hosp. Corp. of America, 795 F.2d
948 (11th Cir. 1986) (a new hospital applying for a CON alleged that an existing competitor submitted false
information to the CON board; that the board relied on that information in denying the CON; and that the
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those offered by incumbents. 	This may tend to depress consumer choice between different	19
types of treatment options or settings, 	and it may reduce the pressure on incumbents to	20
improve their own offerings. 21
Second, CON laws can be subject to various types of abuse, creating additional
barriers to entry, as well as opportunities for anticompetitive behavior by private parties. In
some instances, existing competitors have exploited the CON process to thwart or delay new
competition to protect their own supra-competitive revenues. Such behavior, commonly
called “rent seeking,” is a well-recognized consequence of certain regulatory interventions
in the market. 	For example, incumbent providers may use the hearing and appeals process	22
to cause substantial delays in the development of new health care services and facilities.
Such delays can lead both the incumbent providers and potential competitors to divert
substantial funds from investments in such facilities and services to legal, consulting, and
lobbying expenditures; and such expenditures, in turn, have the potential to raise costs, delay,
or – in some instances – prevent the establishment of new facilities and programs.23

defendants also acted in bad faith to obstruct, delay, and prevent the hospital from obtaining a hearing and
later a review of the adverse decision).
Eastern Rail. Pres. Conf. v. Noerr Motor Frgt., Inc., 365 U.S. 127 (1961).	24
A D O SE O F C O M PETITIO N , Executive Summary at 22.	25
U.S. v. Charleston Area Med. Ctr., Inc., Civil Action 2:06 -0091 (S.D.W .Va. 2006), available	26
at http://www.usdoj.gov/atr/cases/f214400/214477.htm.
Justice Department Requires W est Virginia Medical Center to End Illegal Agreement (Feb. 6,	27
2006), available at http://home.atrnet.gov/subdocs/214463.htm.
U.S. v. Bluefield Regional Medical Center, Inc., 2005-2 Trade Cases ¶ 74,916 (S.D. W .Va.	28
2005).
See id. at 2-3 (referring to the prohibited conduct).	29
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Moreover, much of this conduct, even if exclusionary and anticompetitive, may be shielded
from federal antitrust scrutiny, because it involves protected petitioning of the state
government. 	During our hearings, we gathered evidence of the widespread recognition that	24
existing competitors use the CON process “to forestall competitors from entering an
incumbent’s market.”25
In addition, incumbent providers have sometimes entered into anticompetitive
agreements that were facilitated by the CON process, if outside the CON laws themselves.
For example:
C 	In 2006, the Antitrust Division alleged that a hospital in Charleston, West
Virginia used the threat of objection during the CON process, and the
potential ensuing delay and cost, to induce another hospital seeking a CON
for an open heart surgery program not to apply for it at a location that would
have well served Charleston consumers. 	The hospital eventually entered	26
into a consent decree with the Antitrust Division (without a trial on the
merits) which prohibited the hospital from taking actions that would restrict
other health care facilities from developing cardiac surgery services. 27
C 	In another case from West Virginia, the Antitrust Division alleged that two
closely competing hospitals agreed to allocate certain health care services
among themselves. 	The informal urging of state CON officials led the	28
hospitals to agree that just one of the hospitals would seek approval for an
open heart surgery program, while the other would seek approval to provide
cancer treatment services. 	These hospitals also entered into a consent	29

Id.	30
Department of Justice Statement on the Closing of the Vermont Home Health Investigation	31
(Nov. 23, 2005), available at http://www.usdoj.gov/atr/public/press_releases/2005/213248.htm.
Id.	32
Plea Agreement at 20-23, U.S. v. Levine (D. Ill. 2005) (No. 05-691).	33
There is an ironic element to this argument: W hat started as laws intended to control costs have	34
become laws intended to inflate costs. Proponents of CON laws now would use these barriers to entry to
stifle competition, protect incumbent market power, frustrate consumer choice, and keep prices and profits
high.
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decree with the Antitrust Division (without a trial on the merits) that
prohibited the hospitals from enforcing the agreement between them. 30
C 	In Vermont, two home health agencies entered into anticompetitive territorial
market allocations, facilitated by the state regulatory program, to give each
other exclusive geographic markets. 	Without the state’s CON laws,	31
competitive entry into these markets normally might have disciplined such
cartel behavior. 	The Antitrust Division found that as a result, Vermont
consumers were paying higher prices than were consumers in states where
home health agencies competed against each other.32
Finally, the CON process itself may sometimes be susceptible to corruption. For
example, as the task force is probably aware, in 2004, a member of the Illinois Health
Facilities Planning Board was convicted for using his position on the Board to secure the
approval of a CON application for Mercy Hospital. 	In exchange for his help, the Board
member agreed to accept a kickback from the owner of the construction company that had
been hired to work on the new hospital. 33
3. 	Protecting Revenues of Incumbents Does Not Justify CON Laws
Incumbent hospitals often argue that they should be protected against additional
competition so that they can continue to cross-subsidize care provided to uninsured or under-
insured patients. Under this rationale, CON laws should impede the entry of new health care
providers that consumers might enjoy (such as independent ambulatory surgery centers, free-
standing radiology or radiation-therapy providers, and single- or multi-specialty physician-
owned hospitals) for the express purpose of preserving the market power of incumbent
providers. The providers argue that without CON laws, they would be deprived of revenue
that otherwise could be put to charitable use.34
We fully appreciate the laudatory public-policy goal of providing sufficient funding
for the provision of important health care services – at community hospitals and elsewhere

See, e.g., M ED PAC, supra note 19, at 10 (“Some community hospital administrators admit that	35
competition with specialty hospitals has had some positive effects on community hospitals’ operations”).
Other studies have found that the presence of for-profit competitors leads to increased efficiency at
nonprofit hospitals. Kessler, D. and McClellan M., “The Effects of Hospital Ownership on Medical
Productivity,” RAND Journal of Economics 33 (3), 488-506 (2002).
M ED PAC, supra note 19, at 10; see also Greenwald, L. et al., “Specialty Versus Community	36
Hospitals: Referrals, Quality, and Community Benefits,” Health Affairs 25, no. 1 (2006): 116-117;
Stensland J. and W inter A., “Do Physician-Owned Cardiac Hospitals Increase Utilization?” Health Affairs
25, no. 1 (2006): 128 (some community hospitals have responded to the presence of specialty hospitals by
recruiting physicians and adding new cardiac catheterization labs).
See Lewin Group, at 29 (discussing various financing options for charity care in Illinois).	37
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– to those who cannot afford them, and for whom government payments are either
unavailable or too low to cover the cost of care. But at the same time, we want to be clear
that the imposition of regulatory barriers to entry as an indirect means of funding indigent
care may impose significant costs on all health care consumers – consumers who might
otherwise benefit from additional competition in health care markets.
First, as noted above, CON laws stifle new competition that might otherwise
encourage community hospitals to improve their performance. For example, in studying the
effects of new single-specialty hospitals, the Medicare Payment Advisory Committee
(MedPAC) found that certain community hospitals responded to competition by improving
efficiency, adjusting their pricing, and expanding profitable lines of business. 	In addition	35
to administrative and operational efficiencies, the MedPAC Report identified several
examples of improvements sparked by the entrance of a specialty hospital into a market,
including extended service hours, improved operating room scheduling, standardized
supplies in the operating room, and upgraded equipment. 36
Second, we note that general CON requirements such as those imposed under Illinois
law sweep very broadly, instead of targeting specific, documented social needs (such as
indigent care). Although the Agencies do not suggest to Illinois policy makers any particular
mechanism for funding indigent care, we note that solutions more narrowly tailored to the
state’s recognized policy goals may be substantially less costly to Illinois consumers than the
current CON regime, and that the Lewin Group report commissioned by the state identifies
various alternatives that may be more efficient in advancing such goals. 37
Third, it is possible that CON laws do not actually advance the goal of maintaining
indigent care at general community hospitals. Recently the federal government studied just
this issue in connection with the emergence of single-specialty hospitals around the country.
That study found that, for several reasons, specialty hospitals did not undercut the financial

M ED PAC, supra note 19, at 23-24; see also MedPAC, R EPORT TO THE C O N GRESS : P HY SICIAN -	38
O W N ED S PECIALTY H O SPITALS R EVISITED , at 21-25 (August 2006), available at
http://www.medpac.gov/documents/Aug06_specialtyhospital_mandated_report.pdf.
Lewin Group, at 28.	39
A 	D O SE O F C O M PETITIO N , Executive Summary at 22.	40
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viability of rival community hospitals. 	One substantial reason for this was that specialty	38
hospitals generally locate in areas that have above-average population growth. Thus, they
are competing for a new and growing patient population, not just siphoning off the existing
customer base of the community hospitals. This is consistent with the Lewin Group study
showing that safety-net hospitals in non-CON states actually had higher profit margins than
safety-net hospitals in CON states. 39
III. 	Conclusion
The Agencies believe that CON laws impose substantial costs on consumers and
health care markets and that their costs as well as their purported benefits ought to be
considered with care. CON laws were adopted in most states under particular market and
regulatory conditions substantially different from those that predominate today. They were
intended to help contain health care spending, but the best available research does not
support the conclusion that CON laws reduce such expenditures. As the Agencies have said,
“[O]n balance, CON programs are not successful in containing health care costs, and . . . they
pose serious anticompetitive risks that usually outweigh their purported economic benefits.” 40
CON laws tend to create barriers to entry for health care providers who may otherwise
contribute to competition and provide consumers with important choices in the market, but
they do not, on balance, tend to suppress health care spending. Moreover, CON laws may
be especially subject to abuse by incumbent providers, who can seek to exploit a state’s CON
process to forestall the entry of competitors in their markets. For these reasons, the Agencies
encourage the task force to seriously consider whether Illinois’s CON law does more harm
than good.