The Erlanger council chambers became the site of a conflict over state regulations related to medical certificate of need at meetings on March 21 and April 4.
At the council meeting on April 4, members of the public, public officials and representatives from local healthcare organizations packed council chambers in an effort to convince the city council to either support the state’s existing medical certificate of need regulations or support efforts to reform it.
In the end, after listening to public statements for two hours on Tuesday night, the council resolved in a 6-3 vote to support reform of certificate of need in Kentucky.
Certificate of need requires that health care institutions providing certain services must first prove there is a communal need for such services before they can establish facilities in an area. They are issued are by the Kentucky Cabinet for Health and Family Services, and there are currently 21 medical services that require certificate of need, according to Kentucky’s state health plan.
Tuesday night’s vote means that Erlanger City Council is in favor of looking into reforming the certificate of need requirement.
City resolutions have little concrete power–they’re not binding pieces of legislation like statutes–but the way in which cities resolve to treat an issue arguably sets the tone for future discussions that will occur the state level.
Medical certificate of need, often abbreviated as CON, refers to laws governing how medical institutions, including hospitals, surgery centers, nursing homes and mental health centers, establish and proliferate themselves in the state.
Certificate of need requires that health care institutions providing certain services must first prove there is a communal need for such services before they can establish facilities in an area. CONs are issued are by the Kentucky Cabinet for Health and Family Services, and there are currently 21 medical services that require certificate of need, according to Kentucky’s state health plan.
Proponents of CON laws claim that medical markets can become over-saturated in the absence of CONs and similar regulation. Opponents of CON laws claim that certificate of need adds an extra layer of bureaucracy to an already administratively top-heavy sector, leading to inefficiency.
Both sides contend that their policy solutions would increase accessibility for rural, low-income areas that may not have well-developed medical infrastructure.
The conflict in Erlanger began on March 21 when Marianne Proctor, a Republican state representative from the 60th district, made an unexpected visit to the council chambers. Her visit did not appear on the city’s published meeting agenda, but the council allowed her to speak anyway.
Erlanger Mayor Jessica Fette gave the city’s reasoning for allowing both sides of the issue to speak in front of the council at the meeting on April 4.
“We make sure that we give our legislators the opportunity to have time in front of our council members,” Fette said.
“We want to hear from them, and we want them to be able to hear from us,” Fette added. She extended this courtesy to other institutions as well, including hospitals who were in favor of CON regulation.
Proctor is in favor of abolishing certificate of need and had presented legislation in the state House of Representatives to repeal CON in Boone, Campbell and Kenton counties. However, the bill floundered in the legislative session, never even making it to committee. In spite of this, she promised to reintroduce similar legislation during the next session and even hoped to extend the repeal to the state as a whole.
Proctor, who is serving her first year as a representative, said that she introduced her bill following conversations with constituents.
“We need some choices in health care,” Proctor said. “A lot of people were disappointed with the quality they received.”
Particularly, she said people were concerned with wait times and a lack of due diligence.
“They felt like it was taking too long to be seen,” she said, “or that they weren’t adequately being addressed.”
“I believe that when people have choices, then informed people can make those decisions,” she said, “and we don’t have that Northern Kentucky.”
Thirty-five states currently have CON laws on the books. Many states, however, have drastically reduced their CON requirements over the years: Both Ohio and Indiana, for example, only require certificate of need issuance for long-term eldercare facilities.
Staff members and representatives from St. Elizabeth Healthcare also attended the March 21 meeting but did not speak.
St. Elizabeth is one of the largest healthcare providers in the region and inevitably becomes the focus of certificate of need discussions as the opponents of CON view institutions like St. Elizabeth as embodying the market dominance they aim to upend.
St. Elizabeth would have its chance to speak, though, at the following meeting on April 4.
Both supporters and opponents of CON filled the seats on Tuesday night, including staff members from St. Elizabeth and other healthcare institutions. St. Elizabeth’s CEO and President Garren Colvin had been invited to speak on the matter of CON and make the case for why it was necessary.
He characterized St. Elizabeth’s as a “safety net hospital,” which is not an official, legal designation, but refers, instead, to St. Elizabeth’s policy of accepting all patients regardless of their ability to pay.
“Communities like ours greatly depend on access to safety net facilities like St. Elizabeth,” he said. “Certificate of need ensures that we’re able to provide these comprehensive, critical, top-quality services to the entire community. In fact, it’s only because of certificate of need processes that St. Elizabeth can be a safety net hospital. Without certificate of need, outside operators could come into our communities and cherry pick the most profitable services to offer.”
Most of the patients St. Elizabeth cares for are Medicare and Medicaid patients, he said, adding that the percentage of their client base on Medicaid matched the proportion of the region’s population on Medicaid, which he claimed fluctuates between 22% and 23%.
Data provided by the U.S. Census Bureau showed it to be closer to 16% in 2021.
After some clarification questions from council members, the public was allowed to speak. 19 people spoke with opinions about evenly split on the issue. Statements from both camps elicited cheers and applause from audience members.
Several staff members and administrators from St. Elizabeth spoke in favor of CON, often drawing attention to St. Elizabeth’s work with non-profit organizations and its status as one of the region’s largest employers.
Leaders from other healthcare providers spoke in favor of CON, as well.
Dan Thomas the COO of Sun Behavioral Health, an Erlanger psychiatric hospital, said that CON was especially important for his facility because about “70%” of their patients are either on Medicaid or are uninsured.
“CON is a protection device,” Thomas said.
“A lot of our patients are marginalized, and a lot of our patients are homeless,” he added. “A lot of our patients end up needing to access those services, and it’s vital to ensure that we keep access to the services in the community.”
John Muller, the COO of Villaspring, an Erlanger skilled-nursing facility, said that CON offered predictability and accessibility, enabling elderly people to stay close to their families.
The detractors were numerous, too. Several of the speakers against CON regaled the audience with bad experiences they’d had at St. Elizabeth facilities.
Carol Dwyer from Florence, said that her mother was the victim of neglect on the part of St. Elizabeth when a wound on her mother’s leg led to a case of septic shock, which could only get resolved when she took her mother to another provider.
Another man, Bill Woodside, said that he’d spent nearly five hours at a St. Elizabeth’s emergency room. He even called on one of the council members, Tom Cahill, who works for St. Elizabeth’s sleep medicine department, to recuse himself from voting on the resolution. Cahill did end up casting a vote.
In addition, Greg Proctor, a representative from the Kentucky branch of Americans for Prosperity, a fiscally conservative think-tank funded by Charles Koch, compared CON laws in Kentucky to “permission slips from a government board that hometown healthcare providers must receive if they wish to open new health care services or expand an existing service.”
Jerry Gearding, a Republican Kentucky House of Representatives candidate who lost the 67th district to Democrat Rachel Roberts in the last election, said that revoking CON would grant Northern Kentucky residents a wider degree of choice in finding healthcare.
“Please give Northern Kentucky families a choice and help support this resolution,” Gearding said, “so Representative Proctor can get this passed next session.”
Boone County Commissioner Chet Hand and state Rep. Steve Doan, Erlanger resident and co-sponsor of Rep. Proctor’s bill at this year’s legislative session, also spoke in favor of revoking CON.
Doan thanked both St. Elizabeth and Erlanger council in his statement.
“I thank this body [Erlanger City Council] for considering this resolution and for sending a message to all of us down in Frankfort,” Doan said.
Most of the speakers who criticized certificate of need added a caveat that they weren’t opposed to St. Elizabeth as an organization, just the policy. Some even stated that they were patients or former patients at St. Elizabeth.
When public comments had concluded and the time came for the council to vote on the resolution, City Attorney Jack Gatlin reiterated that the resolution would only assert that Erlanger was in favor of investigating current CON laws with an eye to reform rather than outright repeal.
Council members Diane Niceley, Tyson Hermes, Vicki Kyle, Renee Wilson, Rebecca Reckers and Jennifer Jasper-Lucas eventually voted in favor of the resolution.
Council members Tom Cahill, Don Skidmore and Renee Skidmore, meanwhile, cast opposing votes.
The next Erlanger City Council meeting will take place on April 18 at 7 p.m. at the Erlanger city building.