By Anastasia Boden and Sal Nuzzo
As Florida re-opens the economy, no one knows quite what to expect. But one thing that’s clear is that medical providers must be ready to respond to whatever comes — and quickly. Unfortunately, the state’s certificate of need laws stand in the way. Just months ago, Florida’s certificate of need requirement prevented a Naples-based ambulance company from helping those affected in its community. The Florida Legislature can and should repeal this law at the earliest possible opportunity.
Brewster Ambulance Service provides transportation by ambulance and handicapped-accessible vans to sick and disabled people in Collier County. The company applied last year to expand into Lee County but was thwarted by local government bureaucrats concerned about “a lack of need.”
How exactly do local bureaucrats decide whether there is a need? Well, they ask the existing providers to weigh in. This is like McDonald’s having a say in where Burger King can operate. It makes little sense in food, and less sense in health services.
The Lee County Board of Commissioners voted against granting Brewster a certificate of need because it wasn’t convinced that a new operator was necessary. That decision is arbitrary under any circumstances, but it’s especially problematic in the middle of a pandemic. A quarter of Florida’s population is over the age of 60, and more vulnerable to the ravages of an outbreak. By forcing Brewster (and others) to wait to operate until they can prove that other ambulances are overburdened and that wait times are lagging, the certificate of need law puts Floridians at risk. Healthcare needs can change rapidly. As one ambulance company warned, if one employee gets sick, entire shifts may be forced to quarantine. Lee County’s residents — and all Floridians — will be served best if healthcare providers can respond to calls as they come, rather than depending on bureaucratic whim.
The Florida Legislature removed most certificate of need regulations in 2019. Thanks to leaders like state Rep. Heather Fitzenhagen, who sponsored the bill, and Gov. Ron DeSantis, who signed the legislation, Florida’s healthcare system is on a better track. Unfortunately, a couple of certificate of need regulations, such as ambulance services, remain on the books.
Decades of research show that certificate of need regulations restrict the supply of medical services, increase prices, and decrease the quality of care. The damage wrought by these requirements has been illuminated by COVID-19, most notably in New York, where overburdened and undersupplied healthcare workers have been forced to make difficult decisions about who to treat. Governor Cuomo was eventually forced to suspend the state’s certificate of need requirement to allow construction of pop-up hospitals and the purchase of medical equipment.
Certificate of need laws have also been subject to constitutional lawsuits across the country. Last year, an Ohio ambulance company and its owner sued to challenge Kentucky’s requirement. Phillip Truesdell, the company’s owner, had built a family-run ambulance business from the ground up in Ohio. But when Phillip applied for a certificate of need to operate just a mile away in Kentucky, a competitor protested his application, and he was ultimately denied. Last September, Phillip sought pro bono representation from Pacific Legal Foundation, a nonprofit legal organization, to challenge Kentucky’s law in federal court. While the lawsuit is pending, Phillip must join Brewster in turning down calls to help coronavirus patients in places where he isn’t allowed to operate.
In an open letter last month, Brewster asked DeSantis to join the large number of states that have addressed these regulations temporarily until the legislature is able to repeal them. Thankfully, the Department of Health issued an emergency regulation on May 31 suspending the certificate of need requirement for ambulances for the duration of the coronavirus emergency. But Florida’s ambulance regulation shouldn’t be allowed to cause a delay in a patient getting access to emergency care both during and after this crisis. Our legislature should work to permanently repeal the ambulance requirement, in a special session if possible. Demonstrating that you’re fit to operate should be good enough to operate, and what your competitors think about more competition shouldn’t be good enough to stop you.
Anastasia Boden is a Senior Attorney at the Pacific Legal Foundation and Sal Nuzzo is Vice President of Policy at the James Madison Institute.