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Asked if 49 applications in five years might indicate a market opportunity that is not apparent to SHPDA, Department of Health (DOH) spokesperson Mahlori Isaacs said, “The people applying cannot determine the need…. [SHPDA] knows if there’s a need or not just based on how we work with the community and the organizations that we’ve already given a CON.”
It’s not clear, however, that community input plays much of a role in SHPDA’s decision-making. Lamar submitted 30 letters of support from long-term-health advocates, local health professionals and clients, and even city health workers—and was rejected. Kennedy Care, another rejected home care applicant, provided letters of support from the local Advisory Neighborhood Commission (a neighborhood association that voices neighborhood concerns to city government) and from Councilman Harry Thomas, Jr.
Spurned applicants can appeal to an administrative law judge, and Melanie Lamar did. But the judge sided with SHPDA, finding that Right at Home failed to “quantify its proposed patient base” and that “the military institutions did not indicate the number of patients who would need the proposed services or commit, in writing, to referring patients to the proposed agency.”
Quantifying a patient base does not satisfy SHPDA, however. In 2009, M.J. General applied for permission to care for 75 dual-diagnosis patients who have mental disabilities accompanied by medical issues. A director in the city’s Department of Mental Health identified 205 such patients that needed care and were not receiving it. Nonetheless, SHPDA determined there was no need for M.J.’s services.
A different administative judge ordered SHPDA to issue M.J. a CON last year—an order SHPDA appealed and lost. M.J. became the only agency to receive a CON over SHPDA's objections in the last five years—and it took three years of administrative hearings and litigation.
So what does pass muster with SHPDA? One successful applicant had been operating for decades (apparently without a CON) and was already providing care to hundreds of patients. Second, a children's hospital got the OK to start its own home care agency because it found existing ones were inadequate. And the third specializes in refilling an implanted spinal device that administers neuromuscular relaxant medication to chronically ill patients.
According to Dr. Ernest Brown, who supported Lamar's application, the lack of competition means existing providers do not have to provide high-quality service. “Here I have a patient who needs care, but I find that the quality of the care is poor,” says Brown, a Howard University-trained family practitioner who started a nonprofit, Health Care for the Home Bound, to provide house calls in underserved areas of the district. ”I think when you don’t have a competitive market, people don’t try harder. It’s a lock on the system for poor performance. There’s no incentive.”
D.C.'s certificate-of-need requirement for home health agencies has tripped up nearly 50 businesses in the last five years—and perhaps more that did not even bother to apply. The requirement does little to protect patient health and safety, as doctors, nurses, and therapists already must be licensed and board-certified in their specialties. If the requirement was abandoned, patients would have more health care options. And Melanie Lamar would be free to work in the occupation of her choice.
A 2010 push from a working group of home care providers and health advocates to scrap the CON law for home health agencies fizzled for lack of interest from City Council members. However, DOH officials are currently rewriting the city's health licensing rules, including the CON requirement. Community health activists say those deliberations are taking place in secret, so no one outside the DOH knows if the intent is to ease or strengthen entry barriers.
Legislators elsewhere in the country are considering relaxing
CON laws: Maine might eliminate the CON entirely. A pair of bills
in Washington state would eliminate the certificate of need for an
array of services, including home care. A bill in Mississippi would
lift the state's moratorium on new home care agencies. And
Tennessee's rules are the subject of a sunset review this session
to determine if the regulations are still