A Tale of Two States: The Effects of CON Laws on Access to Care in New England

This summer, a Massachusetts primary care physician was told her patient would have to wait five months for an imaging test at a Boston hospital. Understanding that this wait time was unacceptable, she searched for nearby alternatives and found nothing — until she looked 30 miles north across the state line. In Nashua, New Hampshire, a new independent imaging center could see her patient the next day at a much lower price.  

This is not an isolated experience. Doctors in the Bay State are now frequently sending patients to New Hampshire for faster and cheaper treatment. The difference does not come down to technology or talent but is instead determined by regulation, specifically certificate of need (CON) laws.  

CON laws require providers to obtain state approval before opening new facilities, purchasing major medical equipment, or expanding existing capacity. The intent is to prevent unnecessary duplication of services, but in practice these laws tend to limit competition and the introduction of new health care options. Massachusetts maintains restrictive CON requirements, while the New Hampshire legislature repealed their law in 2016. This contrast is now playing out in real time, as patients bypass the Massachusetts hospital system in favor of superior access and pricing across the state border. 

How CON Laws Raise Cost and Restrict Access 

One direct primary care physician in Salem, Massachusetts, noted that an MRI costs around $700 in New Hampshire, compared to roughly $1,500 out-of-pocket for the same service in Massachusetts. The higher costs coupled with much longer wait times make receiving care in Massachusetts undesirable for patients. This stark difference shows the consequences of CON laws when it comes to health care affordability and accessibility. 

Supporters of CON laws argue that the regulations help contain costs by preventing redundant services, but decades of evidence show CON laws have had the opposite effect. A 2020 analysis from the Mercatus Center estimated that if Massachusetts repealed its CON regulations, non-hospital providers would perform over 21,000 more MRIs per year. This increase in services would bring about improvements in mortality and readmission rates at hospitals, and total health care spending per person would fall by $320 a year.  

These patterns are not unique to Massachusetts. A 2023 review from the Institute for Justice finds that patients living in CON states face significant access barriers: they “have access to fewer medical imaging devices, must wait longer for care, must travel farther for care, and are more likely to leave their state for care.” These findings show that the access challenges experienced in Massachusetts are symptoms of a broader, systemic problem driven by restrictive CON laws across the nation. 

Bad for Business, Worse for Patients 

Americans for Prosperity Foundation’s Permission to Care report series highlights this dynamic nationwide. Across the 11 states studied, CON laws have blocked billions of dollars in potential health care investment. By deterring new competitors and stopping capital investment, CON laws stifle local economic growth and suppress innovation.  

CON laws are not only bad for the economy, but they also hinder the ability of providers to respond to an increase in need for services. During the COVID-19 pandemic, multiple states temporarily suspended their CON laws to expand capacity. This emergency flexibility saved many lives, an implicit acknowledgement that these restrictions stifle access to care.   

A Bipartisan Consensus for Repeal and a Path Forward 

Criticism of CON laws is not partisan. Every presidential administration since Ronald Reagan, both Democrat and Republican, has urged states to repeal or retrench these regulations. Even the progressive Biden administration recognized CON as a barrier to access and innovation.  

The evidence overwhelmingly shows that CON laws have failed to achieve their intended purpose. Fortunately, a growing number of states have recognized this and moved to either repeal or heavily reform their CON regulatory schemes. South Carolina, for example, fully repealed their extensive CON law in 2023. Similarly, North Carolina, Florida, and West Virginia have scaled back their programs in recent years.  

Good health care should not require a road trip across state lines. The imaging divide between Massachusetts and New Hampshire is nothing short of a policy failure. The same disparity persists between all states with and without CON. If policymakers want to deliver care that is faster, cost-effective, high-quality, and more innovative, they should start by ending the reign of CON, and allowing patients, not bureaucrats or special interests, to decide what is needed.  

Nicholas Huff is a policy intern at Americans for Prosperity