Hospital trends fluctuate. But one constant since I started my career as a nurse in 2003 has been the “psych hallway” in Maine emergency rooms. This is the area dedicated to patients waiting for mental health care beds.
Policymakers historically have ignored this backlog. They prefer not to talk about it. But the crisis worsened during the COVID-19 pandemic, as demand for mental health care spiked. Many of my colleagues at the state Capitol, where I serve as a representative for House District 90, now acknowledge the need to act.
Conversations should start with Maine’s requirement for a Certificate of Need, commonly called a “CON.” Before health care providers can add beds, purchase equipment or build facilities in Maine, they must prove to the state’s satisfaction that a need exists. The prize is a CON, which works like a golden ticket to an exclusive club.
Getting this piece of paper is not easy – Just getting to the start line can take months of effort. Applicants must gather data, draft documents, prepare testimony and pay nonrefundable application fees that can reach $250,000. Some states charge a percentage of proposed project costs. But among states with flat fees, Maine has the highest ceiling in the nation, based on a 2020 analysis by the Institute for Justice, a public interest law firm.
Potential investors cannot always clear these hurdles. If they persevere and submit their paperwork, they must wait a minimum of 90 days for review. During this phase, direct competitors can intervene in the process and argue against approval. Their motive is clear. They already have their CONs, so they shift their focus to blocking others. The result, if they succeed, is less competition for themselves – meaning fewer job opportunities for doctors and nurses, fewer investment opportunities for entrepreneurs, and fewer choices for patients, who get funneled to existing facilities.
Similar tradeoffs would occur if Maine allowed Home Depot to block mom-and-pop hardware stores from opening nearby. Or if the state allowed McDonald’s to block new burger joints. Industry insiders would win at the expense of everyone else.
The justification for state-enforced CON monopolies is the nature of health care, a highly regulated industry that governments treat as a public service. Hospital associations claim CON laws are essential to maintain balance, reduce waste and keep at-risk providers solvent.
Real world evidence undercuts these arguments. California, Texas and 10 other states eliminated their CON laws years ago without harm. Most recently, New Hampshire took this step in 2016. Other states, including Arizona, Ohio, Indiana and Montana, passed substantial CON repeals. North Carolina, South Carolina and West Virginia joined this list in 2023.
Other states cling to their CON laws, but these regulations have never worked as advertised. Federal regulators confirmed this long ago. “By their very nature, CON laws create barriers to entry and expansion to the detriment of health care competition and consumers,” U.S. antitrust agencies warned in a 2008 joint report.
The shortage of mental health services in Maine highlights the risk of intentionally limiting beds. People who struggle with anxiety, depression, eating disorders and other chronic issues pay the price.
So do military veterans. The wait time for a mental health appointment at a Bangor Veterans Affairs facility is 108 days in Maine, but other options are available. Veterans can use the state’s Community Care Program to seek treatment instead. The problem, however, is capacity.
Access to services might not have prevented the Lewiston shooting on Oct. 25, when a U.S. Army reservist killed 18 people. But the incident shows the life-or-death stakes to addressing our mental health crisis, instead of continuing to shove it under the rug.
One solution would be my bill, “An Act to Increase Availability of Mental Healthcare Facilities in Maine.” The measure, which I introduced on Oct. 29, would not repeal all Maine CON laws, but it would eliminate CON requirements for mental health services, lowering startup costs and inviting investment.
The need is urgent. Patients are still waiting in psych hallways.
Send questions/comments to the editors.
