By Anne Blythe
No matter which side of the political aisle you find most comfortable, you’re probably hearing a lot these days about the high cost of health care.
North Carolinians have voiced their frustration with the existing health care system in poll after poll — as in late 2024 when a survey of 601 adults done by four universities found that 61 percent found it “somewhat or very difficult” to afford health care costs.
While there seems to be consensus that health care is increasingly out of reach for many residents, there’s disagreement over how to fix the system.
In North Carolina and nationally, there’s been a sharper focus on state statutes that came out of an effort initiated a half century ago to control costs and ensure equitable access to care. Those regulations — Certificate of Need, or CON, laws — cap the kinds of medical services, facilities and equipment that can be offered in geographic regions of the state.
Opposition to these restrictions has existed for decades, and it continues in the state’s legislature and courts.
North Carolina adopted its first Certificate of Need law in 1971, but the state Supreme Court found it unconstitutional in 1973 after a challenge by the former Aston Park Hospital. State planners had denied the privately funded Asheville facility a permit to build a larger hospital, saying there was no need for new beds in the area.
Legislators went back to the drawing board and adopted a new law that went into effect in 1978. That statute is the backbone of a challenge that’s been wending its way through the state’s courts for nearly six years.
In the years since, hospital systems have contended that the laws as necessities that help them meet mandated missions of providing emergency access and treatment around the clock for patients regardless of their ability to pay.
“Hospitals with Emergency Departments are the only entities in the United States federally required to care for every person who enters their facilities,” the North Carolina Heathcare Association, a lobbying organization for hospitals, stated in a 2024 legislative brief. “Hospitals do not operate in a traditional free market environment: they have a moral and legal obligation to care for all regardless of the patient’s ability to pay.”
Because payments for health care services vary among insurance companies and government payors, the brief adds, “hospitals rely on certain procedures, such as elective surgical procedures and high-end imaging, to balance losses from many other acute care services.”
Free-market advocates counter that the laws stifle competition that could make a wider array of services available, put hospitals in a better position to negotiate with insurance companies and government payors, and potentially drive down costs.
Back to NC Supreme Court?
Jay Singleton, a New Bern eye surgeon, went to court in April 2020 with a lawsuit challenging the constitutionality of the CON law. Scattered throughout his case are allegations echoing claims made in other states dealing with efforts to dismantle similar regulations.
Last month, a three-judge panel rejected Singleton’s claims and upheld the constitutionality of the law. Nonetheless, on Jan. 7, Singleton’s attorneys filed a brief notice of appeal with the state Court of Appeals.
Joshua Windham, an attorney with the Institute For Justice, a public interest law firm based in Arlington, Virginia, represents Singleton. He told NC Health News in a phone interview last week that he plans to file a petition to bypass the Court of Appeals and try to go straight back to the state Supreme Court, which already has reviewed the case once.
The Institute For Justice, a nonprofit that emphasizes free-market and other libertarian principles, has been challenging Certificate of Need laws in other states too. In the same year the institute took on Singleton’s case, its attorneys also represented a Togo refugee in Nebraska who owned a home health agency and was barred from taking his clients to the pharmacy or medical appointments without a state-issued certificate for “non-emergency medical transportation.”
The Nebraska state Supreme Court issued a ruling nearly a year ago in April upholding the law that requires the certificate. Windham and the team representing Singleton are hoping for a different outcome in North Carolina.
“CON laws are kind of a microcosm of everything that’s wrong with American health systems,” Windham told NC Health News.
Potential to change the system
Singleton, owner of the Singleton Vision Center “full-service eye clinic,” contends that North Carolina’s requirements for a Certificate of Need have restricted his right to earn a living and reap the full rewards of his labor. He argues that as a result the laws create illegal health care monopolies.
Singleton’s lawsuit claims his troubles started when he wanted to dedicate a room in his vision center for more complex eye surgeries. He said he could save his patients “thousands of dollars over the cost of obtaining those procedures at nearby hospitals.”
The State Medical Facilities Plan, which is developed each year as part of the certificate of need process, found at the time that there was no need for new surgical centers in Singleton’s geographical region — Craven, Jones and Pamlico counties.
Critics of the state’s Certificate of Need laws saw Singleton’s lawsuit as an action with the potential to tear down a system that free-market advocates say stifles innovation and competition that could lower health care costs. They argue that more facilities could give patients more options, cut down on care wait times and dismantle hospital monopolies that have kept a vise-like grip on who can provide and ultimately get care.
Hospital system advocates push back against such descriptions. They argue that the regulations aim to limit unnecessary growth that might lead to less-qualified operators and to ensure that new facilities meet community needs..
They also point out that hospital systems that receive Medicare and Medicaid funds are prohibited by federal law from turning away anyone with an emergency medical condition without performing medical screening and stabilizing treatment.
Certificate of Need laws, advocates contend, help support financial stability for hospital systems by preventing costly service duplication. That allows existing providers to maintain profitable services that help subsidize the costly emergency care provided regardless of someone’s ability to pay.
Different twist
While that debate played prominently in Singleton’s case during its first five years in the North Carolina court system — from Superior Court up to the state Court of Appeals and Supreme Court — before landing back in Superior Court again this past October, there’s been a new twist.
The state Supreme Court ruled that the case should go before a three-judge panel in Superior Court, not a single judge as it had previously, to weigh the issues of constitutionality.
In October 2025, three judges gathered in a courtroom inside the Campbell University law school building in downtown Raleigh.
Republicans Jeffrey Foster of Pitt County and Troy Stafford of Iredell County and Democrat Jacqueline Grant of Buncombe County made up the panel.
Derek Hall, the special deputy attorney general representing the state, argued that the CON law doesn’t block Singleton from doing the kinds of procedures he wants. Singleton, Hall argued, would be using a “procedure room” at his center and a certificate of need is not required for that. The CON law, the special deputy attorney general further contended, requires a certificate to open an operating room, not a “procedure room.”
Windham, Singleton’s attorney, contended that argument, raised so late in the court process, struck him as “disingenuous.”
Late last month, the three judges issued a unanimous 11-page ruling rejecting Singleton’s arguments. They concluded that nothing in the CON law prevents Singleton “from performing the eye surgeries patients require in [a] procedure room as a certificate of need is not required to develop a procedure room” and therefore did not prevent him from entering the market.
As they focused on the contention that North Carolina’s Certificate of Need laws create monopolies that stifle competition, the judges wrote in their order that there are 82 service areas in the state for operating rooms, and many not only had multiple providers but new providers had entered those markets.
The judges found that while Singleton’s main competitor owns nine operating rooms in the Craven, Jones and Pamlico counties service area where he is, patients there have access in bordering areas to 80 operating rooms owned by nine different providers.
Singleton focused on his “own inability to open an operating room without [a] certificate of need, but those allegations taken as true do not demonstrate that the CON Law is invalid in all circumstances,” the judges ruled. “The existence of numerous healthcare providers who have obtained certificates of need statewide confirms that the law operates constitutionally in a wide range of applications.”
Recent changes in NC
The National Conference of State Legislatures reported in April 2025 that North Carolina was one of 35 states with a Certificate of Need program.
The Cicero Institute, a conservative-leaning public policy think tank based in Austin, Texas, published a playbook late last year for Certificate of Need repeal.
“The United States healthcare system is in a state of crisis,” the institute’s playbook contends. “Costs continue to rise, patients struggle to access timely care, and providers encounter difficulties in meeting demand.
“Although the current crisis is multifaceted in its causes, Certificate of Need laws—outdated and restrictive regulations from the 1970s—remain a key policy that perpetuates these issues,” the playbook continues. “Prioritizing the repeal of unnecessary regulatory burdens is a prudent and essential step to improve the current healthcare climate.”
Over the past several years, many states have enacted legislation to modify their programs. North Carolina is on that list.
In 2023, in conjunction with the expansion of Medicaid, the General Assembly removed certificate of need requirements for ambulatory surgical centers in the 23 North Carolina counties that had populations greater than 125,000 in the 2020 census. The lawmakers also exempted some MRI equipment and psychiatric and chemical-dependency facilities from the review.
Those changes are rolling out gradually. The requirements for the ambulatory surgical centers took effect a little more than two months ago on Nov. 1.
Last year, the state Senate passed a more sweeping bill, Senate Bill 370, that would have repealed regulations that require health care providers to prove “a need” to the state Department of Health and Human Services for new or expanded health care services.
The Republican-led state Senate, which has been the chamber pushing many of the CON repeal efforts over the past decade, voted largely along party lines for Senate Bill 370. Democrats Dan Blue of Wake County and Julie Mayfield of Buncombe County supported the repeal in the 31-17 vote, according to the Senate Roll Call Vote Transcript.
But the state House of Representatives has not taken a vote on the bill, casting doubt about its future. Shortly after the Senate vote, House leaders sent the proposed legislation to their chamber’s rules committee, which plays a significant role in what gets to the floor for a vote.
Nonetheless,when the lawmakers return to session this year, the bill could see new life.
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