An Ohio hospital system sued West Virginia's health agency over its allegedly discriminatory certificate-of-need rules governing the construction and development of ambulatory care centers.
Marietta Area Health Care on Tuesday claimed that West Virginia inappropriately allows in-state hospitals to circumvent a time-consuming application process for opening new ambulatory care centers. Out-of-state hospitals are still required to go through the entire “certificate of need” application process through the West Virginia Health Care Authority, and in-state hospitals can also thwart their plans for the facilities.
“This is a marked disparity in the handling of in-state and out-of-state applications,” Marietta's complaint said.
The Ohio legislature created the certificate of need exemption process this year, giving West Virginia hospitals a quicker path to creating ambulatory care centers. But that disparity violates the U.S. Constitution's commerce clause by impeding interstate business, Marietta said.
It has asked a West Virginia federal court to either force all hospitals to comply with the certificate of need program, or toss the application process altogether.
Marietta also claimed the exemption prevents out-of-state hospitals from challenging in-state hospitals' ambulatory care center applications, but in-state hospitals could still block their out-of-state competitors from building new facilities.
“This amended code is discriminatory on its face and thus invalid if the state cannot articulate a legitimate local purpose that could not be served by other means,” the complaint said.
Marietta operates two acute care hospitals in Ohio, as well as numerous clinics, physician practices and ambulatory care centers in both Ohio and West Virginia.
This isn't the first time healthcare providers have used a so-called “dormant Commerce Clause” argument to challenge certificate of need programs. In August 2011, the Ninth Circuit ruled that hospitals' interest in engaging in interstate commerce could trump state laws giving in-state businesses preferential treatment.
All in all, 36 states have certificate of need programs.
