Proton therapy Luca Lorenzi

Connecticut cancer patients soon will have new treatment options. Hartford HealthCare and Yale New Haven Health received regulatory approval on April 12 for the state’s first proton therapy center in Wallingford.

What the partners fail to mention in their news release is that a competitor could beat them to market with a similar facility 45 miles west in Danbury —except the state is running interference. Danbury Proton, the rival project, already has the necessary medical expertise, financing, zoning and community support lined up to offer proton therapy, which uses laser beams as a safer and more effective alternative to chemotherapy.

“This project is, as they say, shovel ready to go,” David Hardy, an attorney representing the startup, said during public testimony.

What Danbury Proton lacks is a “certificate of need” (CON), a government permission slip to launch, expand or terminate any health care venture in the state. The group has tried to get a CON for two years, but the oversight agency with veto power issued a preliminary denial on Feb. 28, 2022. Shortly afterward, the same agency approved the Hartford-Yale joint venture.

The protectionism is not lost on Hardy. “Having a monopoly on proton therapy controlled by the state’s two largest healthcare networks without any competitive pressure is simply a prescription for high costs,” he told the CON overseers during an appeal hearing on April 22.

Unfortunately for Connecticut cancer patients, a monopoly is precisely what the agency recommends. Two applicants submitted viable proposals. But rather than letting them compete on a level playing field —or coexist in separate cities serving separate clients— state regulators picked one winner and one loser.

The home team with centuries of combined Connecticut history can move forward. The team of relative newcomers must sit on the sidelines while the CON office weighs its appeal. If Andy Salner, medical director of the Hartford HealthCare Cancer Institute gets his way, the final answer will be no.

Despite his clear conflict of interest, the state allowed Salner to speak against Danbury Proton during an initial hearing on April 1, 2021. Salner used the opportunity to plug his own CON application, which was still pending at the time, while planting doubt about the ability of his rival to provide “good coordination of care.”

Something similar would happen if Connecticut allowed The Home Depot to participate in decisions about new hardware stores— or if the state allowed McDonald’s to say who could sell burgers. Our public interest law firm, the Institute for Justice, has no connection to either proton therapy project, but supports the rights of all providers to invest their own money without unreasonable or excessive government interference.

CON laws purport to lower health care costs, increase patient access, and ensure quality by managing the distribution of private resources. But a joint report from two federal agencies —the Federal Trade Commission and the Antitrust Division of the Justice Department— finds no evidence that CON laws achieve any public benefit.

A supermajority of studies agrees. More importantly, decades of real-world experience show that CON laws do not work as advertised. Recognizing the policy error, Congress reversed itself in 1986 and repealed CON mandates it had imposed just 12 years earlier.

Since then, California, Texas and 10 other states, which contain nearly 40% of the U.S. population, have canceled their CON laws entirely. Most recently, New Hampshire joined the list in 2016. Each time, the American Hospital Association and local affiliates predicted disaster, but negative effects never materialized.

The opposite happened instead. At the start of the COVID-19 pandemic, states without CON laws had more hospitals and surgery centers per capita, along with more hospital beds, dialysis clinics and hospice care facilities.

Recognizing its disadvantage, Connecticut scrambled to suspend CON requirements for mental health care facilities through June 2026 in response to a bed shortage. The measure, which Gov. Ned Lamont signed on May 23, represents a step in the right direction. But additional psychiatric hospitals already could be open without CON constraints.

Proton therapy also could be available today if providers did not have to spend years begging for permission to serve patients. Lifesaving technology should not have to wait. Rather than play favorites, Connecticut should repeal its certificate of need laws and let doctors work.

Jaimie Cavanaugh is an attorney and Daryl James is a writer at the Institute for Justice in Arlington, Va.