State Treasurer Brad Briner and the State Employees Association of North Carolina are supporting a New Bern ophthalmologist’s attempt to overturn the state’s certificate of need law.
In a Nov. 5 court filing, they argued that the law is a barrier to one of the treasurer’s strategies for blunting the medical-cost increases facing the State Health Plan.
Plan overseers want to steer more of its members — state workers and retirees — to “lower-cost facilities” such as independent clinics. Hospitals, their court filing says, often charge more for the same types of services.
But the certificate-of-need law makes that harder, Briner and SEANC say. The plan’s expenses have grown by about 50% over the past decade, from about $3 billion in 2015 to $4.5 billion in fiscal 2024-25. That compares with overall inflation of about 36% during that period, according to the U.S. Bureau of Labor Statistics’ inflation calculator.
If there were more facilities “that could provide the same commoditized service at a more competitive cost, then the market could more readily adapt to create such capacity,” their filing says.
Ophthalmologist Jay Singleton filed a lawsuit in 2020 challenging the state’s laws that require him to secure a government-issued certificate of need before performing most eye surgeries at his vision center. The law forces Dr. Singleton to perform most surgeries at New Bern’s Carolina East Medical Center at significantly higher costs to the patient.
The suit alleges that the CON law is unconstitutional by transgressing the state charter’s bans on monopolies and exclusive “emoluments or privileges.”
Atrium Health, Cape Fear Valley Health System and associations representing hospitals and other healthcare facilities and senior living centers filed a joint brief supporting state regulators. Proponents of CON laws say the process limits excessive spending on healthcare. The NC Chamber of Commerce says North Carolina has among the highest healthcare costs in the U.S.
They say the courts have consistently read the anti-monopoly and emoluments clauses “to permit the state, through the exercise of its police power, to regulate economic enterprises provided the regulation is rationally related to a proper governmental purpose.”
The case has already been to the state Supreme Court, which declined to address the merits until a three-judge trial court panel rules on the constitutional challenge. That proceeding is underway, pitting Singleton against the Stein administration and both chambers of the General Assembly.
“Treasurer Briner believes in supporting a free market approach,” spokeswoman Loretta Boniti said Monday. “Certificate of Need (CON) has proven to have the opposite effect on that mission. CON was conceived as a way to lower cost and make healthcare more accessible, but in fact has proven to do the inverse. It has outlasted its usefulness and now we should look at market-driven solutions.”
N.C. Senate leaders have criticized the CON law and chipped away at some of its restrictions. But support for a full repeal hasn’t mustered major support in the N.C. House.
Briner’s support for the Singleton lawsuit follows the track of his predecessor, Dale Folwell, who was an outspoken critic of CON laws. In an October 2024 press release related to the case, he said CON laws “create an uneven playing field that protects existing large health care providers, which decreases the accessibility, quality and affordability of health care while these large hospitals’ profits dramatically increase, to the detriment of North Carolinians.”
