Delaware
Delaware's CON program, established in 1978, is narrower than many states but still regulates hospitals, nursing facilities, and select healthcare services. The state's small geography and concentrated market give ChristianaCare an outsized position in the healthcare landscape.
What CON Covers in Delaware
Delaware's CON program is administered by the Delaware Health Resources Board under the Delaware Health Resources Management Act (16 Del. C. Chapter 93). The program covers a more limited set of services compared to the most restrictive states.
| Category | Services Requiring CON Approval |
|---|---|
| Facilities | Hospitals, Nursing Facilities, Freestanding Birthing Centers, Freestanding Emergency Departments |
| Services | Home Health Agencies, Hospice Programs, Organ Transplant Services |
| Capital | Capital expenditures exceeding the statutory threshold for existing healthcare facilities |
The Application Process
Applications are reviewed by the Delaware Health Resources Board. The process includes a public hearing where interested parties — including competitors — can testify for or against the application.
| Review Detail | Value |
|---|---|
| Reviewing Agency | Delaware Health Resources Board |
| Governing Statute | 16 Del. C. Chapter 93 |
| Public Hearing Required | Yes |
| Can Competitors Intervene? | Yes. Competitors can testify against applications. |
Who Benefits From CON in Delaware
Delaware's small geography — just three counties — creates a naturally concentrated market. ChristianaCare is the dominant system, operating the state's largest hospital and controlling an estimated 60% of the inpatient market.
In a state with only three counties, even a moderate CON program creates outsized barriers to entry. The geography does the concentrating; the regulation locks it in.
— The Rojas Report
The Human Cost
Delaware's CON program has not generated the high-profile litigation seen in more restrictive states, but the structural barriers remain.
The Small-State Paradox
Delaware's concentrated market structure
Delaware is the second-smallest state by area and has only three counties. This natural geographic concentration means that even a moderate CON program has an outsized effect on competition. When one or two systems dominate the entire state, the regulatory barrier to entry does not need to be as high to be effective.
The state's proximity to Philadelphia means that some Delaware residents seek care across state lines, which partially mitigates the domestic concentration. But for the majority of Delawareans — particularly those in Kent and Sussex counties — the local market is the only practical option.
Reform Status
Delaware has not undertaken significant CON reform. The program remains in place with its original scope largely intact.
Delaware (No Reform)
- CON program in place since 1978
- 6+ services regulated
- Score: 45/100 (moderate)
- No significant reform legislation pending
- ChristianaCare dominates with ~60% market share
States That Reformed
- Florida (2019): Repealed most CON requirements
- Indiana (1999): Repealed entire CON program
- Ohio (2012): Repealed most CON laws
- South Carolina (2023): Full repeal, hospital CON sunsets 2027
- ASCs per capita increased 44-47% after repeal
- Hospital charges 5.5% lower five years after repeal
The Verdict on Delaware
Delaware's CON program is moderate by national standards, but that is grading on a curve. In a state with three counties and two dominant hospital systems, even a moderate regulatory barrier locks in the existing market structure.
The state's proximity to Philadelphia provides a partial escape valve that more isolated states do not have. But for residents of Kent and Sussex counties, the local market is what they get. And what they get is a market where the dominant system faces no meaningful competitive pressure.
Delaware's CON program is not the worst in the country. But in a state this small, it does not need to be.
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Data sourced from Delaware Health Resources Board, National Academy for State Health Policy (NASHP), Cicero Institute, Federal Trade Commission, and Department of Justice.