Massachusetts
Massachusetts's Determination of Need law, in place since 1971, is a state-sanctioned shield for incumbent hospital systems. It regulates a wide array of services, allowing giants like Mass General Brigham to cement their market dominance under the guise of public health.
What CON Covers in Massachusetts
The Determination of Need (DoN) program, administered by the Department of Public Health, requires healthcare facilities to obtain state approval for significant capital expenditures, substantial changes in service, and original licenses.
| Category | Services Requiring CON Approval |
|---|---|
| Facilities | Hospitals, Clinics, Ambulatory Surgical Centers (ASCs), Nursing Homes, Home Health Agencies, Hospices |
| Equipment | Major imaging and treatment equipment (e.g., MRI, PET, CT scanners) |
| Other | Substantial capital expenditures, substantial changes in services (including service line changes), original licenses for facilities |
The Application Process
The process allows for intervention by 'Ten Taxpayer Groups,' which can register to submit written comments and request public hearings, effectively giving incumbent providers a formal mechanism to obstruct new competition.
| Review Detail | Value |
|---|---|
| Reviewing Agency | Department of Public Health (DPH) Determination of Need Program |
| Application Fee | $500 or 0.2% of project’s Total Value, whichever is greater |
| Review Timeline | Varies (30 days for some pathways) |
| Can Competitors Intervene? | Yes. Ten Taxpayer Groups can register to object. |
Who Benefits From CON in Massachusetts
The primary beneficiaries are the state's dominant, non-profit hospital systems, which use the CON process to protect and expand their market share, leading to highly concentrated markets across the state.
Mass General Brigham's share of the tertiary market in Eastern Massachusetts.
Blue Cross Blue Shield of Massachusetts's dominant share of the commercial insurance market.
Annual patient revenue for the state's largest and most powerful hospital system.
Top Hospital System Revenue (Estimated Market Share)
"The state's own records show that MGB's expansion could further increase its market share by up to 3.8%. This isn't about public health; it's about cementing a monopoly."— The Rojas Report
The Human Cost of CON
The political nature of the CON process was exposed early on, when the state legislature overrode a denial for a hospital renovation, proving that political influence, not public need, can be the deciding factor.
Bessie M. Burke Memorial Hospital v. DPH
In 1972, just one year after the CON law was enacted, the Bessie M. Burke Memorial Hospital sought to undertake a major renovation. The Department of Public Health denied the application, arguing that the project was too costly and would still leave the hospital with an outdated facility. The denial was based on the principle of efficient resource allocation.
However, the hospital's supporters wielded their political influence. The state legislature intervened, passing a special act that overrode the DPH's decision and authorized the renovation. This case set a precedent, demonstrating that the supposedly objective, needs-based CON process could be subverted by political power, undermining its entire purpose.
A History of Ineffectual Reforms
Massachusetts has amended its CON laws multiple times, but the core structure that favors incumbents remains. Recent changes have tinkered at the edges without addressing the fundamental anti-competitive nature of the system.
Massachusetts (No Full Repeal)
The state has made several material reforms, most recently in 2017 and 2024-2025. The 2025 reform broadened the concept of a 'party of record,' but did not dismantle the core CON framework. The system continues to enable incumbents to delay or block new competitors.
States That Reformed
States that have fully repealed their CON laws have seen increased competition, lower costs, and improved access to care. For example, after repeal, California saw a significant increase in the number of healthcare facilities, particularly in underserved areas.
The Rojas Report Take
Massachusetts calls it a 'Determination of Need,' but let's call it what it is: a state-sanctioned protection racket for the incumbent hospital systems. When one system, Mass General Brigham, pulls in over $20 billion in revenue and already controls 38% of the Eastern Massachusetts market, the only 'need' being determined is the need to keep the gravy train rolling for them. They aren't just participants in the market; they are the market.
The state's own records show that MGB's expansion could further increase its market share by up to 3.8%. This isn't about public health; it's about cementing a monopoly. While the state pretends its process is about cost discipline, the real effect is a political chokepoint where organized incumbents can and do block any real competition. The game is rigged, and the patients of Massachusetts are the ones paying the price.
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Data sources: State of Massachusetts Department of Public Health, The Rojas Report analysis.