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Blackwell says 'loser pays' rule would curb costly CON appeals
Summary
Senator Blackwell presented a bill to require parties who lose CON litigation to pay the winner's litigation costs, aiming to reduce delay and expense that can prevent service expansion in underserved areas.
Senator Blackwell described his bill as a targeted change to discourage protracted appeals in certificate-of-need cases. He said the CON process can be used to delay — sometimes for years — new facilities and upgrades, and that requiring the loser in litigation to pay the winner's attorney fees would deter frivolous challenges. "If they draw this out … another 18 to 24 months before you are awarded your certificate of need," Blackwell said, arguing that the added cost and delay can prevent services from opening.
Opponents cautioned that not all appeals are frivolous and expressed concern about chilling legitimate objections and access for new providers. The committee agreed to study the issue further and tasked a group of four senators to consult the National Conference of State Legislatures for comparative models; the measure advanced with a reverse repealer to allow future changes.
