Cedar Rapids doctor fights state over certificate of need requirements

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CEDAR RAPIDS, Iowa (KCRG-TV9) -- A Cedar Rapids ophthalmologist said challenging the state in court is his last resort.

Since 2011, the small surgical center attached to Fox Eye hasn't changed much. Nearly everything has stayed right where it was, even the magazines. (Forrest Saunders/KCRG)

Doctor Lee Birchansky said his clinic's surgical room in Cedar Rapids has sat empty for years because of an outdated law called "certificate of need."

Since 2011, the small surgical center attached to Fox Eye hasn't changed much. Nearly everything has stayed right where it was, even the magazines.

"This place sits vacant, but we're ready to get it going again," said Dr. Birchansky.

The doctor wants to use the spot he built, and pays taxes on, to again perform cataract and other eye surgeries next to his clinic.

In the years since his partnership with St. Luke's ended at the facility, he's had to arrange to work at either of Cedar Rapids' two hospitals to do outpatient procedures that would at times take only ten minutes.

"In Iowa-- we're very restricted," said Dr. Birchansky. "We're behind the times."

Iowa's certificate of need requirement was setup in '77. It forbids new outpatient surgery centers from operating without special permission from the state.

Dr. Birchansky has applied for certification four times. During each, he's required to prove there's a legitimate need for his surgical center in the community. Other healthcare facilities in the area that disagree have a chance to weigh in as well. Dr. Birchansky has yet to be approved.

Supporters of the requirement-- like the Iowa Hospital Association, said it ensures medical needs are not duplicated in communities and that it promotes high-quality care. In a blog post earlier this year, the group said without the law, hospitals would "lose patient volume" and be "left with only unprofitable services."

Joining the association in support is UnityPoint Health – St. Luke’s Hospital in Cedar Rapids. In a statement, a hospital spokeswoman said the certificate of need program (CON) helps communities overall.

"Iowa is one 34 states with CON laws," read the statement. "We believe Iowa’s CON program has served as an important process to ensure its communities do not become oversaturated with unnecessary health care services focused on “cherry picking” private payor or commercially-insured patients, while not providing emergency or charity care and other services that are core to the health care needs of communities."

Attorneys with the Institute for Justice, which is representing the doctor in his federal case against the Iowa Department of Health, said the concerns of major hospitals are unfounded.

"They're sixteen states that do not have a certificate of need requirement," said IJ Senior Attorney Darpana Sheth. "There's no evidence that that kind of hospital failure has gone on in those states."

Sheth said the policy violates not only the Iowa Constitution but the United States' as well.

"It denies people like Dr. Birchansky and others the right to earn an honest living, free from unreasonable government intervention," said Sheth.

If need be, Sheth said IJ would take its challenge all the way to the U.S. Supreme Court. Meanwhile, Dr. Birchansky said he'll keep trying to get certified. He's in the process of applying for the fifth time in what he believes is a "turf" battle between him and area hospitals.

"It's not fair," said Dr. Birchansky. "This is not the way it should be."