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Why CON Laws Matter in Healthcare Real Estate

Hospital Campus - Houston Methodist The Woodlands Campus
  • by Coy Davidson | January 31, 2026

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Certificate of Need (CON): How Regulation Shapes ASC and MOB Real Estate Development

A Certificate of Need, or CON, is a state-administered approval process that requires healthcare providers to prove community need before building, expanding, or acquiring certain facilities or services.
 
In CON states, healthcare growth is not purely market-driven. Permission comes first. Real estate follows.
 
CON requirements vary by state, but commonly apply to:
 
  • New hospitals or ambulatory surgery centers.
  • Added inpatient beds, operating rooms, or procedure rooms.
  • Major imaging equipment such as MRI, CT, or PET.
  • Expansion of regulated service lines like cardiac, oncology, or inpatient behavioral health.
 
Some states regulate aggressively. Others selectively. A growing number have eliminated CON entirely.
 
  • As of 2026, 35 states plus Washington, D.C. still have some form of CON laws.
  • 15 states do not have CON laws, including Texas, California, Arizona, Colorado, and Pennsylvania.

US states that have Certificate-Of-Need Laws

Certificate of Need Map of States
Image credit: PiMaster3, CC BY-SA 4.0, via Wikimedia Commons

CON vs Non-CON States: The Core Difference

• Non-CON states: Expansion follows demand, capital, and speed to market
• CON states: Expansion follows approvals, timelines, and political process
 
This distinction directly impacts site selection, deal timing, feasibility, and capital risk.

Real Estate Implications for ASCs

  1. Site selection is regulatory first: In CON states, the optimal site is often the one most defensible in an approval process, not the one with the best demographics.
  2. Scarcity supports pricing: Approved or licensed ASCs behave like entitled assets. Existing facilities often trade at premiums due to replacement difficulty.
  3. Longer timelines increase carry risk: Land control, design, legal fees, and consultants can sit idle for years during reviews, objections, or appeals.
  4. Hospital alignment matters: Formal preference is rare, but hospital support can materially improve approval odds. Opposition can stop a project outright.
  5. Fewer but larger projects: CON frameworks tend to favor fewer approvals with broader service offerings to justify demonstrated need.

Real Estate Implications for MOBs

  1. MOBs absorb outpatient demand: When ASC approvals are constrained, outpatient care shifts into clinics, imaging, and specialty suites within MOBs.
  2. Flexibility is underwritten upfront: Developers favor designs that allow future imaging, minor procedures, or potential ASC conversion if rules change.
  3. Tenant stickiness improves: Limited relocation options in CON states support longer lease terms, renewals, and stable occupancy.
  4. Health systems shape leasing: Hospital systems often control referrals and influence CON outcomes, making hospital-adjacent MOBs more liquid.
  5. Regulatory insulation attracts capital: MOBs benefit from regulatory barriers without direct exposure to CON litigation risk.

 

Outpatient Growth in Healthcare

Why This Matters for Real Estate Decisions

 
  • Non-CON states: Real estate follows demand
  • CON states: Real estate follows permission
 
Understanding that difference is critical for operators, developers, and investors underwriting outpatient healthcare assets.

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