The North Carolina Supreme Court issued a decision on Oct. 18 that does not decide the constitutionality of North Carolina's Certificate of Need (CON) law one way or the other but does keep the case alive for further decision by a lower court. 

North Carolina's CON law prohibits healthcare providers from acquiring certain medical equipment or developing new health services, health service facilities, and health service facility beds without the prior approval of the Department of Health and Human Services.

In Singleton v. NCDHHS, 260PA22, Dr. Jay Singleton challenged the constitutionality of North Carolina's CON Law. Singleton said his challenge to the law was “as-applied,” meaning he was only seeking a decision to his particular circumstances and not a decision that the law was unconstitutional in all situations, which is known as a “facial challenge.”  

“As-applied” versus “facial” is a critical distinction in North Carolina law.  Facial challenges must initially be decided by a three-judge panel in Wake County Superior Court, while as-applied challenges do not require a three-judge panel. The burden on a party making a facial challenge is also greater than the burden on a party making an as-applied challenge.  

The trial court and the North Carolina Court of Appeals found Singleton was making an as-applied challenge, but the Supreme Court ruled on Oct. 18 that Singleton's case was both a facial and an as-applied challenge. What this means in practical terms is that the case will be sent back to be decided by a three-judge panel in Wake County. Presumably, this will occur sometime in 2025, and the losing party can appeal the decision of the three-judge panel. At some point, there may be a decision on the merits, meaning a decision on the constitutionality of the CON Law. But today is not that day. Nelson Mullins will continue to monitor developments.