Supreme Court Declines to Hear Case Against Home Health Certificate of Need Laws

Home Health Care News | By Andrew Donlan
A home health care company hoping to operate in Louisville, Kentucky has hit a road block in its fight against Certificate of Need (CON) laws.
CON laws vary by state. Some have home health CON barriers, while others do not. That results in some states having far more home health agencies than others.
Because Kentucky has CON laws in home health care, Dipendra Tiwari and Kishor Sapkota – two Nepalese immigrants – were met with resistance when they tried to open up an agency specifically tailored to the Nepali speaking people of Jefferson County and Louisville.
Due to language barriers, Tiwari and Sapkota believed that there was a need for home health care services in the community, and were hoping to keep more Nepali-speaking people out of nursing homes by offering up these services. The agency was to be dubbed Grace Home Care.
After a request for a CON was denied by the state of Kentucky, Tiwari and Sapkota filed a lawsuit. The lawsuit was dismissed, however, and eventually, they requested for the U.S. Supreme Court to review their case. They failed to convince the court, however.
“In these cases, the challengers often mischaracterize what CON laws do, what they represent and how they actually function,” Matt Wolfe, a shareholder at the law firm Baker Donelson, told HHCN in an email. “Each state’s CON law operates a little differently, but every CON law allows for and encourages public input, involves various stakeholders – including businesses, providers, and patients – and is flexible to adapt its approach to the changing needs of the communities it covers.”
CON laws have undergone much legal scrutiny in the past, something that Wolfe does not think will stop just because of this case in Kentucky.
Home Health Care News has reported on the pros and cons of certificate of need laws in the past. While some believe that CON laws uphold quality in home health services, others argue that it hurts access and also deters competition. In Tiwari and Sapkota’s case specifically, they were trying – in part – to argue CON laws are unconstitutional.
“There is a coordinated and well-funded campaign by ‘free market’ special interest groups to continue to bring these types of legal challenges to the constitutionality of CON laws in federal and state courts,” he said. 
And while the cases against CON laws often make intellectual sense, Wolfe does not believe that the evidence has created a good case against them.
“CON laws play an important role in ensuring access to quality, affordable care,” he said. “The reality is that health care is not provided in a free market. Repealing or substantially limiting CON laws would do nothing to address access issues. In fact, in states that have repealed CON laws, we have seen a proliferation of providers with no appreciable improvement in access. Instead, home health agencies experience small and unsustainable patient censuses.”