The Supreme Court declines to hear a case against the Home Health Certificate of Need laws

A home healthcare company hoping to operate in Louisville, Kentucky, has been deadlocked in its battle against Certificate of Need (CON) laws.

CON laws vary by state. Some have home health barriers, while others do not. This results in some states having far more home health agencies than others.

Because Kentucky has CON laws on home health care, Dipendra Tiwari and Kishore Sapkota—two Nepali immigrants—were met with resistance when they tried to open an agency designed specifically for Nepali-speaking people in Jefferson County and Louisville.

Because of language barriers, Tiwari and Sapkota believed that home healthcare services were needed in the community, and they hoped to keep more Nepali-speaking people out of nursing homes by offering these services. The agency was to be called Grace Home Care.

After CON’s application was denied by the state of Kentucky, Tiwari and Sapkota filed a lawsuit. However, the suit was dismissed, and eventually, they asked the US Supreme Court to review their case. But they failed to convince the court.

“In these cases, contestants often mischaracterize what CON laws do, what they stand for and how they actually work,” Matt Wolf, a shareholder at law firm Baker Donelson, told HHCN in an email. “Every state’s CON Act works a little differently, but each CON Act allows and encourages public contribution, has many 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 come under a lot of legal scrutiny in the past, something Wolf doesn’t think will stop just because of this case in Kentucky.

Home Health Care News has reported on the pros and cons of certification of need laws in the past. While some believe that CON laws support quality in home health services, others argue that they harm access and also deter competition. Specifically in the case of Tiwari and Sapkota, they were trying – in part – to argue that the CON laws are unconstitutional.

“There is a well-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 although the cases against CON laws often make intellectual sense, Wolf doesn’t think 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. Removing or significantly restricting CON laws will 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 are faced with small and unsustainable patient populations.”

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