When two Nepalese immigrants wanted to open a home health agency for a growing community of refugees in Louisville, state regulators blocked them and a large Louisville hospital argued the business wasn’t needed. So now, the businessmen are suing Kentucky, challenging a law that some say allows monopolies to form.
Dipendra Tiwari and Kishor Sapkota, represented by the libertarian-leaning Institute of Justice, are suing the Cabinet for Health and Family Services on the premise that Kentucky’s “certificate of need” law — which was used to block their business from opening — is unconstitutional.
Tiwari and Sapkota’s business, Grace Home Care, would offer “home health care,” which can help older adults avoid a nursing home and live at home. Services can include therapy to help restore people’s ability to do daily tasks, physical therapy, tube feeding, wound dressing and other nursing services.
The business partners mainly want to offer care to Bhutanese refugees that were resettled in Louisville. These refugees — of which there are around 90,000 in the United States — were forced out of Bhutan in the 1990s and moved to camps in Nepal. Between 2014 and 2018 alone, the U.S. took in and resettled almost 1,000 Bhutanese refugees in Louisville. And there’s a small percentage that are over the age of 65 and do not speak English, resulting in barriers to aging care. Tiwari said he wants to change that.
“The translation issue gets in the way of health care,” Tiwari said.
There are six home health agencies already in Jefferson County. While several have expanded in the past few years, no new companies have been able to enter the market since 2013. One of the six companies, Baptist Home Health Care Louisville, formally opposed Grace Home Care’s application with the state. Its parent company, Baptist Health Care System, also owns numerous hospitals and home health agencies throughout the state.
“It felt like the big business, it had some way to influence the state and of obstructing small business[s] not to come and not compete with them,” Tiwari said. “Why is the government obstructing people to set up a business based on their law?”
The law Tiwari is talking about is known as a certificate of need law, which restricts the number of home health agencies in a given county. Agencies must be able to prove at least 250 patients need their service before they’re allowed to operate. The state, in its final decision, said Grace Home Care didn’t do that.
Kentucky Cabinet for Health and Family Services spokeswoman Christina Dettman declined further comment, citing the pending litigation.
The lawsuit, filed on behalf of Tiwari and Sapkota in the Western District of Kentucky, says that the certificate of need law violates the Constitution. Around 18 states currently have home health certificate of need (CON) laws.
These laws were passed in the 1970s and 1980s, and were intended to reduce health care costs by not allowing companies to open and offer services that communities didn’t really need.
Research on whether CON laws hold down costs is mixed. A 2015 study showed states that did have the laws on the books had slower health care cost increases compared to states that didn’t have the laws. But there’s also reduced competition in states that do have them, which amounts to the creation of monopolies, according to Momotazur Rahman, an associate professor and researcher at Brown University.
“I think this is an example perhaps of why we cannot improve the quality of home health care much,” Rahman said. “We have a specific group of patients who’d be probably better off by having a home health agency that can serve their needs in a better way. But we cannot open this home health agency because of CON laws, and that is just a reduction in quality of care.”
Which is part of Tiwari’s argument. He immigrated from Nepal to the U.S. for school, and later worked as an accountant at a home health agency in Virginia, where he gained experience in how these agencies operate. Now, he owns an accounting firm in Louisville and finds a lot of his older Bhutanese clients talk about issues with health care access.
“And the translators that are available in the hospitals often speak a different version of Nepali that these refugees don’t know,” Tiwari said.
The language and cultural barriers can have big implications for immigrants and refugees. For instance, one study found that almost a quarter of Bhutan women refugees over age 65 were anemic after resettling. Research has shown having a health provider who knows the health and cultural issues of a specific population can improve the quality of care and improve health outcomes.
In addition, if there are language barriers a patient might not be able to communicate that they’re having a specific condition or symptom, which can result in misdiagnosis, longer hospital stays and medical errors.
“They didn’t even necessarily choose to immigrate here, but were relocated here, so that’s another reason that we have this big population that doesn’t have English fluency,” Tiwari said.
Tiwari said he wants to fill that gap.
The Institute for Justice, which is representing Tiwari, also is suing the state of Iowa for its CON law for eye surgery centers, and in North Carolina over testing service CON laws.