On Wednesday, in the Southern District of Mississippi, an entrepreneur desiring to offer “needed home health services in the Jackson metropolitan area” commenced legal action against the state of Mississippi challenging the constitutionality of the state’s “moratorium on the establishment of new home health agencies.”
The plaintiff argued that “the need for home health services has been dramatically increased by the exponential spread of the respiratory disease COVID-19, as more patients seek to avoid public healthcare facilities…and as more elderly patients seek to delay or prevent the need for institutionalization in nursing homes that have been prone to outbreaks.”
Despite this obvious need, the entrepreneur proffered that the Mississippi State Department of Health (MSDH) banned all new home health agencies through the establishment of a “certificate of need” (CN) program. The complaint described the CN program as a requirement that the MSDH must determine a geographical area which needs a home health agency before giving a facility a CN and license to operate as one. However, the pleading also claimed that one could not even get business approval via the CN program as the Mississippi legislature enacted a “statutory moratorium (in 1983) which…prohibited that issuance of new (CNs) for the establishment of new home health agencies or the expansion of services areas for existing home health agencies” that has never been lifted.
As such, the plaintiff averred that the only way to open a home health agency since 1983 has been to purchase the CN from another agency, with the result being that established home health agencies consolidate, grow, and monopolize the market. As such, the plaintiff argued the government objective of the laws was economic protectionism for existing home health agencies, which is not a legitimate government interest for the establishment of any legislative endeavor.
The plaintiff requested a declaratory judgment that the moratorium on new CNs—and by extension new business licenses for home health agencies— violates the Equal Protection Clause of the Fourteenth Amendment, as the “moratorium on the issuance of new (CNs) for the establishment of home health agencies irrationally treats new home health agencies differently from other materially indistinguishable health care facilities or providers.” Additionally, the plaintiff sought am injunction prohibiting the defendant from “enforcing the challenged statutory provisions, administrative rules and regulations, and policies and practices.”
The plaintiff is represented by the Mississippi Justice Institute.