In a recent lawsuit, the Louisiana Department of Health admitted what every parent of a special needs child knows: There is always a need for more care for this population. Parents need time away from the rigors of child-rearing, whether it be to work, run errands, or simply have time to themselves.
Yet state officials are blocking a longtime social worker, Ursula Newell-Davis, from offering care to special needs kids in New Orleans. In fact, they automatically deny nearly 75 percent of people who apply annually without regard to the applicant’s qualifications. In her lawsuit against the officials, the government defended the law for one reason: It said it would rather conserve its resources for doing things other than licensing new providers like her. So far, that argument has succeeded in court.
Newell-Davis seeks to provide what’s called “respite services,” or short-term care for disabled children, adults and the elderly. Because she’s been a social worker for over two decades in New Orleans, she has seen that her clients often lack access to respite care. The unfortunate consequence is that sometimes kids are left alone. Left unsupervised, these children sometimes fail to take care of their hygiene, feed themselves, or change their clothes — leading to their being bullied in school for wearing the same thing two days in a row. Others turn to the wrong crowds and fall into crime.
Alternatively, parents may forego time to themselves, with heartbreaking results. One of Newell-Davis’s former clients described falling into depression, losing her job, and then losing her home while struggling to take care of her special needs child without any support. Newell-Davis has been able to help New Orleans families through drug addiction, mental health challenges, and homelessness in her capacity as a social worker. Now she seeks to offer respite care, too. Her clients rave about her ability to connect with their kids, particularly special needs kids — a skill likely gained because Newell-Davis has a special needs child of her own. So in 2019, she sought to open a respite care business to serve the greater New Orleans area.
There is arguably nobody more qualified than she, but Louisiana has made her dream impossible. Before anyone can offer respite services in the state, they must undergo a Facility Needs Review with state health officials. This process has nothing to do with a person’s qualifications or fitness for the job; it relates solely to whether the state believes another care provider is “needed.” Newell-Davis included studies showing that early intervention results in better outcomes for children and described talking to local officials who encouraged her to apply. But in a two-page form letter, she was rejected solely because the state determined she wasn’t needed in New Orleans.
This law might seem strange, but similar requirements are common in the health care industry. Louisiana’s Facility Need Review is just a variation of what’s called a “certificate of need” law in about half of states. These laws are little more than a protectionist regulation that allows established businesses, in alliance with state officials, to deny competitors the opportunity to enter the marketplace.
In other states, incumbent businesses can actually protest new applications and show up at their hearing to testify that no new company is needed. Research shows that need-review laws predictably lead to lower access to care, and there is no evidence that they lower costs or improve quality. Instead, they deprive people such as Newell-Davis of economic opportunity and keep disadvantaged populations from services they need.
Because need-review laws deprive people of their ability to earn a living without any discernible public benefit, they raise serious constitutional concerns. So, Newell-Davis sued, arguing that the law deprives her of liberty without due process in violation of the Fourteenth Amendment. That amendment was intended to guarantee individuals equal protection of the law and vast protection of civil rights, including the right to pursue a livelihood. But earlier this year, a federal court upheld Louisiana’s need-review law on the theory that it was rational for the state to focus its resources on regulating existing businesses, rather than protecting the right of individuals to start new ones.
Newell-Davis’s case is on appeal to the Fifth Circuit Court of Appeals, which likely will decide her case sometime next year. In the meanwhile, she’ll continue her job as a social worker — hoping for the opportunity to provide kids with the care they need.
This op-ed was originally published at The Hill on September 6, 2022.