RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 22a0030p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ DIPENDRA TIWARI; KISHOR SAPKOTA; GRACE HOME │ CARE, INC., │ Plaintiffs-Appellants, │ │ > No. 21-5495 v. │ │ ERIC FRIEDLANDER, in his official capacity as │ Secretary of the Kentucky Cabinet for Health and │ Family Services; ADAM MATHER, in his official │ capacity as Inspector General of Kentucky, │ Defendants-Appellees, │ │ │ KENTUCKY HOSPITAL ASSOCIATION, │ Intervenor Defendant-Appellee. │ ┘ Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:19-cv-00884—Gregory N. Stivers, District Judge. Argued: January 27, 2022 Decided and Filed: February 14, 2022 Before: SUTTON, Chief Judge; GUY and DONALD, Circuit Judges. _________________ COUNSEL ARGUED: Andrew H. Ward, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Appellants. David T. Lovely, CABINET FOR HEALTH AND FAMILY SERVICES, Frankfort, Kentucky, for Appellees Friedlander and Mather. David M. Dirr, DRESSMAN BENZINGER LA VELLE PSC, Crestview Hills, Kentucky, for Appellee Kentucky Hospital Association. ON BRIEF: Andrew H. Ward, INSTITUTE FOR JUSTICE, Arlington, Virginia, Jaimie N. Cavanaugh, INSTITUTE FOR JUSTICE, Minneapolis, Minnesota, for Appellants. David T. Lovely, CABINET FOR HEALTH AND FAMILY SERVICES, Frankfort, Kentucky, for Appellees Friedlander and Mather. David M. Dirr, Christopher B. Markus, DRESSMAN BENZINGER LA VELLE PSC, Crestview Hills, Kentucky, for Appellee Kentucky Hospital Association. No. 21-5495 Tiwari, et al. v. Friedlander, et al. Page 2 _________________ OPINION _________________ SUTTON, Chief Judge. Dipendra Tiwari and Kishor Sapkota sought to establish a home healthcare company, called Grace Home Care, that would focus on serving Nepali-speaking individuals in the Louisville area. Like other companies that provide healthcare services, home healthcare companies face a number of regulations. One of them is a certificate-of-need requirement, which restricts the number of such companies that may serve each county in Kentucky. When the Commonwealth denied their certificate-of-need application, Tiwari and Sapkota filed this lawsuit. They claim that the regulation violates their Fourteenth Amendment right to earn a living, serves only the illegitimate end of protecting incumbent home healthcare companies from competition, and through it all lacks a rational basis. At the motion to dismiss stage, the district court allowed the case to proceed to discovery. On summary judgment, the district court upheld the law. We affirm. I. Certificate-of-need laws control the number of healthcare resources in a geographical area. Unlike other licensing laws, these programs require the applicant to demonstrate a public need for its service in a given area to “prevent overinvestment in and maldistribution of health care facilities.” Colon Health Ctrs. of Am., LLC v. Hazel, 813 F.3d 145, 153 (4th Cir. 2016). While certificate-of-need laws have fallen out of favor in the last few decades, many States still use them to regulate different parts of the healthcare industry. See id.; Emily Whelan Parento, Certificate of Need in the Post-Affordable Care Act Era, 105 Ky. L.J. 201, 256 (2017). At least 16 States today have certificate-of-need laws for home healthcare services. See Parento, supra, …
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