IJ Goes to Trial to Defeat Nebraska’s CON Job

One of the first things we at IJ tell our clients is that nobody can tell their story better than they can. And it is a special thing to see how powerful those stories can be when shared directly with a judge or jury. That’s one reason IJ doesn’t shy away from taking cases to trial, even though they are a lot more work than simply submitting cases on written briefs. Indeed, we just completed our third trial in 12 months. 

This latest trial involved our client Marc N’Da, who runs several home health agencies caring for the elderly and disabled in Nebraska. Marc already drives his clients on daily errands but is legally barred from taking them to their doctors’ appointments or to pick up a prescription as both are considered “non-emergency medical transportation” or NEMT. Having seen what a horrible job existing NEMT companies were doing for his clients, Marc decided to start his own and fix the problem.  

Unfortunately, in Nebraska, starting a NEMT company requires a “certificate of public convenience and necessity,” often called simply a “certificate of need” or CON. It’s a rigged process that allows incumbents to shut out new competition, as happened to Marc when existing companies blocked his application, claiming new competition was not needed and would financially “harm” them. 

But that sort of naked economic protectionism is unconstitutional. So IJ sued and, in late January, took Nebraska to trial. It went beautifully. 

First, Marc shared his remarkable story. How he fled Togo after his work fighting child sex-trafficking prompted retaliation by government officials involved in the trafficking. How he arrived here with only $60, put himself through school, and founded several successful small companies that provide quality care to those who need it most. Most compellingly, Marc testified about how he witnessed existing NEMT companies constantly leaving his clients stranded, with no way to get to needed medical appointments. 

Following Marc, the government’s witnesses didn’t stand a chance. Once pressed, they admitted not only that the process of reviewing CON applications had been all but outsourced to the few existing large transportation providers but also that those same companies were often late, sometimes even canceling rides at the last minute, and leaving patients with no other options. 

Finally, a former commissioner with the agency that administers the CON actually testified on Marc’s behalf. Commissioner Crystal Rhoades explained that the few existing NEMT companies—the “usual suspects” in her words—were hurting patients by using the CON to shut out people like Marc. She testified that she had received countless complaints from disabled and elderly people who repeatedly missed dialysis, and some who were even hospitalized as a result, because they could not get a ride to their medical appointments. Ultimately, she concluded that, whatever the CON was supposed to do, all it actually did was protect larger incumbents at the expense of everyone else. With that, we rested our case. 

As with all trials in front of a judge rather than a jury, we didn’t receive an immediate decision. But given the unmatched power of Marc’s story, we’re optimistic that we won our third-straight trial in the past year. Stay tuned.

Will Aronin is an IJ attorney.