Nebraska Law Requires Business Owner to get Competitors’ Permission in Order to Transport Patients

If you trust someone to drive you to a grocery store, would you also trust them to drive you to a pharmacy? Of course. But, unfortunately, such common sense doesn’t rule in Nebraska.
Years ago, a handful of transportation companies convinced the Nebraska government that there was something special about taking people to the pharmacy or routine doctor appointments. At these insiders’ request, the Nebraska Legislature created a category of rides called “non-emergency medical transportation” and outlawed anyone else from providing them.

https://ij.org/case/nebraska-con/

https://www.platteinstitute.org/research/detail/drive-to-succeed-transportation-law-shuts-out-competition

Marc N’Da found this out the hard way. Marc runs a home health agency, and he has watched for years as his patients have been left stranded by the existing non-emergency medical transportation companies. So, Marc responded in the most American way possible—he decided to start his own company and provide better service. After all, Marc and his employees were already driving his patients on countless other errands, so there was no good reason why they couldn’t also take those same patients to the pharmacy and to their checkups.

In order to help his patients, all Marc needed was a “certificate of public convenience and necessity” from the government. He went through the application process, and the government expressly found that Marc was “fit, willing, and able” to provide this service. But that wasn’t all he needed. The law also requires Marc to get permission from his competitors before he can begin operating. Not surprisingly, those competitors said “no.”

Certificates of Public Convenience and Necessity, also known as “Certificates of Need” or “CONs” for short, originated in a long-debunked effort to control costs. But in practice, all they do is prevent new businesses from competing with established ones and allow the existing companies to veto new competition, at the expense of the public. Because CONs intentionally limit the supply of health services, several states have waived certain CON requirements in light of the COVID-19 epidemic. In fact, Nebraska waived its CON to allow hospitals to add beds or convert beds in order to care for COVID-19 patients.

Marc’s patients may be stuck with limited options for now, but he’s fighting back. Marc has teamed up with the Institute for Justice to protect his constitutional right to earn an honest living. The good news for Marc and his patients is that what the government and the insiders are doing is not only wrong but unconstitutional—it violates three different parts of the Nebraska Constitution.
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