Ursula Newell-Davis filed a final brief with the Fifth Circuit Court of Appeals on Wednesday, the latest step in her civil lawsuit against the Louisiana Department of Health regarding the state’s “Facility Need Review” law, which regulates social service providers.

Newell-Davis worked for two decades counseling youth with mental health needs and disabilities before she attempted to launch her own business in 2019 to provide respite services to families with special needs children.

But Louisiana requires those who provide such services to obtain “Facility Needs Review” approval from the health department, and Newell-Davis was rejected through a form letter that was also sent to 86 of 119 applicants who attempted to launch similar services in 2019 and 2020. The law requires applicants to prove their proposed services are “necessary,” despite evidence of increasing juvenile crimes, pleas from officials for more early intervention, and studies illustrating the improved outcomes with respite care.

“They give you no outline on what is needed, so you devise this thesis of information as to why you should be allowed to open. So I acquired information for 30 days, then I compiled this letter, then I was turned down and I’m not able to say why I was turned down,” Newell-Davis said. “I have no idea what I put that was incorrect that made them turn me down. To me, it’s a setup. ”

“Requiring would-be providers to prove they are ‘needed’ isn’t about protecting the public health or safety; it’s about insulating existing providers from competition,” said Mollie Riddle, an attorney at Pacific Legal Foundation representing Newell-Davis. “Given that children are going without services that are essential to their well–being, the stakes are too high for the government to arbitrarily pick who can and cannot enter the market.”

LDH counters that the law provides a legitimate governmental purpose by allowing the department to focus its resources on responding to complaints and regulating existing businesses, rather than processing applications for new ones.

U.S. District Court Judge Nannette Brown sided with the state in March.

“I think the decision is wrong because the judge assumed the government’s convenience benefits the public,” said Anastasia Boden, senior attorney with Pacific Legal Foundation. “All of the evidence points the other way. It shows the department is exacerbating the shortage” of respite care services.

Studies show reducing the supply of critically necessary services drives up costs and worsens outcomes, Boden said.

“That means this law is entirely arbitrary,” she said. “If you’re going to take away somebody’s constitutional rights, you have to show it benefits the public.”

Oral arguments are expected to be scheduled for later this year, or in early 2023.