Just more than a month after judges made what some saw as the final decision in a case over new hospital beds for Buncombe County and the surrounding region, Mission Hospital signaled in the state’s highest court that it’s not giving up a nearly three-year fight over which health system gets to expand in western North Carolina. 

Attorneys for the HCA Healthcare-owned hospital filed a motion Wednesday, asking for a temporary stay of a recent three-judge panel appeals court ruling that allowed AdventHealth to move forward with bringing 67 acute care hospital beds to serve Buncombe, Graham, Madison and Yancey counties.

Florida-based nonprofit AdventHealth has since started construction on a hospital in Weaverville.  

Mission’s argument revolves around what it says was “substantial prejudice” in the DHSR’s decision to reject Mission’s application to install the 67 beds at its Asheville flagship hospital. Mission alleged substantial prejudice because “DHHS did not allow eight attendees to speak at a certain time at the public hearing because they were purported employees of Mission Memorial or employees of one its affiliated hospitals or entities,” according to a summary in the June 18 appellate court decision. That hearing was held shortly after AdventHealth, Mission and Novant Health applied for the 67 beds in spring 2022.

“The partial answers that the Court of Appeals has given are contradictory and confusing,” Mission’s attorneys wrote in a 42-page motion, arguing the appellate court failed to precisely define the criteria for a finding of “substantial prejudice.”

Mission’s argument is that the law around substantial prejudice  “is so incomprehensible that the Administrative Law Judge assigned to this case included a plea for clarification in his final decision. But the Court of Appeals ignored that plea.”

“By deciding cases on a murky substantial-prejudice requirement, agencies can avoid judicial scrutiny of their errors. That is harmful to the regulated public and the jurisprudence of this state. Because the Court of Appeals refuses to answer the question, the only remedy is discretionary review by this Court.”

Josh Stein, then the state’s attorney general and Democratic candidate for governor, argued against awarding the beds to Mission/HCA during the initial 2022 CON application process. “I don’t care which of the other two hospitals that applied get it,” he wrote, referring to AdventHealth and Novant. “I just want more competition for health care in Western North Carolina.”

“Mission has almost no competition for acute care in Buncombe County,” Stein wrote. He said the lack of competition “harms residents of Western North Carolina” because it increases costs and reduces quality of local health care services.

Surgical operating room at issue

Mission’s attorneys also argued that the NCDHHS had changed a policy requiring new hospitals to have a general operating room. AdventHealth did not propose a general operating room in its original application, according to the motion. “When the Department received Mission and Advent’s applications, it assigned an analyst to review them. … The analyst decided on her own, without consulting her superiors, to change the Department’s longstanding policy that required a general operating room for new hospitals.’”

“Mission respectfully asks this Court to decide whether the Department violated the [Administrative Procedure Act, which governs how state agencies operate] when it failed to explain its change in position, and then decide whether this error substantially prejudiced Mission,” Mission’s petition states.

According to AdventHealth’s current proposed plans, the Weaverville hospital would have, “A state-of-the-art Surgery Suite for general and specialty.”

The motion uses both arguments — one against the judicial system and one against the health department — to contest decisions in several courts that the choice to let AdventHealth to build the beds was the right one.

“NCDHHS is aware of the filing. NCDHHS does not comment on pending litigation,” Hannah Jones, a department spokesperson, said when asked about Mission’s newest argument, in which both the department and AdventHealth are defendants. 

This complex legal battle for beds is being staged on the field of certificate of need (CON) law, a North Carolina rule requiring that medical facilities ask the state’s permission when they want to expand, add services, or buy expensive equipment. 

AdventHealth: “Deliberate Intent to Delay”

AdventHealth won approval for the 67 acute care beds in late 2022 following a formal application and vetting process beginning that spring. But ever since, Mission has contested that decision, using the CON’s appeal process.

“Mission/HCA’s filing of yet another appeal and decision to escalate this matter to the North Carolina Supreme Court is a deliberate attempt to delay what the community has clearly said it wants: health care choice and competition,” Victoria Dunkle, a spokesperson for AdventHealth, wrote in an email.

 “AdventHealth intends to file a response precisely describing why there is no merit to this latest action by Mission/HCA. The North Carolina Court of Appeals has already upheld the State’s approval of our Certificate of Need (CON) for a 67-bed hospital in Buncombe County, affirming the Department of Health and Human Services’ original decision. Even Mission/HCA has acknowledged that AdventHealth’s hospital will eventually be built. We are disappointed that Mission/HCA continues to choose this path.” 

AdventHealth applied for and won another CON bid for 26 more acute care beds. Mission also opposed this bid, wrapping it up in a second legal battle. AdventHealth announced last month it plans to apply for another 129 beds this October, bringing the total beds intended for the planned Weaverville hospital to 222.

Mission did not respond to previous questions about whether it would apply for these 129 beds, but said Thursday it believed it was the best pick for health care services in the region. “We strongly believe Mission Hospital can best meet Western North Carolina’s growing need for complex medical and surgical care,” Katie Czerwinski, a Mission/HCA spokesperson, said when asked for comment on the motion. “Mission remains committed to acting in the best interest of the broader region and providing the area’s most advanced healthcare.”

Currently, 34 other states have CON laws similar to North Carolina’s. While some argue these laws cap unnecessary medical service bloat, others say they favor larger health care systems because of the complex and difficult approval process that doesn’t really improve access to or quality of health care. 

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Asheville Watchdog is a nonprofit news team producing stories that matter to Asheville and Buncombe County. Andrew R. Jones is a Watchdog investigative reporter. Email arjones@avlwatchdog.org. The Watchdog’s local reporting is made possible by donations from the community. To show your support for this vital public service go to avlwatchdog.org/support-our-publication/.

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