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. 

Asheville Watchdog welcomes thoughtful reader comments on this story, which has been republished on our Facebook page. Please submit your comments there.

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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A former University of North Carolina Asheville research assistant alleged in a lawsuit this year that the university dismissed him from his job after he raised concerns about research misconduct to his bosses and a top school official.

Aidan Settman, a 24-year-old UNCA graduate, filed the lawsuit against the university in Buncombe County Superior Court in February. He alleged that research into a COVID-19-era health initiative — funded by more than $600,000 each from the state and the Dogwood Health Trust — was manipulated to make the program seem more successful than it was.

His complaint outlines a complex saga spanning 2020 to 2024. Settman, who was an independent contractor for UNCA, alleged that his efforts to push back on what he saw as colleagues’ shoddy research practices led to his termination. 

The lawsuit also names Emma Olson, the interim director of the UNCA-headquartered North Carolina Center for Health & Wellness (NCCHW), as a defendant. Olson was Settman’s supervisor at the time of his termination.

UNCA and Olson denied Settman’s allegations in court, and in May, a Buncombe County judge dismissed the suit, agreeing with the defendants that because Settman was an independent contractor and not a state employee, he wasn’t protected under the state’s whistleblower law.

A UNCA spokesperson said the school agreed with the dismissal. Settman appealed the ruling last month.

Olson did not respond to multiple requests for comment for this story via email. A spokesperson for the office of North Carolina Attorney General Jeff Jackson, which is representing UNCA and Olson in court, declined to comment.

Settman, now a doctoral candidate studying criminology at the University of Kent in the United Kingdom, alleged that employees at NCCHW used “fraudulent” practices to study and report impacts of the campus’ Student Health Ambassador (SHA) program.

The SHA was an effort of the NCCHW, alongside Mountain Area Health Education Center (MAHEC), that paid students to spread awareness and advocate for health safety during the pandemic. Ambassadors swabbed noses for COVID tests and delivered meals and home-exercise plans to students in quarantine; later, they expanded into other corridors, such as mental health and disability-rights education. The program was phased out before the 2024-25 school year.

MAHEC did not respond to The Watchdog’s several questions about the lawsuit.

Funding from state and Dogwood Health Trust

The SHA was born out of $610,000 in seed money from the UNC System’s North Carolina Policy Collaboratory, funded by the state to research and fight the effects of the pandemic. 

The team working on the SHA, which was headquartered at UNCA but had a presence on six campuses, published a descriptive report on the structure of the program in September 2021. A few weeks later, Dogwood — western North Carolina’s leading health advocacy initiative, funded by the $1.5 billion sale of the Mission Health system to HCA Healthcare in 2019 — awarded the program a grant of $486,524, which kept it running through 2022. In early 2023, it awarded $173,845 more.

In a statement to Asheville Watchdog, Dogwood spokesperson Erica Allison said UNCA provided “sufficient, synthesized reporting and documentation” to meet grant terms and noted the SHA initiative hasn’t sought funding since 2022. The health trust has “a positive working and funding relationship with UNCA,” she added.

But Settman alleged that the research the NCCHW produced misrepresented the SHA’s success. The project’s leaders, Settman alleged in the complaint and in interviews, obscured data that suggested ineffective aspects of the program, and they mislabeled and covertly aggregated survey results in a way that created an illusion of learning growth.

They also failed to provide Settman with important raw data, according to the complaint and emails reviewed by The Watchdog, despite his role writing the manuscript when he returned to the project. In March 2024, emails show, he raised concerns about academic misconduct to project leaders and to John Dougherty, the university’s general counsel and chief of staff.

Less than a week later, UNCA terminated his contract.

“It is denied that Plaintiff’s termination was retaliatory or in violation of the law,” attorneys for UNCA and Olson said in a court document responding to Settman’s allegations in the complaint. 

Paper was rejected, then revitalized

Settman first worked on the project in the fall of 2020, during his last year of undergraduate studies, as a research assistant employed by the university. He enjoyed the work, he said in an interview, and found the program promising. In early 2022, the group submitted a data-driven paper about SHA’s success to the Journal of American College Health; Settman was one of 10 authors. Several months later, the journal rejected it, citing exaggerated claims, missing data and poor writing, according to a rejection letter reviewed by The Watchdog.

By then, Settman was preparing to travel to Tbilisi, in the republic of Georgia, where he would conduct fieldwork for his doctoral thesis. Still, he advocated for the paper to be revitalized. Based on his experience in 2020 and the apparent success of the SHA, he thought it was worth polishing for publication. Over the next year, he recalled, he asked the program’s director, MAHEC employee Kol Gold-Leighton, about reviving the research several times.

In September 2023, Settman was asked to rejoin the team as an independent contractor to rework the paper into publishable shape, incorporating additional research. He agreed and was so enthusiastic that during December, after his first contract ended and before his second one began, he kept working for no pay, according to the complaint.

But around that same time, he said, something began to seem wrong. Little things piled up: Olson had referenced data on vaccine hesitancy in the previous version of the manuscript, but when Settman sought the data, nobody could produce it, he alleged in the complaint. When he asked about a survey’s sample size, he got many different answers; the researchers seemed to be guessing, Settman said in an interview.

More alarmingly to him, he said in the complaint and in interviews, he still had never seen the raw data that underpinned the paper he was now in charge of rewriting. 

Settman was mostly querying Olson, now the highest-ranking researcher on the project: In December 2023, she took over as interim director of the NCCHW, after its longtime leader, Amy Lanou — who also had worked on the SHA research — left to run the North Carolina Institute for Public Health at UNC-Chapel Hill.

At one point that winter, emails obtained by The Watchdog show, Olson told Settman she “just (wanted) to move forward.” In an early March 2024 email, he said he worried that publishing research without having supporting data would be an “academic violation.”

“I appreciate the desire to maintain integrity, your commitment to a rigorous methodology and your sense of urgency,” Olson responded by email. “I also find this request problematic in the sense that I did not anticipate critically looking back at the previous processes … and thus the integrity of the project.”

She still could not find the data, she told Settman. But she acknowledged that his worries were valid.

“My intention at this point was to really work off of what we had already drafted and move forward,” she wrote, “but I understand that changes have been significant and you found concerning errors in your review.”

Settman did have access to some other records, including data from subsequent years and several reports, including one that had been given to the Dogwood Health Trust at the end of its first funding period. Here, he said, he began to find discrepancies. He said he noticed duplicates in survey responses collected during the program’s second year. He discovered that the report to Dogwood described some surveys as having been collected months earlier than they actually were, which he said complicated what researchers had presented as baseline data. And he realized that some survey responses had been aggregated — lumping together “somewhat” and “very much” in multiple-choice categories, for example — which obscured a decline in results that would signal a successful program.

Long list of authors

One more conflict would prove consequential. The original manuscript had a long list of authors, and Settman said he wasn’t sure what each person had contributed. Some were mysterious: When Settman inquired about the other listed authors, Gold-Leighton, the program manager, said via email that one author “helped to grammatically edit the paper”; of another, he wrote, “not sure who this is.”

Settman put together a list of authorship qualifications based on criteria of the Journal of American College Health’s publisher. Everyone who didn’t meet the threshold would be thanked in the acknowledgments, he reasoned. 

But after Settman ran the idea by his bosses, Olson emailed the whole group, telling them Settman wanted to remove some of their names from the paper. A discussion over who should be listed as authors on the research ensued; one co-author criticized Settman’s approach. Then Settman pointed out that Olson had not shared the full document in which he laid out authorship criteria. Some of the researchers later agreed that they shouldn’t be listed as authors.

On March 13, 2024, Olson sent Settman what he said he found to be a puzzling email. His work was intellectual property that belonged to the university, she said, and she asked him to share the manuscript as a Word document, even though she already had access to it. Gold-Leighton and Dougherty were copied on the email.

The next day, Settman replied to all three, telling Olson he was confused by her request, and that Dougherty should be aware of his concerns.

“The concerns of the manuscript relate to research conduct and authorship,” Settman wrote.

Several days passed with no word from the researchers or Dougherty, according to the complaint. Then, during what was supposed to be a routine check-in virtual meeting with Olson and Gold-Leighton, Olson told Settman he’d been terminated because of “condescending” and “belittling” conduct, according to the complaint. Settman said in an interview that she cited the hurt feelings of one researcher during the authorship squabble.

It was the first time Settman had faced such accusations from team leadership, according to the complaint. Olson had praised Settman’s work to him and to the team more than once in the preceding weeks, emails reviewed by The Watchdog show.

“Thank you so much for all your diligent work on this,” she told him in one email.

Unanswered questions and an appeal

Settman alleged he was pushed off the team because of what he found and his insistence it be at least discussed and at most, remedied. In reviewing the network of documents — mainly in the Google Suite of document applications and with edit histories available to review — and in confronting his then colleagues, Settman alleged he found evidence that NCCHW first manipulated data and then concealed that manipulation in reports. 

Gold-Leighton, now a program manager at the University of Virginia’s College at Wise, declined to comment on the record for this story. He is not named as a defendant in the lawsuit.

Lanou, the former NCCHW director who led it for most of the SHA’s history, left that post in December 2023, before Settman began to raise most of his concerns and several months before his contract was terminated. In an email to The Watchdog earlier this month, she said she was aware of the lawsuit but had not read Settman’s complaint. She declined an interview, saying she was tending to a family emergency, but said the NCCHW “worked closely with all of the project’s funders. We were in compliance with Dogwood Health Trust application and reporting processes and report requirements for the Student Health Ambassador program (and other funded programs) throughout.”

Months after Settman left, the team was still pursuing publication of its research in the University of Kentucky’s Journal of Appalachian Health, according to documents reviewed by The Watchdog. The journal, citing editorial policy, would not say if the NCCHW submitted the paper for publication. 

Last August, several records related to the SHA study — including the data Settman had repeatedly sought — were uploaded to UNCA’s public research data archive. Settman said the documents were removed after he sued. (The Watchdog asked UNCA to restore the links on July 14; as of this story’s publication, they have not been restored.)

Though UNCA has previously insisted that Dougherty does not act as its public records custodian, he has been put in charge of responding to many public records requests — including Settman’s, as he seeks documents in connection with his lawsuit. Settman said he hasn’t gotten what he’s looking for.

Dougherty did not respond to a request for comment for this story.

UNCA misconduct hotline disabled

Settman said he also hit a wall when looking for ways to dispute the termination of his contract outside the court system. The complaint alleged he placed more than a dozen calls to the office of Tim Elgren, then UNCA’s chief research officer, and never heard back. 

Elgren, now provost at Montana Technological University, said in an email to The Watchdog earlier this month that he didn’t recall receiving any calls, voicemails or emails from Settman. He said he knew of no reason Settman would have been unable to reach him, his executive assistant or anyone at UNCA’s Office of Research and Sponsored Programs, which was staffed to receive research misconduct complaints.

Another university contact suggested Settman try the institutional misconduct hotline that almost all UNC System schools have. But he found that UNCA’s was disabled. It still was at the time of the story’s publication.

Late in June, Settman and his attorney, Jake Snider of Asheville Legal, took the case to the state’s appellate court. Their argument hinges on the idea that Settman’s status as a contractor, rather than a UNCA employee, was a distinction without a difference. Settman’s job duties never decreased in scope between the time he was an employee, in his first stint with UNCA, and a contractor, Snider said.

“Because they exercised a high degree of control, including the ability to fire him on a whim, we believe that makes him … more properly classified as an employee,” Snider said. “The hope right now is that the Court of Appeals agrees with us that the label that’s assigned to somebody is not determinative of whether they’re an employee or independent contractor in the context of the whistleblower protection statute, which applies to North Carolina state employees.” 

Asheville Watchdog welcomes thoughtful reader comments about this story, which has been republished on our Facebook page. Please submit your comments there. 

Asheville Watchdog is a nonprofit news team producing stories that matter to Asheville and Buncombe County. Andrew R. Jones (arjones2@avlwatchdog.org) and Jack Evans (jevans@avlwatchdog.org) are Watchdog investigative reporters. The Watchdog’s 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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