HCA Healthcare bid to open Candler freestanding ER gets new life from NC Appellate Court
ASHEVILLE – HCA Healthcare's pursuit to open a freestanding emergency department in Candler received new life March 19 after a favorable opinion from the North Carolina Court of Appeals.
The ruling was the latest chapter of HCA's years-long effort to open the facility. Health care providers in North Carolina must navigate a “Certificate of Need” process if they want to expand their facilities, equipment, or initiate certain medical services.
The state approved HCA's application in May 2022, which AdventHealth appealed to the Office of Administrative Hearings. Administrative Law Judge David Sutton reversed the decision in March 2023 because the N.C. Department of Health and Human Services erred by not holding a public hearing on the facility, which he wrote consequently substantially affected AdventHealth. NCDHHS appealed Sutton's decision shortly after the ruling.
On March 19, the North Carolina Court of Appeals submitted an opinion declaring that Sutton made a mistake.
Appellate Judges Michael Stading and Jefferson Griffin vacated Sutton’s ruling, sending the case back to an administrative law judge court.
"What AdventHealth is confident of is that the people of Buncombe County want health care choice and competition and we are honored they chose us to meet that need,” AdventHealth spokesperson Victoria Dunkle said in a March 19 statement to the Citizen Times.
Sutton relied on a 2007 case, Hospice at Greensboro, Inc. v. NCDHHS, when the state forwent a CON review process for a provider to open a hospice in Greensboro, keeping competitors from contesting. The court classified that omission as “substantially prejudicing” a competing provider.
The appellate judges said that case did not apply because the state conducted a CON review and AdventHealth filed written comments opposing Mission’s proposal. They found that AdventHealth proved that the state failed by not holding a hearing but did not show evidence of how that failure impacted them. The case will continue in the lower court.
“AdventHealth satisfied its burden of proof in showing Agency error, but it failed to forecast particularized evidence of substantial prejudice. Yet, our determination in this case should not be misconstrued. AdventHealth may ultimately satisfy its burden; it may not,” Griffin and Stading wrote.
“While this Court may address summary judgment on alternative grounds de novo, we deem this case an appropriate circumstance to remand for further proceedings not inconsistent with this opinion.”
An appellate court can hear a case "de novo" by referring to the lower court's record to determine the facts, but can rule on the law without referencing the lower court's findings, according to Cornell Law School.
"Patients continue to choose Mission Hospital for emergency care, and we were proactive in solving this rise in ER demand by pursuing two Certificate of Need approvals for two additional ERs in spring of 2022. These ERs are solutions to help meet the needs of our community and bring quicker access to emergency care to South and West Asheville," Mission Health spokesperson Nancy Lindell told the Citizen Times in a March 19 statement.
This is one of three HCA freestanding emergency department applications. NCDHHS granted HCA a CON for a West Asheville facility Sept. 25, which is for the same freestanding emergency department over which the court of appeals recently opined. This time, the state held a public hearing. AdventHealth appealed the certification a month later.
Sutton also reversed the state’s decision to grant HCA certification for an Arden freestanding emergency department because NCDHHS also failed to hold a public hearing. That case is currently in front of the court of appeals.
Emergency services at HCA-owned Mission Hospital have been a source of criticism from news reports, state and federal regulators.
In December, NCDHHS found that conditions at Mission Hospital created an immediate jeopardy situation, meaning the hospital’s noncompliance with federal Medicare regulations put patients in danger of serious injury, harm or death. The federal government officially declared the immediate jeopardy situation in February. A report detailing the incidents that led to the declaration found that four patients who endured care that did not meet federal emergency services guidelines ultimately died. Regulators said the hyper-dangerous conditions were removed, but the hospital remains out of compliance with federal regulations.
Also in December, Democratic nominee for governor and North Carolina Attorney General Josh Stein sued HCA for failing to provide the level of emergency and oncology services it agreed to after purchasing the Mission Health system in 2019.
Last summer, the Citizen Times reported that patients arriving at Mission Hospital in ambulances endured extended delays to receive hospital care, which created consequential delays for Western North Carolina emergency service systems. Hospital workers and local emergency services leaders attributed the patient safety issue to an overtaxed and understaffed emergency department.
Three counties, including Buncombe, made changes to their patient transport and drop-off policies following the report. HCA has since made improvements to its ambulance patient intake policy, according to its plan to correct deficiencies submitted to the federal government and emergency service leaders.
More: Mission Hospital violated emergency treatment regulations law, Federal government says
More: CMS: Mission still not compliant with federal regulations, at risk of losing funding
More: CMS: Mission Hospital removed 'Immediate Jeopardy' conditions; follow-up results pending
Mitchell Black covers Buncombe County and health care for the Citizen Times. Email him at mblack@citizentimes.com or follow him on Twitter @MitchABlack. Please help support local journalism with a subscription to the Citizen Times.
This article originally appeared on Asheville Citizen Times: NC Court of Appeals hands HCA small victory in freestanding ER pursuit
