AG Stein files support in Brevard, Buncombe, Asheville, Madison case against HCA’s Mission

ASHEVILLE - North Carolina Attorney General Josh Stein on Nov. 8 filed a friend-of-the-court brief supporting Western North Carolina cities and counties in an antitrust lawsuit alleging anti-competitive practices hinder health care access for residents and government employees.

The brief is Stein’s second in less than a year related to Mission lawsuits, of which there are two: one by six area residents brought in August 2021 currently working its way through N.C. Business Court and one brought by Brevard in June, which Buncombe and Madison counties and the city of Asheville now have joined.

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Each government is advocating more accessible, less expensive health care for its employees.

Stein filed a similar friend-of-the-court brief in March 2020 in the Business Court case called Davis et. al. v. HCA.

The new brief, filed Nov. 8, supports the Brevard antitrust, class-action lawsuit, requesting the presiding U.S. District Court of Western North Carolina judge deny HCA’s motion to dismiss the case.

“The Attorney General has a special interest in these issues, both because he is tasked with enforcing North Carolina’s laws prohibiting anti-competitive conduct and other harms to consumers … and because virtually all North Carolinians are healthcare consumers,” the brief states.

Despite Stein’s legal advocacy for the plaintiffs in both cases, he’s received local pushback for allowing the $1.5 billion sale of Mission Health to HCA in 2019 to move forward: In January 2019, Stein announced he wouldn't legally challenge HCA's purchase of Mission after all sides agreed to 15 commitments for HCA to uphold.

Stein is conscious of this in his Nov. 8 brief.

“The Attorney General’s review of HCA’s acquisition of Mission Hospital did not include an antitrust analysis,” it stated in a footnote. “Rather, the Attorney General reviewed the transaction under his authority to review a charitable or religious corporation’s transaction selling, leasing, exchanging or otherwise disposing of all or a majority of its property.”

Related:'We are the mice': Brevard public forum reveals disturbing local stories of HCA Healthcare

Rather than focusing on his own role in the Mission sale, Stein’s brief bears down on accusations in the lawsuit that Mission participates in anti-competitive practices and practices that prevent employers from knowing rates they pay Mission Health for employee care.

“Mission Health’s response to these allegations is lacking,” the brief states. “Mission Health — like other large hospital systems faced with similar allegations — argues not that these restraints do not exist, but instead that the restraints actually benefit consumers.”

Stein’s brief also argues the court should move forward to discovery of if and how Mission Health is creating restraint of trade, or a non-competitive, limited health care market, in WNC.

Mission alleges in its defense that any restraints are reasonable.

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That, Stein’s brief argues, should be assessed through the discovery process.

“Plaintiffs adequately alleged that Mission Health’s tying, anti-steering, and price-confidentiality provisions harm competition in Western North Carolina,” it stated. “They are entitled to attempt to corroborate their allegations through discovery.”

The brief also argues the court should allow discovery because of the U.S. District Court of Western North Carolina’s decision in another hospital lawsuit called United States v. Charlotte-Mecklenburg Hospital Authority.

That case also dealt with health care market share in the Charlotte area, and the judge agreed the issue should be dealt with following discovery.

Accompanying Stein’s brief in the Brevard et. al. case was a news release in which he lamented the effect hospital consolidation has on patients.

More:AG Stein hears WNC leaders on Mission sale fallout, says he's eyeing merger law changes

“Patients are best served when they have choices,” he said. “Unfortunately, hospital consolidation has decreased choice in western North Carolina, and patients are paying the price. While consolidation isn’t necessarily illegal — and is an unfortunate consequence of the North Carolina General Assembly’s failure to expand Medicaid — the plaintiffs in this case allege that Mission Health is illegally using its size and strength to further decrease choice in the region.

“North Carolinians know that the price of everything is going up right now, including health care. We cannot allow hospitals to break the law to break North Carolinians’ bank accounts. The allegations laid out in this case are serious, and the municipalities deserve to have their day in court.”

This echoed a message he unfurled in 2022 during visits to counties impacted by hospital mergers, including Buncombe in April.

"It's about understanding with more nuance what the consequences are when one health system gobbles up another," Stein told local officials and health care leaders then. "Too often the price is higher costs and worse care. That is not in the interest of North Carolina patients."

Additionally, Stein has officially advocated the N.C. Department of Health and Human Services' Division of Health Service Regulation deny Mission's bid to expand by 67 in Buncombe County as part of a certificate of need process.

AdventHealth and Novant Health have also applied to build new hospitals in Buncombe.

Andrew Jones is an investigative reporter for the Asheville Citizen Times, part of the USA TODAY Network. Reach him at @arjonesreports on Facebook and Twitter, 828-226-6203 or arjones@citizentimes.com. Please help support this type of journalism with a subscription to the Citizen Times.

This article originally appeared on Asheville Citizen Times: NC attorney general supports plaintiffs in Western NC lawsuit vs. HCA