Judge reverses Mission's certification for Arden ER; NC health department appeals

ASHEVILLE – The North Carolina Department of Health and Human Services’ decision to grant Mission Hospital’s Certificate of Need application for an Arden freestanding emergency department has been reversed by an administrative law judge June 22.

This is the second freestanding emergency department Mission has proposed that has lost its preliminary appeal ― the certification for its Candler application was reversed in a March 17 decision. NCDHHS appealed both reversals to the North Carolina Court of Appeals. Buncombe County commissioners have an opportunity to give their opinion about the controversial proposed emergency departments in a legal filing.

In most situations, health care providers in North Carolina must apply for a CON if they seek to expand their facilities, equipment, or initiate certain medical services, according to state guidance.

AdventHealth and UNC Pardee, which own hospitals in Henderson County, challenged NCDHHS’ preliminary decision to grant the CON for the Arden location. Only Advent appealed the Candler certification. The Citizen Times reached out to AdventHealth and Pardee for comment.

NCDHHS initially granted Mission’s application for both freestanding emergency rooms May 24, 2022, which were planned for the corner of Hendersonville Road and Airport Road, and in West Asheville near Candler. The department approved slightly more than $28 million in capital expenditure for the projects. For-profit HCA bought Mission in 2019 for $1.5 billion.

Administrative Law Judge David Sutton argued in his 88-page reversal that NCDHHS erred in granting the CON for the Arden location because the agency did not hold a public hearing prior to approving the application.

Arden Decision by Mitchell Black on Scribd

Mission Health spokesperson Nancy Lindell said in a July 28 statement to the Citizen Times that the public hearing requirement was “not included by the State in the application process as a precaution to prevent the spread of COVID.” She noted that there were other CONs approved across the state “during the more acute phases of the COVID public health emergency that did not have public hearings.”

Sutton noted that while this “failure” was enough to reverse the case, he made determinations on the other issues brought before him by the challengers, which ranged from claims about the freestanding emergency department entrenching Mission’s monopoly over acute care services to arguments that the freestanding emergency departments would impede access care for rural counties. The judge ultimately ruled for Mission on every single point beside the public hearing error.

Advent and Pardee will have a chance to relitigate those points before a panel of judges in the court of appeals. NCDHHS appealed the decision on the Arden freestanding emergency department July 21, and on the Candler location April 14.

An NCDHHS spokesperson said the department cannot comment on pending litigation.

Lindell added that applying for the certification for the freestanding emergency rooms was an effort to solve “rising ER demand.” She continued “by taking a patient to a closer, less busy ER, emergency medical service teams are able to get back on the road faster and serve more patients.”

Will freestanding emergency departments ease delays at Mission?

The Citizen Times recently reported that patients arriving at Mission Hospital in ambulances increasingly need to wait for extended periods before being accepted into the Emergency Department due to capacity issues. Mission Hospital workers and local emergency service leaders attributed the capacity issues to staffing challenges at the hospital, which restrict patient flow issues, leading to the backlog, and the long waits.

Emergency service experts noted that the freestanding emergency departments would have the capability to treat patients without severe illnesses or injuries. At the same time, they raised concerns about the freestanding emergency departments creating more or longer distance ambulance trips for an already-taxed EMS system.

The Buncombe County Board of Commissioners does not have jurisdiction over how HCA runs facilities within its boundaries, but the county interacts with HCA frequently through its EMS and 911 systems. Commissioners have previously expressed concern over HCA expanding its domain in the area.

More: Mission says $29M 'stand-alone' ER would cut wait times, but faces monopoly complaint

More: Mission/HCA to open Sweeten Creek Mental Health and Wellness Center in Asheville in Aug.

Board chairman Brownie Newman sent a letter to the leader of NCDHHS CON chief Michaela Mitchell supporting a provider other than Mission Health to own the 67-bed acute care hospital. The state initially granted AdventHealth a CON to build the hospital. HCA has appealed the decision.

Newman sent the letter June 8, 2022, on behalf of the entire board. “After the not-for-profit health care system was sold to for-profit HCA in 2019, residents have been increasingly vocal of their desire for improved access and patient choice,” the letter read.

Commissioners can give their opinion in the appellate proceedings regarding the freestanding emergency departments through an amicus brief, according to the North Carolina rules of appellate procedure.

County leaders disagree over freestanding ERs

Opinions from members of the county government vary on freestanding emergency department ownership.

Newman told the Citizen Times July 27 that the commissioners have expressed concerns to HCA about the amount of time it takes patients to be accepted into the Emergency Department at Mission, and the consequences for the EMS system.

“We believe there is a significant need for improved staffing levels at Mission to address that concern,” Newman said.

Concerning the freestanding emergency departments, Newman added, “I would say at a high level, we support that there's a need for more capacity for those services in the community. But we've also had concerns about HCA’s monopolistic business pattern in terms of health care coverage in the region. We would like to see more capacity, but we would also like to see more diversity of providers in Buncombe County and Western North Carolina.”

He noted that the commission has not adopted a specific position regarding the freestanding emergency departments.

Commissioner Terri Wells called the wait times paramedics have been experiencing at the Mission ER “unacceptable.” Regarding the freestanding emergency departments, she added that she is “not convinced that they will improve customer care or response time. I would appreciate seeing Mission’s leadership address any staffing and flow issues expeditiously, as well as work with county leadership to explore paths to decrease the long wait times at the ER.”

More: Candler resident's lawsuit against Mission Hospital to continue after her death

Buncombe County Manager Avril Pinder sent a letter June 2021 in support of Mission’s CON application for the freestanding emergency departments to then-head of the NCDHHS CON, Lisa Pittman. Mission included this letter in its application for the Arden emergency department, according to Sutton’s ruling.

“I believe this is Mission Hospital’s intent in providing a new state-of-the-art (freestanding emergency department) in southern Buncombe County that will help serve the community, the businesses, and visitors in the area. I urge you to approve Mission Hospital’s CON for a new (freestanding emergency department),” the letter reads.

Pinder expressed her support for a freestanding ER irrespective of owner in a July 28 statement to the Citizen Times.

“Adding a freestanding emergency room, regardless of the provider, increases access, reduces traffic to one singular location, and adds a critical resource when our loved ones are in medical crisis,” she said.

Pinder Letter re CON by Mitchell Black on Scribd

Commissioner Amanda Edwards acknowledged that the county is in a “crisis situation,” regarding emergency services in a July 27 conversation with the Citizen Times. “I think as elected leaders, we have to be very cautious about weighing in on business decisions.” Edwards added that the county needs to find “common ground” with HCA so they can “collaborate and best support each other.”

Commissioner Jasmine Beach-Ferrara said July 27 that “we obviously have an urgent, critical need and evidence of systems that aren’t working effectively to serve the people of Buncombe County.” She then added that this needs to be a “priority item for discussion.”

Commissioners Al Whitesides, Martin Moore and Parker Sloan did not respond to repeated requests for comment.

The next meeting for the Buncombe County Board of Commissioners is 5 p.m. Aug. 1 at 200 College St., Room 326 in downtown Asheville.

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: Asheville Mission Hospital ER denied by judge; NC Health Dept. appeals