An attorney for HCA Healthcare, owner of Mission Hospital, sent a six-page letter to North Carolina Attorney General Josh Stein’s office this week, condemning his recent demand for 41 sets of documents related to hospital practices and procedures as “legally improper and unenforceable.”
The letter, obtained Friday afternoon by Asheville Watchdog, was written by Alice Fisher of Latham & Watkins LLP, the second highest grossing law firm in the world, and calls for Stein’s investigative demand, or ID, to be withdrawn.
“Mission has not breached the APA (asset purchase agreement),” the letter said, referring to the contract governing HCA’s 2019 purchase of then non-profit Mission Health for $1.5 billion. “Mission is now, and always has been, in full compliance with that contract and often exceeds its obligations under the APA.”
The letter characterized the demand by Stein, who is running for governor as a Democrat, as “an improper use of the investigative authority of the Attorney General, since it seeks information relating to compliance with a contract — specifically, the Asset Purchase Agreement (“APA”) governing the acquisition of Mission by HCA Healthcare (“HCA”) in 2019.”
Stein oversaw the sale and while he did not object to it, he did demand greater consumer protections than were included in the asset purchase agreement unanimously approved by Mission’s board of directors.
Stein’s conditions included the hiring of an independent monitor to oversee HCA’s compliance with the agreement and commitments to maintain current levels of service for 10 years. At the time, HCA and Mission agreed that the attorney general could enforce the terms of the contract.
The letter said, “Even if the Attorney General now believes that the APA has been breached, a potential breach of contract simply is not a valid basis for an investigation by the AGO (Attorney General’s Office) pursuant to North Carolina’s consumer protection statute.”
Nazneed Ahmed, the attorney general office’s spokesperson, said in a statement to The Watchdog, “Our office strongly disagrees with the assertions HCA has made in its letter, and we will be responding appropriately.”
The letter included a footnote that called into question Stein’s motives for his investigative demand.
“(I)t appears that the AGO is not actually attempting to ‘ascertain’ anything. Instead, the Attorney General has clearly already reached his own conclusion,” the footnote said. “Thus, the (investigative demand for documents) is a bald attempt to obtain pre-litigation discovery, masquerading as a consumer protection ‘investigation.’ Mission cannot countenance such an end-run around the North Carolina Rules of Civil Procedure.”
Fisher’s letter further criticized Stein for requesting information about emergency room services given his public opposition to an expansion of acute care beds at Mission. In 2022, the hospital tried to win a certificate of need from the state to add 67 acute care beds to its facilities, but Stein’s office penned a letter saying Mission shouldn’t get them, noting the lack of healthcare competition in Western North Carolina.
The Department of Health and Human Services awarded the certificate of need to AdventHealth. Mission is appealing the decision.
More beds, according to Fisher’s letter, would help reduce increased wait times in the hospital’s emergency department.
Mission was “deeply concerned” about the investigative demand’s release to the media, which it said will confuse people about “the scope and extent” of the hospital’s emergency and oncology services, according to the letter.
The letter notes that a representative from the attorney general’s office toured Mission’s SECU Cancer Center on Oct. 19.
“We believe that any objective observer participating in that tour would have walked away confident that Mission is providing unparalleled cancer care in western North Carolina and that world-class healthcare providers are choosing Mission as their home for providing excellent care to cancer patients,” the letter stated.
Mission spokesperson Nancy Lindell declined to comment, saying, “We won’t have anything beyond the letter.”
Stein told The Watchdog last month that he has been investigating Mission since the start of the year. At the time, he expressed frustration with HCA’s and Mission’s slow pace in providing requested information and said that his office could make a formal investigative demand.
He requested information from HCA and Mission between Jan. 31, 2019 – the closing date of the hospital’s sale – through the present day. Most of the 41 requested sets of documents he requested involved oncology-related information.
The remainder pertained to patients who came to Mission but did not receive care, emergency services, canceled surgical procedures, complaints about sterilization of surgical equipment and other issues.
Concerns from Stein’s office have grown this year, especially after the hospital’s cancer center closed its pharmacy and began to run thin on medical oncologists, which The Watchdog first reported in May. The last remaining medical oncologist will leave the hospital Nov. 26.
Stein’s office has sent six letters to HCA leadership and the independent monitor of the Mission sale this year, then took more formal legal action sending the investigative demand for documents Oct. 27, giving HCA until Nov. 9 to provide the requested information.
Days later, he notified Dogwood Health Trust — the entity in charge of keeping HCA in compliance with the asset purchase agreement — that HCA had violated some of the 15 commitments it made and threatened litigation against the company unless the violations were corrected by Dec. 10.
Fisher said these actions from the attorney general office were supportive of a “one-sided narrative advanced by some healthcare providers who simply are unhappy about HCA’s acquisition of Mission and others whose personal financial interests were impacted by that acquisition —even though those providers made plans to leave Mission more than a year before the acquisition.”
The letter does not identify those health care providers.
Recently 123 physicians signed a letter condemning Mission and HCA for changes that “have gutted the heart and soul of our community healthcare system.” Days later, more than 80 Mission physicians and healthcare workers signed a letter rebutting those assertions.
That rebuttal is noted in Fisher’s letter, which says “dozens of Mission healthcare providers wrote to the Independent Monitor to rebut the consistently false narrative promulgated by the ‘loud’ healthcare providers.”
It goes on to list some of the hospital’s recent successes and several recent hires Mission has made, including two head and neck surgeons, a breast medical oncologist and a surgical oncologist.
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. To show your support for this vital public service please visit avlwatchdog.org/donate.
If Mission is in compliance then they should have no problem providing the requested information. By hiring Latham & Watkins it appears they don’t want us to know the facts. As I have said over the years, “If you throw enough flack into the air your opponent cannot see the target”. Latham just threw the flack.
Creating chaos is the game. Confuses people. Chaos confusing understanding and decision making. Works for the worst politicians. Works for, as our state treasurer Dale Folwell called them, the HCA “mafia”.
Yep
“At the time, HCA and Mission agreed that the attorney general could enforce the terms of the contract.”
Sounds now like HCA wants to declare the purchase agreement null and void.
I challenge Mission’s CEO to present himself to the emergency department as a patient in disguise and then tell us how he feels about their service. Do it on a cold Friday night.
Wow. Condescending gaslighting by the HCA mafia’s hired guns, and claiming they are worried Stein releasing the grounds for his questioning and demand for documents might “confuse” the public. We’re not confused. Not one bit. It’s clear HCA maneuvered around the authority of the AG when they were given Mission by Paulus and his cronies on the Mission board and constructed their sale agreement to be circular in its terms and difficult to enforce within the boundaries of state law enforceable by the AG. Same old same old—blaming the inexcusable management on disgruntled and ill informed public and accusing alarmed members of the medical community as biased against them. I hope Stein finds allies in other members of the law enforcement community to cover every aspect of their reckless and dangerous management and that they will collectively put these dangerous people out of business in WNC. Find a way to force a sale to rescue what’s left of our hospital. And get rid of the CON in NC and let the competitors in to build a real hospital so we have some choice but to submit to this dangerous place, or go without urgent healthcare. These lawyer letters, dripping with condescension and gaslighting, are so deceptive and can sound so believable. That’s what HCA uses revenues sucked out of our community to fund—the biggest law firm anywhere—rather than on adequate patient care (which would have never made this move by the AG necessary), but on huge executive salaries—including the $30 million a year to the CEO in TN.
Those that have nothing to hide, hide nothing.
If only they had more beds… Please, they can’t even staff or clean the beds they have. If anything they should have less beds, as in zero. Josh Stein is in a real pickle. Nearly 5 years in and our gov’t has no clue what do about this albatross. What a mess.
Exactly! They have empty beds now they can’t fill due to staffing issues. How is giving them more beds or another ER going to help? Please don’t let them get more than they have now. It’s already a disaster.
In a nutshell: The APA doesn’t address quality of care, only “services.” Stein is suggesting that the services have become so minimal and dismal that they are in violation of APA in providing “services.” But Gibbins and Dogwood say they are in compliance. We are all concerned about quality of care but there isn’t a mechanism to enforce that, other than CMS and NCDHHS, who apparently can’t be bothered to properly investigate a dangerous hospital. That’s it. Doctors speaking up is great for their conscience maybe and to raise awareness, but at the end of the day, it will not change how HCA operates. As you can see, they only double down and gaslight. They will never admit they have serious systemic failures and a toxic medical culture within which creates terrible outcomes for patient care.
Bingo. Getting rid of the CON so a real hospital can build is about the only way. Flood legislators demanding we get rid of the CON.
Yes!!!!!!!!!!!!!!!
I believe that Gibbins affirmed compliance for 2022, not 2023
Please talk to the union nurses. When JACHO was in house this week suddenly there was plenty of beds and staff to care for patients. No ER hallway beds, patients with minimal waiting time.
It was miraculous how quickly patients were cared for!
good point. we would have to wait until spring of 2024 to know if they were in compliance for 2023 according to Gibbins and the Dogwood and Pony show. Apparently, in the “Asset and Purchase Agreement,” human lives were the real assets.
Was JACHO there for a routine visit or based on a complaint?
What did anyone expect? When you invite a behemoth like HCA into your home, they’ll turn into a squatter and never leave without it getting ugly. Profits over all else.
I will never go to HCA for healthcare.
HCA takes over in 2019. Nurses unionize in 2020. The first antitrust lawsuit was filed in August of 2021. Josh Stein starts writing letters in 2023. At this rate, the eldest among us will be dead by old age or at the hands of the horrible healthcare here before any real change happens. We need help now.
I think Alice Fisher needs to have letters sent to her office detailing the problems that we in the community have had with the care from Mission Hospital. I was shocked with how poor and unsanitary things were. Maybe a class action lawsuit will be next?
Surely some legal eagle can help with a strategy. For those of us who have been able to avoid HCA, (I risked my life by not calling an ambulance for a really frightening episode out of fear of HCA), there’s the harm of not having safe care and wondering if it’s worth risking the, at best, coin toss in the ED. All of us are being seriously harmed even if we’ve never entered the building.
HCA’s choice of lawyer for this tells you all you need to know in this wikipedia reference:
By 2005, Fisher was a partner at the law firm of Latham & Watkins in Washington, D.C.[19] Fisher specializes in “white collar criminal investigations, internal investigations and advising clients on a range of criminal matters”,[20] including: international criminal matters relating to alleged bribery under the Foreign Corrupt Practices Act (FCPA) and similar foreign laws; economic sanction and export control issues; and criminal matters such as healthcare fraud, accounting and securities fraud and procurement fraud.[20] Fisher previously served as global co-chair of the firm’s white-collar and government investigations practice group.[21][22]
Send complaints about care to:
Division of Health Service Regulation
Complaint Intake Unit
2711 Mail Service Center
Raleigh, NC 27699
I have sent a two-page letter of horrific care and hope to hear back soon.
As every piece has noted, there isn’t much that can be done about HCA. Their legal departments and hired firms are probably twice the size of NC’s whole Justice Dept. Making them lose money might make them go away. Only go to Mission if you’re unconscious or in imminent danger of dying. If you have an advance choice, don’t ever go there.
I have to disagree, please don’t go there if you’re unconscious or in imminent danger of dying and want to live, they will do nothing to save you. It’s better for “metrics” if you die in the ER before admission. Make an alternate plan before an emergency arises! If we only had the numbers of people who died in their ER of treatable conditions, that would certainly shed some light on the depravity of HCA.
Listening to the bashing of Mission, I hear a lot of complaining without substance. Bashing based on innuendo and hearsay does nothing to really evaluate the truth. Stein could well have a conflict of interest problem since he has opposed the sale from the start. I have been to Mission several times for various procedures and have had top of the line treatment every time. Clean rooms, attentive nurses and good doctors. That’s actual fact; not the backroom rumor mill you all echo.
I’m pleased for you, but these are on offs. The issues are systemic. For those of us in treatment daily, weekly, even monthly at many facilities, we can see the degradation. None of this is based on rumor. The AG would have sent his initial letter sooner, but he needed to obtain proper documentation and for folks to go on record with complaints. Please don’t mistake any action the AG takes as based on rumor, as that would be inaccurate.
Sorry, I just don’t believe this. I have a very personal, direct and painful experience of HCA Mission. I don’t choose to recount the details here. Every description and complaint about lack of cleanliness, care, staffing, and supplies were the conditions that resulted in the premature and painful death of my relative. It was the case in the post surgical unit, intensive care and on two different floors. Don’t go there.
Excellent work keeping the public informed on the part of Avl Watchdog. HCA cannot and will not staff their facilities properly, so not awarding them more beds is wise. I receive healthcare in several HCA facilities several times a week for the last 5 years. There is absolutely no denying the degradation in services. We cannot even get enough food to the cancer center to feed patients, much less families sometimes stuck there for the entire day. They shut the cafe down, so there are only vending machines now.
Our pharmacy is gone, and every single oncologist. That is just THIS year. In 2019, we had outpatient triage in the cancer center with a thriving oncology practice and all pods open in infusions. All the offices were full. There was coffee available on every floor, a full service cancer institute with RNs to offer massage, healing touch and aromatherapy to cancer patients. We never ran out of food. Now, if you develop blood cancer, you have to drive to Charlotte for treatment because HCA will not maintain safe staffing levels. The amount of gaslighting and lying is astounding. Josh Stein has done everything within the purvey of his office to advocate and protect the patients of WNC. However, we need stronger legislation to prevent these situations. For now, our best hope is that something can be done to improv health care here in WNC.
As the watchdog previously reported, 2 brave ER doctors (Lalor, Ramming) came forward as whistleblowers in June of 2022 and filed a lawsuit under the false claims act, which exposed the disastrous ER conditions and policies of greed. (HCA contracts with Teamhealth to staff and run the ER). This was way before the recent doctors letter of concern. Stein as well as the US attorneys office for the western district declined to join the lawsuit. Stein’s authority is limited but he had opportunities to do more much sooner. He’s been receiving complaints for years but only started writing letters when the cancer center blew up. The whole hospital has been imploding for years. He’s wearing to many hats and running for Governor at the same time. He’s out of his league and the letter from HCA’s lawyer illustrates that. Toxic positivity won’t fix this, hope won’t fix it either. What is Stein’s next move?
First indicator of obfuscation: having a denial response that is acres bigger than the question.
It’s one thing for the hospital spokesperson try to put out a positive spin on all the negative reporting, but
the denial and gaslighting coming out of HCA is beyond the pale. The latest quote from an NBC report is that “they have enhanced the cancer center.” OK.
To read the comments of past patients and current employees has been heartbreaking. To see that HCA’s response is to hire law firms to fight instead of just improving care is infuriating to say the least. This is truly one big F U from HCA to all of us who depend upon them for care. And let’s face it , at the end of the day, if it is an emergency, you will have no choice but to depend upon them for help. I have no doubt that the staff will do all they can for me, but I am still scared to death to be brought there. And I shouldn’t have to say that about a hospital, for God’s sake!!