State AG has been investigating Mission Hospital, but some question if it’s enough

By Andrew R. Jones, avlwatchdog.org

North Carolina Attorney General Josh Stein has investigated Mission Health since the start of the year, focusing on cancer care and whether the hospital system is honoring the purchase agreement his office approved in 2019 before HCA Healthcare bought the hospital system for $1.5 billion.

Stein, a Democratic candidate for governor, said in a recent phone interview with Asheville Watchdog that his office hears from Western North Carolina residents “on a variety of issues” and concerns related to Nashville-based HCA and Mission.

Those include a recent decision by a regional cancer care provider to pull back on some treatment at Mission facilities because of “system failures” that it said could potentially harm patients and the exit of all but one of the hospital’s medical oncologists. That doctor will leave at the end of November, The Watchdog reported Oct. 6.

“Based on those concerns, we’re looking into the practices of HCA and we want to make sure that they do live up to their commitments,” Stein said. “The fact that there are people in Western North Carolina who used to be able to get their cancer care done at Mission but no longer can is deeply troubling.”

Mission believes there are “broad and significant challenges that area oncology providers face in order to care for patients in Western North Carolina,” hospital spokesperson Nancy Lindell said via email. “Ignoring those challenges and attempting to vilify Mission Health is unproductive. We are meeting our commitment to provide oncology care to the community while working diligently to add additional oncologists to our team.”

Stein’s office has sent four letters to HCA this year and two to Gibbins Advisors, a Nashville-based firm hired by Dogwood Health Trust to monitor the purchase agreement. All were signed by Assistant Attorney General Llogan Walters of the North Carolina Department of Justice’s Consumer Protection Division or South Moore, Stein’s assistant general counsel.

But some question whether the letters, written after the attorney general announced his candidacy for governor, are merely a slap on the wrist.

Janet Thew of Flat Rock is frustrated by the lack of additional action.

“Stein’s February and June letters asked for lots of documentation and justification for loss of cancer services, but didn’t specify consequences for failure to comply,” Thew told The Watchdog in an email. “When will the AG take legal action to force HCA to fulfill its obligations to our communities? We have avoided Mission, choosing healthcare in Hendersonville, but I feel [the] takeover by HCA negatively affects healthcare for the region. Patients have to look elsewhere for care, thus burdening other providers. The AG must play hardball ASAP.”

Christine Aiken, a patient advocate who recently underwent cancer treatment, said she communicates with a local representative of Stein’s office regularly, sometimes three times a month if severe issues arise.

Aiken wrote four or five complaint letters this year to Stein’s office, she said. Those have resulted in minor improvements such as improved lighting and repairs to dilapidated floors and chairs on the third floor of Mission Cancer Center.

Aiken believes more needs to be done.

“We need more action,” she said. “HCA has basically thrown their hands up, and it’s hard now to even get any kind of a comment on my side from anybody at the corporate level.

When questioned whether the letters amount to a slap on the wrist for Mission and HCA, Stein said they are part of a “process by which we determine what is the status (of care) and does that status end up violating the agreement.”

Stein said his office takes people’s concerns very seriously, adding “That’s exactly why we’re investigating.”

Stein, the Democratic favorite for the 2024 governor’s race, was endorsed by outgoing Gov. Roy Cooper in early September. Stein campaigned Wednesday in Asheville, speaking to a packed house at Urban Orchard Cider. He briefly mentioned his investigation to the crowd.

Asked recently by The Watchdog how Stein would respond to those who say his letters are politically motivated, Stein spokesperson Nazneen Ahmed said only, “Protecting people’s health care is ongoing, long-term work that Attorney General Stein has made a priority at the Department of Justice and will continue to focus on.”

Health care is a winning policy area for Democrats more than for Republicans, Western Carolina University political scientist Chris Cooper said, noting action from an elected official’s office during a campaign season is not unprecedented.

“When people run for higher office, they run on their track record,” Cooper said, discussing Stein’s campaign, the letters to HCA leadership, and whether political motivation might be driving his investigation.

As long as he’s not using his office or the resources of the office to formally campaign, then he can do this,” Cooper said. “And in some ways, this is what members of Congress do every day, right? They send letters. They make statements that may or may not be connected to legislation that they’re proposing, but they’re saying to the voters, ‘Look at me, I care about you.’”

The six letters

From February to September, Stein’s office sent the following correspondence to Lowe and Gibbins:

• A Feb. 20 letter to Lowe demanding answers and an explanation after Mission announced it would close the only pharmacy in its cancer center by March 4. Lowe responded in a March 6 letter, confirming the closure but noting Mission now offered “enhanced retail pharmacy services.”
• A May 11 letter to Lowe, which cited HCA’s sharp reduction in cancer services and expressed disbelief that the staff consisted of just one medical oncologist compared with the 14 at the time of the sale.

“This is an exceptionally high number of vacant positions, and it represents either a breach of the Purchase Agreement or a serious risk of a breach,” the letter stated. The letter also addressed alleged delays in new chemotherapy services and basic maintenance problems.  Lowe responded in a May 22 letter that described the “headwinds” that Mission faced in recruiting and retaining oncologists.

• A June 20 letter to Lowe pushing back on his response. “To ensure compliance with the Purchase Agreement and avoid potential litigation, it is imperative that Mission Hospital restaff the medical oncology department immediately,” the letter stated.
• Another June 20 letter, this one to Gibbins, which stated Stein had “serious concerns about how closely Gibbins Advisors is monitoring HCA.” The letter detailed a number of concerns, including that as of June 16, Gibbins had not published a 2022 report on HCA’s compliance with the Purchase Agreement on its website. The letter criticized Gibbins’ periodic site visits to Mission, questioning the monitor’s practice of alerting the hospital beforehand of those visits.

Gibbins co-founder and managing director Ronald Winters responded in a July 12 letter, saying “[We] were surprised and disappointed to receive your letter citing concerns, none of which had been expressed to us before receiving your letter. We have interacted with your office regularly, including two separate calls / meetings in May this year, and received no prior indication of concerns about our work.”

Gibbins would update its website, schedule meetings with the AG’s office and post them on its website and “[develop] other formats of public awareness in collaboration with Dogwood,” Winters wrote. Gibbins on Sept. 21 announced public meetings in six Western North Carolina counties served by Mission Health hospitals, including an Oct. 19 meeting in Buncombe.

Winters told The Watchdog on Wednesday that the omission of the 2022 Dogwood report to Gibbins’ website was an oversight that likely would have been corrected even if the attorney general’s letter had not mentioned it. The letter also prompted Gibbins to post a summary of an Aug. 31 meeting with the AG.

The attorney general’s June 20 letter played a role in Gibbins’ decision to host its upcoming community meetings, Winters said, adding that Gibbins is developing procedures “in coordination with Dogwood under which we intend to review and investigate relevant matters and request facility visits of HCA.”

• A July 25 letter to Gibbins, commending it for scheduling the public meetings. “We were also glad to see additions to your website,” Walters said, referring to the 2022 compliance report, and adding that the attorney general wanted to “explore the possibility of unscheduled site visits to HCA facilities. While we understand some of the practical limitations, we remain eager to explore the possibility of unscheduled site visits to HCA facilities and appreciate your willingness to engage with our office on that topic in upcoming meetings.”
• A Sept. 29 letter to Lowe asking what Mission knew about Messino Cancer Center’s decision to stop providing acute chemotherapy treatments for some patients because of what Messino said were systemic issues at the hospital.

The letter was the first this year to include a statement from Stein, which read:

“People in western North Carolina are worried and scared and frustrated because they can’t get the care they need at Mission. HCA agreed to provide cancer care in western North Carolina, and I will not stand by and let them fail cancer patients.”

The letter requested a number of pieces of information to be provided at “your earliest convenience,” including what the hospital planned to do in response and how many patients had been affected. It also addressed GenesisCare’s recent bankruptcy that led to the firing of local cancer surgeons.

Messino has practice privileges at Mission, and its work there is separate from Mission Health SECU Cancer Center. When asked earlier this year about Mission’s exodus of medical oncologists, Lindell, the Mission spokesperson, pointed to GenesisCare and Messino as partners in local cancer care.

15 commitments at time of sale

HCA Healthcare made 15 commitments in the purchase agreement, including promises to “keep material facilities open for at least 10 years” and “continue specified services for at least 10 years.” This includes oncology, specifically inpatient and outpatient cancer services, radiation therapy, surgery, chemotherapy, and infusion services, according to a list attached to the purchase agreement.

If HCA breaches the purchase agreement, Gibbins is supposed to inform Dogwood Health Trust, which holds responsibility for enforcing HCA’s compliance.

North Carolina law gives the attorney general’s office broad powers to investigate corporations or people doing business in the state and allows the office to pursue criminal or civil action if it finds alleged violations.

Stein told The Watchdog he has authority to address certain issues involving HCA and Mission, such as billing practices and transparency of charity care policies but he is powerless to deal with issues such as emergency department wait times or the cleanliness of rooms, Stein said, adding that is the responsibility of the North Carolina Department of Health and Human Services.

In early October, Stein’s office still awaited HCA to respond to its June 20 request for data on how long patients who are referred for cancer treatment must wait to get appointments and the number of appointments that have been canceled. On Oct. 3, The Watchdog asked Mission if it had sent this data to the attorney general’s office.

“We continue to be in direct communication with the Attorney General’s office regarding their letter to Mission,” Lindell said.

The next day Lowe sent a letter to Stein that showed Mission had already canceled 45 medical oncology appointments between January and June this year, compared with 60 for all of 2022, 51 for 2021, and 45 for 2020. The letter did not contain data on wait times for patients referred to Mission’s cancer treatment program.

“[M]uch of the data you requested in your June 20, 2023 letter is not information that Mission keeps in the ordinary course of its business,” Lowe wrote.

Stein told The Watchdog that his office still lacked information and data it had requested from HCA and Mission. He said he didn’t have a timeframe for the completion of his investigation.

“We are at times frustrated with HCA’s responses and believe they should be more forthcoming and quicker in getting us what we need to do our investigation,” Stein said.

HCA told the Stein’s office that it had “asked for a lot of information and their systems don’t always keep the information in the ways that we request it,” said Moore, the attorney general’s counsel. “They said that they are working to get us the information as quickly as they reasonably can.”

When asked why his office did not provide a specific deadline for its latest request, Stein said, “If they do not give us the information that we need quickly, we will certainly dial up our aggressiveness. ‘Earliest convenience’ means now.”

Stein said if his office didn’t believe Mission was justified in withholding data, “then we can make it a formal investigative demand, which is enforceable in court. Our hope is we don’t have to go there, and that they give us the information we need to determine what the situation actually is.”

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 go to avlwatchdog.org/donate.