The mandate for an independent monitor was the kind of announcement that many residents of Western North Carolina wanted to hear.
On Jan. 16, N.C. Attorney General Josh Stein announced that Tennessee-based HCA Healthcare had agreed to a checklist of legal requirements to protect the public as part of its plans to acquire Asheville-based Mission Health, the largest hospital operator in the area.
One of Stein’s requirements was to have an independent monitor look over the shoulder of Mission Health’s new for-profit owner to ensure that promises made were promises kept.
Across the region’s 18 counties, a skeptical public, fearful of any closing of facilities or service curtailments that might result from the $1.5 billion merger, breathed more easily.
Nine months after the merger took effect, the public still has no idea whether a monitor has been chosen, what the firm’s name is, when it will start work and – importantly – who’s been minding the store to keep HCA and Mission Health accountable in the interim.
In a June 11 email, Laura Brewer, communications director of the N.C. Department of Justice, said Dogwood Health Trust, the philanthropy created by the HCA-Mission merger to improve the health and well-being of the region’s people, and ANC, the health care entity winding down Mission Health’s financials, had agreed to hire a specific monitoring firm and had sent their recommendation to the DOJ.
“We are in the process of evaluating whether to consent, a process that we expect will take a few weeks,” Brewer said in her statement to Carolina Public Press.
Victoria Hicks, a spokesperson for the Health Equity Coalition, a citizens group that fought to have HCA commit publicly to certain service levels, told Carolina Public Press the group wants answers.
“We would want to know who the independent monitor will be and we are eager to begin to try to engage that person or that firm … about how the work will proceed.
“The things that the monitor is charged with monitoring are some of the very things that HEC was at great pains to advocate for in the sales agreement,” Hicks said.
“And so we have a keen interest in knowing that there is follow-through on those items and that the interests of the public are being protected.
“With every passing day, we probably grow a little bit more eager to have that name out on the table.”
Hicks and her colleagues at HEC aren’t the only ones in the dark about the independent monitor.
One applicant hoping to be chosen for the role told Carolina Public Press that the firm has heard nothing either way. Periodic check-ins with the DOJ by Carolina Public Press have yielded no substantive comment.
A moving target
Under for-profit HCA’s amended agreement to purchase nonprofit Mission Health, the Tennessee-based health care conglomerate made numerous “forward-looking promises” that are supposed to be overseen by an independent monitor.
Those promises include a 10-year commitment to provide specified services at local hospitals, an agreement not to close facilities or cease providing services unless the new monitor and a local advisory board agree, construction of a new inpatient behavioral health hospital in Asheville and a replacement facility for Angel Medical Center in Franklin, and a year of support for emergency medical services in Madison, Mitchell and Yancey counties.
The announced plan is for the monitoring firm, whose leader must have at least 12 years of experience in a senior management position in health care, to work with the advisory boards of each hospital, the management of HCA’s North Carolina division and Dogwood Health Trust. The monitor would initially report to ANC, then to Dogwood, the philanthropic foundation has said.
Hicks said charity care is very much on the minds of the health coalition’s members.
In an addendum to the sales agreement, she said, HCA spelled out terms under which it will extend medical care to those who can’t pay for it “and it was represented to be more generous than the policy that Mission had before the sale.”
“We hear on many fronts that there have been significant changes to the way in which people have to proceed if they want to access that charity care and the way that it is being administered,” Hicks said.
“We don’t know that HCA is out of compliance, but it seems that there is a huge amount of confusion about how individuals who need that help have to operate in order to get it.”
Separately, Mission Health has confirmed that it has been consolidating its outpatient rehabilitation clinics in Candler and on Biltmore Avenue in Asheville. Patients using those locations are being directed to one of six other outpatient rehab facilities.
So, who’s been minding Mission Health during these changes in services if an independent monitor has not?
“I don’t think I have any basis for speculation about that, but I have no doubt that it’s very much on the minds of both the AG’s office and certain people within Dogwood,” Hicks said, noting that she communicates with both offices periodically. “I have no cause for alarm at this point.”
HEC is hoping to see “a lot of transparency” when the independent monitor makes its first formal report to the Attorney General’s Office in 2020, she added.
Once in place, the monitor is expected to remain active for a decade.
Rules of engagement
Across the country in a variety of industries, independent monitors are paid by the company they oversee.
In a paper on the role of independent monitors for the National Association of Attorneys General, former Tennessee Attorney General Robert Cooper says the common practice of having companies pay the salary of the firm examining them does not compromise the firm’s independence.
The monitor is independent of both the company and the government, he writes, citing federal Department of Justice memos and American Bar Association standards.
“Even though the monitor is engaged and compensated by the company, the monitor owes the company no obligations or duties,” Cooper says.
But while a monitor has access to company information and employees “as reasonably necessary to fulfill the monitor’s obligations,” those access rights are usually specified in a legal filing, he adds.
Jesse Caplan, managing director at Boston-based Affiliated Monitors Inc., says one of the benefits of using an independent monitor is that it frees up limited public resources for other purposes.
“If a health care company or practitioner can operate in the future in a manner that meets the government’s objectives – compliance, transparency and high-quality care – that is good for the industry and the patients and clients they serve,” Caplan said on a podcast.
“We actually don’t have a great mechanism in North Carolina for reviewing these mergers,” Dr. Kevin Schulman, a professor of medicine at Stanford University, told North Carolina Health News in April.
“(The Attorney General’s office) is really the only agency at the state level that can examine these kinds of combinations, and they’re tremendously underresourced,” Schulman said, referring to a proposed merger of Atrium Health and Wake Forest Baptist Health announced after Mission’s merger.
As for HCA and Mission, Hicks has her fingers crossed.
“We are willing to just see how things go,” she said. “It’s a little frustrating to be in this sort of waiting game.”