Public hearings can play an important role in our political process.
But the public needs to know about a hearing in order to make a difference. It’s not just a matter of government agencies publicizing the time and location. Unless people possess some knowledge of the hearing’s potential impact, the process can devolve into little more than a formality.
A case in North Carolina’s courts demonstrates this point.
It’s called Fletcher Hospital v. NC Department of Health and Human Services. It involves a dispute over a proposed free-standing emergency department in Candler, an unincorporated community in Buncombe County.
Mission Health secured last year a state government permission slip called a certificate of need to open the emergency department. But competitor AdventHealth Hendersonville challenged state regulators’ CON decision.
AdventHealth took its case to an administrative law judge, who reversed the regulators’ decision. According to a brief Mission filed Oct. 9 with the state Court of Appeals, the reversal stemmed “entirely” from regulators’ decision not to hold a public hearing required by law. The judge ruled that the absence of a hearing “substantially prejudiced” AdventHealth’s rights.
NC Gen. Stat. § 131E-185(a1)(2) calls on DHHS to “ensure that a public hearing is conducted at a place within the appropriate service area” in a CON case if an affected party requests a hearing or if the CON involves a project of at least $5 million. Mission’s new emergency department fit the second category. It’s expected to cost $14.7 million.
Mission’s brief reminded appellate judges that the Candler case could have a larger impact.
“It is undisputed that during the period from February of 2020 through September of 2022, the Agency did not hold public hearings with respect to any CON applications because of the COVID pandemic and out of concern for public safety,” Mission’s lawyers wrote. “During that time period, the Agency conducted eighty-six (86) CON application reviews which, pursuant to the provisions of N.C. Gen. Stat. § 131E-185(a)(2), would have required a public hearing.”
The 86 affected cases involved 152 CON applicants. Affected projects “ranged from new hospitals to the acquisition of major medical equipment such as fixed cath labs, MRIs, PET Scanners, linear accelerators, new diagnostic centers, new facilities such as hospices and home health agencies, new hospitals, and a wide range of other services and facilities.”
Affected health care providers included “UNC Hospitals (with multiple projects approved including a new hospital in Durham County and new diagnostic centers); Duke University Health System; Novant Health; Cone Health; Wake Forest Baptist Hospital; Atrium Health; and others.”
Fans of transparent, open government should welcome a court ruling that promotes public input.
Yet UNC Health took a different approach. In a court filing linked to the Candler case, the university-based health care provider discounted the value of open CON hearings.
“As a frequent participant in the Certificate of Need process, UNC understands that although public hearings are part of the CON process, they rarely result in public interest or feedback on an application, and typically just offer health care providers a chance to tout their own application and/or critique their competitors,” lawyers for UNC Health wrote.
UNC noted its “strong interest in ensuring that a technicality like the one relied upon by the Administrative Law Judge in rendering the decision below, as well as other petitioners dissatisfied with an Agency decision, does not impede the expansion of healthcare services that would benefit North Carolinians.”
Yes, the brief labeled public hearings a “technicality.” Lawyers for UNC Health essentially described them as showcases for haggling lawyers.
Disturbing as that assessment might be, it’s hard to argue that a public hearing would have made a difference in the Candler case. It’s unlikely that public hearings would have influenced many of the other 85 CON application reviews that took place during the period when DHHS shut public input down.
People know little about CON. Just 29% of likely Republican primary voters in North Carolina told pollsters this month that they were familiar with the CON process. Some 55% said they were unsure whether CON regulation had helped or hindered access to health care services in their communities.
Those supporting CON reform outnumbered those who preferred the current system by a 4-to-1 margin. But reform supporters made up just 36% of those polled, with 9% backing the status quo and 55% saying they were unsure.
State courts will decide in the months ahead whether the absence of a public hearing renders a CON decision invalid. But it will take a lot more public knowledge about CON and its impacts before hearings can be transformed into more than just a “technicality.”
Mitch Kokai is senior political analyst for the John Locke Foundation.