‘We had no authority’: Local advisory council for Ballad COPA won’t conduct annual public hearings anymore

Local

A large crowd attends the January 2020 annual Local Advisory Council public hearing regarding Ballad Health at Northeast State Community College in Blountville, Tenn. The LAC will no longer be involved in annual public hearings regarding Ballad.

Role shifts to Tennessee Department of Health only

JOHNSON CITY, Tenn. (WJHL) – A local board will no longer conduct the annual public hearing about Ballad Health’s performance — and board members say that’s fine with them since they lacked any authority to address the numerous complaints lodged at those hearings.

“We were receiving numerous concerns from constituents and citizens of Northeast Tennessee but really didn’t have an effective way to engage the (Tennessee) Department of Health other than just relaying the concern that we’ve got,” Local Advisory Council (LAC) member and State Representative David Hawk (R-Greeneville) told News Channel 11.

The Tennessee Department of Health (TDH) will now conduct the annual hearings without LAC involvement. Those hearings are part of the regulatory structure for the Certificate of Public Advantage (COPA) granted in 2018 that allowed for the creation of Ballad through a merger of Wellmont Health System and Mountain States Health Alliance.

Ballad CEO Alan Levine told News Channel 11 local people still have avenues to lodge complaints against Ballad, both through its COPA compliance officer and directly through TDH.

COPA Local Advisory Council members listen to a concern about Ballad Health during the January 2020 annual LAC public hearing.

“That complaint is investigated,” Levine said. “If it’s found to be valid we have to submit a plan of correction or we get penalized and … (a validated complaint) becomes public in the annual report. So there are significant avenues for the public to complain.”

Information about the COPA, which was required to allow the hospital inpatient monopoly the merger created, appears later in this story.

Some early moves by the new Ballad were highly unpopular and the annual hearings drew large, vocal crowds of speakers and multiple complaints in 2019 and 2020.

“You were being handed your foot in a basket and there wasn’t a thing you could do about it,” said Dennis Phillips, who chaired the LAC in 2020 and took plenty of heat at the January 2020 public hearing.

Council members and Ballad CEO Alan Levine say intentions for local input governed by a local board were good – hold Ballad accountable after the merger of two health systems left it with an inpatient monopoly — but the end result left no one happy.

“What we all witnessed with the local advisory council –everybody was frustrated with it because it wasn’t working as intended,” Levine said.

The LAC’s role is now reduced to meeting on an ad hoc basis to decide how any monetary penalties the state may levy against Ballad for violating the COPA will be spent to improve health in the region. No such penalties have been imposed in the three years since the COPA was granted.

TDH eliminated the LAC’s public hearing role in a “second amended and restated Terms of Certification” for the COPA that became effective April 27.

Hawk said members spent significant time conducting the hearing and preparing an annual report.

You were being handed your foot in a basket and there wasn’t a thing you could do about it.

COPA Local Advisory Council member Dennis Phillips

“I don’t know if it was envisioned that we were going to take a greater role in oversight, but we were never given the ability to have oversight,” Hawk said.

They sure were given an earful, though — with many complaints unrelated to the COPA, but some hitting on issues of cost and also the highly unpopular 2019 decisions to consolidate neonatal intensive care and Level I trauma services to Johnson City.

LAC member and former Kingsport Mayor Dennis Phillips

“Kingsport probably has in the people’s mind got the blunt end of the merger and things have all went to Johnson City mostly,” said Phillips, a former Kingsport mayor. “That’s really got some people upset and probably rightfully so.”

But those types of complaints — and any complaints, whether germane to the COPA or not — could be heard by the LAC but not acted on. Phillips said that was a source of great frustration for board members.

“When it was over the people that could actually do something, they went back home to Nashville and we were left here to go to the grocery stores and the pharmacies and the markets with the people that live here,” Phillips said. “We caught the blunt of it, we the LAC that really had no authority to do anything.”

About that COPA

The COPA, and a similar “Cooperative Agreement” in Virginia, were required to shield from antitrust action the MSHA/Wellmont merger that allowed for the creation of Ballad.

The merger gave Ballad an inpatient monopoly across a large area spanning two states and was fiercely opposed by the Federal Trade Commission (FTC). But state legislators in Tennessee and Virginia had crafted laws that allowed a non-competitive merger — one the FTC could have acted to prevent.

Those laws, based in the federal concept of “state action immunity,” said the merging parties must convince the state health departments and attorneys general that the benefits from a merger would outweigh the harms caused by reduced competition.

That advantage centered around four main areas and had to be shown in the application as well as proven annually under the “active supervision” required by the state health department. The main areas where advantage must be maintained are:

  • Population health
  • Improving access to health care services
  • Improving health care quality
  • Improving financial stability and performance

Both states approved the proposal after a process lasting well over a year. In Tennessee, the LAC and its original role became part of the massive, complex “Terms of Certification” (TOC) governing the merger.

Until recently, the TOC said the advisory council was to “facilitate input from residents of the (Ballad) Geographic Service Area.” The LAC was to include 8-10 members from “a range of organizations and backgrounds.”

Hosting the annual public hearing “in coordination with the Department” was designed to “allow a formal process for the public to comment on the New Health System’s Annual Report and the ongoing performance of the New Health System.”

In coordination with (TDH), host an annual public hearing to allow a formal process for the public to comment on (Ballad’s) Annual Report and the ongoing performance of (Ballad).

One of three original responsibilities of the Local Advisory Council (now removed)

During the 2020 hearing, one woman complained about her outpatient treatment costs increasing drastically following the merger. Numerous people complained about the changes in Kingsport.

A speaker from Greeneville criticized Ballad’s bad debt collection policies, and another questioned the “charge master” on which Ballad bases its rates for services. Several people relayed stories of care family members received that they were unhappy with.

A Greene County resident speaks about Ballad taking patients to court over unpaid medical bills during the 2020 LAC public hearing.

“There was a lot of horror stories told, and I’m afraid people went away with the idea that we (LAC members) didn’t care about the horror stories,” Phillips said. “We certainly did.”

In the end, the LAC reported Feb. 6. 2020 on the hearing and noted — for the second straight year — that “based on comments from the public hearing, the LAC’s role needs to be better communicated to the public.”

But the board also seemed open to an expansion of its role as a sounding board, if the public could be better educated on what the LAC could and couldn’t do.

The group formed a subcommittee in 2019 to study the public input question. It recommended expanding public input opportunities by allowing people to speak at LAC quarterly meetings with the TDH COPA monitor, Larry Fitzgerald — provided those comments were limited to COPA violations and other “focus areas adopted by the LAC or assigned by the TDH.”

The subcommittee also recommended adding a fifth focus area to the four main COPA advantage requirements — “improving communication with the public.”

But this year, Fitzgerald’s annual report (submitted March 24) recommended the reduction in the LAC’s role to the ad hoc call up if Ballad ever faces monetary penalties, which would go into a “Population Health Initiatives Fund.”

Phillips said members struggled to make the LAC relevant and of service to the half-million or so Northeast Tennesseans in Ballad’s service area.

“Some people would say it was a copout,” Phillips said of how LAC members fulfilled their duties.

“It wasn’t a copout. By our authority there was nothing we could do about it except be sympathetic and behind the scenes we made some phone calls to try to make sure that someone was paying attention to this.

“And to this day that still needs to be done.”

So what about accountability?

A constant refrain is that community residents do not feel that they are being listened to by Ballad Health. These comments are perceptions and not necessarily reality. The recommendation is for Ballad Health to look for more ways to actively listen. 

COPA Monitor Larry Fitzgerald’s Annual report to the Tennessee Department of Health dated March 24

The end of the LAC as we know it won’t change things much. But opinions of LAC members and Ballad’s CEO are mixed on whether the current method for lodging complaints against Ballad is sufficient.

Levine thinks it is.

Ballad Health CEO Alan Levine

“Healthcare systems are extremely complex and the regulation of health care systems needs to be done by people who have relevant experience and it’s in their wheelhouse to do it,” Levine said.

He said most of the complaints residents lodge aren’t related to the COPA and its 100-page plus terms. Some of the complaints that aren’t relevant to the COPA are legitimate, he said, but they’re more of the garden variety all hospital systems deal with.

“If you went and had a public hearing in any community in the United States and said, ‘we want you, we want to hear about your concerns about the hospital,’ I guarantee you, they’ll look just like what we had with the local advisory council.”

Levine said the law that created the COPA didn’t provide for a local body to be given any actual authority to deal with complaints. And he defended the level of accountability Ballad faces as more than sufficient.

“There is no health system in America that has more scrutiny than we do,” he said. “We have three monitors. Two states. Two health departments. Two attorneys general. And you watching everything we do.

“We don’t complain about that. We’re okay with the scrutiny, we want to be good. We want to be good at what we do. But we operate in a very complex space that I don’t know that you can expect everybody to understand, and you know what, they don’t need to — what they want to know is that if they have a health care need we’re going to meet that need.”

But Phillips and Hawk both said they see a need for some type of local vehicle for public comment beyond just the state COPA complaint process that can be found at the TDH website or Ballad’s process, which is not prominent on its website.

Hawk said citizens should feel welcome to share complaints about Ballad with their local legislators.

“I hope that now constituents are going to go directly to the legislators and say ‘hey, we have this concern,’ as opposed to going to the 10-12 members of the LAC,” Hawk said.

Those lawmakers “can in turn go directly to the department of health in Tennessee and say, ‘hey, we’ve got an issue here, we’ve got a problem I need you to look at,’” Hawk said.

As a legislator one concern he has is how many complaints are related to Ballad business decisions “as opposed to COPA related concerns.”

LAC member David Hawk.

Hawk said differentiating between the two is difficult.

“There’s some gray area there because some business decisions did affect the COPA. So that was frustrating.”

Hawk said he now takes every concern he gets that’s related to Ballad and shares it directly with his contacts at TDH.

So far, he says most of the concerns have been heard. He said a sizeable minority of complaints have been related to Ballad business decisions that are outside the scope of the COPA over which the state doesn’t have oversight. Many of those, he said, have not been given a positive outcome.

“Over the last 12 months have been met with a response. It’s not always a positive response but there has been a positive – has been a response from the Tennessee Department of Health.”

Phillips said the public’s temperature regarding Ballad and the merger has cooled off a bit, but he still thinks local citizens should make their voices heard.

“The COPA is run out of Nashville,” Phillips said. “The person that really needs to hear these is the commissioner.”

“If enough people put pressure on the commissioner’s office to make changes that’s where … she can make those changes.”

Even Fitzgerald, the COPA monitor contracted with TDH, raised the issue of communication in his annual report submitted in late March.

Fitzgerald referenced “consistently” hearing concerns about a need for clearer communications from a hospital system whose slogan is “It’s Your Story. We’re Listening.”

He wrote of one community member’s suggestion that Ballad use physicians and not administrators when communicating about clinical matters.

The complaints about Ballad’s communications are based on perceptions “and not necessarily reality,” Fitzgerald wrote.

Still, he recommended due to “a constant refrain … that community residents do not feel that they are being listened to by Ballad Health” that the system “look for more ways to actively listen.”

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