Health Midwest ruling splits AGs in Kansas, Missouri

Dispute involves division of assets from not-for-profit's proposed sale

? Even as they said they would work together to answer lingering questions about how to divide assets from the sale of Health Midwest, attorneys general in Kansas and Missouri indicated the process faces several more obstacles.

Tuesday, Johnson County District Judge Thomas E. Foster ruled that 20 percent of the net assets from the sale of the nonprofit Health Midwest to the for-profit HCA Inc. should remain in Kansas.

But Kansas Atty. Gen. Phill Kline and Missouri Atty. Gen. Jay Nixon offered different interpretations Wednesday of how the ruling affected Health Midwest’s agreement with Nixon to create a single charitable foundation in Missouri to distribute the sale’s net assets.

The sale is expected to generate between $700 million and $800 million. Because Health Midwest is a nonprofit organization, laws in both states require it to repay the states if it is sold to a for-profit institution.

While acknowledging “there is some vagueness” in the ruling, Kline said he believed Foster would not accept the one foundation based in Missouri.

“Kansans have a right to control Kansas assets for Kansas charitable purposes,” Kline said. “A week ago, Kansas had nothing. Now, Kansas has 20 percent of the assets.”

But Nixon said nothing in the ruling changes the agreement his office reached with Health Midwest.

“This is an interesting case because the assets are in both states,” he said. “While we have attempted to appreciate that fact, this is a Missouri not-for-profit, and we will try to complete this matter in accordance with the memorandum of understanding we reached with the (Health Midwest) board.”

Health Midwest issued a statement saying it would work to reconcile Foster’s ruling with its agreement with Nixon.

“Within the framework of (Foster’s) decision and our agreement in Missouri, we are confident that we can resolve any issues related to proceeds that may remain,” spokesman Chris Whitley said.

Although he was pleased with parts of Foster’s ruling, Kline said he was researching the possibility of appealing it, based on three points of law: the service areas it outlines for two of Health Midwest’s hospitals in Kansas; a state law that Kline says gives him the right to intervene when a nonprofit charity is unable to fulfill its charitable purpose; and a noncompete clause in the sale agreement.

Kline would have until March 17 to file such an appeal.

Nixon said Foster’s ruling that 20 percent of the assets should remain in Kansas may cause some practical problems in getting the issue concluded.

“But we’re just trying to keep our eye on the prize here, which is to get an infusion of capital into the market, and get a commitment from a foundation for the unmet health care needs there,” Nixon said.

He and Kline vowed to work together to solve the issues.

“While clearly there are some potentially complicated matters before we reach the finish line, I expect the level of cooperation to remain high,” Nixon said. “There is still some work to do.”