Kline, Health Midwest claim victory in appellate ruling

Whether Health Midwest will meet a March 31 deadline to sell its hospital system to HCA Inc. seemed little closer to resolution after a Kansas appellate court ruling Friday.

Health Midwest and Kansas Atty. Gen. Phill Kline’s office each interpreted the ruling as favoring its own viewpoint on how quickly the sale should proceed.

Appellate Judge G. Joseph Pierron said Health Midwest’s partial appeal of a Johnson County judge’s ruling, preventing it from merging Kansas assets with Missouri assets, should proceed without delay.

But contrary to Health Midwest’s hope, Pierron did not order Kline to disclose whether he plans to file his own appeal challenging the merits of the $1.13 billion deal. An appeal by Kline could prompt litigation that could delay and thus jeopardize closing the deal.

Health Midwest attorneys said their own appeal did not go to the merits of the sale and so did not affect the closing.

But they accused Kline of being purposefully vague. They sought in their appeal motions to force Kline’s hand, arguing that his delay in approving the sale was intended to derail it.

Kline denied that was his intent, adding that he only wanted to properly analyze the sale.

Kline said he was pleased “the court rejected Health Midwest’s claim that this office is trying to delay these proceedings and, by its order, expressly rejected Health Midwest’s requested schedule.”

Kline has until Thursday to file an appeal challenging the sale. He has argued that the purchase agreement did not go far enough to guarantee health care to indigent Kansans, a charge denied by HCA and Health Midwest.

Kline said he would “fight Health Midwest’s efforts” to overturn Johnson County District Judge Thomas Foster’s ruling that Health Midwest’s Kansas assets be used to provide 20 percent of the funding for a separate charitable foundation for Kansans.

Health Midwest earlier signed an agreement with Missouri Atty. Gen. Jay Nixon to convert all of Health Midwest’s assets into one $700 million foundation. That foundation would provide grants to both sides of the state line based on need.

Kline and Kansas politicians fought the concept of one foundation, arguing that it would give the state short shrift, but Kline has gone on to criticize other aspects of the sales agreement.

He has focused on a noncompete clause that he argues limits foundation grants from going to hospitals that compete with HCA and an indigent care provision that is not indexed to inflation.

Both Health Midwest and HCA say Kline is misinterpreting the intent of the sales agreement. For instance, they deny the noncompete clause prevents money going to other hospitals.

Although the appellate court ruling would allow court proceedings in Health Midwest’s appeal to go beyond March 31, Whitley said the issues at stake did not touch on the sale itself.

Whitley said Health Midwest was urging Kline to accept Foster’s finding after a four-day trial in Johnson County District Court that the merits of the Health Midwest sale to HCA were proper.

He said Kline should declare his intentions so the transaction can “close on schedule, even if he decides to appeal other aspects of the order dealing with control over the proceeds of the sale.”

A key concern is that if the sale does not close on March 31, HCA may walk away from the deal or exercise the right to renegotiate the deal at a lower price.