Duke, Wake Med end CON dispute that had anti-competition accusations

Duke Health, Wake Med, and the North Carolina Department of Health and Human Services are all asking the state’s second-highest court to dismiss an appeal in a Wake County certificate-of-need dispute. The case prompted Wake Med last summer to accuse Duke of anti-competitive actions.

The two rival health care providers were battling for a CON that would allow them to add new equipment for radiation cancer treatment.

Now all parties in the case back a motion filed Tuesday to drop the case at the North Carolina Court of Appeals.

By Saturday, the parties “entered a settlement agreement that resolved all claims in this case to the mutual satisfaction of all parties,” according to the court filing.

All parties have agreed to pay their own court costs. They have asked for the court to dismiss the appeal “with prejudice.” That means it couldn’t be filed again.

Wake Med’s lawyers sent a much different message about the legal dispute in an August 2025 court filing.

“WakeMed has built a thriving cancer center with medical and surgical oncology services but cannot offer the full range of cancer treatment without a linear accelerator (LINAC) to provide radiation oncology,” WakeMed’s lawyers wrote. “Duke already has four LINACs and approval for a fifth that should already have been in operation, but for repeated delays by Duke.”

“Duke also directly benefits from WakeMed’s inability to offer radiation oncology in the form of a steady stream of WakeMed patient referrals and tens of millions in revenue annually,” the court filing continued. “Accordingly, Duke has repeatedly moved to block WakeMed from obtaining its own LINAC, first by opposing the opportunity for any provider to apply for a LINAC, then by reversing course and applying for the only available CON to acquire a sixth LINAC that it does not need, and again by appealing the Agency’s decision to approve WakeMed to obtain a LINAC.”

State regulators from NCDHHS chose WakeMed over Duke and UNC/Rex in September 2023 to get a CON for a new linear accelerator in Wake County. “The Agency both concluded that Duke’s application was not approvable as submitted and that WakeMed’s application was the most comparatively favorable proposal and therefore awarded the CON to WakeMed,” WakeMed’s lawyers wrote.

Both Duke and UNC/Rex initially challenged the decision. UNC/Rex later dropped its case.

An administrative law judge reversed state regulators’ ruling in February 2025. The judge threw out WakeMed’s new CON but did not award a CON to Duke.

WakeMed challenged the ALJ’s decision. “The Final Decision in this case plays into Duke’s consistent efforts to block competition and prevent WakeMed from developing the full range of cancer care by making multiple errors of law to reverse the Agency’s decision,” according to the WakeMed court filing.

The court filing pointed to negative impacts for patients.

“Patients’ difficulty accessing cancer care is what led WakeMed to develop its own cancer program,” WakeMed’s lawyers wrote. “Without a LINAC, WakeMed must refer (send) its patients to either Duke or UNC/Rex for radiation therapy.”

“However, referring radiation therapy patients to other providers is inadequate — dividing cancer care between multiple health systems (called fragmentation of care) hinders communication and leads to delays in care, higher cost, poor outcomes and poor patient and family experience, as WakeMed has encountered,” the court filing argued. “WakeMed’s patients wait more than three times longer than the average patient in the service area to begin radiation therapy. Also, WakeMed cancer patients who need radiation could avoid significant barriers posed by having to travel to another system for treatment if WakeMed had a LINAC.”

Duke and UNC/Rex operated nine LINACs in the affected service area in 2023, according to the WakeMed court filing. Both competitor health systems already had state permission to add one new LINAC apiece. Duke won approval for a new LINAC in 2021 but did not expect it to be in service until 2029. UNC/Rex had approval for a new LINAC since 2016 but “had made no apparent progress” in adding the machine by late 2023.

Since the machine is considered a “new institutional health service” under N.C. Gen. Stat. § 131E-176(16), WakeMed cannot add its own LINAC without a CON.

Duke’s lawyers filed a competing brief emphasizing DHHS regulators’ mistakes in judging Duke’s CON application.

“Ultimately the ALJ determined that the application submitted by Duke was conforming to all applicable statutory and regulatory review criteria as well as the applicable performance standards,” Duke’s lawyers wrote. “The ALJ’s decision determined that the Agency’s review of the application submitted by Duke was in error and that the erroneous review substantially prejudiced Duke’s rights. The ALJ then reversed the Agency’s decision to award WakeMed a CON.”

Duke’s lawyers sought a court decision that would award the CON to Duke.

“To be clear, Duke does not appeal the ALJ’s well-reasoned findings and conclusions of law determining that the Agency erred in this review and that error substantially prejudiced Duke’s rights,” according to the court filing. “However, despite substantial evidence in the record that the CON would have been issued to Duke but for the error by the Agency regarding Duke’s conformity, the ALJ erred by failing to order that a CON be issued to Duke following the reversal of the Agency’s decision to issue the CON to WakeMed.”

“Duke, Wake Med end CON dispute that had anti-competition accusations” was originally published on www.carolinajournal.com.