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8-K - FORM 8-K - VANGUARD HEALTH SYSTEMS INC | g21795e8vk.htm |
EX-99.3 - EX-99.3 - VANGUARD HEALTH SYSTEMS INC | g21795exv99w3.htm |
EX-99.2 - EX-99.2 - VANGUARD HEALTH SYSTEMS INC | g21795exv99w2.htm |
EXHIBIT 99.1
Our
Competitive Strengths
We believe the significant factors that will enable us to
successfully implement our mission and business strategies
include the following:
| Strong positions in attractive markets. We believe that our markets are attractive because of their favorable demographics, competitive landscape and opportunities for expansion. Ten of our 15 hospitals are located in markets with long-term population growth rates in excess of the national average and all of our acute care hospitals are located in markets in which the median household income is above the national average. | |
| Targeted capital investments resulting in well capitalized assets. We have invested $917.7 million of capital expenditures in our facilities over the five year period ended June 30, 2009 to enhance the quality and range of services provided at our facilities. We have expanded the footprint of several facilities and invested strategic capital in medical equipment and technology. We believe as a result of our significant capital investments in our acute care hospitals, we are well positioned to attract leading physicians and other highly skilled healthcare professionals in our communities. This enables us to continue providing a broad range of high quality healthcare services in the communities we serve. | |
| Our ability to achieve organic growth and strong cash flows. Most of our growth during the past five years has been achieved by improving revenues and managing costs in existing markets. We have also generated strong cash flows during the past five years in the face of multiple industry challenges. We generated Adjusted EBITDA of $245.0 million, $266.4 million and $302.4 million during our fiscal years ended June 30, 2007, 2008, and 2009, respectively, which represents an average annual growth rate of 11.1%. Furthermore, we generated cash provided by operating activities of $125.6 million, $176.3 million and $313.1 million over the same three year period, respectively. We believe our well-positioned assets, broad range of services and quality patient care will enable us to continue generating strong operating performance and cash flows. We include a reconciliation of Adjusted EBITDA, a non-GAAP measure, to net income (loss) attributable to Vanguard Health Systems, Inc. stockholders in the table below. |
Year Ended June 30, | |||||||||||||
2007 | 2008 | 2009 | |||||||||||
(Dollars in millions) | |||||||||||||
Net income (loss) attributable to Vanguard Health Systems, Inc.
stockholders
|
$ | (132.7 | ) | $ | (0.7 | ) | $ | 28.6 | |||||
Interest, net
|
123.8 | 122.1 | 111.6 | ||||||||||
Income tax expense (benefit)
|
(11.6 | ) | 1.7 | 16.0 | |||||||||
Depreciation and amortization
|
118.6 | 131.0 | 130.6 | ||||||||||
Non-controlling interests
|
2.6 | 3.0 | 3.2 | ||||||||||
Equity method income
|
(0.9 | ) | (0.7 | ) | (0.8 | ) | |||||||
Stock compensation
|
1.2 | 2.5 | 4.4 | ||||||||||
Loss (gain) on disposal of assets
|
(4.1 | ) | 0.9 | (2.3 | ) | ||||||||
Realized holding losses on investments
|
| | 0.6 | ||||||||||
Monitoring fees and expenses
|
5.2 | 6.3 | 5.2 | ||||||||||
Impairment loss
|
123.8 | | 6.2 | ||||||||||
Loss (income) from discontinued operations, net of taxes
|
19.1 | 0.3 | (0.9 | ) | |||||||||
Adjusted EBITDA (1)
|
$ | 245.0 | $ | 266.4 | $ | 302.4 | |||||||
(1) | We define Adjusted EBITDA as income (loss) before interest expense (net of interest income), income taxes, depreciation and amortization, non-controlling interests, equity method income, stock compensation, gain or loss on disposal of assets, monitoring fees and expenses, realized holding losses on investments, impairment losses, debt extinguishment costs and discontinued operations, net of taxes. Monitoring fees and expenses represent fees and reimbursed expenses paid to affiliates of The Blackstone Group and Metalmark Subadvisor LLC for advisory and oversight services. Adjusted EBITDA is not intended as a substitute for net income (loss) attributable to Vanguard Health Systems, Inc. stockholders, operating cash flows or other cash flow statement data determined in accordance with GAAP. Adjusted EBITDA, as presented by us, may not be comparable to similarly titled measures of other companies due to varying methods of calculation. We believe that Adjusted EBITDA provides useful information about our financial performance to investors, lenders, financial analysts and rating agencies since these groups have historically used EBITDA-related measures in the healthcare industry, along with other measures, to estimate the value of a company, to make informed investment decisions, to evaluate a companys operating performance compared to that of other companies in the healthcare industry and to evaluate a companys leverage capacity and its ability to meet its debt service requirements. Adjusted EBITDA eliminates the uneven effect of non-cash depreciation of tangible assets and amortization of intangible assets, much of which results from acquisitions accounted for under the purchase method of accounting. Adjusted EBITDA also eliminates the effects of changes in interest rates which management believes relate to general trends in global capital markets, but are not necessarily indicative of a companys operating performance. Adjusted EBITDA is also used by us to measure individual performance for incentive compensation purposes and as an analytical indicator for purposes of allocating resources to our operating businesses and assessing their performance, both internally and relative to our peers, as well as to evaluate the performance of our operating management teams. |
| Well-positioned to grow the company through acquisition and partnering opportunities. Since our first acquisition in 1998, we have acquired 18 hospitals in eight separate transactions with a combination of both not-for-profit and for-profit entities. We have remained disciplined in completing only those acquisitions that fit our operating strategies. We have built a corporate infrastructure and developed the fundamental strategies to position ourselves as an attractive partner for other hospital operators. | |
| Proven management team with a vision for the future. Our senior management team has an average of more than 20 years of experience in the healthcare industry with a proven record of achieving strong operating results. Our management team has a clear and well-defined strategy to position the company for long-term growth in a period of significant change in the industry. |
Recent Developments
The following table sets forth certain of Vanguards
unaudited preliminary financial information and operating data
for the quarter and six-month period ended December 31,
2009 (1):
Quarter Ended |
Six Months Ended |
|||||||
December 31, |
December 31, |
|||||||
2009 | 2009 | |||||||
(Dollars in millions) | ||||||||
Preliminary Financial Information:
|
||||||||
Preliminary total revenues
|
$ | 843.6 | $ | 1,667.0 | ||||
Preliminary Adjusted EBITDA(2)
|
$ | 83.8 | $ | 152.5 | ||||
Preliminary net loss attributable to Vanguard Health Systems,
Inc. stockholders
|
$ | (20.5 | ) | $ | (19.0 | ) | ||
Preliminary cash flows from operations
|
$ | 148.7 | ||||||
Preliminary interest, net
|
$ | 27.5 | $ | 54.7 | ||||
Preliminary capital expenditures
|
$ | 34.6 | $ | 68.4 | ||||
Preliminary cash and cash equivalents
|
$ | 358.0 | ||||||
Preliminary restricted cash
|
$ | 21.9 | ||||||
Preliminary total debt
|
$ | 1,553.5 | ||||||
Preliminary senior debt
|
$ | 762.5 | ||||||
Preliminary Operating Data:
|
||||||||
Preliminary discharges
|
42,037 | 83,920 | ||||||
Preliminary adjusted discharges
|
72,990 | 147,213 | ||||||
Preliminary adjusted dischargeshospitals
|
69,022 | 139,126 | ||||||
Preliminary emergency room visits
|
155,818 | 310,727 | ||||||
Preliminary patient days
|
176,233 | 348,199 | ||||||
Preliminary inpatient surgeries
|
9,380 | 18,888 | ||||||
Preliminary outpatient surgeries
|
19,143 | 38,460 | ||||||
Preliminary member lives
|
239,800 | 239,800 |
(1) | Vanguards financial statements for the second quarter of fiscal 2010 are not finalized until they are filed in its Quarterly Report on Form 10-Q for the second quarter of fiscal 2010. Vanguard is required to consider all available information through the finalization of its financial statements and the possible impact of such information on its financial condition and results of operations for the reporting period, including the impact of such information on the complex and subjective judgments and estimates Vanguard made in preparing certain of the preliminary information. Subsequent information or events may lead to material differences between the preliminary financial information and operating data described herein and the financial information and operating data that will be described in Vanguards subsequent earnings release (to be filed with the Securities and Exchange Commission on a Form 8-K in February 2010) and between such subsequent earnings release and the financial information and operating data described in Vanguards Quarterly Report on Form 10-Q for the quarterly period ended December 31, 2009. Those differences may be adverse. Investors should consider this possibility in reviewing this information. |
(2) | Adjusted EBITDA is defined as income (loss) before interest expense (net of interest income), income taxes, depreciation and amortization, non-controlling interests, equity method income, stock compensation, gain or loss on disposal of assets, monitoring fees and expenses, realized holding losses on investments, impairment losses, debt extinguishment costs and discontinued operations, net of taxes. Adjusted EBITDA is not intended as a substitute for net income (loss) attributable to Vanguard Health Systems, Inc. stockholders, operating cash flows or other cash flow statement data determined in accordance with accounting principles generally accepted in the United States (GAAP). Due to varying methods of calculation, Adjusted EBITDA as presented may not be comparable to similarly titled measures of other companies. The following table provides a reconciliation of Adjusted EBITDA to net loss attributable to Vanguard Health Systems, Inc. stockholders for the respective periods. |
Quarter Ended |
Six Months Ended |
|||||||
December 31, |
December 31, |
|||||||
2009 | 2009 | |||||||
(Dollars in millions) | ||||||||
Preliminary:
|
||||||||
Net loss attributable to Vanguard Health Systems, Inc.
stockholders
|
$ | (20.5 | ) | $ | (19.0 | ) | ||
Interest, net
|
27.5 | 54.7 | ||||||
Income tax benefit
|
(3.7 | ) | (1.8 | ) | ||||
Depreciation and amortization
|
34.3 | 68.3 | ||||||
Non-controlling interests
|
0.8 | 1.7 | ||||||
Equity method income
|
(0.3 | ) | (0.5 | ) | ||||
Stock compensation
|
1.0 | 2.9 | ||||||
Loss on disposal of assets
|
0.4 | 0.4 | ||||||
Monitoring fees and expenses
|
1.4 | 2.7 | ||||||
Impairment loss
|
43.1 | 43.1 | ||||||
Income from discontinued operations, net of taxes
|
(0.2 | ) | | |||||
Adjusted EBITDA
|
$ | 83.8 | $ | 152.5 | ||||
Our two Chicago hospitals have experienced deteriorating
economic factors that have negatively impacted their results of
operations and cash flows. While various initiatives mitigated the impact of these economic factors in previous quarters, the operating results of the Chicago hospitals have not improved to the level anticipated. After having the opportunity to
evaluate the operating results of the Chicago hospitals for the
first six months of fiscal year 2010 and to reassess the market
trends and economic factors, we concluded that it was unlikely
that previously projected cash flows for these hospitals would
be achieved. We performed an interim goodwill impairment test
and, based upon revised projected cash flows, market participant
data and appraisal information, we determined that the
$43.1 million remaining goodwill related to this reporting
unit was impaired. We will record the $43.1 million ($31.8 million,
net of taxes) non-cash impairment loss in our condensed
consolidated statement of operations for the quarter ended
December 31, 2009.
2
Risks
Related to Our Indebtedness
Our
high level of debt and significant leverage may adversely affect
our operations and our ability to grow and otherwise execute our
business strategy.
We will continue to have substantial indebtedness after the
completion of the Refinancing. As of September 30, 2009, we
had $1,555.4 million of outstanding debt, excluding letters
of credit and guarantees. As of September 30, 2009, on an
as adjusted basis after giving effect to the Refinancing, we
would have had approximately $1,765.0 million of total
indebtedness outstanding (including the
notes offered hereby), $765.0 million of which would have been secured.
We also expect to have $229.8 million
of secured indebtedness available for borrowing under the New Revolving Credit Facility,
after taking into account $30.2 million of outstanding
letters of credit. The amount of our outstanding indebtedness is substantial compared to the net book
value of our assets.
Our substantial indebtedness could have important consequences
to you, including the following:
| our high level of indebtedness could make it more difficult for us to satisfy our obligations with respect to the notes offered hereby, including any repurchase obligations that may arise thereunder; | |
| limit our ability to obtain additional financing to fund future capital expenditures, working capital, acquisitions or other needs; | |
| increase our vulnerability to general adverse economic, market and industry conditions and limit our flexibility in planning for, or reacting to, these conditions; | |
| make us vulnerable to increases in interest rates since all (as of September 30, 2009 after giving effect to the Refinancing) of our borrowings under our New Credit Facilities are, and additional borrowings may be, at variable interest rates; | |
| our flexibility to adjust to changing market conditions and ability to withstand competitive pressures could be limited, and we may be more vulnerable to a downturn in general economic or industry conditions or be unable to carry out capital spending that is necessary or important to our growth strategy and our efforts to improve operating margins; | |
| limit our ability to use operating cash in other areas of our business because we must use a substantial portion of these funds to make principal and interest payments; and | |
| limit our ability to compete with others who are not as highly-leveraged. |
Our ability to make scheduled payments of principal and interest
or to satisfy our other debt obligations, to refinance our
indebtedness or to fund capital expenditures will depend on our
future operating performance. Prevailing economic conditions
(including interest rates) and financial, business and other
factors, many of which are beyond our control, will also affect
our ability to meet these needs. We may not be able to generate
sufficient cash flows from operations or realize anticipated
revenue growth or operating improvements, or obtain future
borrowings in an amount sufficient to enable us to pay our debt,
or to fund our other liquidity needs. We may need to refinance
all or a portion of our debt on or before maturity. We may not
be able to refinance any of our debt when needed on commercially
reasonable terms or at all.
A breach of any of the restrictions or covenants in our debt
agreements could cause a cross-default under other debt
agreements. A significant portion of our indebtedness then may
become immediately due and payable. We are not certain whether we would have, or be able to
obtain, sufficient funds to make these accelerated payments. If
any senior debt is accelerated, our assets may not be sufficient
to repay in full such indebtedness and our other indebtedness.
Despite
our current leverage, we may still be able to incur
substantially more debt. This could further exacerbate the risks
that we and our subsidiaries face.
We and our subsidiaries may be able to incur substantial
additional indebtedness in the future. The terms of the
indenture and the New Credit Facilities do not fully prohibit us
or our subsidiaries from doing so. Our New Revolving Credit
Facility will provide commitments of up to $260.0 million
(not giving effect to any outstanding letters of credit, which
would reduce the amount available under our New Revolving Credit
Facility), of which $229.8 million would have been available for
future borrowings as of September 30, 2009, on an as
adjusted basis after giving effect to the Refinancing. In
addition, upon the occurrence of certain events and satisfaction
of a maximum senior secured leverage ratio test, we may request
an incremental term loan facility or facilities in an unlimited
amount in the aggregate, subject to receipt of commitments by
existing lenders or other financing institutions and to the
satisfaction of certain other conditions. All of those
borrowings would be senior and secured, and as a result, would
be effectively senior to the notes and the guarantees of the
notes by the guarantors. If we incur any additional indebtedness
that ranks equally with the notes, the holders of that debt will
be entitled to share ratably with the holders of the notes in
any proceeds distributed in connection with any insolvency,
liquidation, reorganization, dissolution or other
winding-up
of us. This may have the effect of reducing the amount of
proceeds paid to you. If new debt is added to our current debt
levels, the related risks that we and our subsidiaries now face
could intensify.
An
increase in interest rates would increase the cost of servicing
our debt and could reduce our profitability.
All of the borrowings under the New Credit
Facilities bear interest at variable rates. As a result, an
increase in interest rates, whether because of an increase in
market interest rates or an increase in our own cost of
borrowing, would increase the cost of servicing our debt and
could materially reduce our profitability. A 0.25% increase in
the expected rate of interest under the New
Credit Facilities would increase our annual interest expense by
approximately $1.9 million. The impact of such an increase
would be more significant than it would be for some other
companies because of our substantial debt.
3
Risks
Related to Our Business and Structure
The
current challenging economic environment, along with difficult
and volatile conditions in the capital and credit markets, could
materially adversely affect our financial position, results of
operations or cash flows, and we are unsure whether these
conditions will improve in the near future.
The U.S. economy and global credit markets remain volatile.
Declining consumer confidence and increased unemployment have
increased concerns of prolonged economic weakness. While certain
healthcare
spending is considered non-discretionary and may not be
significantly impacted by economic downturns, other types of
healthcare spending may be significantly adversely impacted by
such conditions. When patients are experiencing personal
financial difficulties or have concerns about general economic
conditions, they may choose to defer or forego elective
surgeries and other non-emergent procedures, which are generally
more profitable lines of business for hospitals. We are unable
to determine the specific impact of the current economic
conditions on our business at this time, but we believe that
further deterioration or a prolonged period of recession will
have an adverse impact on our operations. Other risk factors
discussed in this offering memorandum describe some significant
risks that may be magnified by the current economic conditions
such as the following:
| Our concentration of operations in a small number of regions, and the impact of economic downturns in those communities. To the extent the communities in and around San Antonio, Texas; Phoenix, Arizona; Chicago, Illinois or certain communities in Massachusetts experience a greater degree of economic weakness than average, the adverse impact on our operations could be magnified. | |
| Our revenues may decline if federal or state programs reduce our Medicare or Medicaid payments or managed care companies (including managed Medicare and managed Medicaid payers) reduce our reimbursement. Current economic conditions have accelerated and increased the budget deficits for most states, including those in which we operate. These budgetary pressures may result in healthcare payment reductions under state Medicaid plans or reduced benefits to participants in those plans. Also, governmental, managed Medicare or managed Medicaid payers may defer payments to us to conserve cash. Managed care companies may also seek to reduce payment rates or limit payment rate increases to hospitals in response to reductions in enrolled participants. | |
| Our hospitals face a growth in uncompensated care as the result of the inability of uninsured patients to pay for healthcare services and difficulties in collecting patient portions of insured accounts. Higher unemployment, Medicaid benefit reductions and employer efforts to reduce employee healthcare costs may increase our exposure to uncollectible accounts for uninsured patients or those patients with higher co-pay and deductible limits. | |
| Under extreme market conditions, there can be no assurance that funds necessary to run our business will be available to us on favorable terms or at all. Most of our cash and borrowing capacity under our New Credit Facilities will be held with a limited number of financial institutions, which could increase our liquidity risk if one or more of those institutions become financially strained or are no longer able to operate. |
We are unable to predict if the condition of the
U.S. economy, the local economies in the communities we
serve or global credit conditions will improve in the near
future or when such improvements may occur.
The
current U.S. and state health reform legislative initiatives
could adversely affect our operations and business
condition.
A comprehensive healthcare reform bill is expected to become law
sometime in early 2010. The House passed its health reform bill
on November 7, 2009 followed by Senate passage of their
version of a health reform bill on December 24, 2009.
During January 2010, leadership from the houses along with
representatives in the Obama administration are expected to meet
to develop a single bill that incorporates provisions from both
bills. Assuming Congress comes to an agreement and passes final
legislation, the President is expected to sign the health reform
package.
A common issue addressed in the federal health reform bills is
increasing access to health benefits for uninsured or
underinsured populations through creation of health insurance
exchanges. The bills also include reductions in the annual
market basket updates and add productivity adjustments for
Medicare providers. Some states also have pending health reform
legislative initiatives. We will not be able to determine the effect that any such legislation may have on our operations
and business condition until such legislation is enacted, but
such legislation may adversely affect our operations and
business condition.
4
If we
are unable to enter into favorable contracts with managed care
plans, our operating revenues may be reduced.
Our ability to negotiate favorable contracts with health
maintenance organizations, insurers offering preferred provider
arrangements and other managed care plans significantly affects
the revenues and operating results of our hospitals. Revenues
derived from health maintenance organizations, insurers offering
preferred provider arrangements and other managed care plans,
including managed Medicare and managed Medicaid plans, accounted
for approximately 58% and 60% of our net patient revenues for
the year ended June 30, 2009 and the three months ended
September 30, 2009, respectively. Managed care
organizations offering prepaid and discounted medical services
packages represent an increasing portion of our admissions, a
general trend in the industry which has limited hospital revenue
growth nationwide and a trend that may continue. In addition,
private payers are increasingly attempting to control healthcare
costs through direct contracting with hospitals to provide
services on a discounted basis, increased utilization review and
greater enrollment in managed care programs such as health
maintenance organizations and preferred provider organizations.
Additionally, the trend towards consolidation among private
managed care payers tends to increase their bargaining prices
over fee structures. In most cases, we negotiate our managed
care contracts annually as they come up for renewal at various
times during the year. Our future success will depend, in part,
on our ability to renew existing managed care contracts and
enter into new managed care contracts on terms favorable to us.
Other healthcare companies, including some with greater
financial resources, greater geographic coverage or a wider
range of services, may compete with us for these opportunities.
If we are unable to contain costs through increased operational
efficiencies or to obtain higher reimbursements and payments
from managed care payers, our results of operations and cash
flows will be materially adversely affected.
Our
revenues may decline if federal or state programs reduce our
Medicare or Medicaid payments or managed care companies reduce
our reimbursements.
Approximately 56% and 57% of our net patient revenues for the
year ended June 30, 2009 and the three months ended
September 30, 2009, respectively, came from the Medicare
and Medicaid programs, including Medicare and Medicaid managed
plans. In recent years, federal and state governments have made
significant changes in the Medicare and Medicaid programs. Some
of those changes adversely affect the reimbursement we receive
for certain services. In addition, due to budget deficits in
many states, significant decreases in state funding for Medicaid
programs have occurred or are being proposed.
On August 22, 2007, CMS issued a final rule for federal
fiscal year 2008 for the hospital inpatient prospective payment
system. This rule adopted a two-year implementation of Medicare
severity-adjusted diagnosis-related groups
(MS-DRGs), a severity-adjusted diagnosis-related
group (DRG) system. This change represented a
refinement to the DRG system, and its impact on our revenues has
not been significant. Realignments in the DRG system could
impact the margins we receive for certain services.
DRG rates are updated and MS-DRG weights are recalibrated each
federal fiscal year. The index used to update the market basket
gives consideration to the inflation experienced by hospitals
and entities outside the healthcare industry in purchasing goods
and services. The Medicare Inpatient Hospital Prospective System
Final Rule for federal fiscal year 2010 provides for a 2.1%
market basket update for hospitals that submit certain quality
patient care indicators and a 0.1% update for hospitals that do
not submit this data. While we will endeavor to comply with all
quality data submission requirements, our submissions may not be
deemed timely or sufficient to entitle us to the full market
basket adjustment for all our hospitals. Medicare payments to
hospitals in federal fiscal year 2009 were reduced by 0.9% to
eliminate what CMS estimates will be the effect of coding or
classification changes as a result of hospitals implementing the
MS-DRG system. After earlier proposing an increase in the
documentation and coding adjustment to 1.9% for
federal fiscal year 2010, on July 31, 2009 CMS announced
that it had decided not to make any adjustment in federal fiscal
year 2010 since it did not know whether federal fiscal year 2009
spending from documentation and coding is more or less than
earlier projected. However, the U.S. Congress has given CMS
the ability to continue to
5
retrospectively determine if the documentation and coding
adjustment levels for federal fiscal years 2008 and 2009 were
adequate to account for changes in payments not related to
changes in case mix. If the levels are found to have been
inadequate, CMS could impose an adjustment to payments for
federal fiscal years 2011 and 2012. This evaluation of changes
in case-mix based on actual claims data may yield a higher
documentation and coding adjustment thereby potentially reducing
our revenues and impacting our results of operations in ways
that cannot be quantified at this time. Additionally, Medicare
payments to hospitals are subject to a number of other
adjustments, and the actual impact on payments to specific
hospitals may vary. In some cases, commercial third-party payers
and other payers such as some state Medicaid programs rely on
all or portions of the Medicare DRG system to determine payment
rates. The change from traditional Medicare DRGs to MS-DRGs
could adversely impact those payment rates if any other payers
adopt MS-DRGs.
The federal government and many states have recently adopted or
are currently considering reducing the level of Medicaid funding
(including upper payment limits) or program eligibility that
could adversely affect future levels of Medicaid reimbursement
received by our hospitals. Since states must operate with
balanced budgets and since the Medicaid program is often a
states largest program, a number of states have adopted,
or are considering adopting, legislation designed to reduce
their Medicaid expenditures. The Deficit Reduction Act of 2005
(DRA) includes federal Medicaid cuts of
approximately $4.8 billion over five years. Additionally,
on May 29, 2007, CMS published a final rule entitled
Medicaid Program; Cost Limit for Providers Operated by
Units of Government and Provisions to Ensure the Integrity of
Federal-State Financial Partnership which is estimated to
reduce federal Medicaid funding from $12 billion to
$20 billion over five years. The U.S. Congress enacted
two moratoria in respect of this rule that delayed six of seven
proposed Medicaid regulations in this final CMS rule until
July 1, 2009. On June 30, 2009, three more of the
Medicaid regulations that had been under a congressional
moratorium set to expire July 1, 2009 were officially
rescinded, all or in part, by CMS, and CMS also delayed until
June 30, 2010 the enforcement of the fourth of the six
regulations. As a result of these changes in implementing the
final rule, the impact on us of the final rule cannot be
quantified. States in which we operate have also adopted, or are
considering adopting, legislation designed to reduce coverage
and program eligibility, enroll Medicaid recipients in managed
care programs
and/or
impose additional taxes on hospitals to help finance or expand
the states Medicaid systems. For example, Arizona has
frozen hospital inpatient and outpatient reimbursements at the
October 1, 2008 rates and discontinued a state health
benefits program for low-income parents. Additional Medicaid
spending cuts may be implemented in the future in the states in
which we operate, including reductions in supplemental Medicaid
reimbursement programs. Our Texas hospitals participate in
private supplemental Medicaid reimbursement programs that are
structured to expand the community safety net by providing
indigent healthcare services and result in additional revenues
for participating hospitals. We cannot predict whether the Texas
private supplemental Medicaid reimbursement programs will
continue or guarantee that revenues recognized from the programs
will not decrease. Future legislation or other changes in the
administration or interpretation of government health programs
could have a material adverse effect on our financial position
and results of operations.
Our ability to negotiate favorable contracts with managed care
plans significantly affects the revenues and operating results
of most of our hospitals. Managed care payers increasingly are
demanding discounted fee structures, and the trend toward
consolidation among managed care plans tends to increase their
bargaining power over fee structures. Reductions in price
increases or the amounts received from managed care plans could
have a material adverse effect on our financial position and
results of operations.
In recent years, both the Medicare program and several large
managed care companies have changed our reimbursement to link
some of their payments, especially their annual increases in
payments, to performance of quality of care measures. We expect
this trend to
pay-for-performance
to increase in the future. If we are unable to meet these
performance measures, our results of operations and cash flow
will be materially adversely affected.
We
conduct business in a heavily regulated industry, and changes in
regulations or violations of regulations may result in increased
costs or sanctions that could reduce our revenues and
profitability.
The healthcare industry is subject to extensive federal, state
and local laws and regulations relating to licensing, the
conduct of operations, the ownership of facilities, the addition
of facilities and services, financial
6
arrangements with physicians and other referral sources,
confidentiality, maintenance and security issues associated with
medical records, billing for services and prices for services.
If a determination were made that we were in material violation
of such laws or regulations, our operations and financial
results could be materially adversely affected.
In many instances, the industry does not have the benefit of
significant regulatory or judicial interpretations of these laws
and regulations. This is particularly true in the case of the
Medicare and Medicaid statute codified under
Section 1128B(b) of the Social Security Act and known as
the Anti-Kickback Statute. This law prohibits
providers and other person or entities from soliciting,
receiving, offering or paying, directly or indirectly, any
remuneration with the intent to generate referrals of orders for
services or items reimbursable under Medicare, Medicaid and
other federal healthcare programs. As authorized by the
U.S. Congress, the U.S. Department of Health and Human
Services has issued regulations which describe certain conduct
and business relationships immune from prosecution under the
Anti-Kickback Statute. The fact that a given business
arrangement does not fall within one of these safe
harbor provisions does not render the arrangement illegal,
but business arrangements of healthcare service providers that
fail to satisfy the applicable safe harbor criteria risk
increased scrutiny by enforcement authorities.
The safe harbor requirements are generally detailed, extensive,
narrowly drafted and strictly construed. Many of the financial
arrangements that our facilities maintain with physicians do not
meet all of the requirements for safe harbor protection. The
regulatory authorities that enforce the Anti-Kickback Statute
may in the future determine that one or more of these
arrangements violate the Anti-Kickback Statute or other federal
or state laws. In addition, the Senate health reform bill
includes provisions that would revise the scienter requirements
such that a person need not have actual knowledge of the
Anti-Kickback Statute or intent to violate the Anti-Kickback
Statute to be found guilty of a violation. A determination that
a facility has violated the Anti-Kickback Statute or other
federal laws could subject us to liability under the Social
Security Act, including criminal and civil penalties, as well as
exclusion of the facility from participation in government
programs such as Medicare and Medicaid or other federal
healthcare programs.
In addition, the portion of the Social Security Act commonly
known as the Stark Law prohibits physicians from
referring Medicare and (to an extent) Medicaid patients to
providers of certain designated health services if
the physician or a member of his or her immediate family has an
ownership or investment interest in, or compensation arrangement
with, that provider. In addition, the provider in such
arrangements is prohibited from billing for all of the
designated health services referred by the physician, and, if
paid for such services, is required to promptly repay such
amounts. Most of the services furnished by our facilities are
designated health services for Stark Law purposes,
including inpatient and outpatient hospital services. There are
multiple exceptions to the Stark Law, among others, for
physicians maintaining an ownership interest in an entire
hospital or having a compensation relationship with the facility
as a result of employment agreements, leases, physician
recruitment and certain other arrangements. However, each of
these exceptions applies only if detailed conditions are met. An
arrangement subject to the Stark Law must qualify for an
exception in order for the services to be lawfully referred by
the physician and billed by the provider.
CMS has issued three phases of final regulations implementing
the Stark Law. Phases I and II became effective in January
2002 and July 2004, respectively, and Phase III became
effective in December 2007. While these regulations help clarify
the requirements of the exceptions to the Stark Law, it is
unclear how the government will interpret many of these
exceptions for enforcement purposes. In addition, in July 2007
CMS proposed far-reaching changes to the regulations
implementing the Stark Law that would further restrict the types
of arrangements that hospitals and physicians may enter,
including additional restrictions on certain leases, percentage
compensation arrangements, and agreements under which a hospital
purchases services under arrangements. On July 31, 2008,
CMS issued a final rule which, in part, finalized and responded
to public comments regarding some of its July 2007 proposed
major changes to the Stark Law regulations. The most
far-reaching of the changes made in this final July 2008 rule
effectively prohibit, as of a delayed effective date of
October 1, 2009, both under arrangements
ventures between a hospital and any referring physician or
entity owned, in whole or in part, by a referring physician and
unit-of-service-based
per click compensation and percentage-based
compensation in office space and equipment leases between a
hospital and any referring physician or entity owned, in whole
or inpart, by a referring physician. We examined all of our
under arrangement ventures and space and equipment
leases with
7
physicians to identify those arrangements which would have
failed to conform to these new Stark regulations as of
October 1, 2009, and we restructured or terminated all such
non-conforming arrangements so identified prior to
October 1, 2009. Because the Stark Law and its implementing
regulations are relatively new, we do not always have the
benefit of significant regulatory or judicial interpretation of
this law and its regulations. We attempt to structure our
relationships to meet an exception to the Stark Law, but the
regulations implementing the exceptions are detailed and
complex, and we cannot assure you that every relationship
complies fully with the Stark Law. In addition, in the July 2008
final Stark rule CMS indicated that it will continue to
enact further regulations tightening aspects of the Stark Law
that it perceives allow for Medicare program abuse, especially
those regulations that still permit physicians to profit from
their referrals of ancillary services. We cannot assure you that
the arrangements entered into by our hospitals with physicians
will be found to be in compliance with the Stark Law, as it
ultimately may be implemented or interpreted.
Additionally, if we violate the Anti-Kickback Statute or Stark
Law, or if we improperly bill for our services, we may be found
to violate the False Claims Act, either under a suit brought by
the government or by a private person under a qui tam, or
whistleblower, suit.
If we fail to comply with the Anti-Kickback Statute, the Stark
Law, the False Claims Act or other applicable laws and
regulations, or if we fail to maintain an effective corporate
compliance program, we could be subjected to liabilities,
including civil penalties (including the loss of our licenses to
operate one or more facilities), exclusion of one or more
facilities from participation in the Medicare, Medicaid and
other federal and state healthcare programs and, for violations
of certain laws and regulations, criminal penalties.
All of the states in which we operate have adopted or have
considered adopting similar anti-kickback and physician
self-referral legislation, some of which extends beyond the
scope of the federal law to prohibit the payment or receipt of
remuneration for the referral of patients and physician
self-referrals, regardless of the source of payment for the
care. Little precedent exists for the interpretation or
enforcement of these laws. Both federal and state government
agencies have announced heightened and coordinated civil and
criminal enforcement efforts.
Government officials responsible for enforcing healthcare laws
could assert that one or more of our facilities, or any of the
transactions in which we are involved, are in violation of the
Anti-Kickback Statute or the Stark Law and related state law
exceptions. It is also possible that the courts could ultimately
interpret these laws in a manner that is different from our
interpretations. Moreover, other healthcare companies, alleged
to have violated these laws, have paid significant sums to
settle such allegations and entered into corporate
integrity agreements because of concern that the
government might exercise its authority to exclude those
providers from governmental payment programs (e.g., Medicare,
Medicaid, TRICARE). A determination that one or more of our
facilities has violated these laws, or the public announcement
that we are being investigated for possible violations of these
laws, could have a material adverse effect on our business,
financial condition, results of operations or prospects, and our
business reputation could suffer significantly.
Federal law permits the Department of Health and Human Services
Office of Inspector General (OIG) to impose civil
monetary penalties, assessments or to exclude from participation
in federal healthcare programs, individuals and entities who
have submitted false, fraudulent or improper claims for payment.
Improper claims include those submitted by individuals or
entities who have been excluded from participation. These
penalties may also be imposed on providers or entities who
employ or enter into contracts with excluded individuals to
provide services to beneficiaries of federal healthcare
programs. Furthermore, if services are provided by an excluded
individual or entity, the penalties may apply even if the
payment is made directly to a non-excluded entity. Employers of
or entities that contract with excluded individuals or entities
for the provision of services may be liable for up to $10,000
for each item or service furnished by the excluded individual or
entity, an assessment of up to three times the amount claimed
and program exclusions. In order for the penalties to apply, the
employer or contractor must have known or should have known that
the person or entity was excluded from participation. On
October 12, 2009, we voluntarily reported to OIG that two
past employees of Vanguard had been
excluded from participation in Medicare at certain times during
their employment.
8
Illinois and Massachusetts require governmental determinations
of need (Certificates of Need) prior to the purchase
of major medical equipment or the construction, expansion,
closure, sale or change of control of healthcare facilities. We
believe our facilities have obtained appropriate certificates
wherever applicable. However, if a determination were made that
we were in material violation of such laws, our operations and
financial results could be materially adversely affected. The
governmental determinations, embodied in Certificates of Need,
can also affect our facilities ability to add bed capacity
or important services. We cannot predict whether we will be able
to obtain required Certificates of Need in the future. A failure
to obtain any required Certificates of Need may impair our
ability to operate the affected facility profitably.
The laws, rules and regulations described above are complex and
subject to interpretation. If we are in violation of any of
these laws, rules or regulations, or if further changes in the
regulatory framework occur, our results of operations could be
significantly harmed.
Some
of our hospitals will be required to submit to CMS information
on their relationships with physicians and this submission could
subject such hospitals and us to liability.
CMS announced in 2007 that it intends to collect information on
ownership, investment and compensation arrangements with
physicians from 500 (pre-selected) hospitals by requiring these
hospitals to submit to CMS Disclosure of Financial Relationship
Reports (DFRR) from each selected hospital. CMS also
indicated that at least 10 of our hospitals will be among these
500 hospitals required to submit a DFRR because these 10
hospitals did not respond to CMS voluntary survey
instrument on this topic purportedly submitted to these
hospitals via email by CMS in 2006. CMS intends to use this data
to determine whether these hospitals were in compliance with the
Stark Law and implementing regulations during the reporting
period, and CMS has indicated it may share this information with
other government agencies and with congressional committees.
Many of these agencies have not previously analyzed this
information and have the authority to bring enforcement actions
against the hospitals. However, in July 2008 CMS announced that,
based on its further review and expected further public comments
on this matter, CMS may decide in the future to decrease (but
not increase) the number of hospitals to which it will send the
DFRR below the 500 hospitals originally designated.
Once a hospital receives this request for a DFRR, the hospital
will have 60 days to compile a significant amount of
information relating to its financial relationships with
physicians. The hospital may be subject to civil monetary
penalties of up to $10,000 per day if it is unable to assemble
and report this information within the required timeframe or if
CMS or any other government agency determines that the
submission is inaccurate or incomplete. The hospital may be the
subject of investigations or enforcement actions if a government
agency determines that any of the information indicates a
potential violation of law.
Also, while in 2007 CMS had announced that it was contemplating
proposing a regular financial disclosure process that would
apply in the future to all Medicare participating hospitals, in
July 2008 CMS announced that, based upon public comments
previously received, it was not adopting a regular reporting or
disclosure process at that time, and, thus, CMS said the DFRR
will initially be used as a one-time collection effort. However,
CMS also said in July 2008 that, depending on the information
received from the initial DFRR process and other factors, it may
propose future rulemaking to use the DFRR or some other
instrument as a periodic or regular collection instrument. Thus,
even if one of our hospitals does not receive the DFRR survey as
part of the initial up to 500 selected hospitals, we expect that
all of our hospitals will possibly have to report similar
information to CMS in the future.
The DFRR and its supporting documentation are currently under
review by the Office of Management and Budget and have not yet
been released. Depending on the final format of the DFRR,
responding hospitals may be subject to substantial penalties as
a result of enforcement actions brought by government agencies
and whistleblowers acting pursuant to the False Claims Act and
similar state laws, based on such allegations like failure to
respond within required deadlines, that the response is
inaccurate or contains incomplete information or that the
response indicates a potential violation of the Stark Law or
other requirements.
Any governmental investigation or enforcement action which
results from the DFRR process could materially adversely affect
our results of operations.
9
Providers
in the healthcare industry have been the subject of federal and
state investigations, whistleblower lawsuits and class action
litigation, and we may become subject to investigations,
whistleblower lawsuits or class action litigation in the
future.
Both federal and state government agencies have heightened and
coordinated civil and criminal enforcement efforts as part of
numerous ongoing investigations of hospital companies, as well
as their executives and managers. These investigations relate to
a wide variety of topics, including:
| cost reporting and billing practices; | |
| laboratory and home healthcare services; | |
| physician ownership of, and joint ventures with, hospitals; | |
| physician recruitment activities; and | |
| other financial arrangements with referral sources. |
In addition, the federal False Claims Act permits private
parties to bring qui tam, or whistleblower, lawsuits
against companies. Whistleblower provisions allow private
individuals to bring actions on behalf of the government
alleging that the defendant has defrauded the federal
government. Because qui tam lawsuits are filed under
seal, we could be named in one or more such lawsuits of which we
are not aware. Defendants determined to be liable under the
False Claims Act may be required to pay three times the actual
damages sustained by the government, plus mandatory civil
penalties of between $5,500 and $11,000 for each separate false
claim. Typically, each fraudulent bill submitted by a provider
is considered a separate false claim, and thus the penalties
under the False Claims Act may be substantial. Liability arises
when an entity knowingly submits a false claim for reimbursement
to the federal government. The Fraud Enforcement and Recovery
Act, which became law on May 20, 2009, changes the scienter
requirements for liability under the False Claims Act. An entity
may now violate the False Claims Act if it knowingly and
improperly avoids or decreases an obligation to pay money
to the United States. This includes obligations based on an
established duty . . . arising from . . . the retention of
any overpayment. Thus, if a provider is aware that it has
retained an overpayment that it has an obligation to refund,
this may form the basis of a False Claims Act violation even if
the provider did not know the claim was false when
it was submitted. In some cases, whistleblowers or the federal
government have taken the position that providers who allegedly
have violated other statutes and have submitted claims to a
governmental payer during the time period they allegedly
violated these other statutes, have thereby submitted false
claims under the False Claims Act. Such other statutes include
the Anti-Kickback Statute and the Stark Law. Courts have held
that violations of these statutes can properly form the basis of
a False Claims Act case. Some states have adopted similar
whistleblower and false claims provisions.
The Office of the Inspector General of the U.S. Department
of Health and Human Services and the U.S. Department of
Justice have, from time to time, established national
enforcement initiatives that focus on specific billing practices
or other suspected areas of abuse. Initiatives include a focus
on hospital billing for outpatient charges associated with
inpatient services, as well as hospital laboratory, home health
and durable medical equipment billing practices. As a result of
these regulations and initiatives, some of our activities could
become the subject of governmental investigations or inquiries.
For example, we have significant Medicare and Medicaid billings,
we provide some durable medical equipment and home healthcare
services, and we have joint venture arrangements involving
physician investors. We also have a variety of other financial
arrangements with physicians and other potential referral
sources including recruitment arrangements and leases. In
addition, our executives and managers, many of whom have worked
at other healthcare companies that are or may become the subject
of federal and state investigations and private litigation,
could be included in governmental investigations or named as
defendants in private litigation. We are aware that several of
our hospitals or their related healthcare operations were and
may still be under investigation in connection with activities
conducted prior to our acquisition of them. Under the terms of
our various acquisition agreements, the prior owners of our
hospitals are responsible for any liabilities arising from
pre-closing violations. The prior owners resolution of
these matters or failure to resolve these matters, in the event
that any resolution was deemed necessary, may have a material
adverse effect on our business, financial condition or results
of operations. Any investigations of us, our executives, managers,
facilities or operations could result in significant liabilities
or penalties to us, as well as adverse publicity.
10
We maintain a voluntary compliance program to address health
regulatory and other compliance requirements. This program
includes initial and periodic ethics and compliance training, a
toll-free hotline for employees to report, without fear of
retaliation, any suspected legal or ethical violations, annual
fraud and abuse audits to look at our financial
relationships with physicians and other referral sources and
annual coding audits to make sure our hospitals bill
the proper service codes in respect of obtaining payment from
the Medicare and Medicaid programs.
As an element of our corporate compliance program and our
internal compliance audits, from time to time we make voluntary
disclosures and repayments to the Medicare and Medicaid programs
and/or to
the federal
and/or state
regulators for these programs in the ordinary course of
business. At the current time, we know of no active
investigations by any of these programs or regulators in respect
of our disclosures or repayments. All of these voluntary actions
on our part could lead to an investigation by the regulators to
determine whether any of our facilities have violated the Stark
Law, the Anti-Kickback Statute, the False Claims Act or similar
state law. Either an investigation or initiation of
administrative or judicial actions could result in a public
announcement of possible violations of the Stark Law, the
Anti-Kickback Statute or the False Claims Act or similar state
law. Such determination or announcements could have a material
adverse effect on our business, financial condition, results of
operations or prospects, and our business reputation could
suffer significantly.
Additionally, several hospital companies have in recent years
been named defendants in class action litigation alleging, among
other things, that their charge structures are fraudulent and,
under state law, unfair or deceptive practices, insofar as those
hospitals charge insurers lower rates than those charged to
uninsured patients. We cannot assure you that we will not be
named as a defendant in litigation of this type. Furthermore,
the outcome of these suits may affect the industry standard for
charity care policies and any response we take may have a
material adverse effect on our financial results.
In June 2006, we and two other hospital systems operating in
San Antonio, Texas had a putative class action lawsuit
brought against all of us alleging that we and the other
defendants had conspired with one another and with other
unidentified San Antonio area hospitals to depress the
compensation levels of registered nurses employed at the
competing hospitals within the San Antonio area by engaging
in certain activities that violated the federal antitrust laws.
On the same day that this
litigation was brought against us and two other hospital systems
in San Antonio, substantially similar class action
litigation was brought against multiple hospitals in three other
cities.
Competition
from other hospitals or healthcare providers (especially
specialty hospitals) may reduce our patient volumes and
profitability.
The healthcare business is highly competitive and competition
among hospitals and other healthcare providers for patients has
intensified in recent years. Generally, other hospitals in the
local communities served by most of our hospitals provide
services similar to those offered by our hospitals. In addition,
we believe the number of freestanding specialty hospitals and
surgery and diagnostic centers in the geographic areas in which
we operate has increased significantly in recent years. As a
result, most of our hospitals operate in an increasingly
competitive environment. Some of the hospitals that compete with
our hospitals are owned by governmental agencies or
not-for-profit
corporations supported by endowments and charitable
contributions and can finance capital expenditures and
operations on a tax-exempt basis. Increasingly, we are facing
competition from physician-owned specialty hospitals and
freestanding surgery centers that compete for market share in
high margin services and for quality physicians and personnel.
If ambulatory surgery centers are better able to compete in this
environment than our hospitals, our hospitals may experience a
decline in patient volume, and we may experience a decrease in
margin, even if those patients use our ambulatory surgery
centers. Further, if our competitors are better able to attract
patients, recruit physicians, expand services or obtain
favorable managed care contracts at their facilities than our
hospitals and ambulatory surgery centers, we may experience an
overall decline in patient volume.
11
In 2005, CMS began making public performance data related to 10
quality measures that hospitals submit in connection with their
Medicare reimbursement. In February 2006, federal legislation
was enacted to expand and provide for the future expansion of
the number of quality measures that must be reported. During
federal fiscal year 2008, CMS required hospitals to report 30
measures of inpatient quality of care to avoid a 2% point
reduction in their market basket update. During federal fiscal
year 2009, CMS required hospitals to report 43 inpatient quality
measures to avoid a 2% point reduction in their market basket
update. For federal fiscal year 2010, CMS will require hospitals
to report 47 inpatient quality measures to avoid a 2% reduction
in their market basket update. If any of our hospitals achieve
poor results (or results that are lower than our competitors) on
these quality measures, patient volumes could decline. Also, the
additional quality measures and future trends toward clinical
transparency may have an unanticipated impact on our competitive
position and patient volumes.
Our Phoenix Health Plan unit (PHP) also faces
competition within the Arizona markets that it serves. As in the
case of our hospitals, some of our health plan competitors in
these markets are owned by governmental agencies or
not-for-profit
corporations that have greater financial resources than we do.
The revenues we derive from PHP could significantly decrease if
new plans operating in the Arizona Health Care Cost Containment
System (AHCCCS), which is Arizonas state
Medicaid program, enter these markets or other existing AHCCCS
plans increase their number of enrollees. Moreover, a failure to
attract future enrollees may negatively impact our ability to
maintain our profitability in these markets.
We may
be subject to liabilities from claims brought against our
facilities.
We operate in a highly regulated and litigious industry. As a
result, various lawsuits, claims and legal and regulatory
proceedings have been instituted or asserted against us,
including those outside of the ordinary course of business such
as class actions and those in the ordinary course of business
such as malpractice lawsuits. Some of these actions may involve
large claims as well as significant defense costs.
We maintain professional and general liability insurance with
unrelated commercial insurance carriers to provide for losses in
excess of our self-insured retention (directly, or indirectly,
through an insurance subsidiary) of $10 million. As a
result, a few successful claims against us that are within our
self-insured retention amounts could have an adverse effect on
our results of operations, cash flows, financial condition or
liquidity. In addition, one or more claims could exceed the
scope of the third-party coverage in effect or the coverage of
particular claims or damages could be denied.
Additionally, we experienced unfavorable claims development
results recently, which are reflected in our professional and
general liability costs. The relatively high cost of
professional liability insurance and, in some cases, the lack of
availability of such insurance coverage, for physicians with
privileges at our hospitals increases our risk of vicarious
liability in cases where both our hospital and the uninsured or
underinsured physician are named as co-defendants. As a result,
we are subject to greater self-insured risk and may be required
to fund claims out of our operating cash flows to a greater
extent than during fiscal year 2009. We cannot assure you that
we will be able to continue to obtain insurance coverage in the
future or that such insurance coverage, if it is available, will
be available on acceptable terms.
While we cannot predict the likelihood of future claims or
inquiries, we expect that new matters may be initiated against
us from time to time. Moreover, the results of current claims,
lawsuits and investigations cannot be predicted, and it is
possible that the ultimate resolution of these matters,
individually or in the aggregate, may have a material adverse
effect on our business (both in the near and long term),
financial position, results of operations or cash flows.
Our
hospitals face a growth in uncompensated care as the result of
the inability of uninsured patients to pay for healthcare
services and difficulties in collecting patient portions of
insured accounts.
Like others in the hospital industry, we have experienced an
increase in uncompensated care. Our combined provision for
doubtful accounts, uninsured discounts and charity care
deductions as a percentage of patient service revenues (prior to
these adjustments) was 12.0% during both fiscal 2008 and 2009.
This ratio
12
increased to 16.9% for the three months ended September 30,
2009. Approximately 420 basis points of this increase
related to the uninsured discount and Medicaid pending policy
changes implemented in our Illinois hospitals effective
April 1, 2009 and in our Phoenix and San Antonio
hospitals effective July 1, 2009. Our self-pay discharges
as a percentage of total discharges have not fluctuated
significantly during the past three fiscal years. Our hospitals
remain at risk for increases in uncompensated care as a result
of price increases, the continuing trend of increases in
coinsurance and deductible portions of managed care accounts and
increases in uninsured patients as a result of potential state
Medicaid funding cuts or general economic weakness. Although we
continue to seek ways of improving point of service collection
efforts and implementing appropriate payment plans with our
patients, if we continue to experience growth in self-pay
revenues, our results of operations could be materially
adversely affected. Further, our ability to improve collections
for self-pay patients may be limited by regulatory and
investigatory initiatives, including private lawsuits directed
at hospital charges and collection practices for uninsured and
underinsured patients.
Our
performance depends on our ability to recruit and retain quality
physicians.
Physicians generally direct the majority of hospital admissions.
Thus, the success of our hospitals depends in part on the
following factors:
| the number and quality of the physicians on the medical staffs of our hospitals; | |
| the admitting practices of those physicians; and | |
| the maintenance of good relations with those physicians. |
Most physicians at our hospitals also have admitting privileges
at other hospitals. Our efforts to attract and retain physicians
are affected by our managed care contracting relationships,
national shortages in some specialties, such as anesthesiology
and radiology, the adequacy of our support personnel, the
condition of our facilities and medical equipment, the
availability of suitable medical office space and federal and
state laws and regulations prohibiting financial relationships
that may have the effect of inducing patient referrals. If
facilities are not staffed with adequate support personnel or
technologically advanced equipment that meets the needs of
patients, physicians may be discouraged from referring patients
to our facilities, which could adversely affect our
profitability.
In an effort to meet community needs in the markets in which we
operate, we have implemented a strategy to employ physicians
both in primary care and in certain specialties. As of
September 30, 2009, we employed approximately 305
practicing physicians, excluding residents. The deployment of a
physician employment strategy includes increased salary and
benefits costs, physician integration risks and difficulties
associated with physician practice management. While we believe
this strategy is consistent with industry trends, we cannot be
assured of the long-term success of such a strategy. In
addition, if we raise wages in response to our competitors
wage increases and are unable to pass such increases on to our
clients, our margins could decline, which could adversely affect
our business, financial condition and results of operations.
We may
be unable to achieve our acquisition and growth strategies and
we may have difficulty acquiring
not-for-profit
hospitals due to regulatory scrutiny.
An important element of our business strategy is expansion by
acquiring hospitals in our existing and in new urban and
suburban markets and by entering into partnerships or
affiliations with other healthcare service providers. The
competition to acquire hospitals is significant, including
competition from healthcare companies with greater financial
resources than ours. We have not acquired a hospital since
December 2004 and may never acquire another hospital, which
would seriously impact our ability to grow our business.
Even if we are able to acquire more hospitals, such acquisitions
may be on less than favorable terms. We may have difficulty
obtaining financing, if necessary, for such acquisitions on
satisfactory terms. We sometimes agree not to sell an acquired
hospital for some period of time (currently no longer than
10 years) after purchasing it
and/or grant
the seller a right of first refusal to purchase the hospital if
we agree to sell it to a third party. In addition, we may not be
able to effectively integrate any acquired facilities with our
13
operations. Even if we continue to acquire additional facilities
and/or enter
into partnerships or affiliations with other healthcare service
providers, federal and state regulatory agencies may constrain
our ability to grow.
Additionally, many states, including some where we have
hospitals and others where we may in the future attempt to
acquire hospitals, have adopted legislation regarding the sale
or other disposition of hospitals operated by
not-for-profit
entities. In other states that do not have specific legislation,
the attorneys general have demonstrated an interest in these
transactions under their general obligations to protect
charitable assets from waste. These legislative and
administrative efforts focus primarily on the appropriate
valuation of the assets divested and the use of the sale
proceeds by the
not-for-profit
seller. These review and approval processes can add time to the
consummation of an acquisition of a
not-for-profit
hospital, and future actions on the state level could seriously
delay or even prevent future acquisitions of
not-for-profit
hospitals. Furthermore, as a condition to approving an
acquisition, the attorney general of the state in which the
hospital is located may require us to maintain specific
services, such as emergency departments, or to continue to
provide specific levels of charity care, which may affect our
decision to acquire or the terms upon which we acquire one of
these hospitals.
Future
acquisitions or joint ventures may use significant resources,
may be unsuccessful and could expose us to unforeseen
liabilities.
As part of our growth strategy, we may pursue acquisitions or
joint ventures of hospitals or other related healthcare
facilities and services. These acquisitions or joint ventures
may involve significant cash expenditures, debt incurrence,
additional operating losses and expenses that could have a
material adverse effect on our financial condition and results
of operations. Acquisitions or joint ventures involve numerous
risks, including:
| difficulty and expense of integrating acquired personnel into our business; | |
| diversion of managements time from existing operations; | |
| potential loss of key employees or customers of acquired companies; and | |
| assumption of the liabilities and exposure to unforeseen liabilities of acquired companies, including liabilities for failure to comply with healthcare regulations. |
We cannot assure you that we will succeed in obtaining financing
for acquisitions or joint ventures at a reasonable cost, or that
such financing will not contain restrictive covenants that limit
our operating flexibility. We also may be unable to operate
acquired hospitals profitably or succeed in achieving
improvements in their financial performance.
The
cost of our malpractice insurance and the malpractice insurance
of physicians who practice at our facilities remains volatile.
Successful malpractice or tort claims asserted against us, our
physicians or our employees could materially adversely affect
our financial condition and profitability.
Physicians, hospitals and other healthcare providers are subject
to legal actions alleging malpractice, product liability or
related legal theories. Many of these actions involve large
monetary claims and significant defense costs. Hospitals and
physicians have typically maintained a special type of insurance
(commonly called malpractice or professional liability
insurance) to protect against the costs of these types of legal
actions. We created a captive insurance subsidiary on
June 1, 2002, to assume a substantial portion of the
professional and general liability risks of our facilities. For
claims incurred during the period June 1, 2002 to
May 31, 2006 and those subsequent to June 30, 2009, we
maintained all of our professional and general liability
insurance through this captive insurance subsidiary in respect
of losses up to $10.0 million per occurrence. For claims
incurred from June 1, 2006 to June 30, 2009, we
self-insured the first $9.0 million per occurrence, and our
captive subsidiary insured the next $1.0 million per
occurrence. We have also purchased an umbrella excess policy for
professional and general liability insurance for the period
July 1, 2009 to June 30, 2010 with unrelated
commercial carriers. This policy covers losses in excess of
$10.0 million per occurrence up to $75.0 million, but
is limited to total annual payments of $65.0 million in the
aggregate. While our premium prices have declined during the
past few years, the total cost of professional and general
14
liability insurance remains sensitive to the volume and severity
of cases reported. There is no guarantee that excess insurance
coverage will continue to be available in the future at a cost
allowing us to maintain adequate levels of such insurance.
Moreover, due to the increased retention limits insured by us
and our captive subsidiary, if actual payments of claims
materially exceed our projected estimates of malpractice claims,
our financial condition could be materially adversely affected.
Physicians professional liability insurance costs in
certain markets have dramatically increased to the point where
some physicians are either choosing to retire early or leave
those markets. If physician professional liability insurance
costs continue to escalate in markets in which we operate, some
physicians may choose not to practice at our facilities, which
could reduce our patient volumes and revenues. Our hospitals may
also incur a greater percentage of the amounts paid to claimants
if physicians are unable to obtain adequate malpractice coverage
since we are often sued in the same malpractice suits brought
against physicians on our medical staffs who are not employed by
us.
We anticipate employing over 160 additional physicians during
our fiscal year 2010. Such a significant increase in employed
physicians could significantly increase our professional and
general liability risks and related costs in future periods
since for employed physicians there is no insurance coverage
from unaffiliated insurance companies.
Our
facilities are concentrated in a small number of regions. If any
one of the regions in which we operate experiences a regulatory
change, economic downturn or other material change, our overall
business results may suffer.
Among our operations as of September 30, 2009, five
hospitals and various related healthcare businesses were located
in San Antonio, Texas; five hospitals and related
healthcare businesses were located in metropolitan Phoenix,
Arizona; two hospitals and related healthcare businesses were
located in metropolitan Chicago, Illinois; and three hospitals
and related healthcare businesses were located in Massachusetts.
For the year ended June 30, 2009 and the three months ended
September 30, 2009, our total revenues were generated as
follows:
Year Ended |
Three Months Ended |
|||||||
June 30, |
September 30, |
|||||||
2009 | 2009 | |||||||
San Antonio
|
29.6 | % | 26.0 | % | ||||
Phoenix Health Plan and Abrazo Advantage Health Plan
|
19.3 | 22.9 | ||||||
Massachusetts
|
18.3 | 18.3 | ||||||
Metropolitan Phoenix, excluding Phoenix Health Plan and Abrazo
Advantage Health Plan
|
17.9 | 18.4 | ||||||
Metropolitan Chicago(1)
|
14.6 | 14.0 | ||||||
Other
|
0.3 | 0.4 | ||||||
100.0 | % | 100.0 | % | |||||
(1) | Includes MacNeal Health Providers. |
Any material change in the current demographic, economic,
competitive or regulatory conditions in any of these regions
could adversely affect our overall business results because of
the significance of our operations in each of these regions to
our overall operating performance. Moreover, due to the
concentration of our revenues in only four regions, our business
is less diversified and, accordingly, is subject to greater
regional risk than that of some of our larger competitors.
15
If we
are unable to control our healthcare costs at Phoenix Health
Plan and Abrazo Advantage Health Plan, if the health plans
should lose their governmental contracts or if budgetary cuts
reduce the scope of Medicaid or dual-eligibility coverage, our
profitability may be adversely affected.
For the year ended June 30, 2009 and the three months ended
September 30, 2009, PHP generated approximately 18.1% and
21.9% of our total revenues, respectively. PHP derives
substantially all of its revenues through a contract with
AHCCCS. AHCCCS pays capitated rates to PHP, and PHP subcontracts
with physicians, hospitals and other healthcare providers to
provide services to its enrollees. If we fail to effectively
manage our healthcare costs, these costs may exceed the payments
we receive. Many factors can cause actual healthcare costs to
exceed the capitated rates paid by AHCCCS, including:
| our ability to contract with cost-effective healthcare providers; | |
| the increased cost of individual healthcare services; | |
| the type and number of individual healthcare services delivered; and | |
| the occurrence of catastrophes, epidemics or other unforeseen occurrences. |
Our current contract with AHCCCS began October 1, 2008 and
expires September 30, 2011. This contract is terminable
without cause on 90 days written notice from AHCCCS
or for cause upon written notice from AHCCCS if we fail to
comply with any term or condition of the contract or fail to
take corrective action as required to comply with the terms of
the contract. AHCCCS may also terminate the contract with PHP in
the event of unavailability of state or federal funding. If our
AHCCCS contract is terminated, our profitability would be
adversely affected by the loss of these revenues and cash flows.
Also, should the scope of the Medicaid program be reduced as a
result of state budgetary cuts or other political factors, our
results of operations could be adversely affected.
For the year ended June 30, 2009 and the three months ended
September 30, 2009, AAHP generated 1.2% and 1.0% of our
total revenues, respectively. AAHP began providing healthcare
coverage to Medicare and Medicaid dual-eligible enrollees on
January 1, 2006. Most of AAHPs members were formerly
enrolled in PHP. AAHPs contract with CMS went into effect
on January 1, 2006, for a term of one year, with a
provision for successive one year renewals, and has currently
been renewed through December 31, 2010. If we fail to
effectively manage AAHPs healthcare costs, these costs may
exceed the payments we receive.
We are
dependent on our senior management team and local management
personnel, and the loss of the services of one or more of our
senior management team or key local management personnel could
have a material adverse effect on our business.
The success of our business is largely dependent upon the
services and management experience of our senior management
team, which includes Charles N. Martin, Jr., our Chairman
and Chief Executive Officer; Kent H. Wallace, our President and
Chief Operating Officer; Keith B. Pitts, our Vice Chairman,
Phillip W. Roe, our Executive Vice President, Chief Financial
Officer and Treasurer; and Joseph D. Moore, Executive Vice
President. In addition, we depend on our ability to attract and
retain local managers at our hospitals and related facilities,
on the ability of our senior officers and key employees to
manage growth successfully and on our ability to attract and
retain skilled employees. We do not maintain key man life
insurance policies on any of our officers. If we were to lose
any of our senior management team or members of our local
management teams, or if we are unable to attract other necessary
personnel in the future, it could have a material adverse effect
on our business, financial condition and results of operations.
If we were to lose the services of one or more members of our
senior management team or a significant portion of our hospital
management staff at one or more of our hospitals, we would
likely experience a significant disruption in our operations and
failure of the affected hospitals to adhere to their respective
business plans.
Controls
designed to reduce inpatient services may reduce our
revenues.
Controls imposed by Medicare and commercial third-party payers
designed to reduce admissions and lengths of stay, commonly
referred to as utilization review, have affected and
are expected to continue to
16
affect our facilities. Utilization review entails the review of
the admission and course of treatment of a patient by managed
care plans. Inpatient utilization, average lengths of stay and
occupancy rates continue to be negatively affected by
payer-required preadmission authorization and utilization review
and by payer pressures to maximize outpatient and alternative
healthcare delivery services for less acutely ill patients.
Efforts to impose more stringent cost controls are expected to
continue. Although we are unable to predict the effect these
changes will have on our operations, significant limits on the
scope of services reimbursed and on reimbursement rates and fees
could have a material, adverse effect on our business, financial
position and results of operations.
Our
facilities are subject to extensive federal and state laws and
regulations relating to the privacy of individually identifiable
information.
The Health Insurance Portability and Accountability Act of 1996
required the U.S. Department of Health and Human Services
to adopt standards to protect the privacy and security of
individually identifiable health-related information. The
department released final regulations containing privacy
standards in December 2000 and published revisions to the final
regulations in August 2002. The Health Information Technology
for Economic and Clinical Health Act (HITECH
Act) one part of the American Recovery and
Reinvestment Act of 2009 (ARRA)
broadened the scope of the HIPAA privacy and security
regulations. On August 24, 2009, HHS issued an Interim
Final Rule addressing security breach notification requirements
and, on October 30, 2009, issued an Interim Final Rule
implementing amendments to the enforcement regulations under
HIPAA. The privacy regulations extensively regulate the use and
disclosure of individually identifiable health-related
information. The regulations also provide patients with
significant rights related to understanding and controlling how
their health information is used or disclosed. The security
regulations require healthcare providers to implement
administrative, physical and technical practices to protect the
security of individually identifiable health information that is
maintained or transmitted electronically.
Violations of the Health Insurance Portability and
Accountability Act of 1996 could result in civil or criminal
penalties. An investigation or initiation of civil or criminal
actions could have a material adverse effect on our business,
financial condition, results of operations or prospects and our
business reputation could suffer significantly. In addition,
there are numerous federal and state laws and regulations
addressing patient and consumer privacy concerns, including
unauthorized access or theft of personal information. State
statutes and regulations vary from state to state and could
impose additional penalties. We have developed a comprehensive
set of policies and procedures in our efforts to comply with the
Health Insurance Portability and Accountability Act of 1996 and
other privacy laws. Our compliance officers are responsible for
implementing and monitoring compliance with our privacy and
security policies and procedures at our facilities. We believe
that the cost of our compliance with the Health Insurance
Portability and Accountability Act of 1996 and other federal and
state privacy laws will not have a material adverse effect on
our business, financial condition, results of operations or cash
flows.
As a
result of increased post-payment reviews of claims we submit to
Medicare for our services, we may incur additional costs and may
be required to repay amounts already paid to us.
We are subject to regular post-payment inquiries, investigations
and audits of the claims we submit to Medicare for payment for
our services. These post-payment reviews are increasing as a
result of new government cost-containment initiatives, including
enhanced medical necessity reviews for Medicare patients
admitted to long-term care hospitals, and audits of Medicare
claims under the Recovery Audit Contractor program
(RAC). The RAC program began as a demonstration
project in 2005 in three states (New York, California and
Florida) and was expanded into the three additional states of
Arizona, Massachusetts and South Carolina in July 2007. The
program was made permanent by the Tax Relief and Health Care Act
of 2006 enacted in December 2006. CMS ended the demonstration
project in March 2008 and commenced the permanent RAC program in
all states beginning in 2009 with plans to have RACs in full
operation in all 50 states by 2010.
RACs utilize a post-payment targeted review process employing
data analysis techniques in order to identify those Medicare
claims most likely to contain overpayments, such as incorrectly
coded services,
17
incorrect payment amounts, non-covered services and duplicate
payments. The RAC review is either automated, for
which a decision can be made without reviewing a medical record,
or complex, for which the RAC must contact the
provider in order to procure and review the medical record to
make a decision about the payment. CMS has given RACs the
authority to look back at claims up to three years old, provided
that the claim was paid on or after October 1, 2007. Claims
identified as overpayments will be subject to the Medicare
appeals process.
These additional post-payment reviews may require us to incur
additional costs to respond to requests for records and to
pursue the reversal of payment denials, and ultimately may
require us to refund amounts paid to us by Medicare that are
determined to have been overpaid.
If we
fail to continually enhance our hospitals with the most recent
technological advances in diagnostic and surgical equipment, our
ability to maintain and expand our markets will be adversely
affected.
Technological advances with respect to computed axial tomography
(CT), magnetic resonance imaging (MRI) and positron emission
tomography (PET) equipment, as well as other equipment used in
our facilities, are continually evolving. In an effort to
compete with other healthcare providers, we must constantly
evaluate our equipment needs and upgrade equipment as a result
of technological improvements. Such equipment costs typically
range from $1.0 million to $3.0 million, exclusive of
construction or build-out costs. If we fail to remain current
with the technological advancements of the medical community,
our volumes and revenue may be negatively impacted.
Our
hospitals face competition for staffing especially as a result
of the national shortage of nurses and the increased imposition
on us of nurse-staffing ratios, which has in the past and may in
the future increase our labor costs and materially reduce our
profitability.
We compete with other healthcare providers in recruiting and
retaining qualified management and staff personnel responsible
for the
day-to-day
operations of each of our hospitals, including most
significantly nurses and other non-physician healthcare
professionals. In the healthcare industry generally, including
in our markets, the national shortage of nurses and other
medical support personnel has become a significant operating
issue. This shortage has caused us in the past and may require
us in the future to increase wages and benefits to recruit and
retain nurses and other medical support personnel or to hire
more expensive temporary personnel. We have voluntarily raised
on several occasions in the past, and expect to raise in the
future, wages for our nurses and other medical support personnel.
In addition, union-mandated or state-mandated nurse-staffing
ratios significantly affect not only labor costs, but may also
cause us to limit patient admissions with a corresponding
adverse effect on revenues if we are unable to hire the
appropriate number of nurses to meet the required ratios. While
we do not currently operate in any states with mandated
nurse-staffing ratios, the states in which we operate could
adopt mandatory nurse-staffing ratios at any time. In those
instances where our nurses are unionized, it is our experience
that new union contracts often impose significant new additional
staffing ratios by contract on our hospitals. This was the case
with the increased staffing ratios imposed on us in our union
contract with our nurses at Saint Vincent Hospital in Worcester,
Massachusetts negotiated in 2007.
The U.S. Congress is currently considering a bill called
the Employee Free Choice Act of 2009 (EFCA), which
organized labor, a major supporter of the Obama administration,
has called its number one legislative objective. EFCA would
amend the National Labor Relations Act to establish a procedure
whereby the National Labor Relations Board (NLRB)
would certify a union as the bargaining representative of
employees, without a NLRB-supervised secret ballot election, if
a majority of unit employees signs valid union authorization
cards (the card-check provision). Additionally,
under EFCA, parties that are unable to reach a first contract
within 90 days of collective bargaining could refer the
dispute to mediation by the Federal Mediation and Conciliation
Service (the Service). If the Service is unable to
bring the parties to agreement within 30 days, the dispute
then would be referred to binding arbitration. Also, the bill
would provide for increased penalties for labor law violations
by employers. In July 2009, due to intense opposition from the
business community, alternative draft legislation became public,
dropping the card-check provision, but putting
18
in its place new provisions making it easier for employees to
organize including provisions to require shorter unionization
campaigns, faster elections and limitations on
employer-sponsored anti-unionization meetings, which employees
are required to attend. This legislation, if passed, would make
it easier for our nurses or other groups of hospital employees
to unionize, which could materially increase our labor costs.
If our labor costs continue to increase, we may not be able to
raise our payer reimbursement levels to offset these increased
costs, including the significantly increased costs that we will
incur for wage increases and nurse-staffing ratios under our new
union contract with our nurses at Saint Vincent Hospital.
Because substantially all of our net patient revenues consist of
payments based on fixed or negotiated rates, our ability to pass
along increased labor costs is materially constrained. Our
failure to recruit and retain qualified management, nurses and
other medical support personnel, or to control our labor costs,
could have a material adverse effect on our profitability.
Compliance
with Section 404 of the Sarbanes-Oxley Act may negatively
impact our results of operations and failure to comply may
subject us to regulatory scrutiny and a loss of investors
confidence in our internal control over financial
reporting.
Section 404 of the Sarbanes-Oxley Act of 2002
(Section 404) requires us to perform an
evaluation of our internal control over financial reporting and
file managements attestation with our annual report.
Section 404 also requires our independent auditors to opine
on our internal control over financial reporting beginning with
our fiscal year ending June 30, 2010. We have evaluated,
tested and implemented internal controls over financial
reporting to enable management to report on such internal
controls under Section 404. However, we cannot assure you
that the conclusions we will reach in our June 30, 2010
management report will be the same as those reached by our
independent auditors in their report. Failure on our part to
comply with Section 404 may subject us to regulatory
scrutiny and a loss of public confidence in the reliability of
our financial statements. In addition, we may be required to
incur costs in improving our internal control over financial
reporting and hiring additional personnel. Any such actions
could negatively affect our results of operations.
A
failure of our information systems would adversely affect our
ability to properly manage our operations.
We rely on our advanced information systems and our ability to
successfully use these systems in our operations. These systems
are essential to the following areas of our business operations,
among others:
| patient accounting, including billing and collection of patient service revenues; | |
| financial, accounting, reporting and payroll; | |
| coding and compliance; | |
| laboratory, radiology and pharmacy systems; | |
| remote physician access to patient data; | |
| negotiating, pricing and administering managed care contracts; and | |
| monitoring quality of care. |
If we are unable to use these systems effectively, we may
experience delays in collection of patient service revenues and
may not be able to properly manage our operations or oversee
compliance with laws or regulations.
Difficulties
with current construction projects or new construction projects
such as additional hospitals or major expansion projects may
involve significant capital expenditures that could have an
adverse impact on our liquidity.
We may decide to construct an additional hospital or hospitals
in the future or construct additional major expansion projects
to existing hospitals in order to achieve our growth objectives.
Our ability to
19
complete construction of new hospitals or new expansion projects
on budget and on schedule would depend on a number of factors,
including, but not limited to:
| our ability to control construction costs; | |
| the failure of general contractors or subcontractors to perform under their contracts; | |
| adverse weather conditions; | |
| shortages of labor or materials; | |
| our ability to obtain necessary licensing and other required governmental authorizations; and | |
| other unforeseen problems and delays. |
As a result of these and other factors, we cannot assure you
that we will not experience increased construction costs on our
construction projects or that we will be able to construct our
current or any future construction projects as originally
planned. In addition, our current and any future major
construction projects would involve a significant commitment of
capital with no revenues associated with the projects during
construction, which also could have a future adverse impact on
our liquidity.
If the
costs for construction materials and labor continue to rise,
such increased costs could have an adverse impact on the return
on investment relating to our expansion projects.
The cost of construction materials and labor has significantly
increased over the past years as a result of global and domestic
events. We have experienced significant increases in the cost of
steel due to the demand in China for such materials and an
increase in the cost of lumber due to multiple factors.
Increases in oil and gas prices have increased costs for
oil-based products and for transporting materials to job sites.
As we continue to invest in modern technologies, emergency rooms
and operating room expansions, we expend large sums of cash
generated from operating activities. We evaluate the financial
viability of such projects based on whether the projected cash
flow return on investment exceeds our cost of capital. Such
returns may not be achieved if the cost of construction
continues to rise significantly or anticipated volumes do not
materialize.
State
efforts to regulate the construction or expansion of hospitals
could impair our ability to operate and expand our
operations.
Some states require healthcare providers to obtain prior
approval, known as certificates of need, for:
| the purchase, construction or expansion of healthcare facilities; | |
| capital expenditures exceeding a prescribed amount; or | |
| changes in services or bed capacity. |
In giving approval, these states consider the need for
additional or expanded healthcare facilities or services.
Illinois and Massachusetts are the only states in which we
currently own hospitals that have
certificate-of-need
laws. The failure to obtain any required certificate of need
could impair our ability to operate or expand operations in
these states.
If the
fair value of our reporting units declines, a material non-cash
charge to earnings from impairment of our goodwill could
result.
Blackstone acquired our predecessor company during fiscal 2005.
We recorded a significant portion of the purchase price as
goodwill. At September 30, 2009, we had approximately
$692.1 million of goodwill recorded on our financial
statements. There is no guarantee that we will be able to
recover the carrying value of this goodwill through our future
cash flows. On an ongoing basis, we evaluate, based on the fair
value of our reporting units, whether the carrying value of our
goodwill is impaired. During fiscal 2007, we recorded a
$123.8 million ($110.5 million, net of tax benefit)
impairment charge to goodwill to reduce the carrying values of
our Chicago hospitals to their fair values. Our two Chicago
hospitals have experienced deteriorating economic factors that
have negatively impacted their results of operations and cash
flows. While
various initiatives mitigated the impact of these economic
factors in previous quarters,
the operating results of the Chicago hospitals have not improved to the level anticipated.
20
After having the opportunity to evaluate the operating results
of the Chicago hospitals for the first six months of fiscal year
2010 and to reassess the market trends and economic factors,
we concluded that it was unlikely that
previously projected cash flows for these hospitals would be
achieved. We performed an interim goodwill impairment test and,
based upon revised projected cash flows, market participant data
and appraisal information, we determined that the
$43.1 million remaining goodwill related to this reporting
unit was impaired. We will record the $43.1 million
($31.8 million, net of taxes) non-cash
impairment loss in our condensed consolidated statement of operations
for the quarter ended December 31, 2009.
Our
hospitals are subject to potential responsibilities and costs
under environmental laws that could lead to material
expenditures or liability.
We are subject to various federal, state and local environmental
laws and regulations, including those relating to the protection
of human health and the environment. We could incur substantial
costs to maintain compliance with these laws and regulations. To
our knowledge, we have not been and are not currently the
subject of any investigations relating to noncompliance with
environmental laws and regulations. We could become the subject
of future investigations, which could lead to fines or criminal
penalties if we are found to be in violation of these laws and
regulations. The principal environmental requirements and
concerns applicable to our operations relate to proper
management of hazardous materials, hazardous waste and medical
waste, above-ground and underground storage tanks, operation of
boilers, chillers and other equipment, and management of
building conditions, such as the presence of mold, lead-based
paint or asbestos. Our hospitals engage independent contractors
for the transportation and disposal of hazardous waste, and we
require that our hospitals be named as additional insureds on
the liability insurance policies maintained by these contractors.
We also may be subject to requirements related to the
remediation of substances that have been released into the
environment at properties owned or operated by us or our
predecessors or at properties where substances were sent for
off-site treatment or disposal. These remediation requirements
may be imposed without regard to fault, and liability for
environmental remediation can be substantial.
21
Legal
Proceedings
We operate in a highly regulated and litigious industry. As a
result, various lawsuits, claims and legal and regulatory
proceedings have been instituted or asserted against us. While
we cannot predict the likelihood of future claims or inquiries,
we expect that new matters may be initiated against us from time
to time. The results of claims, lawsuits and investigations
cannot be predicted, and it is possible that the ultimate
resolution of these matters, individually or in the aggregate,
may have a material adverse effect on our business (both in the
near and long term), financial position, results of operations
or cash flows. We recognize that, where appropriate, our
interests may be best served by resolving certain matters
without litigation. If non-litigated resolution is not possible
or appropriate with respect to a particular matter, we will
continue to defend ourselves vigorously.
Currently pending and recently settled legal proceedings and
investigations that are not in the ordinary course of business
are set forth below. Where specific amounts are sought in any
pending legal proceeding, those amounts are disclosed. For all
other matters, where the possible loss or range of loss is
reasonably estimable, an estimate is provided. Where no estimate
is provided, the possible amount of loss is not reasonably
estimable at this time. We record reserves for claims and
lawsuits when they are probable and reasonably estimable. For
matters where the likelihood or extent of a loss is not probable
or cannot be reasonably estimated, we have not recognized in our
consolidated financial statements potential liabilities that may
result. We undertake no obligation to update the following
disclosures for any new developments.
Sherman
Act Antitrust Class Action Litigation Maderazo,
et al v. VHS San Antonio Partners, L.P.
d/b/a
Baptist Health Systems, et. al., Case No. 5:06cv00535
(United States District Court, Western District of Texas,
San Antonio Division, filed June 20, 2006 and amended
August 29, 2006)
On June 20, 2006, a federal antitrust class action suit was
filed in San Antonio, Texas against our Baptist Health
System subsidiary in San Antonio, Texas and two other large
hospital systems in San Antonio. In the complaint,
plaintiffs allege that the three hospital system defendants
conspired with each other and with other unidentified
San Antonio area hospitals to depress the compensation
levels of registered nurses employed at the conspiring hospitals
within the San Antonio area by engaging in certain
activities that violated the federal antitrust laws. The
complaint alleges two separate claims. The first count asserts
that the defendant hospitals violated Section 1 of the
federal Sherman Act, which prohibits agreements that
unreasonably restrain competition, by conspiring to depress
nurses compensation. The second count alleges that the
defendant hospital systems also violated Section 1 of the
Sherman Act by participating in wage, salary and benefits
surveys for the purpose, and having the effect, of depressing
registered nurses compensation or limiting competition for
nurses based on their compensation. The class on whose behalf
the plaintiffs filed the complaint is alleged to comprise all
registered nurses employed by the defendant hospitals since
June 20, 2002. The suit seeks unspecified damages, trebling
of this damage amount pursuant to federal law, interest, costs
and attorneys fees. From 2006 through April 2008 we and the
plaintiffs worked on producing documents to each other relating
to, and supplying legal briefs to the court in respect of, the
issue of whether the court will certify a class in this suit. In
April 2008 the case was stayed by the judge pending his ruling
on plaintiffs motion for class certification. We believe
that the allegations contained within this putative class action
suit are without merit, and we have vigorously worked to defeat
class certification. If a class is certified, we will continue
to defend vigorously against the litigation.
On the same date that this suit was filed against us in federal
district court in San Antonio, the same attorneys filed
three other substantially similar putative class action lawsuits
in federal district courts in Chicago, Illinois, Albany, New
York and Memphis, Tennessee against some of the hospitals in
those cities (none of such hospitals being owned by us). The
attorneys representing the plaintiffs in all four of these cases
said in June 2006 that they may file similar complaints in other
jurisdictions and in December 2006 they brought a substantially
similar class action lawsuit against various hospitals in the
Detroit, Michigan metropolitan area. Since representatives of
the Service Employees International Union joined
plaintiffs attorneys in announcing the filing of all four
complaints on June 20, 2006, and as has been reported in
the media, we believe that SEIUs involvement in these
actions appears to be part of a corporate campaign to attempt to organize nurses in these cities, including
San Antonio. The nurses in our hospitals in
San Antonio are currently not members of any union.
If the plaintiffs (1) are successful in obtaining class
certification and (2) are able to prove substantial damages
which are then trebled under Section 1 of the Sherman Act,
such a result could materially affect our business, financial
condition or results of operations. However, in the opinion of
management, the ultimate resolution of this matter is not
expected to have a material adverse effect on our financial
position or results of operations.
Self-Disclosure
of Employment of Excluded Persons
Federal law permits the Department of Health and Human Services
Office of Inspector General (OIG) to impose civil
monetary penalties, assessments
and/or to
exclude from participation in federal healthcare programs,
individuals and entities who have submitted false, fraudulent or
improper claims for payment. Improper claims include those
submitted by individuals or entities who have been excluded from
participation. Civil monetary penalties of up to $10,000 for
each item or service furnished by the excluded individual or
entity, an assessment of up to three times the amount claimed
and program exclusions also be imposed on providers or entities
who employ or enter into contracts with excluded individuals to
provide services to beneficiaries of federal healthcare
programs. On October 12, 2009, we voluntarily disclosed to
OIG that two past employees had been excluded from participation
in Medicare at certain times during their employment. We are
diligently investigating the circumstances surrounding the
employment of these two excluded individuals, and intend to
submit a voluntary disclosure pursuant to the Provider
Self-Disclosure Protocol once the necessary information is
obtained. If the OIG were to impose all potentially available
sanctions and penalties against us in this matter, such a result
could materially affect our business, financial condition or
results of operations. However, in the opinion of management,
the ultimate resolution of this matter is not expected to have a
material adverse effect on our financial position or results of
operations.
Claims
in the ordinary course of business.
We are also subject to claims and lawsuits arising in the
ordinary course of business, including potential claims related
to care and treatment provided at our hospitals and outpatient
services facilities. Although the results of these claims and
lawsuits cannot be predicted with certainty, we believe that the
ultimate resolution of these ordinary course claims and lawsuits
will not have a material adverse effect on our business,
financial condition or results of operations.
22