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Tenet Healthcare 10-K 2008

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

Form 10-K

 

x

Annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

for the fiscal year ended December 31, 2007

 

OR

 

¨

Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

for the transition period from       to       

 

Commission File Number 1-7293


TENET HEALTHCARE CORPORATION

(Exact name of Registrant as specified in its charter)

 

Nevada

(State of Incorporation)

 

95-2557091

(IRS Employer Identification No.)

13737 Noel Road

Dallas, TX 75240

(Address of principal executive offices, including zip code)

(469) 893-2200

(Registrant’s telephone number, including area code)


Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Name of each exchange on which registered

Common stock

 

New York Stock Exchange

63/8% Senior Notes due 2011

 

New York Stock Exchange

61/2% Senior Notes due 2012

 

New York Stock Exchange

73/8% Senior Notes due 2013

 

New York Stock Exchange

97/8% Senior Notes due 2014

 

New York Stock Exchange

91/4% Senior Notes due 2015

 

New York Stock Exchange

67/8% Senior Notes due 2031

 

New York Stock Exchange


         Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes x No o

 

         Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. o

 

         Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months, and (2) has been subject to such filing requirements for the past 90 days. Yes x No o

 

         Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the Registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. o

 

         Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer or a non-accelerated filer (as defined in Exchange Act Rule 12b-2).

 

Large accelerated filer x                                                         Accelerated filer o                                                         Non-accelerated filer o

 

         Indicate by check mark whether the Registrant is a shell company (as defined in Exchange Act Rule 12b-2). Yes o No x

 

         As of June 30, 2007, there were 473,442,150 shares of common stock outstanding. The aggregate market value of the shares of common stock held by non-affiliates of the Registrant as of June 30, 2007, based on the closing price of the Registrant’s shares on the New York Stock Exchange on Friday, June 29, 2007, was approximately $1,188,506,424. For the purpose of the foregoing calculation only, all directors and the executive officers who were SEC reporting persons of the Registrant as of June 30, 2007 have been deemed affiliates. As of January 31, 2008, there were 474,394,752 shares of common stock outstanding.

 

DOCUMENTS INCORPORATED BY REFERENCE

 

                Portions of the Registrant’s definitive proxy statement for the 2008 annual meeting of shareholders to be held on May 8, 2008 are incorporated by reference into Part III of this Form 10-K.

 

 



 

CONTENTS

 

 

 

Page

PART I

 

 

Item 1.

Business

1

Item 1A.

Risk Factors

16

Item 1B.

Unresolved Staff Comments

19

Item 2.

Properties

19

Item 3.

Legal Proceedings

19

Item 4.

Submission of Matters to a Vote of Security Holders

23

 

 

 

PART II

 

 

Item 5.

Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

24

Item 6.

Selected Financial Data

26

Item 7.

Management’s Discussion and Analysis of Financial Condition and Results of Operations

27

Item 7A.

Quantitative and Qualitative Disclosures About Market Risk

64

Item 8.

Financial Statements and Supplementary Data

65

 

Consolidated Financial Statements

69

 

Notes to Consolidated Financial Statements

74

 

Supplemental Financial Information

106

Item 9.

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

107

Item 9A.

Controls and Procedures

107

Item 9B.

Other Information

107

 

 

 

PART III

 

 

Item 10.

Directors, Executive Officers and Corporate Governance

108

Item 11.

Executive Compensation

108

Item 12.

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

108

Item 13.

Certain Relationships and Related Transactions, and Director Independence

108

Item 14.

Principal Accounting Fees and Services

108

 

 

 

PART IV

 

 

Item 15.

Exhibits and Financial Statement Schedules

109

 

 

i



 

PART I.

 

ITEM 1. BUSINESS

 

DESCRIPTION OF BUSINESS

 

                Tenet Healthcare Corporation is an investor-owned health care services company whose subsidiaries and affiliates primarily operate general hospitals and related health care facilities, and also hold investments in other companies (including health care companies). All of Tenet’s operations are conducted through its subsidiaries. (Unless the context otherwise requires, Tenet and its subsidiaries are referred to herein as “Tenet,” the “Company,” “we” or “us.”) At December 31, 2007, our subsidiaries operated 57 general hospitals (including three hospitals not yet divested at that date that are classified as discontinued operations in our Consolidated Financial Statements), a cancer hospital and a critical access hospital, with a combined total of 15,244 licensed beds, serving urban and rural communities in 12 states. Of those general hospitals, 48 were owned by our subsidiaries and nine were owned by third parties and leased by our subsidiaries (including one facility we owned located on land leased from a third party).

 

                At December 31, 2007, our subsidiaries also operated various related health care facilities, including a rehabilitation hospital, a long-term acute care hospital, a skilled nursing facility and a number of medical office buildings—all of which are located on, or nearby, one of our general hospital campuses. In addition, our subsidiaries operated physician practices, captive insurance companies and other ancillary health care businesses (including outpatient surgery centers, diagnostic imaging centers, and occupational and rural health care clinics) and owned interests in two health maintenance organizations, all of which comprise a minor portion of our business.

 

                Our mission is to provide quality health care services that are responsive to the needs of the communities we serve. To accomplish our mission in the complex and competitive health care industry, our operating strategies are to (1) improve the quality of care provided at our hospitals by identifying best practices and implementing those best practices in all of our hospitals, (2) improve operating efficiencies and control operating costs while maintaining or improving the quality of care provided, (3) improve patient, physician and employee satisfaction, (4) improve recruitment and retention of physicians, as well as nurses and other employees, (5) increase collections of accounts receivable and improve cash flow, and (6) acquire new, or divest existing, facilities as market conditions, operational goals and other considerations warrant. We adjust these strategies as necessary in response to changes in the economic and regulatory climates in which we operate and the success or failure of our various efforts.

 

OPERATIONS

 

                In the third quarter of 2007, we streamlined our regional operating structure to further reduce our administrative overhead costs. Previously, our operations were organized into four regions and two local health networks: (1) the California region, which included all of our hospitals in California, as well as our hospital in Nebraska; (2) the Central-Northeast region, which included all of our hospitals in Missouri, Pennsylvania and Tennessee; (3) the Southern States region, which included all of our hospitals in Alabama, Georgia, Louisiana, North Carolina and South Carolina; (4) the Texas region, which included all of our hospitals in Texas; (5) the Miami-Dade Health Network in Florida, which included five hospitals in Miami-Dade and Broward counties; and (6) the Palm Beach Health Network, which included six hospitals in Palm Beach and Broward counties. Our operations are now structured as follows:

 

·                    Our California region continues to include all of our hospitals in California and Nebraska;

 

·                    Our Central region includes all of our hospitals in Missouri, Tennessee and Texas;

 

·                    Our Florida region includes all of our hospitals in Florida in two separate networks, the Miami-Dade Health Network and the Palm Beach Health Network;

 

·                    Our Southern States region continues to include all of our hospitals in Alabama, Georgia, Louisiana, North Carolina and South Carolina; and

 

·                    Our two hospitals in Philadelphia, Pennsylvania are part of a separate market, reporting directly to our chief operating officer.

 

Each of the regions described above also report directly to our chief operating officer. Major decisions, including capital resource allocations, are made at the corporate level, not at the regional level.

 



 

                We seek to operate our hospitals in a manner that positions them to compete effectively in the rapidly evolving health care environment. To that end, we sometimes decide to sell, consolidate or close certain facilities in order to eliminate duplicate services or excess capacity, or because of changing market conditions. From time to time, we make strategic acquisitions of general hospitals or enter into partnerships or affiliations with related health care businesses.

 

                Of the seven hospitals held for sale at December 31, 2006, we completed the sale of Alvarado Hospital Medical Center in California and Graduate Hospital in Pennsylvania during the three months ended March 31, 2007, the sale of the real estate of Lindy Boggs Medical Center in Louisiana during the three months ended June 30, 2007, and the sale of Roxborough Memorial Hospital and Warminster Hospital, both in the Philadelphia area, during the three months ended September 30, 2007. We are continuing to negotiate with buyers for the Encino and Tarzana campuses of Encino-Tarzana Regional Medical Center, which have been slated for divestiture since January 2004.

 

                On August 31, 2007, our lease agreement to operate RHD Memorial Medical Center and Trinity Medical Center in the Dallas, Texas area expired; we had previously disclosed that another company had been selected to manage these two hospitals after the expiration of our lease. Also in the three months ended September 30, 2007, we decided to sell North Ridge Medical Center in Fort Lauderdale, Florida, and we began actively seeking a buyer for that facility. We signed a definitive agreement in February 2008 to sell North Ridge and expect to complete the sale in the second quarter of 2008. In addition, on November 30, 2007, we completed the previously disclosed sale of Shelby Regional Medical Center in Center, Texas.

 

                In June 2007, we purchased Coastal Carolina Medical Center, a 41-bed acute care hospital in Hardeeville, South Carolina. The hospital is located 27 miles from our Hilton Head Regional Medical Center. We intend to operate Coastal Carolina as a full service community hospital and will seek to enhance services to meet the community’s needs, in coordination with our nearby Hilton Head facility. In addition, we are planning to open two new 100-bed acute care hospitals in the next several years — one in El Paso, Texas and one in Fort Mill, South Carolina. Construction has begun on the El Paso hospital, which is targeted to open in May 2008. Our application for a certificate of need to build the Fort Mill hospital was approved in May 2006. The approval is subject to appeal by the other applicants, and we expect the appeal process to take up to two years or longer. Once construction begins, the hospital is expected to take up to an additional two years to complete. We also received approval for a 140-bed replacement hospital for East Cooper Medical Center in Mt. Pleasant, South Carolina. That replacement hospital is expected to open in early 2010.

 

                Going forward, we will focus our financial and management resources on the 56 general hospitals and related operations that will remain after all proposed divestitures are finalized and the construction of our new hospitals in El Paso and Fort Mill is completed. Our general hospitals in continuing operations generated in excess of 97% of our net operating revenues for all periods presented in our Consolidated Financial Statements. Factors that affect patient volumes and, thereby, our results of operations at our hospitals and related health care facilities include, but are not limited to: (1) the business environment and demographics of local communities; (2) the number of uninsured and underinsured individuals in local communities treated at our hospitals; (3) seasonal cycles of illness; (4) climate and weather conditions; (5) physician recruitment, retention and attrition; (6) advances in technology and treatments that reduce length of stay; (7) local health care competitors; (8) managed care contract negotiations or terminations; (9) any unfavorable publicity about us, which impacts our relationships with physicians and patients; and (10) the timing of elective procedures.

 

                Each of our general hospitals offers acute care services, operating and recovery rooms, radiology services, respiratory therapy services, clinical laboratories and pharmacies; in addition, most offer intensive care, critical care and/or coronary care units, physical therapy, and orthopedic, oncology and outpatient services. A number of the hospitals also offer tertiary care services such as open-heart surgery, neonatal intensive care and neuroscience. Four of our hospitals—USC University Hospital, Saint Louis University Hospital, Hahnemann University Hospital and St. Christopher’s Hospital for Children—offer quaternary care in areas such as heart, lung, liver and kidney transplants. USC University Hospital, Sierra Medical Center and Good Samaritan Hospital also offer gamma-knife brain surgery; USC University Hospital and Saint Louis University Hospital offer cyberknife surgery for tumors and lesions in the brain, lung, neck and spine that may have been previously considered inoperable or inaccessible by radiation therapy; and St. Christopher’s Hospital for Children, Saint Louis University Hospital, Hahnemann University Hospital and USC Kenneth Norris Jr. Cancer Hospital, our facility specializing in cancer treatment on the campus of USC University Hospital, offer bone marrow transplants. In addition, our hospitals will continue their efforts to deliver and develop those outpatient services that can be provided on a quality, cost-effective basis and that we believe will meet the needs of the communities served by the facilities.

 

                With the exception of the 25-bed Sylvan Grove Hospital located in Georgia, which is designated by the Centers for Medicare and Medicaid Services (“CMS”) as a critical access hospital and which has not sought to be accredited, each of our facilities that is eligible for accreditation is accredited by the Joint Commission (formerly, the Joint Commission on Accreditation

 

 

2



 

of Healthcare Organizations), the Commission on Accreditation of Rehabilitation Facilities (in the case of our rehabilitation hospital), the American Osteopathic Association (in the case of one hospital) or another appropriate accreditation agency. With such accreditation, our hospitals are deemed to meet the Medicare Conditions of Participation and are, therefore, eligible to participate in government-sponsored provider programs, such as the Medicare and Medicaid programs. The critical access hospital that is not accredited also participates in the Medicare program by otherwise meeting the Medicare Conditions of Participation.

 

                The following table lists, by state, the general hospitals owned or leased and operated by our subsidiaries as of December 31, 2007:

 

Hospital

 

 

Location

 

Licensed
Beds

 

Status

Alabama

 

 

 

 

 

 

Brookwood Medical Center

 

Birmingham

 

586

 

Owned

 

 

 

 

 

 

 

California

 

 

 

 

 

 

Community Hospital of Los Gatos(1)(2)

 

Los Gatos

 

143

 

Leased

Desert Regional Medical Center(3)

 

Palm Springs

 

367

 

Leased

Doctors Hospital of Manteca

 

Manteca

 

73

 

Owned

Doctors Medical Center

 

Modesto

 

465

 

Owned

Encino-Tarzana Regional Medical Center*

 

Encino

 

151

 

Owned

Encino-Tarzana Regional Medical Center*(2)(4)

 

Tarzana

 

245

 

Leased

Fountain Valley Regional Hospital and Medical Center

 

Fountain Valley

 

400

 

Owned

Garden Grove Hospital and Medical Center

 

Garden Grove

 

167

 

Owned

Irvine Regional Hospital and Medical Center(2)(4)

 

Irvine

 

176

 

Leased

John F. Kennedy Memorial Hospital

 

Indio

 

145

 

Owned

Lakewood Regional Medical Center

 

Lakewood

 

172

 

Owned

Los Alamitos Medical Center

 

Los Alamitos

 

167

 

Owned

Placentia-Linda Hospital

 

Placentia

 

114

 

Owned

San Dimas Community Hospital

 

San Dimas

 

64

 

Owned

San Ramon Regional Medical Center

 

San Ramon

 

123

 

Owned

Sierra Vista Regional Medical Center

 

San Luis Obispo

 

165

 

Owned

Twin Cities Community Hospital

 

Templeton

 

114

 

Owned

USC University Hospital(2)(5)

 

Los Angeles

 

471

 

Leased

 

 

 

 

 

 

 

Florida

 

 

 

 

 

 

Coral Gables Hospital

 

Coral Gables

 

256

 

Owned

Delray Medical Center

 

Delray Beach

 

493

 

Owned

Florida Medical Center

 

Fort Lauderdale

 

459

 

Owned

Good Samaritan Medical Center

 

West Palm Beach

 

333

 

Owned

Hialeah Hospital

 

Hialeah

 

378

 

Owned

North Ridge Medical Center(6)

 

Fort Lauderdale

 

332

 

Owned

North Shore Medical Center

 

Miami

 

357

 

Owned

Palm Beach Gardens Medical Center(2)(4)

 

Palm Beach Gardens

 

199

 

Leased

Palmetto General Hospital

 

Hialeah

 

360

 

Owned

Saint Mary’s Medical Center

 

West Palm Beach

 

463

 

Owned

West Boca Medical Center

 

Boca Raton

 

185

 

Owned

 

 

 

 

 

 

 

Georgia

 

 

 

 

 

 

Atlanta Medical Center

 

Atlanta

 

460

 

Owned

North Fulton Regional Hospital(2)(4)

 

Roswell

 

167

 

Leased

South Fulton Medical Center

 

East Point

 

338

 

Owned

Spalding Regional Hospital

 

Griffin

 

160

 

Owned

Sylvan Grove Hospital(7)

 

Jackson

 

25

 

Leased

 

 

 

 

 

 

 

Louisiana

 

 

 

 

 

 

NorthShore Regional Medical Center(1)(2)

 

Slidell

 

165

 

Leased

 

 

3



 

Hospital

 

 

Location

 

Licensed
Beds

 

Status

Missouri

 

 

 

 

 

 

Des Peres Hospital

 

St. Louis

 

167

 

Owned

Saint Louis University Hospital

 

St. Louis

 

356

 

Owned

 

 

 

 

 

 

 

Nebraska

 

 

 

 

 

 

Creighton University Medical Center(8)

 

Omaha

 

334

 

Owned

 

 

 

 

 

 

 

North Carolina

 

 

 

 

 

 

Central Carolina Hospital

 

Sanford

 

137

 

Owned

Frye Regional Medical Center(2)(4)

 

Hickory

 

355

 

Leased

 

 

 

 

 

 

 

Pennsylvania

 

 

 

 

 

 

Hahnemann University Hospital

 

Philadelphia

 

541

 

Owned

St. Christopher’s Hospital for Children

 

Philadelphia

 

170

 

Owned

 

 

 

 

 

 

 

South Carolina

 

 

 

 

 

 

Coastal Carolina Medical Center

 

Hardeeville

 

41

 

Owned

East Cooper Regional Medical Center

 

Mt. Pleasant

 

100

 

Owned

Hilton Head Medical Center and Clinics

 

Hilton Head

 

93

 

Owned

Piedmont Medical Center

 

Rock Hill

 

288

 

Owned

 

 

 

 

 

 

 

Tennessee

 

 

 

 

 

 

Saint Francis Hospital

 

Memphis

 

519

 

Owned

Saint Francis Hospital—Bartlett

 

Bartlett

 

100

 

Owned

 

 

 

 

 

 

 

Texas

 

 

 

 

 

 

Centennial Medical Center

 

Frisco

 

118

 

Owned

Cypress Fairbanks Medical Center

 

Houston

 

180

 

Owned

Doctors Hospital

 

Dallas

 

232

 

Owned

Houston Northwest Medical Center

 

Houston

 

508

 

Owned

Lake Pointe Medical Center(9)

 

Rowlett

 

112

 

Owned

Nacogdoches Medical Center

 

Nacogdoches

 

150

 

Owned

Park Plaza Hospital

 

Houston

 

446

 

Owned

Providence Memorial Hospital

 

El Paso

 

508

 

Owned

Sierra Medical Center

 

El Paso

 

351

 

Owned


*                       We continue to work toward divesting these facilities as part of previously announced restructuring plans, and discussions and negotiations with potential buyers are ongoing.

 

(1)               Facility and land leased from a partnership in which a Tenet subsidiary owns a 23% interest. The current lease term for Community Hospital of Los Gatos expires in May 2009, but may be renewed through May 2039, and the current lease term for NorthShore Regional Medical Center expires in May 2010, but may be renewed through May 2040, in each case subject to certain conditions contained in the respective leases.

 

(2)               Currently the subject of a lease dispute. Please see Item 3, Legal Proceedings, for additional information.

 

(3)               Lease expires in 2027.

 

(4)               The current lease terms for the Tarzana campus of Encino-Tarzana Regional Medical Center, Palm Beach Gardens Medical Center, North Fulton Regional Hospital and Frye Regional Medical Center expire in February 2009, but may be renewed through at least February 2039; and the current lease term for Irvine Regional Hospital and Medical Center expires in February 2009, but may be renewed through February 2019, in each case subject to certain conditions contained in the respective leases.

 

(5)               Facility owned by us on land leased from a third party. The current lease term expires in June 2013, but may be renewed through June 2063 subject to certain conditions contained in the lease. Number of licensed beds includes USC Kenneth Norris Jr. Cancer Hospital, our 60-bed facility specializing in cancer treatment on the campus of USC University Hospital.

 

(6)               We signed a definitive agreement in February 2008 to sell this facility and expect to complete the sale in the second quarter of 2008.

 

(7)               Designated by CMS as a critical access hospital and, therefore, although not being divested, this facility is not counted among the 56 general hospitals that will remain after all proposed divestitures are finalized and the construction of new hospitals in El Paso, Texas and Fort Mill, South Carolina is completed. The current lease term for this facility expires in December 2011, but may be renewed through December 2046 subject to certain conditions contained in the lease.

 

(8)               Owned by a limited liability company in which a Tenet subsidiary owns a 74% interest and is the managing member.

 

(9)               As of January 1, 2008, this facility is being operated by a limited liability company in which a Tenet subsidiary owns a 94.6% interest and is the managing member.

 

 

4



 

 

                As of December 31, 2007, the largest concentrations of licensed beds in our general hospitals were in Florida (25.0%), California (24.4%) and Texas (17.1%). Strong concentrations of hospital beds within market areas help us contract more successfully with managed care payers, reduce management, marketing and other expenses, and more efficiently utilize resources. However, such concentrations increase the risk that, should any adverse economic, regulatory, environmental or other developments occur in these areas, our business, financial condition, results of operations or cash flows could be materially adversely affected. We currently anticipate that none of our hospitals will comprise more than 5% of our consolidated net operating revenues or 15% of our total assets, excluding goodwill and intercompany receivables, during 2008.

 

                The following table shows certain information about the hospitals operated by our subsidiaries at December 31, 2007, 2006 and 2005.

 

 

 

December 31,

 

 

 

2007

 

2006

 

2005

 

Total number of facilities(1)

 

58

 

66

 

73

 

Total number of licensed beds(2)

 

15,244

 

16,310

 

18,259

 


(1)               Includes all general hospitals and critical access facilities, as well as three facilities at December 31, 2007, 10 facilities at December 31, 2006 and 17 facilities at December 31, 2005, respectively, that are classified as discontinued operations for financial reporting purposes as of December 31, 2007.

 

(2)               Information regarding utilization of licensed beds and other operating statistics can be found in Part II, Item 7, Management’s Discussion and Analysis of Financial Condition and Results of Operations.

 

PROPERTIES

 

                Description of Real Property. Our corporate headquarters are located in Dallas, Texas and, at December 31, 2007, our other administrative offices were located in Los Angeles and Santa Ana, California; Ft. Lauderdale, Florida; Atlanta, Georgia; St. Louis, Missouri; and Philadelphia, Pennsylvania. One of our subsidiaries leases the space for our Dallas office under an operating lease agreement that expires in December 2009, subject to our ability to hold-over under the lease agreement until December 2010. Other subsidiaries lease the space for our offices in Los Angeles, Santa Ana, Ft. Lauderdale, Atlanta, St. Louis and Philadelphia under operating lease agreements.

 

                Our subsidiaries also owned or leased and operated 85 medical office buildings at December 31, 2007; most of these buildings are adjacent to our general hospitals. The locations of our hospitals and the number of licensed beds at each hospital at December 31, 2007 are set forth in the table beginning on page 3. We believe that all of our properties, including the administrative and medical office buildings described above, are suitable for their intended purposes.

 

                Obligations Relating to Real Property. As of December 31, 2007, we had approximately $9 million of outstanding loans secured by property and equipment, and we had approximately $2 million of capital lease obligations. In addition, from time to time, we lease real property to third-party developers for the construction of medical office buildings. Under our current practice, the financing necessary to construct the medical office buildings encumbers only the leasehold and not our fee interest in the real estate. In years past, however, we have at times subordinated our fee interest and allowed our property to be pledged as collateral for third-party loans. We have no contractual obligation to make payments on these third-party loans, but our property could be subject to loss in the case of default by the lessee.

 

                Regulations Affecting Real Property. We are subject to a number of laws and regulations affecting our use of, and purchase and sale of, real property. Among these are California’s seismic standards, the Americans with Disabilities Act (“ADA”), and various environmental laws and regulations.

 

                The State of California has established standards intended to ensure that all hospitals in the state withstand earthquakes and other seismic activity without collapsing or posing the threat of significant loss of life. At this time, we are required to meet these standards by December 31, 2012, subject to a two-year extension for hospital projects that are underway in advance of that date. However, in November 2007, the California Building Standards Commission adopted regulations permitting the use of a new computerized evaluation tool for determining how at risk hospital buildings are of collapse in an earthquake, and this new tool is expected to result in fewer hospitals requiring retrofitting by the 2012 deadline. We are in the process of providing the information required for evaluating all our hospitals in California. We currently estimate spending a total of approximately $405 million to comply with the requirements under California’s seismic regulations. This amount has not been adjusted for inflation as there is currently a shortage of supplies, and there is expected to be a limited number of architects, engineers and

 

 

5



 

contractors available to design and perform this work, both of which are causing a high inflation rate at this time. It is possible that our estimate could be reduced once we receive the evaluation of our hospitals using the new evaluation tool. In addition to safety standards, over time, hospitals must also meet performance standards meant to ensure that they are generally capable of providing medical services to the public after an earthquake or other disaster. Ultimately, all general acute care hospitals in California must meet seismic performance standards by 2030 to remain open. To date, we have conducted engineering studies and developed compliance plans for all of our California facilities in continuing operations. At this time, all of our general acute care hospitals in California are in compliance with all current seismic requirements.

 

                The Americans with Disabilities Act generally requires that public accommodations, including hospitals and other health care facilities, be made accessible to disabled persons. Our facilities are subject to a negotiated consent decree involving disability access. In accordance with the terms of the consent decree, our facilities have agreed to implement disability access improvements, but have not admitted that they have engaged in any wrongful action or inaction. In the year ended December 31, 2007, we spent approximately $5 million on corrective work at our facilities, and we currently anticipate spending an additional $143 million over the next four years. Noncompliance with the requirements of the ADA or similar state laws could result in the imposition of fines against us by federal and state governments or the award of damages from us to individual plaintiffs. In addition, noncompliance with court orders and consent decrees requiring disability access improvements could result in contempt proceedings and the imposition of criminal penalties.

 

                Our properties are also subject to various federal, state and local environmental laws, rules and regulations, including with respect to asbestos abatement and the treatment of underground storage tanks, among other matters. We believe it is unlikely that the cost of complying with such laws, rules and regulations will have a material effect on our future capital expenditures, results of operations or competitive position.

 

MEDICAL STAFF AND EMPLOYEES

 

                General. Our hospitals are staffed by licensed physicians who have been admitted to the medical staffs of individual hospitals. Under state laws and other licensing standards, hospital medical staffs are generally self-governing organizations subject to ultimate oversight by the hospital’s local governing board. Members of the medical staffs of our hospitals also often serve on the medical staffs of hospitals not owned by us. Members of our medical staffs are free to terminate their affiliation with our hospitals or admit their patients to competing hospitals at any time. Although we operate some physician practices and, where permitted by law, employ some physicians, the overwhelming majority of the physicians who practice at our hospitals are not our employees. Nurses, therapists, lab technicians, facility maintenance workers and the administrative staffs of hospitals, however, normally are our employees. We are subject to federal minimum wage and hour laws and various state labor laws, and maintain a number of different employee benefit plans.

 

                Our operations depend on the efforts, abilities and experience of our employees and the physicians on the medical staffs of our hospitals, most of whom have no long-term contractual relationship with us. It is essential to our ongoing business that we attract and retain skilled employees and an appropriate number of quality physicians and other health care professionals in all specialties on our medical staffs. In some of our markets, physician recruitment and retention are affected by a shortage of physicians in certain sought-after specialties and the difficulties that physicians are experiencing in obtaining affordable malpractice insurance or finding insurers willing to provide such insurance. In addition, we believe physician attrition in our medical staffs is one of the reasons for our recent volume declines. However, we are taking a number of steps to address the problem of volume decline, one of which is centered on building stronger relationships with the physicians who admit patients both to our hospitals and to our competitors’ hospitals.

 

                Although we will continue our efforts to successfully attract and retain key employees, qualified physicians and other health care professionals, the loss of some or all of our key employees or the inability to attract or retain sufficient numbers of qualified physicians and other health care professionals could have a material adverse effect on our business, financial condition, results of operations or cash flows.

 

 

6



 

                At December 31, 2007, the approximate number of our employees (of which approximately 27% were part-time employees) was as follows:

 

General hospitals and related health care facilities(1)

 

62,584

 

Administrative offices

 

680

 

Total

 

63,264

 


(1)               Includes employees whose employment related to the operations of our general hospitals, cancer hospital, critical access facility, rehabilitation hospital, long-term acute care hospital, skilled nursing facility, outpatient surgery centers, diagnostic imaging centers, occupational and rural health care clinics, physician practices, in-house collection agency and other health care operations.

 

                The largest concentrations of our employees (excluding those in our administrative offices) are in those states where we have the largest concentrations of licensed hospital beds:

 

 

 

% of employees

 

% of licensed beds

 

California

 

27.5

%

24.4

%

Florida

 

17.8

%

25.0

%

Texas

 

14.4

%

17.1

%

 

                Union Activity and Labor Relations. At December 31, 2007, approximately 22% of the employees at our hospitals and related health care facilities were represented by labor unions. Labor relations at our facilities generally have been satisfactory. We, and the hospital industry in general, are continuing to see an increase in the amount of union activity across the country. As union activity increases at our hospitals, our salaries, wages and benefits expense may increase more rapidly than our net operating revenues.

 

                In November 2007, we entered into new collective bargaining agreements with the Service Employees International Union (“SEIU”) to replace expired collective bargaining agreements at 14 hospitals in California and two hospitals in Florida. We also entered into a collective bargaining agreement with the SEIU at Coral Gables Hospital in Florida after certain employees, including registered nurses, voted in favor of union representation at that facility in March 2007. The agreements, which were reached after months of negotiations between the parties, set stable and competitive wage increases within our budgeted expectations through March 2011 in the case of our California hospitals and through various dates in 2010 for our Florida facilities. In addition, the agreements include improvements in employee work rules, create an education and training fund for employees, and contain terms that provide for greater predictability with respect to union organization efforts.

 

                In August 2007, we entered into successor, four-year collective bargaining agreements with the California Nurses Association (“CNA”) that cover nurses at nine hospitals in California. These agreements provide for wage increases within our budgeted expectations.

 

                We have also entered into separate “peace accords” with both the SEIU and the CNA that provide each union with limited access to attempt to organize our employees. The peace accord with the SEIU expires in December 2011, and the peace accord with the CNA expires in December 2010. Such agreements are becoming more common as employers attempt to balance the disruption caused by traditional union organizing with the rights of employees to determine for themselves whether to seek union representation.

 

                In March 2007, we reached an agreement with the United Nurses Associations of California on a new labor contract for nurses represented at four hospitals in California. The agreement includes improvements in employee wages within our budgeted expectations, work rules and benefits, and was reached after several months of negotiations and good-faith bargaining on the part of both parties.

 

                We do not anticipate that any of the union and labor agreements we reached in 2007 will have a material adverse effect on our results of operations.

 

                Nursing Shortage and Mandatory Nurse-Staffing Ratios. Factors that adversely affect our labor costs include the nationwide shortage of nurses and the enactment of state laws regarding nurse-staffing ratios. The national nursing shortage continues and remains more serious in key specialties and in certain geographic areas than others, including several areas in which

 

7



we operate hospitals. The nursing shortage has been a significant operating issue to health care providers, including us, and has resulted in increased labor costs for nursing personnel. In addition, state-mandated nurse-staffing ratios in California affect not only our labor costs, but, if we are unable to hire the necessary number of nurses to meet the required ratios, they may also cause us to limit patient admissions with a corresponding adverse effect on our net operating revenues. The vast majority of hospitals in California, including our hospitals, are not at all times meeting the state-mandated nurse-staffing ratios; however, we have continued to improve our compliance and strive to make further improvements in 2008. Nurse-staffing ratio legislation has been proposed, but not yet enacted, in other states in which we operate hospitals, including Pennsylvania and Texas.

 

                We cannot predict the degree to which we will be affected by the future availability or cost of nursing personnel, but we expect to continue to experience significant salary, wage and benefit pressures created by the nursing shortage throughout the country and state-mandated nurse-staffing ratios, particularly in California. In response to these trends, we have enhanced salaries, wages and benefits to recruit and retain nurses. In addition, we have been and may continue to be required to increase our use of temporary personnel, which is typically more expensive than hiring full-time or part-time employees. Significant efforts are being invested in workforce development with local schools of nursing and in recruitment of new graduates and experienced nurses.

 

COMPETITION

 

                In general, competition among health care providers occurs primarily at the local level. A hospital’s position within the geographic area in which it operates is affected by a number of competitive factors, including, but not limited to (1) the scope, breadth and quality of services a hospital offers to its patients and physicians, (2) the number, quality and specialties of the physicians who admit and refer patients to the hospital, (3) nurses and other health care professionals employed by the hospital or on the hospital’s staff, (4) the hospital’s reputation, (5) its managed care contracting relationships, (6) its location, (7) the location and number of competitive facilities and other health care alternatives, (8) the physical condition of its buildings and improvements, (9) the quality, age and state-of-the-art of its medical equipment, (10) its parking or proximity to public transportation, (11) the length of time it has been a part of the community, and (12) the charges for its services. In addition, tax-exempt competitors may have certain financial advantages not available to our facilities, such as endowments, charitable contributions, tax-exempt financing, and exemptions from sales, property and income taxes. In certain states, including California, some not-for-profit hospitals are permitted by law to directly employ physicians while for-profit hospitals are prohibited from doing so. We also face increasing competition from physician-owned specialty hospitals and freestanding diagnostic and imaging centers for market share in high margin services and for quality physicians and personnel.

 

                Overall, our general hospitals and other health care businesses operate in highly competitive environments, and we believe recent declines in our patient volumes can be attributed, in part, to increased competition for physicians and patients. We are taking a number of steps to address competition and increase patient volume. Broadly speaking, we attract physicians by striving to equip our hospitals with technologically advanced equipment and quality physical plant, properly maintaining the equipment and physical plant, providing high-quality care to our patients and otherwise creating an environment within which physicians prefer to practice. One of our specific initiatives is our Physician Relationship Program, which is centered around understanding the needs of physicians who admit patients both to our hospitals and to our competitors’ hospitals and responding to those needs with changes and improvements in our hospitals and operations. With our Targeted Growth Initiative, we have been completing clinical service line market demand analyses and profitability assessments to determine which services are highly valued, so that we can focus more resources on those services and market them to improve our results of operations.

 

                Our Commitment to Quality initiative, which we launched in 2003, is further helping position us to competitively meet the volume challenge. We continue to work with physicians to implement the most current evidence-based techniques to improve the way we provide care. As a result of these efforts, our hospitals have improved substantially in quality metrics reported by the government and have been recognized by several managed care companies for their quality of care. Further, each hospital has a local governing board, consisting primarily of community members and physicians that develop short-term and long-term plans for the hospital to foster a desirable medical environment for physicians. Each local governing board also reviews and approves, as appropriate, actions of the medical staff, including staff appointments, credentialing, peer review and quality assurance. While physicians may terminate their association with our hospitals at any time, we believe that by striving to maintain and improve the quality of care at our hospitals and by maintaining ethical and professional standards, we will attract and retain qualified physicians with a variety of specialties.

 

8



 

HEALTH CARE REGULATION AND LICENSING

 

CERTAIN BACKGROUND INFORMATION

 

                Health care, as one of the largest industries in the United States, continues to attract much legislative interest and public attention. Changes in the Medicare and Medicaid programs and other government health care programs, hospital cost-containment initiatives by public and private payers, proposals to limit payments and health care spending, and industry-wide competitive factors greatly impact the health care industry. The industry is also subject to extensive federal, state and local regulation relating to licensure, conduct of operations, ownership of facilities, physician relationships, addition of facilities and services, and reimbursement rates for services. The laws, rules and regulations governing the health care industry are extremely complex, and, in certain areas, the industry has little or no regulatory or judicial interpretation for guidance. Although we have extensive policies and procedures in place to facilitate compliance in all material respects with such laws, rules and regulations, if a determination is made that we were in material violation of such laws, rules or regulations, our business, financial condition, results of operations or cash flows could be materially adversely affected. In addition, we are unable to predict the future course of federal, state and local regulation or legislation, including Medicare and Medicaid statutes and regulations (discussed beginning on page 32). Further changes in the regulatory framework affecting health care providers could have a material adverse effect on our business, financial condition, results of operations or cash flows.

 

                Both federal and state government agencies continue heightened and coordinated civil and criminal enforcement efforts against the health care industry. Under the authority of the Inspector General Act of 1978, the Office of Inspector General (“OIG”) of the U.S. Department of Health and Human Services (“HHS”) on an annual basis conducts a comprehensive work-planning process to identify the areas most worthy of attention in the coming year. The OIG’s ongoing and planned work includes examining the integrity of Medicare and Medicaid payments and the quality of care in long-term care settings. Several initiatives in the OIG’s fiscal year 2008 Work Plan pertain to hospital payments, as well as CMS’ policies and procedures regarding the Joint Commission hospital accreditation process. An online version of the 2008 Work Plan is available at http://oig.hhs.gov/publications.html. We believe that we, and the health care industry in general, will continue to be subject to increased government scrutiny and investigations such as these, which could have a material adverse effect on our business, financial condition, results of operations or cash flows.

 

                Another trend impacting health care providers, including us, is the increasing amount of qui tam recoveries obtained under the federal False Claims Act. Qui tam or “whistleblower” actions can also be filed under certain state false claims laws if the fraud involves Medicaid funds or money from state and local agencies. Federal and state false claims laws allow private individuals to bring actions on behalf of the government, alleging that a hospital or health care provider has defrauded a federal or state government program, such as Medicare or Medicaid. If the government intervenes in the action and prevails, the defendant may be required to pay three times the actual damages sustained by the government, plus mandatory civil penalties for each false claim submitted to the government. As part of the resolution of a qui tam case, the party filing the initial complaint may share in a portion of any settlement or judgment. If the government does not intervene in the action, the qui tam plaintiff may continue to pursue the action independently. Although companies in the health care industry in general, and us in particular, have been and may continue to be subject to qui tam actions, we are unable to predict the future impact of such actions on our business, financial condition, results of operations or cash flows.

 

ANTI-KICKBACK AND SELF-REFERRAL REGULATIONS

 

                Medicare and Medicaid anti-kickback and anti-fraud and abuse amendments codified under Section 1128B(b) of the Social Security Act (the “Anti-kickback Statute”) prohibit certain business practices and relationships that might affect the provision and cost of health care services payable under the Medicare and Medicaid programs and other government programs, including the payment or receipt of remuneration for the referral of patients whose care will be paid for by such programs. Sanctions for violating the Anti-kickback Statute include criminal and civil penalties, as well as fines and possible exclusion from government programs, such as Medicare and Medicaid. Many states have statutes similar to the federal Anti-kickback Statute, except that the state statutes usually apply to referrals for services reimbursed by all third-party payers, not just federal programs. In addition, it is a violation of the federal Civil Monetary Penalties Law to offer or transfer anything of value to Medicare or Medicaid beneficiaries that is likely to influence their decision to obtain covered goods or services from one provider or service over another.

 

                The federal government has also issued regulations that describe some of the conduct and business relationships that are permissible under the Anti-kickback Statute. These regulations are often referred to as the “Safe Harbor” regulations. The fact that certain conduct or a given business arrangement does not meet a Safe Harbor does not necessarily render the conduct or business arrangement illegal under the Anti-kickback Statute. Rather, such conduct and business arrangements risk increased scrutiny by government enforcement authorities and should be reviewed on a case-by-case basis.

 

 

9



 

                In addition to addressing other matters, as discussed below, the Health Insurance Portability and Accountability Act of 1996 also amended Title XI (42 U.S.C. Section 1301 et seq.) to broaden the scope of fraud and abuse laws to include all health plans, whether or not payments under such health plans are made pursuant to a federal program.

 

                Section 1877 of the Social Security Act (commonly referred to as the “Stark” law) generally restricts referrals by physicians of Medicare or Medicaid patients to entities with which the physician or an immediate family member has a financial relationship, unless one of several exceptions applies. The referral prohibition applies to a number of statutorily defined “designated health services,” such as clinical laboratory, physical therapy, radiology, and inpatient and outpatient hospital services. The exceptions to the referral prohibition cover a broad range of common financial relationships. These statutory, and the subsequent regulatory, exceptions are available to protect certain permitted employment relationships, leases, group practice arrangements, medical directorships, and other common relationships between physicians and providers of designated health services, such as hospitals. A violation of the Stark law may result in a denial of payment, required refunds to patients and the Medicare program, civil monetary penalties of up to $15,000 for each violation, civil monetary penalties of up to $100,000 for “sham” arrangements, civil monetary penalties of up to $10,000 for each day that an entity fails to report required information, and exclusion from participation in the Medicare and Medicaid programs and other federal programs. Many states have adopted or are considering similar self-referral statutes, some of which extend beyond the related state Medicaid program to prohibit the payment or receipt of remuneration for the referral of patients and physician self-referrals regardless of the source of the payment for the care. Our participation in and development of joint ventures and other financial relationships with physicians could be adversely affected by these amendments and similar state enactments.

 

                In accordance with our compliance program and our Corporate Integrity Agreement with the federal government, which are described in detail under “—Compliance Program” below, we have in place policies and procedures concerning compliance with the Anti-kickback Statute and the Stark law, among others. In addition, our compliance, law and audit services departments systematically review a substantial number of our arrangements with referral sources to determine the extent to which they comply with the Anti-kickback Statute, the Stark law and similar state statutes.

 

HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT

 

                Title II, Subtitle F of the Health Insurance Portability and Accountability Act (“HIPAA”) mandates the adoption of specific standards for electronic transactions and code sets that are used to transmit certain types of health information. HIPAA’s objective is to encourage efficiency and reduce the cost of operations within the health care industry. To protect the information transmitted using the mandated standards and the patient information used in the daily operations of a covered entity, HIPAA also sets forth federal rules protecting the privacy and security of protected health information. The privacy and security regulations address the use and disclosure of individually identifiable health information and the rights of patients to understand and control how their information is used and disclosed. The law provides both criminal and civil fines and penalties for covered entities that fail to comply with HIPAA.

 

                HHS regulations include deadlines for compliance with the various provisions of HIPAA. Effective October 1, 2005, CMS will not process electronic claims that do not meet HIPAA’s electronic data transmission (transaction and code set) standards that health care providers must use when transmitting certain health care information electronically. Our electronic data transmissions are compliant with current standards.

 

                All covered entities, including those we operate, were required to comply with the privacy requirements of HIPAA by April 14, 2003 and the security requirements of HIPAA by April 20, 2005. We are in material compliance with the privacy and security regulations, and we will continue to update training and procedures to address any compliance issues that develop. Further, all covered entities, including those we operate have been assigned unique 10-digit numeric identifiers and otherwise currently comply with the National Provider Identifier requirements of HIPAA.

 

                We have developed a comprehensive set of policies and procedures in our efforts to comply with HIPAA, under the guidance of our compliance department. Hospital compliance officers and information security officers are responsible for implementing and monitoring compliance with our HIPAA privacy and security policies and procedures at our hospitals. We have also created an internal web-based HIPAA training program, which is mandatory for all employees. Based on existing and currently proposed regulations, we believe that the cost of our compliance with HIPAA will not have a material adverse effect on our business, financial condition, results of operations or cash flows.

 

 

10



 

HEALTH CARE FACILITY LICENSING REQUIREMENTS

 

                In order to maintain their operating licenses, health care facilities must comply with strict governmental standards concerning medical care, equipment and cleanliness. Various licenses and permits also are required in order to dispense narcotics, operate pharmacies, handle radioactive materials and operate certain equipment. Our health care facilities hold all required governmental approvals, licenses and permits material to the operation of their business.

 

UTILIZATION REVIEW COMPLIANCE AND HOSPITAL GOVERNANCE

 

                In addition to certain statutory coverage limits and exclusions, federal laws and regulations, specifically the Medicare Conditions of Participation, generally require health care providers, including hospitals that furnish or order health care services that may be paid for under the Medicare program or state health care programs, to assure that claims for reimbursement are for services or items that are (1) provided economically and only when, and to the extent, they are medically reasonable and necessary, (2) of a quality that meets professionally recognized standards of health care, and (3) supported by appropriate evidence of medical necessity and quality. CMS administers the Quality Improvement Organization (“QIO”) program through a network of QIOs that work with consumers, physicians, hospitals and other caregivers to refine care delivery systems to assure patients receive the appropriate care at the appropriate time, particularly among underserved populations. The QIO program also safeguards the integrity of the Medicare trust fund by reviewing Medicare patient admissions, treatments and discharges, and ensuring payment is made only for medically necessary services, and investigates beneficiary complaints about quality of care. The QIOs have the authority to deny payment for services provided and recommend to HHS that a provider that is in substantial noncompliance with certain standards be excluded from participating in the Medicare program.

 

                Medical and surgical services and practices are extensively supervised by committees of staff doctors at each of our health care facilities, are overseen by each facility’s local governing board, the members of which primarily are community members and physicians, and are reviewed by our clinical quality personnel. The local hospital governing board also helps maintain standards for quality care, develop short-term and long-range plans, and establish, review and enforce practices and procedures, as well as approves the credentials and disciplining of medical staff members.

 

CERTIFICATE OF NEED REQUIREMENTS

 

                Some states require state approval for construction, expansion and closure of health care facilities, including findings of need for additional or expanded health care facilities or services. Certificates of need, which are issued by governmental agencies with jurisdiction over health care facilities, are at times required for capital expenditures exceeding a prescribed amount, changes in bed capacity or services, and certain other matters. As of December 31, 2007, we operated hospitals in eight states that require a form of state approval under certificate of need programs applicable to those hospitals. We are unable to predict whether we will be required or able to obtain any additional certificates of need in any jurisdiction where such certificates of need are required, or if any jurisdiction will eliminate or alter its certificate of need requirements in a manner that will increase competition and, thereby, affect our competitive position.

 

ENVIRONMENTAL REGULATIONS

 

                Our health care operations generate medical waste that must be disposed of in compliance with federal, state and local environmental laws, rules and regulations. Our operations also are subject to compliance with various other environmental laws, rules and regulations. We believe it is unlikely that the cost of such compliance will have a material effect on our future capital expenditures, results of operations or cash flows.

 

 

11



 

COMPLIANCE PROGRAM

 

                General. We maintain a multi-faceted corporate and hospital-based compliance program that is designed to assist our corporate and hospital staff to meet or exceed applicable standards established by federal and state laws and regulations and industry practice. We established our compliance department in 2003 to carry out compliance-related functions previously carried out by our law department. To ensure the independence of the compliance department, the following measures were implemented:

 

·                    the compliance department has its own operating budget;

 

·                    the compliance department has the authority to hire outside counsel, to access any Tenet document and to interview any of our personnel; and

 

·                    the chief compliance officer reports directly to the quality, compliance and ethics committee of our board of directors.

 

                In January 2004, our board of directors approved a compliance program charter that furthered our goal of fostering and maintaining the highest ethical standards, and valuing our compliance with all state and federal laws and regulations as a foundation of our corporate philosophy. The primary focus of the program is compliance with the requirements of the Medicare and Medicaid programs and other government healthcare programs. Pursuant to the terms of the compliance program charter, the compliance department is responsible for the following activities: (1) drafting company policies and procedures related to compliance issues; (2) developing and providing compliance-related education and training to all of our employees and, as appropriate, directors, contractors, agents and staff physicians; (3) monitoring, responding to and resolving all compliance-related issues; (4) ensuring that we take appropriate corrective and disciplinary action when noncompliant or improper conduct is identified; and (5) measuring compliance with our policies and legal and regulatory requirements related to health care operations.

 

                In order to ensure the compliance department is well-positioned to perform its duties as outlined in its charter, in 2004 we significantly expanded our compliance staff. As part of this expansion, we hired regional compliance directors and have named a compliance officer for each hospital. All hospital-based compliance officers report to regional compliance directors who report directly to our chief compliance officer.

 

                Corporate Integrity Agreement. In June 2006, we entered into a broad civil settlement agreement with the U.S. Department of Justice and other federal agencies that concluded several previously disclosed governmental investigations, including inquiries into our receipt of certain Medicare outlier payments before 2003, physician financial arrangements and Medicare coding issues. In accordance with the terms of the settlement, we entered into a five-year corporate integrity agreement (“CIA”) in September 2006 with the OIG. The CIA establishes annual training requirements and compliance reviews by independent organizations in specific areas. In particular, the CIA requires, among other things, that we:

 

·                    maintain our existing company-wide quality initiatives in the areas of evidence-based medicine, standards of clinical excellence and quality measurements;

 

·                    maintain our existing company-wide compliance program and code of conduct;

 

·                    formalize in writing our policies and procedures in the areas of billing and reimbursement, compliance with the Anti-kickback Statute and the Stark law, and clinical quality, almost all of which were already in place when we entered into the CIA and the remainder of which were put into place by January 2007;

 

·                    provide a variety of general and specialized compliance training to our employees, contractors and physicians we employ or who serve as medical directors and/or serve on our hospitals’ governing boards; and

 

·                    engage independent outside entities to provide reviews of compliance and effectiveness in five areas — Medicare outlier payments, diagnosis-related group claims, unallowable costs, physician financial arrangements and clinical quality systems.

 

Further, the CIA requires us to maintain or establish performance standards and incentives that link compensation and incentive awards directly to clinical quality measures and compliance program effectiveness measures. The CIA also establishes a number of specific requirements for the quality, compliance and ethics committee of our board of directors. Notably, the committee must (1) retain an independent compliance expert, and (2) assess our compliance program, including arranging for the performance of a review of the effectiveness of the program. Based on this work, the committee must then adopt a resolution regarding its conclusions as to whether we have implemented an effective compliance program. We have taken, and continue to take, all necessary steps to promote compliance with the terms of the CIA.

 

 

12



 

ETHICS PROGRAM

 

                We maintain a values-based ethics program that is designed to monitor and raise awareness of ethical issues among employees and to stress the importance of understanding and complying with our Standards of Conduct.

 

                All of our employees, including our chief executive officer, chief financial officer and principal accounting officer, are required to abide by our Standards of Conduct to ensure that our business is conducted in a consistently legal and ethical manner. The members of our board of directors and many of our contractors are also required to abide by our Standards of Conduct. The standards reflect our basic values and form the foundation of a comprehensive process that includes compliance with all corporate policies, procedures and practices. Our standards cover such areas as quality patient care, compliance with all applicable laws and regulations, appropriate use of our assets, protection of patient information and avoidance of conflicts of interest.

 

                As part of the program, we provide annual ethics and compliance training sessions to every employee, as well as our board of directors and certain physicians and contractors. All employees are required to report incidents that they believe in good faith may be in violation of the Standards of Conduct, and are encouraged to contact our 24-hour toll-free Ethics Action Line when they have questions about the standards or any ethics concerns. Incidents of alleged financial improprieties reported to the Ethics Action Line or the compliance department are communicated to the audit committee of our board of directors. All reports to the Ethics Action Line are kept confidential to the extent allowed by law, and employees have the option to remain anonymous. In cases reported to the Ethics Action Line that involve a possible violation of the law or regulatory policies and procedures, the matter is referred to the compliance department for investigation. Retaliation against employees in connection with reporting ethical concerns is considered a serious violation of our Standards of Conduct, and, if it occurs, it will result in discipline, up to and including termination of employment.

 

                The full text of our Standards of Conduct, and a number of our ethics and compliance policies and procedures, are published on our website, at www.tenethealth.com, under the “Compliance & Ethics” caption in the “Our Company” section. A copy of our Standards of Conduct is also available upon written request to our corporate secretary.

 

PROPERTY AND PROFESSIONAL AND GENERAL LIABILITY INSURANCE

 

                Property Insurance. We have property, business interruption and related insurance coverage to mitigate the financial impact of catastrophic events or perils that is subject to deductible provisions based on the terms of the policies. These policies are on an occurrence basis. Under the policies in effect for the period April 1, 2007 through March 31, 2008, we have coverage totaling $600 million per occurrence, after deductibles and exclusions, with annual aggregate sub-limits of $100 million each for floods and earthquakes and a per-occurrence sub-limit of $100 million for windstorms with no annual aggregate. With respect to fires and other perils, excluding floods, earthquakes and windstorms, the total $600 million limit of coverage per occurrence applies. Deductibles are 5% of insured values for floods, California earthquakes and wind-related claims, 2% of insured values for New Madrid fault earthquakes, and $1 million for fires and other perils.

 

                For the policy period April 1, 2006 through March 31, 2007, we have coverage totaling $600 million per occurrence, after deductibles and exclusions, with annual aggregate sub-limits of $100 million each for windstorms, floods and earthquakes. With respect to fires and other perils, excluding windstorms, floods and earthquakes, the total $600 million limit of coverage per occurrence applies. Deductibles are 5% of insured values for wind-related claims, floods and California earthquakes, 2% of insured values for New Madrid fault earthquakes, and $1 million for fires and other perils.

 

                Professional and General Liability Insurance. As is typical in the health care industry, we are subject to claims and lawsuits in the ordinary course of business. The health care industry has seen significant increases in the cost of professional liability insurance due to increased litigation. In response, we formed captive insurance companies to self-insure a substantial portion of our professional and general liability risk. Claims in excess of our self-insurance retentions are insured with commercial insurance companies.

 

                We generally have self-insurance retentions of $15 million per occurrence for each of the policy periods June 1, 2007 through May 31, 2008 and June 1, 2006 through May 31, 2007. As of January 1, 2008, our hospitals generally have a self-insured retention of $5 million per occurrence, with The Healthcare Insurance Corporation, our captive insurance company, retaining the next $10 million per occurrence. Prior to January 1, 2008, our hospitals generally had a self-insurance retention per occurrence of $2 million for losses incurred during the policy period, and The Healthcare Insurance Corporation had a self-insured retention of $13 million per occurrence above our hospitals’ $2 million self-insurance retention level. Retentions may be lower for hospitals in states with patient compensation funds. In each case, the next $10 million of claims in excess of $15 million are 100% reinsured

 

 

13



 

by The Healthcare Insurance Corporation with independent reinsurance companies. Claims in excess of $25 million are covered by our excess professional and general liability insurance policies from major independent insurance companies, on a claims-made basis, subject to an aggregate limit of $275 million. Any losses not covered by or in excess of the amounts maintained under insurance policies will be funded from our working capital.

 

                In addition to the reserves recorded by our captive insurance subsidiaries, we maintain reserves, including reserves for incurred but not reported claims, for our self-insured professional liability retentions and claims in excess of the policies’ aggregate limits, based on actuarial estimates of losses and related expenses. Also, we provide letters of credit to our insurers, which can be drawn upon under certain circumstances, to collateralize the deductible and self-insured retentions under a selected number of our professional and general liability insurance programs.

 

                EXECUTIVE OFFICERS

 

                The names, positions and ages of our executive officers, as of February 15, 2008, are:

 

 

 

Position

 

Age

 

Trevor Fetter

 

President and Chief Executive Officer

 

48

 

Stephen L. Newman, M.D.

 

Chief Operating Officer

 

57

 

Biggs C. Porter

 

Chief Financial Officer

 

54

 

E. Peter Urbanowicz

 

General Counsel and Secretary

 

44

 

Cathy Fraser

 

Senior Vice President, Human Resources

 

43

 

 

                Mr. Fetter was named Tenet’s president effective November 7, 2002 and was appointed chief executive officer and a director in September 2003. From March 2000 to November 2002, Mr. Fetter was chairman and chief executive officer of Broadlane, Inc., an affiliate of Tenet. He continues to serve on Broadlane’s board of directors. From October 1995 to February 2000, he served in several senior management positions at Tenet, including chief financial officer in the office of the president. Mr. Fetter began his career with Merrill Lynch Capital Markets, where he concentrated on corporate finance and advisory services for the entertainment and health care industries. In 1988, he joined Metro-Goldwyn-Mayer, Inc., where he had a broad range of corporate and operating responsibilities, rising to executive vice president and chief financial officer. Mr. Fetter holds an M.B.A. from Harvard Business School and a bachelor’s degree in economics from Stanford University. Mr. Fetter is a member of the board of directors of The Hartford Financial Services Group, Inc. and the Federation of American Hospitals.

 

                Dr. Newman was appointed chief operating officer effective January 1, 2007. From March 2003 through December 2006, he served as chief executive officer of our California region. He joined Tenet in February 1999 as vice president, operations, of our former three-state Gulf States region and, in June 2000, he was promoted to senior vice president, operations, of that region. From April 1997 until he came to Tenet, Dr. Newman served in various executive positions at Columbia/HCA Inc., most recently as president of that company’s three-hospital Louisville Healthcare Network. From August 1990 to March 1997, he was senior vice president and chief medical officer of Touro Infirmary in New Orleans. Prior to 1990, Dr. Newman was both associate professor of pediatrics and medicine at Wright State University School of Medicine in Dayton, Ohio, and director of gastroenterology and nutrition support at Children’s Medical Center, also in Dayton. Dr. Newman holds a medical degree from the University of Tennessee, an M.B.A. from Tulane University and a bachelor’s degree from Rutgers University. He completed his internship, residency and fellowship at Emory University School of Medicine. He also completed the Advanced Management Program at the University of Pennsylvania’s Wharton School of Business. Dr. Newman is a member of the board of directors of the Federation of American Hospitals.

 

                Mr. Porter joined Tenet as chief financial officer effective June 5, 2006. From May 2003 until June 2006, he served as vice president and corporate controller of Raytheon Company. In addition, Mr. Porter served as acting chief financial officer for Raytheon from April 2005 to March 2006. From December 2000 to May 2003, he was senior vice president and corporate controller of TXU Corp. and, from August 1994 to December 2000, he was chief financial officer of Northrop Grumman Corporation’s integrated systems sector and its commercial aircraft division. Mr. Porter has also served as vice president, controller and assistant treasurer of Vought Aircraft Company, corporate manager of external financial reporting for LTV Corporation, and audit principal at Arthur Young & Co. He is a certified public accountant. Mr. Porter holds a master’s degree in accounting from the University of Texas/Austin and a bachelor’s degree in accounting from Duke University.

 

                Mr. Urbanowicz joined Tenet as general counsel and was appointed secretary on December 22, 2003. From October 2001 to December 2003, he served as deputy general counsel of the U.S. Department of Health and Human Services. Before joining HHS, from June 2000 to October 2001, Mr. Urbanowicz was a partner in the law firm of Locke Liddell & Sapp,

 

 

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specializing in health care law. From January 1998 to June 2000, he was a partner in the New Orleans law firm of Liskow & Lewis and was head of that firm’s health care law practice. Before joining Liskow & Lewis, Mr. Urbanowicz was a partner in the New Orleans law firm of Monroe & Lemann, where he was head of the firm’s health care law practice. Mr. Urbanowicz holds a J.D. from Tulane University’s School of Law and a bachelor’s degree in English and political science from Tulane University. He is a member of the American Law Institute and a member of the board of directors of the Federation of American Hospitals.

 

                Ms. Fraser joined Tenet as senior vice president, human resources, in September 2006. From June 2000 to September 2006, she served as a management consultant with McKinsey & Co. Inc., the international consulting firm. In that role, Ms. Fraser counseled senior executives at a number of large companies on organizational design, talent management and retention strategies, recruiting and related human resources topics. Prior to her work with McKinsey, Ms. Fraser served as a vice president of Sabre Holdings Inc., a major provider of travel product distribution and technology solutions for the travel industry, from 1994 to 2000. She has also worked for American Airlines and General Motors Acceptance Corp. Ms. Fraser holds an M.B.A. from the University of Michigan, and a bachelor’s degree in business administration from the University of Washington in Seattle. She is a board member of Workforce Solutions of Greater Dallas, the Tenet Federal Credit Union, the Tenet Foundation and the JKU Foundation, a family non-profit foundation.

 

COMPANY INFORMATION

 

                We file annual, quarterly and current reports, proxy statements and other documents with the Securities and Exchange Commission under the Securities Exchange Act of 1934. Our reports, proxy statements and other documents filed electronically with the SEC are available at the website maintained by the SEC at www.sec.gov.

 

                Our website, www.tenethealth.com, also offers, free of charge, extensive information about our operations and financial performance, including a comprehensive series of investor pages. These pages include real-time access to our annual, quarterly and current reports (and amendments to such reports) and other filings made with, or furnished to, the SEC. The information found on our website is not part of this or any other report we file with or furnish to the SEC.

 

FORWARD-LOOKING STATEMENTS

 

                The information in this report includes “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. All statements, other than statements of historical or present facts, that address activities, events, outcomes, business strategies and other matters that we plan, expect, intend, assume, believe, budget, predict, forecast, project, estimate or anticipate (and other similar expressions) will, should or may occur in the future are forward-looking statements. These forward-looking statements represent management’s current belief, based on currently available information, as to the outcome and timing of future events. They involve known and unknown risks, uncertainties and other factors—many of which we are unable to predict or control—that may cause our actual results, performance or achievements, or health care industry results, to be materially different from those expressed or implied by forward-looking statements. Such factors include, but are not limited to, the risks described in Item 1A of this report and the following:

 

·                    Our ability to identify and execute on measures designed to save or control costs or streamline operations;

 

·                    The availability and terms of debt and equity financing sources to fund the requirements of our businesses;

 

·                    Changes in our business strategies or development plans;

 

·                    The impact of natural disasters, including our ability to operate facilities affected by such disasters;

 

·                    The ultimate resolution of claims, lawsuits and investigations;

 

·                    Technological and pharmaceutical improvements that increase the cost of providing, or reduce the demand for, health care services;

 

·                    Various factors that may increase supply costs;

 

·                    National, regional and local economic and business conditions;

 

·                    Demographic changes; and

 

·                    Other factors and risk factors referenced in this report and our other public filings.

 

 

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                When considering forward-looking statements, a reader should keep in mind the risk factors and other cautionary statements in this report. Should one or more of the risks and uncertainties described above, in Item 1A, Risk Factors, below or elsewhere in this report occur, or should underlying assumptions prove incorrect, our actual results and plans could differ materially from those expressed in any forward-looking statements. We specifically disclaim all responsibility to publicly update any information contained in a forward-looking statement or any forward-looking statement in its entirety and, therefore, disclaim any resulting liability for potentially related damages.

 

                All forward-looking statements attributable to us are expressly qualified in their entirety by this cautionary statement.

 

ITEM 1A. RISK FACTORS

 

Our business is subject to a number of risks and uncertainties—many of which are beyond our control—that may cause our actual operating results or financial performance to be materially different from our expectations. If one or more of the events discussed in the following risks were to occur, actual outcomes could differ materially from those expressed in or implied by any forward-looking statements we make in this report or our other filings with the SEC, and our business, financial condition, results of operations or liquidity could be materially adversely affected. Additional risks and uncertainties not presently known, or that we currently deem immaterial, may also negatively affect our business and operations. In either case, the trading price of our common stock could decline and shareholders could lose all or part of their investment.

 

If we are unable to enter into managed care provider arrangements on acceptable terms, or if we have difficulty collecting from managed care payers, our results of operations could be adversely affected.

 

We currently have thousands of managed care contracts with various health maintenance organizations and preferred provider organizations. The amount of our managed care net patient revenue from our continuing general hospitals during the year ended December 31, 2007 was $4.6 billion, which represented approximately 53.9% of our total net patient revenues from continuing general hospitals. Approximately 58% of our managed care net patient revenues for the year ended December 31, 2007 was derived from our top ten managed care payers. At December 31, 2007, approximately 51% of our net accounts receivable related to continuing operations were due from managed care payers.

 

It would harm our business if we were unable to enter into managed care provider arrangements on acceptable terms. Any material reductions in the payments that we receive for our services, coupled with any difficulties in collecting receivables from managed care payers, could have a material adverse effect on our financial condition, results of operations or cash flows.

 

Changes in the Medicare and Medicaid programs or other government health care programs could have an adverse effect on our business.

 

For the year ended December 31, 2007, approximately 25.8% of our net patient revenues from our continuing general hospitals were received from the Medicare program, and approximately 8.4% of our net patient revenues from our continuing general hospitals were received from various state Medicaid programs, in each case excluding Medicare and Medicaid managed care programs. The Medicare and Medicaid programs are subject to: statutory and regulatory changes, administrative rulings, interpretations and determinations concerning patient eligibility requirements, funding levels and the method of calculating payments or reimbursements, among other things; requirements for utilization review; and federal and state funding restrictions, all of which could materially increase or decrease payments from these government programs in the future, as well as affect the cost of providing services to our patients and the timing of payments to our facilities. We are unable to predict the effect of future government health care funding policy changes on our operations. If the rates paid by governmental payers are reduced, if the scope of services covered by governmental payers is limited or if we, or one or more of our subsidiaries’ hospitals, are excluded from participation in the Medicare or Medicaid program or any other government health care program, there could be a material adverse effect on our business, financial condition, results of operations or cash flows.

 

Our business continues to be adversely affected by a high volume of uninsured and underinsured patients.

 

                Like other organizations in the health care industry, we continue to provide services to a high volume of uninsured patients and more patients than in prior years with an increased burden of co-payments and deductibles as a result of changes in their health care plans. The discounting components of our Compact with Uninsured Patients have reduced our provision for doubtful accounts recorded in our Consolidated Financial Statements, but they are not expected to mitigate the net economic effects of treating uninsured or underinsured patients. We continue to experience a high level of uncollectible accounts, and, unless our business mix shifts toward a greater number of insured patients or the trend of higher co-payments and deductibles reverses, we anticipate this high level of uncollectible accounts to continue.

 

 

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                We operate in a highly competitive industry, and competition is one reason for our recent declines in patient volumes.

 

A number of factors affect patient volumes and, thereby, our results of operations at our hospitals and related health care facilities, including the influence of local health care competitors. Generally, other hospitals in the local communities we serve provide services similar to those offered by our hospitals. Some of the hospitals that compete with our hospitals are owned by government agencies or not-for-profit organizations. Tax-exempt competitors may have certain financial advantages not available to our facilities, such as endowments, charitable contributions, tax-exempt financing, and exemptions from sales, property and income taxes. In certain states, including California, some not-for-profit hospitals are permitted by law to directly employ physicians while for-profit hospitals are prohibited from doing so. We also face increasing competition from physician-owned specialty hospitals and freestanding surgery, diagnostic and imaging centers for market share in high margin services and for quality physicians and personnel. If competing health care providers are better able to attract more patients, recruit and retain physicians, expand services or obtain favorable managed care contracts at their facilities, we may continue to experience a decline in patient volume levels.

 

                Our business and financial condition could be harmed if we are not able to attract and retain employees, physicians and other health care professionals, and our labor costs continue to be adversely affected by union activity and the shortage of nurses.

 

                Our operations depend on the efforts, abilities and experience of our employees and the physicians on the medical staffs of our hospitals, most of whom have no long-term contractual relationship with us. It is essential to our ongoing business that we attract and retain skilled employees and an appropriate number of quality physicians and other health care professionals in all specialties on our medical staffs. In some of our markets, physician recruitment and retention are affected by a shortage of physicians in certain sought-after specialties and the difficulties that physicians are experiencing in obtaining affordable malpractice insurance or finding insurers willing to provide such insurance. Other issues facing physicians, such as proposed decreases in Medicare payments, are forcing them to consider alternatives including relocating their practices or retiring sooner than expected. In some of our markets, we have not been able to attract physicians to our medical staffs at a rate to offset the physicians relocating or retiring. We believe this physician attrition is one of the reasons for our recent volume declines. If we are unable to attract new physicians or build stronger relationships with the physicians who admit patients both to our hospitals and to our competitors’ hospitals, we expect these volume declines to continue. In general, the loss of some or all of our key employees or the inability to attract or retain sufficient numbers of qualified physicians and other health care professionals could have a material adverse effect on our business, financial condition, results of operations or cash flows.

 

                Factors that adversely affect our labor costs include union activity, the nationwide shortage of nurses and the enactment of state laws regarding nurse-staffing ratios. At December 31, 2007, approximately 22% of the employees at our hospitals and related health care facilities were represented by labor unions, and we (and the hospital industry in general) are continuing to see an increase in the amount of union activity across the country. Further, the national nursing shortage continues and remains more serious in key specialties and in certain geographic areas than others, including several areas in which we operate hospitals. In addition, state-mandated nurse-staffing ratios in California affect not only our labor costs, but, if we are unable to hire the necessary number of nurses to meet the required ratios, they may also cause us to limit patient admissions with a corresponding adverse effect on our net operating revenues. In response to these trends, we have enhanced salaries, wages and benefits to recruit and retain nurses. We cannot predict the degree to which we will be affected by future union activity or the future availability or cost of nursing personnel, but we expect to continue to experience significant salary, wage and benefit pressures. In addition, we have been and may continue to be required to increase our use of temporary personnel, which is typically more expensive than hiring full-time or part-time employees.

 

                Our licensed hospital beds are heavily concentrated in certain market areas in Florida, California and Texas, which makes us sensitive to economic, regulatory, environmental and other developments in those areas.

 

                As of December 31, 2007, the largest concentrations of licensed beds in our general hospitals were in Florida (25.0%), California (24.4%) and Texas (17.1%). Such concentrations increase the risk that, should any adverse economic, regulatory, environmental or other developments occur in these areas, our business, financial condition, results of operations or cash flows could be materially adversely affected.

 

                Specifically, a natural disaster or other catastrophic event could affect us more significantly than other companies with less geographic concentration. In the recent past, hurricanes have had a disruptive effect on the operations of our hospitals in Florida and Texas, as well as in Louisiana, and the patient populations in those states. Our California operations could be

 

 

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adversely affected by a major earthquake or wildfires in that state. Moreover, we currently estimate spending a total of approximately $405 million (unadjusted for inflation) to comply with the requirements under California’s seismic regulations for hospitals.

 

                Our business and financial results could be harmed by violations of existing regulations or compliance with new or changed regulations.

 

                Our business is subject to extensive federal, state and local regulation relating to, among other things, licensure, conduct of operations, ownership of facilities, physician relationships, addition of facilities and services, and reimbursement rates for services. The laws, rules and regulations governing the health care industry are extremely complex, and, in certain areas, the industry has little or no regulatory or judicial interpretation for guidance. If a determination is made that we were in material violation of such laws, rules or regulations, we could be subject to penalties or liabilities or required to make significant changes to our operations. In addition, health care, as one of the largest industries in the United States, continues to attract much legislative interest and public attention. We are unable to predict the future course of federal, state and local regulation or legislation, including Medicare and Medicaid statutes and regulations. Further changes in the regulatory framework affecting health care providers could have a material adverse effect on our business, financial condition, results of operations or cash flows.

 

                Our operations have not been profitable for the last several years, and, if our turnaround strategy is not successful, our business operations and financial results may not improve and could worsen.

 

                We reported losses from continuing operations for the years ended December 31, 2003 through 2007. These results of operations reflect the challenges we have faced in restructuring our business to focus on a smaller group of general hospitals. We have been executing a turnaround strategy designed to improve profitability and margins through initiatives to grow volumes, maintain adequate reimbursement levels and control costs. However, our turnaround timeframe has been impacted by industry trends such as bad debt levels and a company-specific volume challenge, which continue to negatively affect our revenue growth. If our turnaround strategy is not successful or the industry trends worsen, we may not be able to achieve or sustain future profitability.

 

                Trends affecting our actual or anticipated results may lead to charges that would adversely affect our results of operations.

 

                As a result of the various factors that affect our industry generally and our business specifically, we have been required to record charges in our results of operations. Based on future financial trends and the possible impact of negative trends on our future outlook, further impairments of long-lived assets and goodwill may occur, and we will incur additional restructuring charges. Future restructuring of our operating structure that changes our goodwill reporting units could also result in further impairments of our goodwill. Any such charges could adversely affect our results of operations.

 

                Our substantial leverage could have a material adverse effect on our operations.

 

                We are a highly leveraged company. As of December 31, 2007, we had approximately $4.8 billion of total long-term debt, as well as approximately $232 million in letters of credit outstanding under our senior secured revolving credit facility, which is collateralized by patient accounts receivable at our acute care and specialty hospitals. In addition, from time to time, we expect to engage in various capital markets, bank credit and other financing activities depending on our needs and financing alternatives available at that time.

 

                Our leverage and debt service obligations could have important consequences to an investor, including the following:

 

·                    Our credit agreement and the indentures governing our senior notes contain, and any future debt obligations may contain, covenants that, among other things, restrict our ability to pay dividends, incur additional debt and sell assets. If we do not comply with these obligations, it may cause an event of default, which, if not cured or waived, could require us to repay the indebtedness immediately.

 

·                    We may be more vulnerable in the event of a deterioration in our business, in the health care industry, in the economy generally or if federal or state governments set further limitations on reimbursement under the Medicare or Medicaid programs.

 

·                    We may have difficulty obtaining additional financing at economically acceptable interest rates and other terms to meet our requirements for working capital, capital expenditures, the payment of judgments or settlements, or general corporate purposes.

 

·                    We may be required to dedicate a substantial portion of our cash flow to the payment of principal and interest on our indebtedness, which could reduce the amount of funds available for our operations.

 

 

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ITEM 1B. UNRESOLVED STAFF COMMENTS

 

                None.

 

ITEM 2. PROPERTIES

 

                Note: The disclosure required under this Item is included in Item 1.

 

ITEM 3. LEGAL PROCEEDINGS

 

Currently pending material claims and legal proceedings 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 a loss is reasonably possible and estimable, an estimate of the loss or a range of loss is provided. Where no estimate is provided, a loss is not reasonably possible or an amount of loss is not reasonably estimable at this time. New claims or inquiries may be initiated against us from time to time. We cannot predict the results of current or future claims and lawsuits. We recognize that, where appropriate, our interests may be best served by resolving certain matters without litigation. If non-litigated resolution is not appropriate or possible with respect to a particular matter, we will defend ourselves vigorously. The ultimate resolution of significant claims against us, individually or in the aggregate, whether as a result of litigation or settlement, could have a material adverse effect on our business (both in the near and long term), financial condition, results of operations or cash flows. We undertake no obligation to update the following disclosures for any new developments.

 

SHAREHOLDER DERIVATIVE ACTION AND SECURITIES MATTER

 

In re Tenet Healthcare Corporation Derivative Litigation, Case No. CV-03-0011-RSWL (U.S. District Court for the Central District of California)

 

                A consolidated shareholder derivative action is pending in federal district court in California against certain current and former members of our board of directors and former members of senior management. Plaintiffs purport to pursue the matter on behalf of Tenet and for our benefit. We are also named as a nominal defendant. We anticipate that this federal derivative litigation will be dismissed now that a California state appellate court has affirmed our 2006 settlement of the state shareholder derivative litigation, which released all of the claims asserted in this action. The federal court has stayed all proceedings in this case until our motion to dismiss is filed and resolved pursuant to the stipulation of the parties.

 

                Plaintiffs have made the following claims against the following defendants: (1) alleged breach of fiduciary duty against defendants Jeffrey Barbakow, Bernice Bratter, Sanford Cloud, Jr., Maurice DeWald, Michael Focht, Van B. Honeycutt, Robert Kerrey, Lester Korn, Thomas Mackey, Raymond Mathiasen and Christi Sulzbach; (2) alleged insider trading and misappropriation in violation of the common law against defendants Barbakow, Mackey, Mathiasen and Sulzbach; (3) alleged unjust enrichment against defendants Barbakow, Mackey, Mathiasen and Sulzbach; (4) alleged violations of Section 10(b) of and Rule 10b-5 under the Securities Exchange Act of 1934 (the “Exchange Act”) against defendant Barbakow; and (5) alleged violations of Section 14(a) of and Rule 14a-9 under the Exchange Act against defendants Barbakow, Bratter, Cloud, DeWald, Focht, Honeycutt, Kerrey and Korn.

 

Rudman Partners, L.P., et al. v. Tenet Healthcare Corporation, et al., Case No. CV06-3455 RJK (CWx)

(U.S. District Court for the Central District of California, filed June 6, 2006)

 

                In June 2006, four purported Tenet shareholders who opted out of the settlement of the federal securities class action lawsuit entitled In Re Tenet Healthcare Corporation Securities Litigation filed a civil complaint in the U.S. District Court for the Central District of California against the Company, certain former executive officers of the Company and KPMG LLP (“KPMG”), the Company’s former independent registered public accounting firm. Plaintiffs assert substantively the same factual allegations concerning Tenet’s receipt and disclosure of Medicare outlier payments that were asserted in the federal securities class action lawsuit. Specifically, plaintiffs allege the following claims: (1) that the Company, KPMG and former executives Jeffrey Barbakow, David Dennis and Thomas Mackey are liable for securities fraud under Section 10(b) of and Rule 10b-5 under the Exchange Act; and (2) that defendants Jeffrey Barbakow, David Dennis, Thomas Mackey, Raymond Mathiasen, Barry Schochet and Christi Sulzbach are liable for control person liability pursuant to Section 20(a) of the Exchange Act. Plaintiffs seek an undisclosed amount of compensatory damages and reasonable attorneys’ fees and expenses. Tenet and each of the individual defendants filed answers to plaintiffs’ complaint in September 2006. The parties are currently engaged in discovery.

 

 

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WAGE AND HOUR ACTIONS

 

In September 2004, the court granted our petition to coordinate two pending proposed class action lawsuits, McDonough, et al. v. Tenet Healthcare Corporation and Tien, et al. v. Tenet Healthcare Corporation, in Los Angeles Superior Court. The McDonough case was originally filed in June 2003 in San Diego Superior Court, and the Tien case was originally filed in May 2004 in Los Angeles Superior Court. Plaintiffs in both cases allege that our hospitals violated certain provisions of the California Labor Code and applicable California Industrial Welfare Commission Wage Orders with respect to meal breaks, rest periods and the payment of one hour’s compensation for meal breaks or rest periods not taken. The complaint in the Tien case also alleges that we have improperly “rounded off” time entries on timekeeping records and that our pay stubs do not include all information required by California law. Plaintiffs in both cases are seeking back pay, statutory penalties and attorneys’ fees, and have filed motions to certify these actions on behalf of virtually all nonexempt employees of our California subsidiaries. We opposed class certification because we believe our uniform policies comply and have complied with the applicable Labor Code and Wage Orders. Our policies are intended to ensure that: (1) employees who miss a rest period or meal break on any given day are appropriately paid; and (2) our “rounding off” practices and pay stubs comply with California law. In addition, we argued that each of these claims should be addressed individually based on its particular facts and, therefore, should not be subject to class certification. We are awaiting the court’s ruling on class certification in both the McDonough and Tien cases.

 

Two other matters filed as proposed class actions — Pagaduan v. Fountain Valley Regional Medical Center, filed in Orange County Superior Court, and Falck v. Tenet Healthcare Corporation, pending in U.S. District Court for the Central District of California — involve allegations regarding unpaid overtime. These lawsuits allege that our pay practices since 2000 for California-based 12-hour shift employees violate California and, in the Falck case, federal overtime laws by virtue of the alleged failure to include certain payments known as Flexible (or California) Differential payments in the regular rate of pay that is used to calculate overtime pay. These payments are made to 12-hour shift employees when they do not work a shift that is exactly 12 hours. We contend that these differential payments need only be included in the regular rate of pay when they actually are paid (as opposed to merely being potentially payable), and that they always are included in the regular rate calculation in these circumstances. Plaintiffs in both cases are seeking back pay, statutory penalties and attorneys’ fees. In February 2007, the Los Angeles Superior Court ruled that the Pagaduan case be coordinated with the previously coordinated McDonough and Tien cases already pending there, as described above. We are now defending these wage and hour cases in a single court. On February 14, 2008, the court granted plaintiffs’ motion for class certification in the Pagaduan case. Separately, the Falck case, which was first provisionally certified as a collective action under the federal Fair Labor Standards Act for the purpose of giving notice to potential class members, was certified as a class action for all purposes on February 12, 2008.

 

INTERNAL REVENUE SERVICE DISPUTES

 

                From time to time, we are engaged in disputes with the Internal Revenue Service regarding our federal tax returns. We refer you to Note 14 to our Consolidated Financial Statements for further information.

 

CIVIL LAWSUITS ON APPEAL

 

United States ex. rel. Dr. Man Tai Lam and Dr. William Meschel v. Tenet Healthcare Corporation, Case No.

EP-02-CA-0525KC (U.S. District Court for the Western District of Texas)

 

In April 2007, we filed a motion for summary judgment in this qui tam action in which the relators continued to allege that Tenet hospitals in El Paso, Texas violated the federal False Claims Act through the alleged manipulation of the hospitals’ charges in order to increase outlier payments. We sought dismissal on the grounds that the relators were not the original source of the information forming the basis of their claim and that the relators could not produce evidence that Tenet’s El Paso hospitals in fact submitted false claims to the government for outlier payments. The Department of Justice, which the court permitted to intervene in the case in March 2007, also filed a summary judgment motion in April 2007. In July 2007, the court found that the relators had no direct and independent knowledge of the information on which their allegations were based and granted both motions, thereby dismissing this case. In August 2007, the relators moved for reconsideration, but the district court denied their motion on the same day. The relators subsequently filed a notice of appeal to the U.S. Court of Appeals for the Fifth Circuit. All briefs in the matter have been filed, but no date for oral argument, if any, has been set. We believe that the trial court’s dismissal was correct and are defending that decision on appeal.

 

 

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United States ex rel. Bruce G. Lowman v. Hilton Head Medical Center and Clinics, et al., Case No. 9:05-2533-PMD (U.S. District Court for the District of South Carolina)

 

                In July 2006, the DOJ filed a notice to unseal and declining to intervene in a qui tam lawsuit, which was filed under seal in September 2005, against the Company, our Hilton Head Medical Center and Clinics in South Carolina and related subsidiaries, as well as a cardiologist who formerly practiced at Hilton Head. The unsealing order was signed by the judge in July 2006. The relator, a physician no longer on Hilton Head’s medical staff, alleged under the federal False Claims Act that we received inappropriate payments from Medicare for certain cardiac catheterization procedures that were performed by the cardiologist from 1997 through 2003, during which time Hilton Head did not have a state certificate of need for open heart surgery capability, which was required under South Carolina regulations for facilities performing those procedures. The suit also alleged that certain of the catheterization procedures were medically unnecessary, although the relator provided no specific information regarding these claims. We were formally served with the complaint in November 2006; subsequently, we filed a motion to dismiss this matter, which was granted in April 2007. The relator appealed the district court’s decision to dismiss the case to the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia. All briefs in the matter have been filed, but no date for oral argument, if any, has been set. We believe that the trial court’s dismissal was correct and are defending that decision on appeal.

 

Boca Raton Community Hospital, Inc. v. Tenet Healthcare Corporation, Case No. 05-80183-CIV (U.S. District Court for the Southern District of Florida, filed March 2, 2005)

 

                Plaintiff filed a civil complaint in federal district court in Miami in March 2005 on behalf of itself and a purported class consisting of most of the acute care hospitals in the United States. Several of plaintiff’s initial claims were withdrawn or dismissed; however, plaintiff has continued to allege that Tenet’s past pricing policies and receipt of Medicare outlier payments violated the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”), causing harm to plaintiff. Plaintiff sought unspecified amounts of damages (including treble damages under RICO), restitution, disgorgement and punitive damages. In December 2006, the district court denied plaintiff’s motion for class certification, which decision the U.S. Court of Appeals for the Eleventh Circuit declined to review. In August 2007, the district court granted our motion for summary judgment on all claims, thereby dismissing this case. Plaintiff subsequently filed a notice of intent to appeal the district court’s dismissal to the Eleventh Circuit. The briefing schedule for the appeal was extended while the parties participated in mandatory mediation pursuant to Eleventh Circuit rules. Plaintiff filed its initial brief on February 7, 2008. Our opposition brief will be due in April 2008. A date for oral argument, if any, has not yet been set. We believe that the trial court’s dismissal was correct and intend to defend that decision on appeal.

 

Brockovich, on behalf of the United States of America v. Tenet Healthcare Corporation, et al.,

Case No. CV 06-4542 DOC (MLGx) (U.S. District Court for the Central District of California)

 

                Plaintiff Erin Brockovich, purportedly on behalf of the United States of America, filed a civil complaint in Los Angeles Superior Court in June 2006, alleging that Tenet and several of our subsidiaries inappropriately received reimbursement from Medicare for treatment given to patients whose injuries were caused by the Company and those subsidiaries as a result of medical error or neglect. This matter is one of approximately 30 identical lawsuits that plaintiff Brockovich has filed against most of the major hospital systems and nursing homes in California. In addition, her attorneys have filed similar cases in New Jersey and Florida using others as plaintiffs. In this case, plaintiff is seeking damages of twice the amount that defendants were allegedly obligated to pay or reimburse Medicare in connection with the treatment in question, plus interest, together with plaintiff’s costs and fees, including attorneys’ fees. In July 2006, defendants removed the case to federal court and, in August 2006, filed a motion to dismiss the matter. In November 2006, defendants’ motion to dismiss was granted on the basis that plaintiff Brockovich lacks constitutional standing. Plaintiff subsequently filed a notice of her intention to appeal the dismissal. In January 2007, the U.S. Court of Appeals for the Ninth Circuit consolidated all of the Brockovich matters pending before it and set the briefing schedule for the appeal. Plaintiff’s opening brief was filed in July 2007; defendants’ answering brief was filed in August 2007. Oral arguments in the appeal, if any, have not yet been scheduled. We believe that the trial court’s dismissal was correct and are defending that decision on appeal.

 

 

21



 

CIVIL LAWSUITS INVOLVING REAL PROPERTY

 

University of Southern California v. USC University Hospital, Inc., et al., Case No. BC357352 (Los Angeles Superior Court, filed August 22, 2006)

 

                In August 2006, the University of Southern California filed a lawsuit in Los Angeles Superior Court against a Tenet subsidiary seeking to terminate a ground lease and a development and operating agreement between the University and our subsidiary, which built, owns and operates USC University Hospital, an acute care hospital located on land leased from the University in Los Angeles. The University’s complaint alleged that the lease and operating agreement should be terminated as a result of a default by our subsidiary and sought a judicial declaration terminating the agreements in an effort to force our subsidiary to sell the hospital to the University. We strongly dispute the University’s claims and sought to compel arbitration of the matter as we believe is mandated by the development and operating agreement. In December 2006, the trial court denied our motion to compel arbitration, and that decision was upheld by an appellate court in August 2007. The case returned to the trial court in November 2007. The University has filed an amended complaint, which modifies its claims to permit rather than require the University to terminate the lease and operating agreement upon a finding of default. We moved to dismiss and, in the alternative, moved to strike portions of the University’s amended complaint. We also filed a cross-complaint on November 6, 2007, asserting claims against the University for breach of contract, breach of the implied covenant of good faith and fair dealing, breach of the covenant of quiet enjoyment, and declaratory relief. The University moved to dismiss our cross-complaint. At a hearing held on February 8, 2008, the court denied all of the pending motions. We intend both to continue to vigorously defend this matter and to pursue our counterclaims against the University.

 

AMIsub of California, Inc., et al. v. Health Care Property Investors, Inc., et al., Case No. BC370770

(Los Angeles Superior Court, filed May 8, 2007)

 

                Through wholly owned subsidiaries, we lease certain hospital facilities and real estate from Health Care Property Investors, Inc. (“HCPI”), a real estate investment trust, or one of its affiliates. The properties leased include the Tarzana, California campus of Encino-Tarzana Regional Medical Center. The Tarzana lease is scheduled to expire in February 2009. In January 2004, we announced our intention to divest both the Encino and Tarzana campuses of Encino-Tarzana Regional Medical Center, among other hospitals. In connection with these planned divestitures and the Tarzana lease expiration, the Company and HCPI began reviewing opportunities for early termination or sale and assignment of the Tarzana lease and certain deferred maintenance issues.

 

                In April 2007, we received letters from HCPI alleging that certain of our subsidiaries were in default primarily with respect to several deferred maintenance issues under three leases with HCPI or one of its affiliates that relate to the following hospitals: the Tarzana campus of Encino-Tarzana Regional Medical Center, Community Hospital of Los Gatos, also in California, and NorthShore Regional Medical Center in Slidell, Louisiana. We believe that the alleged defaults are without merit. However, we are taking steps to clarify or remedy any proven claimed deficiencies, as appropriate, and, if found to be deficient, we intend to elect our right to cure any maintenance defaults as provided under the leases. In May 2007, our subsidiaries filed suit in California state court against HCPI and certain of its affiliates asserting various causes of action concerning the lease disputes. Our subsidiaries also initiated an arbitration action against HCPI and one its affiliates. With the lawsuit and through the arbitration proceedings, we seek declaratory relief in our favor regarding the leases and alleged defaults, damages, and injunctive relief and restitution under California’s unfair competition law.

 

Some of our subsidiaries’ leases with HCPI contain cross-default covenants that state that, under certain circumstances, one subsidiary may be considered to be in default under its lease with HCPI if a default has occurred and is continuing under one of the other leases. In July 2007, we received notices from HCPI alleging that certain of our subsidiaries were in default under leases relating to four of our hospitals because of the alleged defaults under the Tarzana lease described above. As a result, HCPI demanded that we turn over possession of Irvine Regional Hospital Medical Center in California, Palm Beach Gardens Medical Center in Florida, North Fulton Regional Hospital in Georgia and Frye Regional Medical Center in North Carolina by December 31, 2007. We believe HCPI took this step as a response to the lawsuit and arbitration proceedings we commenced in May 2007.

 

                In September 2007, our subsidiaries subject to HCPI’s cross-default notices joined the suit in California state court as plaintiffs. The complaint for these subsidiaries seeks a judicial declaration that no defaults exist under the leases relating to the four hospitals listed above, as well as damages. In October 2007, HCPI filed a motion to dismiss our subsidiaries’ amended complaint, which the court denied on November 16, 2007. HCPI has also filed cross-claims in the pending California state court proceeding against us and our subsidiaries seeking damages for breach of contract, declaratory relief, specific performance and

 

 

22



 

other relief based on the alleged defaults and cross-defaults already at issue in the case. HCPI’s affiliate also filed cross-claims in the pending arbitration proceedings, seeking damages for breach of contract. The case and arbitration proceedings are in their discovery phases. The California state court litigation is currently set for trial in October 2008, and the hearings in the arbitration proceedings are currently expected to take place after October 2008. The parties to the California state court litigation and the arbitration proceedings are currently engaged in settlement discussions that could resolve the parties’ disputes. There are no assurances such a settlement will be consummated. We dispute the defenses and claims of HCPI and its affiliate and, in the event a settlement between the parties is not consummated, we will continue to pursue our claims against HCPI and its affiliate.

 

MEDICAL MALPRACTICE AND OTHER ORDINARY COURSE MATTERS

 

In addition to the matters described above, our hospitals are subject to claims and lawsuits in the ordinary course of business. The largest category of these relates to medical malpractice. Three medical malpractice cases were filed as purported class action lawsuits and involve former patients of Memorial Medical Center and Lindy Boggs Medical Center in New Orleans. In each case, family members allege, on behalf of themselves and a purported class of other patients and their family members, damages as a result of injuries sustained during Hurricane Katrina. In addition to disputing the merits of the allegations in these suits, we contend that certification of a class in these actions is not appropriate and that each of these cases must be adjudicated independently. We will, therefore, oppose class certification and vigorously defend the hospitals in these matters.

 

ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS

 

                None.

 

 

23



 

PART II.

 

ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

 

                Common Stock. Our common stock is listed on the New York Stock Exchange under the symbol “THC.” On May 24, 2007, we submitted an annual CEO certification to the NYSE regarding our compliance with the NYSE’s corporate governance listing standards. The following table sets forth, for the periods indicated, the high and low sales prices per share of our common stock on the NYSE.

 

 

 

High

 

Low

 

Year Ended December 31, 2007

 

 

 

 

 

First Quarter

 

$

7.68

 

$

6.18

 

Second Quarter

 

7.80

 

6.37

 

Third Quarter

 

6.80

 

3.11

 

Fourth Quarter

 

6.00

 

3.06

 

Year Ended December 31, 2006

 

 

 

 

 

First Quarter

 

$

8.25

 

$

6.89

 

Second Quarter

 

9.27

 

6.77

 

Third Quarter

 

8.69

 

5.77

 

Fourth Quarter

 

8.49

 

6.73

 

 

                On February 15, 2008, the last reported sales price of our common stock on the NYSE composite tape was $4.19 per share. As of that date, there were approximately 9,262 holders of record of our common stock. Our transfer agent and registrar is The Bank of New York Mellon. Shareholders with questions regarding their stock certificates, including inquiries related to exchanging or replacing certificates or changing an address, should contact the transfer agent at (800) 524-4458.

 

                Dividends. We have not paid cash dividends on our common stock since the first quarter of fiscal 1994, and we do not intend to pay cash dividends on our common stock in the foreseeable future. We currently intend to retain earnings, if any, for the future operation and development of our business. In addition, our senior secured revolving credit agreement contains provisions that limit or prohibit the payment of cash dividends on our common stock.

 

                Equity Compensation. Please see Part III, Item 12, Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters, for information regarding securities authorized for issuance under our equity compensation plans.

 

                Stock Performance Graph. The following graph shows the cumulative, five-year total return for our common stock compared to three indices, each of which includes us. The Standard & Poor’s 500 Stock Index includes 500 companies representing all major industries. The Standard & Poor’s Healthcare Composite Index is a group of 51 companies involved in a variety of health care related businesses. Because the Standard & Poor’s Healthcare Composite Index is heavily weighted by pharmaceutical and medical device companies, we believe that at times it may be less useful than the Hospital Management Peer Group Index included below. We compiled this Peer Group Index by selecting publicly traded companies that have as their primary business the management of acute care hospitals and that have been in business for all five of the years shown. These companies are: Community Health Systems, Inc. (CYH), Health Management Associates, Inc. (HMA), Tenet Healthcare Corporation (THC) and Universal Health Services, Inc. (UHS). Not included are HCA, Inc. (HCA) and Triad Hospitals, Inc. (TRI), which were members of our Peer Group Index in prior years, because HCA and TRI ceased having publicly traded equity securities in November 2006 and July 2007, respectively.

 

 

24



 

 

                Performance data assumes that $100.00 was invested on December 31, 2002 in our common stock and each of the indices. The data assumes the reinvestment of all cash dividends and the cash value of other distributions. Stock price performance shown in the graph is not necessarily indicative of future stock price performance.

               

 

 

12/02

 

12/03

 

12/04

 

12/05

 

12/06

 

12/07

 

Tenet Healthcare Corporation

 

$

100.00

 

$

97.87

 

$

66.95

 

$

46.71

 

$

42.50

 

$

30.98

 

S & P 500

 

$

100.00

 

$

128.68

 

$

142.69

 

$

149.70

 

$

173.34

 

$

182.87

 

S & P Health Care

 

$

100.00

 

$

115.06

 

$

116.99

 

$

124.54

 

$

133.92

 

$

143.50

 

Peer Group

 

$

100.00

 

$

114.17

 

$

95.99

 

$

92.02

 

$

90.95

 

$

70.46

 

 

 

25



 

ITEM 6. SELECTED FINANCIAL DATA

 

OPERATING RESULTS

 

                The following tables present selected audited consolidated financial data for Tenet Healthcare Corporation and its wholly owned and majority-owned subsidiaries for the years ended December 31, 2003 through 2007.

 

 

 

Years Ended December 31,

 

 

 

2007

 

2006

 

2005

 

2004

 

2003

 

 

 

(In Millions, Except Per-Share Amounts)

 

Net operating revenues

 

$

8,852

 

$

8,453

 

$

8,326

 

$

8,459

 

$

8,491

 

Operating expenses:

 

 

 

 

 

 

 

 

 

 

 

Salaries, wages and benefits

 

3,964

 

3,775

 

3,807

 

3,728

 

3,648

 

Supplies

 

1,573

 

1,532

 

1,516

 

1,438

 

1,327

 

Provision for doubtful accounts

 

567

 

502

 

567

 

999

 

938

 

Other operating expenses, net

 

2,047

 

1,949

 

1,848

 

1,850

 

1,769

 

Depreciation

 

330

 

309

 

301

 

303

 

297

 

Amortization

 

32

 

28

 

26

 

16

 

17

 

Impairment of long-lived assets and goodwill, and restructuring charges, net of insurance recoveries

 

60

 

338

 

38

 

1,221

 

1,336

 

Hurricane insurance recoveries, net of costs

 

(3

)

(14

)

12

 

 

 

Litigation and investigation costs

 

13

 

766

 

212

 

74

 

282

 

Loss from early extinguishment of debt

 

 

 

15

 

13

 

 

Operating income (loss)

 

269

 

(732

)

(16

)

(1,183

)

(1,123

)

Interest expense

 

(419

)

(408

)

(404

)

(334

)

(291

)

Investment earnings

 

47

 

62

 

59

 

20

 

16

 

Minority interests

 

(4

)

(4

)

(3

)

(4

)

(11

)

Net gains on sales of facilities, long-term investments and subsidiary common stock

 

 

5

 

4

 

7

 

16

 

Impairment of investment securities

 

 

 

 

 

(5

)

Loss from continuing operations, before income taxes

 

(107

)

(1,077

)

(360

)

(1,494

)

(1,398

)

Income tax (expense) benefit

 

58

 

262

 

88

 

(299

)

278

 

Loss from continuing operations, before discontinued operations and cumulative effect of changes in accounting principle

 

$

(49

)

$

(815

)

$

(272

)

$

(1,793

)

$

(1,120

)

Basic loss per share from continuing operations

 

$

(0.10

)

$

(1.73

)

$

(0.58

)

$

(3.85

)

$

(2.40

)

Diluted loss per share from continuing operations

 

$

(0.10

)

$

(1.73

)

$

(0.58

)

$

(3.85

)

$

(2.40

)

 

                The operating results data presented above are not necessarily indicative of our future results of operations. Reasons for this include, but are not limited to: overall revenue and cost trends, particularly trends in patient accounts receivable collectability and associated provisions for doubtful accounts; the timing and magnitude of price changes; fluctuations in contractual allowances and cost report settlements and valuation allowances; managed care contract negotiations or terminations and payer consolidations; changes in Medicare regulations; Medicaid funding levels set by the states in which we operate; levels of malpractice insurance expense and settlement trends; impairment of long-lived assets and goodwill; restructuring charges; losses, costs and insurance recoveries related to natural disasters; litigation and investigation costs; acquisitions and dispositions of facilities and other assets; income tax rates and valuation allowances; the timing and amounts of stock option and restricted stock unit grants to employees and directors; and changes in occupancy levels and patient volumes. Factors that affect patient volumes and, thereby, our results of operations at our hospitals and related health care facilities include, but are not limited to: the business environment and demographics of local communities; the number of uninsured and underinsured individuals in local communities treated at our hospitals; seasonal cycles of illness; climate and weather conditions; physician recruitment, retention and attrition; advances in technology and treatments that reduce length of stay; local health care competitors; managed care contract negotiations or terminations; any unfavorable publicity about us, which impacts our relationships with physicians and patients; and the timing of elective procedures. These considerations apply to year-to-year comparisons as well.

 

 

26



 

BALANCE SHEET DATA

 

 

 

December 31,

 

 

 

2007

 

2006

 

2005

 

2004

 

2003

 

 

 

(In Millions)

 

Working capital (current assets minus current liabilities)

 

$

512

 

$

1,100

 

$

1,216

 

$

1,882

 

$

1,908

 

Total assets

 

8,393

 

8,539

 

9,812

 

10,081

 

12,298

 

Long-term debt, net of current portion

 

4,771

 

4,760

 

4,784

 

4,395

 

4,039

 

Shareholders’ equity

 

54

 

264

 

1,021

 

1,699

 

4,374

 

 

CASH FLOW DATA

 

 

 

Years Ended December 31,

 

 

 

2007

 

2006

 

2005

 

2004

 

2003

 

 

 

(In Millions)

 

Net cash provided by (used in) operating activities

 

$

326

 

$

(462

)

$

763

 

$

(82

)

$

838

 

Net cash used in investing activities

 

(520

)

(379

)

(392

)

(12

)

(333

)

Net cash provided by (used in) financing activities

 

(18

)

252

 

348

 

129

 

(96

)

 

ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

INTRODUCTION TO MANAGEMENT’S DISCUSSION AND ANALYSIS

 

                The purpose of this section, Management’s Discussion and Analysis of Financial Condition and Results of Operations, is to provide a narrative explanation of our financial statements that enables investors to better understand our business, to enhance our overall financial disclosures, to provide the context within which financial information may be analyzed, and to provide information about the quality of, and potential variability of, our financial condition, results of operations and cash flows. Unless otherwise indicated, all financial and statistical information included herein relates to our continuing operations, with dollar amounts expressed in millions (except per-share amounts). This information should be read in conjunction with the accompanying Consolidated Financial Statements. It includes the following sections:

 

·                   Executive Overview

 

·                   Sources of Revenue

 

·                   Results of Operations

 

·                   Liquidity and Capital Resources

 

·                   Off-Balance Sheet Arrangements

 

·                   Recently Issued Accounting Standards

 

·                   Critical Accounting Estimates

 

EXECUTIVE OVERVIEW

 

KEY DEVELOPMENTS

 

                We continue to focus on the execution of our turnaround strategies. While we have seen certain areas of improvement, we are still facing several industry and company-specific challenges that continue to negatively affect our progress. We are dedicated to improving our patients’, shareholders’ and other stakeholders’ confidence in us. We believe we will accomplish that by providing quality care and generating positive growth and earnings at our hospitals.

 

                Key developments include the following:

 

·                  Sale of North Ridge Medical Center — In February 2008, we signed a definitive agreement to sell North Ridge Medical Center in Fort Lauderdale, Florida. We expect the sale to be completed in the second quarter of 2008, subject to regulatory approval.

 

·                  New Agreements with Managed Care Payers — Since mid-2007, we have entered into new multi-year national agreements with Aetna, CIGNA and UnitedHealthcare, as well as regional contracts with Blue Cross of California, Blue Cross Blue Shield of North Carolina, Blue Cross Blue Shield of Texas and Coventry Health Care. With each of these agreements, members will have access to all of our acute care hospitals in the applicable geographic region covered under the agreement.

 

 

27



 

·                  Union Agreements — During 2007, we entered into new collective bargaining agreements with two labor unions that cover employees at certain hospitals in California and Florida. The agreements set stable and competitive wage increases and provide for greater predictability with respect to union organizing efforts. We also entered into separate “peace accords” that provide each union with limited access to attempt to organize our employees. In addition, we entered into a labor contract for nurses represented at four of our hospitals in California.

 

·                  Sale of Shelby Regional Medical Center — In November 2007, we completed the previously disclosed sale of Shelby Regional Medical Center in Center, Texas. Pretax proceeds from the sale were approximately $2 million, which will be used for general corporate purposes.

 

·                  Departure of Chief Medical Officer — Jennifer Daley, M.D., our former chief medical officer, resigned in September 2007. She will continue to serve as a senior advisor to us on clinical quality initiatives. Stephen Newman, M.D., our chief operating officer, will oversee our clinical quality department until a successor to Dr. Daley is found.

 

·                  Expiration of Lease to Operate Two Hospitals — In August 2007, our lease agreement with the Metrocrest Hospital Authority (the “Authority”) expired, and we ceased to operate RHD Memorial Medical Center and Trinity Medical Center, both in the Dallas, Texas area. We had previously disclosed that another company had been selected to manage these two hospitals after the expiration of our lease. It is our understanding that the Authority has not yet finalized the selection of an operator to manage the hospitals on a long-term basis.

 

·                  Realignment of Regions — Also in August 2007, we streamlined our regional operating structure to further reduce our administrative overhead costs. Our Central-Northeast region was eliminated, and our hospitals in Missouri and Tennessee became part of the renamed Central region (formerly, the Texas region). Our two Philadelphia hospitals now form a separate market reporting directly to our chief operating officer.

 

·                  Sale of Two Pennsylvania Hospitals — In July 2007, we completed the sale of Roxborough Memorial Hospital and Warminster Hospital in the Philadelphia, Pennsylvania area. Pretax proceeds from the sale were approximately $25.5 million, consisting of $15.5 million in cash, which will be used for general corporate purposes, and a $10 million note due in December 2009, of which we collected $5 million in October 2007 when the buyer subsequently sold Warminster Hospital.

 

·                  Acquisition of Coastal Carolina Medical Center — In June 2007, we purchased Coastal Carolina Medical Center, a 41-bed acute care hospital in Hardeeville, South Carolina, for approximately $36 million. We intend to continue to operate Coastal Carolina as a full service community hospital and will seek to enhance services to meet the community’s needs, in coordination with our nearby Hilton Head Regional Medical Center.

 

·                  Sale of Lindy Boggs Medical Center — In May 2007, we announced that we had completed the sale of the real estate of our former Lindy Boggs Medical Center, which sustained significant damage from Hurricane Katrina and had been closed since August 2005.

 

·                  Appointment of New Member to our Board of Directors — In April 2007, we announced that John Ellis “Jeb” Bush, former Governor of the State of Florida, had been named to our board of directors. Mr. Bush was elected as a director at our 2007 annual meeting of shareholders held in May.

 

·                  Retirement of Our Chief Accounting Officer — In April 2007, we announced that Timothy L. Pullen, former executive vice president and chief accounting officer, had decided to retire. We also announced that Daniel J. Cancelmi, vice president and controller, would serve as our principal accounting officer.

 

·                  Civil Settlement Reached with the SEC — In April 2007, we entered into a $10 million civil settlement with the Securities and Exchange Commission that concluded the SEC’s investigation into the adequacy of our disclosures regarding Medicare outlier payments prior to November 2002 and the appropriateness of certain of our managed care contractual allowance reserves. In the three months ended December 31, 2006, we recorded an accrual of $10 million as an estimated liability to address the potential resolution of the SEC investigation, which we paid in April 2007.

 

·                 Sale of Graduate Hospital — In March 2007, we announced the completion of the sale of Graduate Hospital in Philadelphia, Pennsylvania for pretax proceeds of approximately $16.5 million, which will be used for general corporate purposes.

 

 

28



 

 

SIGNIFICANT CHALLENGES

 

                Our June 2006 global civil settlement with the federal government and other previously announced settlements have resolved several material threats to our company and should help us move forward in our turnaround strategy. However, there are still significant challenges, both company-specific and industry-wide, that will impact the timing of our turnaround. Below is a summary of these items.

 

Company-Specific Volume Challenge

 

                We believe the reasons for declines in our patient volumes include, but are not limited to, decreases in the demand for invasive cardiac procedures, increased competition, managed care contract negotiations or terminations, population trends in Florida, and the impact of our litigation and government investigations. In addition, we believe the challenges we face in physician recruitment, retention and attrition continue to be a primary contributor to our volume declines. Our operations depend on the efforts, abilities and experience of the physicians on the medical staffs of our hospitals, most of whom have no long-term contractual relationship with us. It is essential to our ongoing business that we attract and retain an appropriate number of quality physicians in all specialties on our medical staffs. Although overall we had a net gain in physicians added to our medical staffs during 2007, in some of our markets, physician recruitment and retention are still affected by a shortage of physicians in certain sought-after specialties and the difficulties that physicians experience in obtaining affordable malpractice insurance or finding insurers willing to provide such insurance. Other issues facing physicians, such as proposed decreases in Medicare payments, are forcing them to consider alternatives including relocating their practices or retiring sooner than expected. In some of our markets, we have not been able to attract physicians to our medical staffs at a rate to offset the physicians relocating or retiring.

 

                We are taking a number of steps to address the problem of volume decline; however, due to the concentration of our hospitals in California, Florida and Texas, we may not be able to mitigate some factors contributing to volume declines. One of our initiatives is our Physician Relationship Program, which is centered around understanding the needs of physicians who admit patients both to our hospitals and to our competitors’ hospitals and responding to those needs with changes and improvements in our hospitals and operations. We have targeted capital spending in order to address specific needs or growth opportunities of our hospitals, which is expected to have a positive impact on their volumes. We have also sought to include all of our hospitals in the affected geographic area when negotiating new managed care contracts, which should result in additional volumes at facilities that were not previously a part of such managed care networks. In addition, we are completing clinical service line market demand analyses and profitability assessments to determine which services are highly valued that can be emphasized and marketed to improve results. This Targeted Growth Initiative has resulted in some reductions in unprofitable service lines in several locations, which have had a slightly negative impact on our volumes. However, the elimination of these unprofitable service lines will allow us to focus more resources on services that are more profitable.

 

                Our Commitment to Quality initiative, which we launched in 2003, is further helping position us to competitively meet the volume challenge. We continue to work with physicians to implement the most current evidence-based techniques to improve the way we provide care. As a result of these efforts, our hospitals have improved substantially in quality metrics reported by the government and have been recognized by several managed care companies for their quality of care. We believe that quality of care improvements will continue to have the effect of increasing physician and patient satisfaction, potentially improving our volumes as a result.

 

Significant Industry Trends

 

                Bad Debt—Like other organizations in the health care industry, we continue to provide services to a high volume of uninsured patients and more patients than in prior years with an increased burden of co-payments and deductibles as a result of changes in their health care plans. The discounting components of our Compact with Uninsured Patients (“Compact”) have reduced our provision for doubtful accounts recorded in our Consolidated Financial Statements, but they are not expected to mitigate the net economic effects of treating uninsured or underinsured patients. We continue to experience a high level of uncollectible accounts. Our collection efforts have improved, and we continue to focus, where applicable, on placement of patients in various government programs such as Medicaid. However, unless our business mix shifts toward a greater number of insured patients or the trend of higher co-payments and deductibles reverses, we anticipate this high level of uncollectible accounts to continue.

 

 

29



 

 

                Cost Pressures—Labor and supply expenses remain a significant cost pressure facing us as well as the industry in general. Controlling labor costs in an environment of fluctuating patient volumes and increased labor union activity will continue to be a challenge. Also, inflation and technology improvements are driving supply costs higher, and our efforts to control supply costs through product standardization, bulk purchases and improved utilization are constantly challenged.

 

RESULTS OF OPERATIONS—OVERVIEW

 

                Our turnaround timeframe has been and continues to be influenced by company-specific challenges and industry trends, including decreasing volumes, declining demand for inpatient cardiac procedures and high levels of bad debt, that continue to negatively affect our revenue growth and operating expenses. We believe our future profitability will be achieved through volume growth, appropriate reimbursement levels and cost control across our portfolio of hospitals. In order to disclose trends using data comparable to the prior year, operating statistics throughout Management’s Discussion and Analysis are presented on a same-hospital basis, where noted, and exclude the results of Coastal Carolina Medical Center, which we have not owned for a full 12 months. Below are some of these statistics and financial highlights for the years ended December 31, 2007 and 2006.

 

                Results of operations—Year ended December 31, 2007 compared to the year ended December 31, 2006:

 

·                  Same-hospital net inpatient revenue per patient day and per admission increased by 5.2% and 4.1%, respectively, primarily due to the effect of higher negotiated levels of reimbursement under our managed care contracts, partially offset by same-hospital patient days and admissions that were down 2.1% and 1.0%, respectively.

 

·                  Same-hospital net outpatient revenue per visit increased 10.1%, while same-hospital outpatient visits declined 2.0%. The increase in revenue per visit is primarily due to the effect of higher negotiated levels of reimbursement under our managed care contracts. The decline in outpatient visits is primarily due to increased competition.

 

·                  Favorable net adjustments for prior-year cost reports and related valuation allowances, primarily attributable to Medicare and Medicaid, were $47 million in 2007 compared to $37 million in 2006.

 

·                  Loss per share from continuing operations was $0.10 in 2007 compared to $1.73 in 2006.

 

                Results of operations—Year ended December 31, 2006 compared to the year ended December 31, 2005:

 

·                   Net inpatient revenue per patient day and per admission increased by 7.1% and 4.8%, respectively, primarily due to the effect of higher negotiated levels of reimbursement under our managed care contracts, partially offset by additional discounts under the Compact during the phase-in process. Patient days were down 4.3% and admissions were down 2.2% from 2005.

 

·                   Net outpatient revenue per visit increased 5.6%, while outpatient visits declined 5.3%. The increase in revenue per visit is primarily due to higher Medicare and Medicaid reimbursement and the effect of higher negotiated levels of reimbursement under our managed care contracts, partially offset by additional discounts under the Compact during the phase-in process.

 

·                   Loss per share from continuing operations of $1.73 in 2006 increased from the loss per share of $0.58 in 2005 primarily due to litigation settlements and impairments in 2006.

 

 

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                The table below shows the pretax and after-tax impact on continuing operations for each of the three years ended December 31, 2007, 2006 and 2005 of the following items:

 

 

 

Years Ended December 31,

 

 

 

2007

 

2006

 

2005

 

 

 

(Expense) Income

 

Change in prior-year liability estimates for retirement plans

 

$

(3

)

$

14

 

$

31

 

Impairment of long-lived assets and goodwill, and restructuring charges, net of insurance recoveries

 

(60

)

(338

)

(38

)

Hurricane insurance recoveries, net of costs

 

3

 

14

 

(12

)

Litigation and investigation costs

 

(13

)

(766

)

(212

)

Loss from early extinguishment of debt

 

 

 

(15

)

Pretax impact

 

$

(73

)

$

(1,076

)

$

(246

)

Deferred tax asset valuation allowance and other tax adjustments

 

$

37

 

$

(63

)

$

(43

)

Total after-tax impact

 

$

(8

)

$

(795

)

$

(198

)

Diluted per-share impact of above items

 

$

(0.02

)

$

(1.69

)

$

(0.42

)

Diluted loss per share, including above items

 

$

(0.10

)

$

(1.73

)

$

(0.58

)

 

LIQUIDITY AND CAPITAL RESOURCES—OVERVIEW

 

                Net cash provided by operating activities was $326 million in 2007 compared to net cash used in operating activities of $462 million in 2006. The increase of $788 million in net cash provided by operating activities was primarily due to payments for legal settlements that were $592 million lower in 2007 and net income tax refunds of $162 million received in 2007 compared to net income tax payments of $215 million in 2006, partially offset by $161 million of insurance recoveries received in 2006. The remaining decrease of $20 million in net cash provided by operating activities is primarily due to the timing of various other payables and receivables.

 

                Purchases of property and equipment were $676 million and $681 million for the years ended December 31, 2007 and 2006, respectively. In addition, in 2007, we spent approximately $36 million to purchase a hospital in South Carolina and $67 million for construction of hospitals in El Paso, Texas and Mt. Pleasant, South Carolina. In 2006, we bought out the joint venture interest of a discontinued operation and purchased certain real estate from the joint venture partner for $28 million and spent $12 million on construction costs for the El Paso hospital. Proceeds from the sales of facilities and other assets related to discontinued operations during the years ended December 31, 2007 and 2006 aggregated $91 million and $226 million, respectively. In 2007, we also received proceeds of $31 million from our investment in Metrocrest Hospital Authority bonds (essentially, the source of these proceeds was our final payment of $31 million under our lease agreement with the Authority to operate two hospitals in the Dallas, Texas area) and $82 million from the cash surrender value or basis reduction of certain life insurance policies. In addition, in 2007 we received $6 million of insurance recoveries for hurricane-related property damage. In 2006, we received $115 million in insurance proceeds for property damage caused by hurricanes in addition to the $161 million of insurance recoveries received during 2006 for business interruption and other hurricane-related costs ($276 million in total).

 

                In November 2006, we entered into a five-year, $800 million senior secured revolving credit facility that replaced our $250 million letter of credit facility. The revolving credit facility is collateralized by patient accounts receivable at our acute care and specialty hospitals, and bears interest at our option based on the London Interbank Offered Rate (“LIBOR”) plus 175 basis points or Citigroup’s base rate, as defined in the credit agreement, plus 75 basis points. At December 31, 2007, there were no cash borrowings outstanding under the revolving credit facility, and we had approximately $232 million of letters of credit outstanding. In addition, we had approximately $572 million of cash and cash equivalents on hand and borrowing capacity of $564 million under our revolving credit facility as of December 31, 2007.

 

                We are currently in compliance with all covenants and conditions in our revolving credit agreement and the indentures governing our senior notes. (See Note 6 to the Consolidated Financial Statements.)

 

SOURCES OF REVENUE

 

                We receive revenues for patient services from a variety of sources, primarily managed care payers and the federal Medicare program, as well as state Medicaid programs, indemnity-based health insurance companies and self-pay patients (patients who do not have health insurance and are not covered by some other form of third-party arrangement).

 

 

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                The table below shows the sources of net patient revenues on a same-hospital basis, expressed as percentages of net patient revenues from all sources:

 

 

 

Years Ended December 31,

 

Net Patient Revenues from:

 

 

2007

 

2006

 

2005

 

Medicare

 

25.8

%

26.6

%

27.6

%

Medicaid

 

8.4

%

8.9

%

8.2

%

Managed care — governmental

 

12.0

%

11.0

%

8.9

%

Managed care — commercial

 

41.9

%

41.4

%

42.2

%

Indemnity, self-pay and other

 

11.9

%

12.1

%

13.1

%

 

                Our payer mix on same-hospital admissions basis, expressed as a percentage of total admissions from all sources, is shown below:

 

 

 

Years Ended December 31,

 

Admissions from:

 

 

2007

 

2006

 

2005

 

Medicare

 

31.2

%

32.2

%

33.6

%

Medicaid

 

12.3

%

12.6

%

13.1

%

Managed care — governmental

 

18.9

%

17.5

%

15.3

%

Managed care — commercial

 

28.7

%

29.0

%

29.8

%

Indemnity, self-pay and other

 

8.9

%

8.7

%

8.2

%

 

The increase in managed care — governmental admissions since 2005 is primarily due to an overall shift in our patient mix from Medicare and Medicaid to managed Medicare and managed Medicaid as further discussed below.

 

GOVERNMENT PROGRAMS

 

                The Medicare program, the nation’s largest health insurance program, is administered by the Centers for Medicare and Medicaid Services (“CMS”) of the U.S. Department of Health and Human Services (“HHS”). Medicare is a health insurance program primarily for individuals 65 years of age and older, certain younger people with disabilities, and people with end-stage renal disease, and is provided without regard to income or assets. Medicaid is a program that pays for medical assistance for certain individuals and families with low incomes and resources, and is jointly funded by the federal government and state governments. Medicaid is the largest source of funding for medical and health-related services for the nation’s poor and most vulnerable individuals.

 

                These government programs are subject to statutory and regulatory changes, administrative rulings, interpretations and determinations, requirements for utilization review, and federal and state funding restrictions, all of which could materially increase or decrease payments from these government programs in the future, as well as affect the cost of providing services to our patients and the timing of payments to our facilities. We are unable to predict the effect of future government health care funding policy changes on our operations. If the rates paid by governmental payers are reduced, if the scope of services covered by governmental payers is limited, or if we or one or more of our subsidiaries’ hospitals are excluded from participation in the Medicare or Medicaid program or any other government health care program, there could be a material adverse effect on our business, financial condition, results of operations or cash flows.

 

 

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Medicare

 

                Medicare offers its beneficiaries different ways to obtain their medical benefits. One option, the Original Medicare Plan, is a fee-for-service payment system. The other option, called Medicare Advantage, includes managed care, preferred provider organization, private fee-for-service and specialty plans. The major components of our net patient revenues for services provided to patients enrolled in the Original Medicare Plan for the years ended December 31, 2007, 2006 and 2005 are set forth in the table below:

 

 

 

Years Ended December 31,

 

Revenue Descriptions

 

 

2007

 

2006

 

2005

 

Diagnosis-related group — operating

 

$

1,209

 

$

1,219

 

$

1,244

 

Diagnosis-related group — capital

 

119

 

122

 

128

 

Outlier

 

75

 

75

 

72

 

Outpatient

 

375

 

357

 

349

 

Disproportionate share

 

214

 

205

 

207

 

Direct Graduate and Indirect Medical Education

 

108

 

109

 

106

 

Other(1)

 

93

 

83

 

103

 

Adjustments for prior-year cost reports and related valuation allowances

 

44

 

38

 

48

 

Total Medicare net patient revenues

 

$

2,237

 

$

2,208

 

$

2,257

 


(1)             The other revenue category includes skilled nursing facilities, inpatient psychiatric facilities, inpatient rehabilitation facilities, one prospective payment system (“PPS”)-exempt cancer hospital, one long-term acute care hospital, other revenue adjustments, and adjustments related to the estimates for current-year cost reports and related valuation allowances.

 

                A general description of the types of payments we receive for services provided to patients enrolled in the Original Medicare Plan is provided below. Recent regulatory and legislative updates to the terms of these payment systems and their effect on our revenues can be found beginning on page 36.

 

                Acute Care Hospital Inpatient Prospective Payment System

 

                Diagnosis-Related Group Payments—Sections 1886(d) and 1886(g) of the Social Security Act (the “Act”) set forth a system of payments for the operating and capital costs of inpatient acute care hospital admissions based on a prospective payment system. Under the inpatient prospective payment system (“IPPS”), Medicare payments for hospital inpatient operating services are made at predetermined rates for each hospital discharge. Discharges are classified according to a system of Medicare severity-adjusted diagnosis-related groups (“MS-DRGs”), which group patients with similar clinical characteristics that are expected to require similar amounts of hospital resources. CMS assigns to each MS-DRG a relative weight that represents the average resources required to care for cases in that particular MS-DRG, relative to the average resources used to treat cases in all MS-DRGs.

 

                The base payment amount for the operating component of the MS-DRG payment is comprised of an average standardized amount that is divided into a labor-related share and a nonlabor-related share. Both the labor-related share of operating base payments and the base payment amount for capital costs are adjusted by geographic variations in labor and capital costs. These base payments are multiplied by the relative weight of the MS-DRG assigned to each case. Although these payments are adjusted for area labor and capital cost differentials, the adjustments do not take into consideration an individual hospital’s operating and capital costs. The MS-DRG operating and capital base rates are updated annually, giving consideration to the increased cost of goods and services purchased by hospitals.

 

                Outlier Payments—Outlier payments are additional payments made to hospitals for treating Medicare patients who are costlier to treat than the average patient in the same MS-DRG. To qualify as a cost outlier, a hospital’s billed charges, adjusted to cost, must exceed the payment rate for the MS-DRG by a fixed threshold established annually by CMS. The Medicare fiscal intermediary calculates the cost of a claim by multiplying the billed charges by a cost-to-charge ratio that is typically based on the hospital’s most recent filed cost report. If the computed cost exceeds the sum of the MS-DRG payment plus the fixed threshold, the hospital receives 80% of the difference as an outlier payment.

 

                Under the Act, CMS must project aggregate annual outlier payments to all PPS hospitals to be not less than 5% nor more than 6% of total MS-DRG payments (“Outlier Percentage”). The Outlier Percentage is determined by dividing total outlier payments by the sum of MS-DRG and outlier payments. CMS annually adjusts the fixed threshold to bring projected outlier payments within the mandated limit. A change to the fixed threshold affects total outlier payments by changing (1) the number of cases that qualify for outlier payments, and (2) the dollar amount hospitals receive for those cases that still qualify.

 

 

 

33



 

 

                Disproportionate Share Payments—If a Medicare-participating hospital serves a disproportionate share of low-income patients, as determined annually based on certain statistical information defined by CMS, it receives a percentage add-on to the MS-DRG payment for each case. This percentage varies, depending on several factors that include the percentage of low-income patients served. During 2007, 46 of our hospitals in continuing operations qualified for disproportionate share payments.

 

                Direct Graduate and Indirect Medical Education—The Medicare program provides additional reimbursement to approved teaching hospitals for additional expenses incurred by such institutions. This additional reimbursement, which is subject to certain limits, including intern and resident full-time equivalent (“FTE”) limits established in 1996, is made in the form of Direct Graduate Medical Education (“GME”) and Indirect Medical Education (“IME”) payments. During 2007, 16 of our hospitals in continuing operations were affiliated with academic institutions and were eligible to receive such payments. Medicare rules permit hospitals to enter into Medicare GME Affiliation Agreements for the purpose of applying the FTE limits on an aggregate basis, and some of our hospitals have entered into such agreements.

 

                We have been contacted by CMS in connection with GME FTE limits and related reimbursement at Doctors Medical Center in Modesto, California as a result of our 1997 acquisition of a county-owned hospital in Modesto. We have annually collected approximately $2.5 million of GME reimbursement related to this matter. We replied to CMS that, based on our analysis of the transaction and the applicable CMS rules, we believe that the GME FTE limits and related reimbursement reported on the hospital’s cost report were substantially correct. In January 2008, CMS preliminarily advised us that they disagree with our analysis. We have not received formal notification of CMS’ determination in this regard and are continuing discussions with CMS. However, if we receive an adverse determination from CMS on this matter, it could result in a material charge to our future results of operations, and it could have a material impact on our cash flows in a future quarter.

 

                Hospital Outpatient Prospective Payment System

 

                Under the outpatient prospective payment system, hospital outpatient services, except for certain services that are reimbursed on a separate fee schedule, are classified into groups called ambulatory payment classifications (“APCs”). Services in each APC are similar clinically and in terms of the resources they require, and a payment rate is established for each APC. Depending on the services provided, hospitals may be paid for more than one APC for an encounter. CMS periodically updates the APCs and annually adjusts rates paid for each APC.

 

                Inpatient Psychiatric Facility Prospective Payment System

 

                Effective January 1, 2005, CMS implemented a new system of reimbursement for hospital inpatient psychiatric services to replace a cost-based payment system. The inpatient psychiatric facility prospective payment system (“IPF-PPS”) applies to psychiatric hospitals and psychiatric units located within acute care hospitals that have been designated as exempt from the hospital inpatient prospective payment system. The IPF-PPS includes several provisions to ease the transition to the new payment system. For example, CMS is phasing in the IPF-PPS for existing hospitals and units over a three-year period to avoid disrupting the delivery of inpatient psychiatric services. Full payment under the IPF-PPS will be entirely phased in by the beginning of the fourth cost reporting year that begins after January 1, 2005. All of our hospitals will have been transitioned to the IRF-PPS by June 1, 2008. The IPF-PPS, which is based on prospectively determined per-diem rates, includes a stop-loss provision to protect providers against significant losses during the transition period, and an outlier policy that authorizes additional payments for extraordinarily costly cases.

 

                Inpatient Rehabilitation Prospective Payment System

 

                Rehabilitation hospitals and rehabilitation units in acute care hospitals meeting certain criteria established by CMS are eligible to be paid as an inpatient rehabilitation facility (“IRF”) under the IRF prospective payment system (“IRF-PPS”). Payments under the IRF-PPS are made on a per-discharge basis. A patient classification system is used to assign patients in IRFs into case-mix groups. The IRF-PPS uses federal prospective payment rates across distinct case-mix groups.

 

                Prior to July 1, 2004, a rehabilitation hospital or unit was eligible for classification as an IRF if it could show that, during its most recent 12-month cost reporting period, it served an inpatient population of whom at least 75 percent required intensive rehabilitation services for the treatment of one or more of ten specific conditions. This became known as the “75 percent rule.”

 

 

34



 

                On May 7, 2004, CMS released a final rule entitled “Medicare Program; Changes to the Criteria for Being Classified as an Inpatient Rehabilitation Facility” that revised the medical condition criteria rehabilitation hospitals and units must meet. This rule also replaced the “75 percent rule” compliance threshold with a three-year transition compliance threshold of 50%, 60% and 65% for years one, two and three, respectively, then a return to 75% in year four, commencing with cost reporting periods beginning on or after July 1, 2004. The three-year transition period was later delayed by one year, then was permanently set at 60% in 2007. See “— Regulatory and Legislative Changes” below. As of December 31, 2007, our inpatient rehabilitation hospital and all of our rehabilitation units were in compliance with the required 60% compliance threshold.

 

                Cost Reports

 

                The final determination of certain Medicare payments to our hospitals, such as disproportionate share, GME, IME and bad debt expense, are retrospectively determined based on our hospitals’ cost reports. The final determination of these payments often takes many years to resolve because of audits by the program representatives, providers’ rights of appeal, and the application of numerous technical reimbursement provisions.

 

                For filed cost reports, we adjust the accrual for estimated cost report settlements based on those cost reports and subsequent activity, and record a valuation allowance against those cost reports based on historical settlement trends. The accrual for estimated cost report settlements for periods for which a cost report is yet to be filed is recorded based on estimates of what we expect to report on the filed cost reports and a corresponding valuation allowance is recorded as previously described. Cost reports must be filed generally within five months after the end of the annual cost report reporting period. After the cost report is filed, the accrual and corresponding valuation allowance may need to be adjusted.

 

                Medicaid

 

                Medicaid programs are funded by both the federal government and state governments. These programs and the reimbursement methodologies are administered by the states and vary from state to state and from year to year.

 

                Estimated payments under various state Medicaid programs, excluding state-funded managed care Medicaid programs, constituted approximately 8.4%, 8.9% and 8.2% of net patient revenues at our continuing general hospitals for the years ended December 31, 2007, 2006 and 2005, respectively. These payments are typically based on fixed rates determined by the individual states. We also receive disproportionate share payments under various state Medicaid programs. For the years ended December 31, 2007, 2006 and 2005, our revenue attributable to disproportionate share payments and other state-funded subsidy payments was approximately $170 million, $160 million and $112 million, respectively. The increase in revenue from disproportionate share payments and other state-funded subsidy payments is primarily attributable to additional funding provided by certain states, which was made available in part by additional annual state provider taxes on certain of our hospitals and changes in classification of state programs.

 

                In May 2007, CMS issued a final rule, Medicaid Program; Cost Limit for Providers Operated by Units of Government and Provisions to Ensure the Integrity of the Federal-State Financial Partnership, that places limits and restrictions on Medicaid reimbursement to safety-net hospitals. Because of the congressional moratorium that was included in the federal fiscal year (“FFY”) 2007 Supplemental Appropriations Act, this final rule cannot take effect before May 25, 2008. The provisions of the rule could materially reduce the amount of Medicaid payments we receive in the future.

 

                Also in May 2007, CMS issued a proposed rule clarifying that the agency would no longer provide federal Medicaid matching funds for graduate medical education purposes. Congress responded to the CMS proposed rule to end federal support for GME payments by including in the FFY 2007 Supplemental Appropriations Act language that places a one-year moratorium on any such restriction. The moratorium will last until May 23, 2008. We cannot predict what action, if any, Congress or CMS will take on this issue.

 

                Further, many states in which we operate are facing budgetary challenges that pose a threat to Medicaid funding levels to hospitals and other providers. We expect these challenges to continue. In particular, announced funding changes will adversely impact our Georgia, Florida and North Carolina hospitals effective January 1, 2008 (an estimated $57 million reduction on an annual basis for both traditional Medicaid and managed Medicaid). On February 20, 2008, the Governor of California approved budget cuts of $2.2 billion that include across-the-board reductions to Medi-Cal, the state’s Medicaid program. The reductions include payment reductions and deferrals, as well as reductions in coverage. Barring legislative action to further modify the budget, the reductions go into effect on July 1, 2008. Based on our understanding of the budget reductions, we do not believe they will have a material impact on our results of operations or cash flows. Other proposed funding changes could impact our hospitals in other states; however, at this time, we cannot predict the extent of the impact of other states’ budget restrictions on our hospitals.

 

 

35



 

                Regulatory and Legislative Changes

 

                Recent regulatory and legislative updates to the terms of Medicare and Medicaid payment systems are provided below.

 

                Payment and Policy Changes to the Medicare Inpatient Prospective Payment System

 

                Under Medicare law, CMS is required annually to update certain rules governing the inpatient prospective payment system. The updates generally become effective October 1, the beginning of the federal fiscal year. On August 1, 2007, CMS issued the Changes to the Hospital Inpatient Prospective Payment Systems and FFY 2008 Rates (“Final Rule”). On September 28, 2007, CMS issued a correction notice (“Correction Notice”) that corrects certain technical errors in the Final Rule. The Final Rule and Correction Notice include the following payment and policy changes:

 

·                  A market basket increase of 3.3% for MS-DRG operating payments for hospitals reporting specified quality measure data (hospitals that do not report specified quality measure data will receive an increase of 1.3%);

 

·                  A two-year phase-in of 745 MS-DRGs to replace the former 538 diagnosis-related groups (“DRGs”) (for FFY 2008, the relative weights will be a blend of 50% of the DRG weight and 50% of the MS-DRG weight; for FFY 2009, the relative weight will be based on 100% of the MS-DRG weight);

 

·                  Across-the-board reductions of 1.2%, 1.8% and 1.8% in FFYs 2008, 2009 and 2010, respectively, to maintain budget neutrality (according to CMS, these reductions (“Coding and Documentation Offsets”) are necessary to offset the effect of changes in coding or the classification of discharges that do not reflect real changes in case mix);

 

·                  An increase in the number of quality measures hospitals will need to report in FFY 2008 in order to qualify for the full market basket update in FFY 2009;

 

·                  A 0.9% increase in the capital federal standard rate;

 

·                  The elimination of the large-urban add-on adjustment to capital payments;

 

·                  The elimination of the indirect medical education adjustment to capital payments over a three-year period, with no reduction in FFY 2008, a 50% reduction in FFY 2009, and a 100% reduction in FFYs 2010 and thereafter;

 

·                  The continuation of the three-year transition to a methodology that assigns relative weights to MS-DRGs based on cost instead of charges (for FFY 2008, the weights will be based on a blend of two-thirds cost and one—third charges);

 

·                  The implementation of a provision of the Deficit Reduction Act of 2005 to prevent hospitals from receiving higher payments (i.e., outlier payments) for the additional costs of treating a patient that acquires a condition (including an infection) during a hospital stay (for FFY 2008, CMS identified eight conditions); and

 

·                  A decrease in the cost outlier threshold from $24,485 to $22,185.

 

                According to CMS, projected aggregate spending from the reforms will not change. However, payments will increase for hospitals serving more severely ill patients and decrease for hospitals serving patients who are less severely ill. CMS projects that the combined impact of the payment and policy changes will yield an average 4.3% increase in payments for hospitals in large urban areas (populations over 1 million). This 4.3% increase includes CMS’ estimate of a 1.2% increase in anticipated payments resulting from coding and documentation improvements and the 1.2% Coding and Documentation Offset for FFY 2008 described above. On September 29, 2007, the President signed into law the Transitional Medical Assistance, Abstinence Education, and Qualifying Individuals Programs Extension Act of 2007, which includes a measure that reduces the Coding and Documentation Offsets for FFYs 2008 and 2009 by 50% to 0.6% and 0.9%, respectively, and requires the Secretary of HHS to conduct a “look back” over those years, estimate what the offsets should have been, and adjust future rates to recapture the estimated excess payments in FFY 2010. Using the impact percentages in the Final Rule for hospitals in large urban areas, which did not change in the Correction Notice, and considering the impact of the subsequent legislative reduction in the Coding and Documentation Offsets, each as applied to our Medicare IPPS payments for the 12 months ended September 30, 2007, the annual impact on our hospitals may result in an estimated increase in our Medicare revenues of approximately $69 million. Because of the uncertainty of the factors that may influence our future IPPS payments, including admission volumes, length of stay, case mix and the “look back” measure described above, we cannot provide any assurances regarding this estimate.

 

 

36



 

                Payment and Policy Changes to the Medicare Inpatient Psychiatric Facility Prospective Payment System

 

                On April 30, 2007, CMS issued a Notice of the Medicare Inpatient Psychiatric Facility (“IPF”) Prospective Payment System Update for the rate year beginning July 1, 2007 (“IPF-PPS Notice”). The IPF-PPS Notice includes the following payment and policy changes:

 

·                    An update to the IPF payment equal to the market basket of 3.2%; and

 

·                    An increase in the fixed dollar loss threshold amount for outlier payments from $6,200 to $6,488.

 

                At December 31, 2007, 14 of our general hospitals in continuing operations operated inpatient psychiatric units. CMS projects that the combined impact of the proposed payment and policy changes will yield an average 3.1% increase in payments for all IPFs (including psychiatric units in acute care hospitals), and an average 1.1% increase in payments for psychiatric units of acute care hospitals located in urban areas. Using the urban unit impact percentage as applied to our Medicare IPF payments for the 12 months ended June 30, 2007, the annual impact of all changes on our psychiatric units may result in an estimated increase in our Medicare revenues of approximately $1 million. Because of the uncertainty of the factors that may influence our future IPF payments, including admission volumes, length of stay and case mix, we cannot provide any assurances regarding this estimate.

 

                Payment and Policy Changes to the Medicare Inpatient Rehabilitation Facility Prospective Payment System

 

                On July 31, 2007, CMS issued the Final Rule for the Medicare Inpatient Rehabilitation Facility Prospective Payment System for FFY 2008 (“IRF-PPS Rule”). The IRF-PPS Rule includes the following payment and policy changes:

 

·                  An update to the IRF payment rate equal to the market basket of 3.2%;

 

·                  A continuation of the phase-in to a 75% compliance threshold, which when fully phased in requires that at least 75% of an IRF’s total inpatient population have one of the 13 designated medical conditions for which intensive inpatient rehabilitation services are medically necessary; and

 

·                  An increase in the outlier threshold for high cost outlier cases from $5,534 to $7,362.

 

                In December 2007, the Medicare, Medicaid and State Children’s Health Insurance Program (“SCHIP”) Extension Act of 2007 permanently set at 60% the threshold for rehabilitation hospitals and units to qualify as IRFs. The act also requires the continued the use of comorbidities in the determination of compliance, which use was set to expire on July 1, 2008. In order to fund these changes, the IRF-PPS market basket update to the payment rate for FFY 2008, which effective October 1, 2007 is 3.2%, will be reduced to zero effective April 1, 2008 and will remain frozen at zero through FFY 2009. Because our hospitals are currently meeting the 60% threshold, only the market basket rate freeze will impact our revenues in FFY 2008. The rate reduction effective April 1, 2008 will likely negate any expected annual increase from the Final Rule.

 

                Payment and Policy Changes to the Medicare Outpatient Prospective Payment System

 

                On November 1, 2007, CMS issued the Final Changes to the Hospital Outpatient Prospective Payment System and Calendar Year 2008 Payment Rates (“OPPS Final Rule”). The OPPS Final Rule includes the following payment and policy changes:

 

·                    A 3.3% inflation update in Medicare payment rates for hospital outpatient services paid under the outpatient prospective payment system (“OPPS”);

 

·                    A requirement for hospitals to begin reporting seven hospital outpatient quality measures in 2008 in order to receive their full payment update in 2009 (in 2009, hospitals that fail to report data for those measures would receive a 2% reduction in their payment update); and

 

·                    An increase in the size of the OPPS payment “bundles” and the creation of “composite” APCs that would provide one bundled payment for several major services.

 

37



 

                CMS projects that the combined impact of the payment and policy changes in the OPPS Final Rule will yield an average 3.8% increase in payments for all hospitals, and an average 3.9% increase in payments for hospitals in large urban areas (pop