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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
ANNUAL REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
| þ | For the fiscal year ended December 31, 2010 |
| o | 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: 1-8351
CHEMED CORPORATION
(Exact name of registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation or organization) |
31-0791746 (I.R.S. Employer Identification Number) |
|
2600 Chemed Center, 255 East Fifth Street, Cincinnati, Ohio (Address of principal executive offices) |
45202-4726 (Zip Code) |
(513) 762-6900
(Registrant’s Telephone number, including area code)
(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 |
|
Capital Stock — Par Value $1 Per Share
|
New York Stock Exchange |
Securities registered pursuant to Section 12(b) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of
the Securities Act. Yes þ 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. Yes o No þ
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 (or for
such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes þ 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 registrant’s knowledge, if
definitive proxy or information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. Yes o No þ
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months
(or for such shorter period that the registrant was required to submit and post such files). Yes þ No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check One):
| Large accelerated filer þ | Accelerated filer o | Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).
Yes o No þ
The aggregate market value of the voting stock held by non-affiliates of the registrant, based upon
the average bid and asked price of said stock on the New York Stock Exchange — Composite
Transaction Listing on June 30, 2010 ($54.96 per share), was $1,221,507,160.
At February 15, 2011, 21,124,973 shares of Chemed Capital Stock (par value $1 per share) were
outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
| Document | Where Incorporated | |
2010 Annual Report to Stockholders (specified portions) Proxy Statement for Annual Meeting to be held May 16, 2011 |
Parts I, II, and IV Part III |
|
CHEMED CORPORATION
2010 FORM 10-K ANNUAL REPORT
2010 FORM 10-K ANNUAL REPORT
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Item 1. Business
General
The Company was incorporated in Delaware in 1970 as a subsidiary of W. R. Grace & Co. and
succeeded to the business of W. R. Grace & Co.’s Specialty Products Group as of April 30, 1971 and
remained a subsidiary of W. R. Grace & Co. until March 10, 1982. As used herein, “Company” refers
to Chemed Corporation, and its subsidiaries and “Grace” refers to W. R. Grace & Co. and its
subsidiaries.
On March 10, 1982, the Company transferred to Dearborn Chemical Company, a wholly owned
subsidiary of the Company, the business and assets of the Company’s Dearborn Group, including the
stock of certain subsidiaries within the Dearborn Group, plus $185 million in cash, and Dearborn
Chemical Company assumed the Dearborn Group’s liabilities. Thereafter, on March 10, 1982 the
Company transferred all of the stock of Dearborn Chemical Company to Grace in exchange for
33,481,604 shares of the capital stock of the Company owned by Grace with the result that Grace no
longer has any ownership interest in the Company.
On December 31, 1986, the Company completed the sale of substantially all of the business and
assets of Vestal Laboratories, Inc., a wholly owned subsidiary. The Company received cash payments
aggregating approximately $67.4 million over the four-year period following the closing, the
substantial portion of which was received on December 31, 1986.
On April 2, 1991, the Company completed the sale of DuBois Chemicals, Inc. (“DuBois”), a
wholly owned subsidiary, to the Diversey Corporation (“Diversey”), then a subsidiary of The Molson
Companies Ltd. Under terms of the sale, Diversey agreed to pay the Company net cash payments
aggregating $223.4 million, including deferred payments aggregating $32.4 million.
On December 21, 1992, the Company acquired The Veratex Corporation and related businesses
(“Veratex Group”) from Omnicare, Inc. The purchase price was $62.1 million in cash paid at
closing, plus a post-closing payment of $1.5 million (paid in April 1993) based on the net assets
of Veratex.
Effective January 1, 1994, the Company acquired all the capital stock of Patient Care, Inc.
(“Patient Care”), for cash payments aggregating $20.6 million, plus 35,000 shares of the Company’s
Capital Stock. An additional cash payment of $1.0 million was made on March 31, 1996 and another
payment of $1.0 million was made on March 31, 1997.
In July 1995, the Company’s Omnia Group (formerly Veratex Group) completed the sale of the
business and assets of its Veratex Retail division to Henry Schein, Inc. (“HSI”) for $10 million in
cash plus a $4.1 million note for which payment was received in December 1995.
Effective September 17, 1996 the Company completed a merger of a subsidiary of the Company,
Chemed Acquisition Corp., and Roto-Rooter, Inc. pursuant to a Tender Offer commenced on August 8,
1996 to acquire any and all of the outstanding shares of Common Stock of Roto-Rooter, Inc. for
$41.00 per share in cash.
On September 24, 1997 the Company completed the sale of its wholly owned business comprising
the Omnia Group to Banta Corporation for $50 million in cash and $2.3 million in deferred payments.
Effective September 30,1997, the Company completed a merger between its 81-percent-owned
subsidiary, National Sanitary Supply Company, and a wholly owned subsidiary of Unisource Worldwide,
Inc. for $21.00 per share, with total payments of $138.3 million.
Effective October 11, 2002, the Company sold its Patient Care subsidiary (“Patient Care”) to an
investor group that included Schroder Ventures Life Sciences Group, Oak Investment Partners,
Prospect Partners and Salix
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Ventures. The cash proceeds to the Company totaled $57.5 million, of which $5.0 million was placed
in escrow pending settlement of Patient Care’s receivables with third-party payers. Of this
amount, $2.5 million was distributed as of October 2003, $1.7 million was distributed as of
November 2004 and the remainder was distributed as of October 2006.
Effective February 24, 2004, the Company completed a merger of its wholly owned indirect
subsidiary, Marlin Merger Corp., and Vitas Healthcare Corporation. Under the terms of the merger
agreement, Vitas stockholders received cash of $30.00 per share. The transaction, including the
refinancing of existing Vitas debt and other payments made in connection with the merger, totaled
approximately $415 million in cash.
On December 22, 2004, the Board of Directors authorized the discontinuance of the operations
of the Company’s Service America segment, through an asset sale to the employees of Service
America. The acquiring corporation purchased a substantial majority of Service America’s assets in
exchange for assuming substantially all of Service America’s liabilities in May 2005. Included in
the assets acquired was a receivable from the Company for approximately $4.7 million. The Company
paid $1 million of the receivable upon closing and the remainder was paid over the following year
in 11 equal monthly installments.
During 2010 the Company conducted its business operations in two segments: Vitas Group
(“Vitas”) and the Roto-Rooter Group (“Roto-Rooter”).
Forward Looking Statements
This Annual Report contains or incorporates by reference certain forward looking statements
within the meaning of the Private Securities Litigation Reform Act of 1995. The Company intends
such statements to be subject to the safe harbors created by that legislation. Such statements
involve risks and uncertainties that could cause actual results of operations to differ materially
from these forward looking statements.
Financial Information about Industry Segments
The required segment and geographic data for the Company’s continuing operations (as described
below) for three years ended December 31, 2008, 2009 and 2010 are shown in Note 5 of the Notes to
Consolidated Financial Statements on pages 17-18 of the 2010 Annual Report to Stockholders and are
incorporated herein by reference.
Description of Business by Segment
The information called for by this item is included within Note 5 of the Notes to Consolidated
Financial Statements appearing on pages 17-18 of the 2010 Annual Report to Stockholders is
incorporated herein by reference.
Product and Market Development
Each segment of the Company’s business engages in a continuing program for the development and
marketing of new services and products. While new products and services and new market development
are important factors for the growth of each active segment of the Company’s business, the Company
does not expect that any new products and services or marketing effort, including those in the
development stage, will require the investment of a material amount of the Company’s assets.
Raw Materials
The principal raw materials needed for the Company’s manufacturing operations are purchased
from United States sources. Product sales from goods manufactured by Roto-Rooter represent less
than 3% of Chemed’s
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total service revenues and sales. No segment of the Company experienced any material raw material
shortages during 2010, although such shortages may occur in the future. Products manufactured and
sold by the Company’s Roto-Rooter segment generally may be reformulated to avoid the adverse impact
of specific raw material shortage.
Patents, Service Marks and Licenses
The Roto-Rooterâ trademarks and service marks have been used and advertised since 1935
by Roto-Rooter Corporation, a wholly owned indirect subsidiary of the Company. The
Roto-Rooterâ marks are among the most highly recognized trademarks and service marks in the
United States. The Company considers the Roto-Rooterâ marks to be a valuable asset and a
significant factor in the marketing of Roto-Rooter’s franchises, products and services and the
products and services provided by its franchises.
“Vitas” and “Innovative Hospice Care” are trademarks and servicemarks of Vitas Healthcare
Corporation. The Company and its subsidiaries also own certain trade secrets including training
manuals, cost information, customer information and software source codes.
Competition
Roto-Rooter
All aspects of the sewer, drain, and pipe cleaning and plumbing repair businesses are highly
competitive. Competition is, however, fragmented in most markets with local and regional firms
providing the primary competition. The principal methods of competition are advertising, range of
services provided, name recognition, emergency-service availability, speed and quality of customer
service, service guarantees, and pricing.
No individual customer or market group is critical to the total sales of this segment.
Vitas
Hospice care in the United States is competitive. Because programs for hospice services are
generally uniform, Vitas competes primarily on the basis of its ability to deliver quality,
responsive services. Vitas is one of the nation’s largest provider of hospice services in a market
dominated primarily by small, non-profit, community-based hospices. Approximately 49% of all
hospices are not-for-profit. Because the hospice care market is highly fragmented, Vitas competes
with a large number of organizations.
Vitas also competes with a number of national and regional hospice providers, including
Gentiva Health Services, Inc., hospitals, nursing homes, home health agencies and other health care
providers. Many providers offer home care to patients who are terminally ill, and some actively
market palliative care and hospice-like programs. In addition, various health care companies have
diversified into the hospice market. Some of these health care companies have greater financial
resources than Vitas.
Relatively few barriers to entry exist in the majority of markets served by Vitas.
Accordingly, other companies that are not currently providing hospice care may enter these markets
and expand the variety of services they offer to include hospice.
Research and Development
The Company engages in a continuous program directed toward the development of new services,
products and processes, the improvement of existing services, products and processes, and the
development of new and different uses of existing products. The research and development
expenditures from continuing operations have not been nor are they expected to be material.
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Government Regulations
Roto-Rooter
Roto-Rooter’s franchising activities are subject to various federal and state franchising laws
and regulations, including the rules and regulations of the Federal Trade Commission (the “FTC”)
regarding the offering or sale of franchises. The rules and regulations of the FTC require that
Roto-Rooter provide all the prospective franchises with specific information regarding the
franchise program and Roto-Rooter in the form of a detailed franchise offering circular. In
addition, a number of states require Roto-Rooter to register its franchise offering prior to
offering or selling franchises in the state. Various state laws also provide for certain rights in
favor of franchisees, including (i) limitations on the franchisor’s ability to terminate a
franchise except for good cause, (ii) restrictions on the franchisor’s ability to deny renewal of a
franchise, (iii) circumstances under which the franchisor may be required to purchase certain
inventory of franchisees when a franchise is terminated or not renewed in violation of such laws,
and (iv) provisions relating to arbitration. Roto-Rooter’s ability to engage in the plumbing
repair business is also subject to certain limitations and restrictions imposed by state and local
licensing laws and regulations.
Vitas
General. The health care industry and Vitas’ hospice programs are subject to extensive
federal and state regulation. Vitas’ hospices are licensed as required under state law as either
hospices or home health agencies, or both, depending on the regulatory requirements of each
particular state. In addition, Vitas’ hospices are required to meet certain conditions of
participation to be eligible to receive payments as hospices under Medicare and Medicaid programs.
All of Vitas’ hospices, other than those currently in development, are certified for participation
as hospices in the Medicare program, and are also eligible to receive payments as hospices from the
Medicaid program in each of the states in which Vitas operates. Vitas’ hospices are subject to
periodic survey by governmental authorities or private accrediting entities to assure compliance
with state licensing, certification and accreditation requirements.
Medicare Conditions of Participation. Federal regulations require that a hospice program
satisfy certain Conditions Of Participation (“COP”) to be certified and receive Medicare payment
for the services it provides. Failure to comply with the conditions of participation may result in
sanctions, up to and including decertification from the Medicare program. See “Surveys and Audits”
below.
The Medicare COP for hospice programs include the following:
Governing Body. Each hospice must have a governing body that assumes full responsibility for
the policies and the overall operation of the hospice and for ensuring that all services are
provided in a manner consistent with accepted standards of practice. The governing body must
designate one individual who is responsible for the day-to-day management of the hospice.
Medical Director. Each hospice must have a medical director who is a physician and who
assumes responsibility for overseeing the medical component of the hospice’s patient care program.
Direct Provision of Core Services. Medicare limits those services for which the hospice may
use individual independent contractors or contract agencies to provide care to patients.
Specifically, substantially all nursing, social work, and counseling services must be provided
directly by hospice employees meeting specific educational and professional standards. During
periods of peak patient loads or under extraordinary circumstances, the hospice may be permitted to
use contract workers, but the hospice must agree in writing to maintain professional, financial and
administrative responsibility for the services provided by those individuals or entities.
Professional Management of Non-Core Services. A hospice may arrange to have non-core services
such as therapy services, home health aide services, medical supplies or drugs provided by a
non-employee or outside entity.
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If the hospice elects to use an independent contractor to provide non-core services, however,
the hospice must retain professional management responsibility for the arranged services and ensure
that the services are furnished in a safe and effective manner by qualified personnel, and in
accordance with the patient’s plan of care.
Plan of Care. The patient’s attending physician, the medical director or the designated
hospice physician, and interdisciplinary team must establish an individualized written plan of care
prior to providing care to any hospice patient. The plan must assess the patient’s needs and
identify services to be provided to meet those needs and must be reviewed and updated at specified
intervals.
Continuation of Care. A hospice may not discontinue or reduce care provided to a Medicare
beneficiary if the individual becomes unable to pay for that care.
Informed Consent. The hospice must obtain the informed consent of the hospice patient, or the
patient’s legal representative, that specifies the type of care services that may be provided as
hospice care.
Training. A hospice must provide ongoing training for its employees.
Quality Assurance. A hospice must conduct ongoing and comprehensive self-assessments of the
quality and appropriateness of care it provides and that its contractors provide under arrangements
to hospice patients.
Interdisciplinary Team. A hospice must designate an interdisciplinary team to provide or
supervise hospice care services. The interdisciplinary team develops and updates plans of care,
and establishes policies governing the day-to-day provision of hospice services. The team must
include at least a physician, registered nurse, social worker and spiritual or other counselor. A
registered nurse must be designated to coordinate the plan of care.
Volunteers. Hospice programs are required to recruit and train volunteers to provide patient
care services or administrative services. Volunteer services must be provided in an amount equal
to at least five percent of the total patient care hours provided by all paid hospice employees and
contract staff.
Licensure. Each hospice and all hospice personnel must be licensed, certified or registered
in accordance with applicable federal, state and local laws and regulations.
Central Clinical Records. Hospice programs must maintain clinical records for each hospice
patient that are organized in such a way that they may be easily retrieved. The clinical records
must be complete and accurate and protected against loss, destruction, and unauthorized use.
Surveys and Audits. Hospice programs are subject to periodic survey by federal and state
regulatory authorities and private accrediting entities to ensure compliance with applicable
licensing and certification requirements and accreditation standards. Regulators conduct periodic
surveys of hospice programs and provide reports containing statements of deficiencies for alleged
failure to comply with various regulatory requirements. Survey reports and statements of
deficiencies are common in the healthcare industry. In most cases, the hospice program and
regulatory authorities will agree upon any steps to be taken to bring the hospice into compliance
with applicable regulatory requirements. In some cases, however, a state or federal regulatory
authority may take a number of adverse actions against a hospice program, including the imposition
of fines, temporary suspension of admission of new patients to the hospice’s service or, in extreme
circumstances, decertification from participation in the Medicare or Medicaid programs or
revocation of the hospice’s license.
From time to time Vitas receives survey reports containing statements of deficiencies. Vitas
reviews such reports and takes appropriate corrective action. Vitas believes that its hospices are
in material compliance with applicable licensure and certification requirements. If a Vitas
hospice were found to be out of compliance and actions were taken against a Vitas hospice, they
could materially adversely affect the hospice’s ability to continue to
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operate, to provide certain services and to participate in the Medicare and Medicaid programs,
which could materially adversely affect Vitas.
Billing Audits/ Claims Reviews. The Medicare program and its fiscal intermediaries and other
payors periodically conduct pre-payment or post-payment reviews and other reviews and audits of
health care claims, including hospice claims. There is pressure from state and federal governments
and other payors to scrutinize health care claims to determine their validity and appropriateness.
In order to conduct these reviews, the payor requests documentation from Vitas and then reviews
that documentation to determine compliance with applicable rules and regulations, including the
eligibility of patients to receive hospice benefits, the appropriateness of the care provided to
those patients and the documentation of that care. During the past several years, Vitas’ claims
have been subject to review and audit. We make appropriate provisions in our accounting records to
reduce our revenue for anticipated denial of payment related to these audits and reviews. We
believe our hospice programs comply with all payor requirements at the time of billing. However,
we cannot predict whether future billing reviews or similar audits by payors will result in
material denials or reductions in revenue.
Certificate of Need Laws and Other Restrictions. Some states, including Florida, have
certificate of need or similar health planning laws that apply to hospice care providers. These
states may require some form of state agency review or approval prior to opening a new hospice
program, to adding or expanding hospice services, to undertaking significant capital expenditures
or under other specified circumstances. Approval under these certificate of need laws is
generally conditioned on the showing of a demonstrable need for services in the community. Vitas
may seek to develop, acquire or expand hospice programs in states having certificate of need laws.
To the extent that state agencies require Vitas to obtain a certificate of need or other similar
approvals to expand services at existing hospice programs or to make acquisitions or develop
hospice programs in new or existing geographic markets, Vitas’ plans could be adversely affected by
a failure to obtain such certificate or approval. In addition, competitors may seek
administratively or judicially to challenge such an approval or proposed approval by the state
agency. Such a challenge, whether or not ultimately successful, could adversely affect Vitas.
Limitations on For-Profit Ownership. A few states have laws that restrict the development and
expansion of for-profit hospice programs. For example, in New York, a hospice generally cannot be
owned by a corporation that has another corporation as a stockholder. These types of restrictions
could affect Vitas’ ability to expand into New York, or in other jurisdictions with similar
restrictions.
Limits on the Acquisition or Conversion of Non-Profit Health Care Organizations. A number of
states have enacted laws that restrict the ability of for-profit entities to acquire or otherwise
assume the operations of a non-profit health care provider. Some states may require government
review, public hearings, and/or government approval of transactions in which a for-profit entity
proposes to purchase certain non-profit healthcare organizations. Heightened scrutiny of these
transactions may significantly increase the costs associated with future acquisitions of non-profit
hospice programs in some states, otherwise increase the difficulty in completing those acquisitions
or prevent them entirely. Vitas cannot assure that it will not encounter regulatory or
governmental obstacles in connection with any proposed acquisition of non-profit hospice programs
in the future.
Professional Licensure and Participation Agreements. Many hospice employees are subject to
federal and state laws and regulations governing the ethics and practice of their profession,
including physicians, physical, speech and occupational therapists, social workers, home health
aides, pharmacists and nurses. In addition, those professionals who are eligible to participate in
the Medicare, Medicaid or other federal health care programs as individuals must not have been
excluded from participation in those programs at any time.
State Licensure of Hospice. Each of Vitas’ hospices must be licensed in the state in which it
operates. State licensure rules and regulations require that Vitas’ hospices maintain certain
standards and meet certain requirements, which may vary from state to state. Vitas believes that
its hospices are in material compliance with applicable licensure requirements. If a Vitas hospice
were found to be out of compliance and actions were taken
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against a Vitas hospice, they could materially adversely affect the hospice’s ability to continue
to operate, to provide certain services and to participate in the Medicare and Medicaid programs,
which could materially adversely affect Vitas.
Overview of Government Payments—General. Over 90% of Vitas’ revenue consisted of payments
from the Medicare and Medicaid programs. Such payments are made primarily on a “per diem” basis.
Under the per diem reimbursement methodology, Vitas is essentially at risk for the cost of eligible
services provided to hospice patients. Profitability is therefore largely dependent upon Vitas’
ability to manage the costs of providing hospice services to patients. Increases in operating
costs, such as labor and supply costs that are subject to inflation and other increases, without a
compensating increase in Medicare and Medicaid rates, could have a material adverse effect on
Vitas’ business in the future. The Medicare and Medicaid programs are increasing pressure to
control health care costs and to decrease or limit increases in reimbursement rates for health care
services. As with most government programs, the Medicare and Medicaid programs are subject to
statutory and regulatory changes, possible retroactive and prospective rate and payment
adjustments, administrative rulings, freezes and funding reductions, all of which may adversely
affect the level of program payments and could have a material adverse effect on Vitas’ business.
Vitas’ levels of revenues and profitability are subject to the effect of legislative and regulatory
changes, including possible reductions in coverage or payment rates, or changes in methods of
payment, by the Medicare and Medicaid programs.
Overview of Government Payments — Medicare
Medicare Eligibility Criteria. To receive Medicare payment for hospice services, the hospice
medical director and, if the patient has one, the patient’s attending physician, must certify and
describe in a brief narrative that the patient has a life expectancy of six months or less if the
illness runs its normal course. This determination is made based on the physician’s clinical
judgement. Due to the uncertainty of such prognoses, however, it is likely and expected that some
percentage of hospice patients will not die within six months of entering a hospice program. The
Medicare program (among other third-party payers) recognizes that terminal illnesses often do not
follow an entirely predictable course, and therefore the hospice benefit remains available to
beneficiaries so long as the hospice physician or the patient’s attending physician continues to
certify that the patient’s life expectancy remains six months or less. Specifically, the Medicare
hospice benefit provides for two initial 90-day benefit periods followed by an unlimited number of
60-day periods. In order to qualify for hospice care, a Medicare beneficiary must elect hospice
care and waive any right to other Medicare benefits related to his or her terminal illness. A
Medicare beneficiary may revoke his or her election of the Medicare hospice benefit at any time and
resume receiving regular Medicare benefits. The patient may elect the hospice benefit again at a
later date so long as he or she remains eligible. Increased regulatory scrutiny of compliance with
the Medicare six-month eligibility rule has impacted the hospice industry. The Medicare program,
however, has reaffirmed that Medicare hospice beneficiaries are not limited to six months of
coverage and that there is no limit on how long a Medicare beneficiary can continue to receive
hospice benefits and services, provided that the beneficiary continues to meet the eligibility
criteria under the Medicare hospice program.
Levels of Care. Medicare pays for hospice services on a prospective payment system basis
under which Vitas receives an established payment rate for each day that it provides hospice
services to a Medicare beneficiary. These rates are subject to annual adjustments for inflation
and vary based upon the geographic location where the services are provided. The rate Vitas
receives depends on which of the following four levels of care is being provided to the
beneficiary:
Routine Home Care. The routine home care rate is paid for each day that a patient is in a
hospice program and is not receiving one of the other categories of hospice care. The
routine home care rate does not vary based upon the volume or intensity of services provided
by the hospice program.
General Inpatient Care. The general inpatient care rate is paid when a patient requires
inpatient services for a short period for pain control or symptom management which cannot be
managed in other settings.
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General inpatient care services must be provided in a Medicare or Medicaid certified
hospital or long-term care facility or at a freestanding inpatient hospice facility with the
required registered nurse staffing.
Continuous Home Care. Continuous home care, which Vitas refers to as “Intensive Comfort
Care”, is provided to patients while at home, during periods of crisis when intensive
monitoring and care, primarily nursing care, is required in order to achieve palliation or
management of acute medical symptoms. Continuous home care requires a minimum of 8 hours of
care within a 24-hour day, which begins and ends at midnight. The care must be
predominantly nursing care provided by either a registered nurse or licensed practical
nurse. While the published Medicare continuous home care rates are daily rates, Medicare
actually pays for continuous home care in fifteen minute increments. This fifteen minute
rate is calculated by dividing the daily rate by 96.
Respite Care. Respite care permits a hospice patient to receive services on an inpatient
basis for a short period of time in order to provide relief for the patient’s family or
other caregivers from the demands of caring for the patient. A hospice can receive payment
for respite care for a given patient for up to five consecutive days at a time, after which
respite care is reimbursed at the routine home care rate.
Medicare Payment for Physician Services. Payment for direct patient care physician services
delivered by hospice physicians is billed separately by the hospice to the Medicare fiscal
intermediary and paid at the lesser of the actual charge or the Medicare allowable charge for these
services. This payment is in addition to the per diem rates Vitas receives for hospice care.
Payment for hospice physicians’ administrative and general supervisory activities is included in
the daily rates discussed above. Payments for attending physician professional services (other
than services furnished by hospice physicians) are not paid to the hospice, but rather are paid
directly to the attending physician by the Medicare fiscal intermediary. For fiscal 2010, 2% of
Vitas’ net revenue was attributable to physician services.
Medicare Limits on Hospice Care Payments. Medicare payments for hospice services are subject
to two additional limits or “caps”. Each of Vitas’ hospice programs is separately subject to both
of these “caps”. Both of these “caps” are determined on an annual basis for the period running
from November 1 through October 31 of each year.
First, under a Medicare rule known as the “80-20” rule applicable to the Medicare inpatient
services, if the number of inpatient care days furnished by a hospice to Medicare beneficiaries
exceeds 20% of the total days of hospice care furnished by such hospice to Medicare beneficiaries,
Medicare payments to the hospice for inpatient care days exceeding the cap are reduced to the
routine home care rate. Vitas has never exceeded the inpatient cap.
Second, Medicare payments to a hospice are also subject to a separate cap based on overall
average payments per admission. Any payments exceeding this overall hospice cap must be refunded
by the hospice. This cap was set at $23,874.98 per admission for the twelve-month period ended on
October 31, 2010, and is adjusted annually to account for inflation. Vitas’ hospices may be
subject to future payment reductions or recoupments as the result of this cap. As of December 31,
2010 we recorded a $62,000 liability for 2010 related to one program. We recorded a cap liability
in the fourth quarter of 2010 of $1.1 million for three programs for the first quarter of the 2011
Medicare cap year measurement period.
Medicare Managed Care Programs. The Medicare program has entered into contracts with managed
care companies to provide managed care benefits to Medicare beneficiaries who elect to participate
in managed care programs. These managed care programs are commonly referred to as Medicare HMOs,
Medicare + Choice or Medicare risk products. Vitas provides hospice care to Medicare beneficiaries
who participate in these managed care programs, and Vitas is paid for services provided to these
beneficiaries in the same way and at the same rates as those of other Medicare beneficiaries who
are not in a Medicare managed care program. Under current Medicare policy, Medicare pays the
hospice directly for services provided to these managed care program participants and then reduces
the standard per-member, per-month payment that the managed care program otherwise receives.
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Overview of Government Payments — Medicaid
Medicaid Coverage and Reimbursements. State Medicaid programs are another source of Vitas’
net patient revenue. Medicaid is a state-administered program financed by state funds and matching
federal funds to provide medical assistance to the indigent and certain other eligible persons. In
1986, hospice services became an optional state Medicaid benefit. For those states that elect to
provide a hospice benefit, the Medicaid program is required to pay the hospice at rates at least
equal to the rates provided under Medicare and calculated using the same methodology. States
maintain flexibility to establish their own hospice election procedures and to limit the number and
duration of benefit periods for which they will pay for hospice services. Reimbursement from state
Medicaid programs in 2010 accounted for 5% of Vitas’ revenues.
Nursing Home Residents. For Vitas’ patients who receive nursing home care under a state
Medicaid program and who elect hospice care under Medicare or Medicaid, Vitas contracts with
nursing homes for the nursing homes’ provision of room and board services. In addition to the
applicable Medicare or Medicaid hospice daily or hourly rate, the state generally must pay Vitas an
amount equal to at least 95% of the Medicaid daily nursing home rate for room and board services
furnished to the patient by the nursing home. Under Vitas’ standard nursing home contracts, Vitas
pays the nursing home for these room and board services at the Medicaid daily nursing home rate.
Adjustments to Medicare and Medicaid Payment Rates. Payment rates under the Medicare and
Medicaid programs are adjusted annually based upon the Hospital Market Basket Index and the
Consumer Price Index; however, the adjustments have historically been less than actual inflation.
On October 1, 2007, the base rates increased by 3.3%. On October 1, 2008 the base rates increased
by 2.5%. This rate increased by approximately 1% in February 2009. On October 1, 2009 the base
rate increased by 1.4%. On October 1, 2010 the base rates increased by 1.8%. These base rates are
further modified by the Hospice Wage Index to reflect local differences in wages according to the
revised wage index. It is possible that there will be further modifications to the rate structure
under which the Medicare or Medicaid programs pay for hospice care services. Any future reductions
in the rate of increase in Medicare and Medicaid payments may have an adverse impact on Vitas’ net
patient service revenue and profitability.
Other Healthcare Regulations
Federal and State Anti-Kickback Laws and Safe Harbor Provisions. The federal Anti-Kickback
Law makes it a felony to knowingly and willingly offer, pay, solicit or receive any form of
remuneration in exchange for referring, recommending, arranging, purchasing, leasing or ordering
items or services covered by a federal health care program including Medicare or Medicaid. The
Anti-Kickback Law applies regardless of whether the remuneration is provided directly or
indirectly, in cash or in kind. Although the Anti-Kickback statute does not prohibit all financial
transactions or relationships that providers of healthcare items or services may have with each
other, interpretations of the law have been very broad. Under current law, courts and federal
regulatory authorities have stated that this law is violated if even one purpose (as opposed to the
sole or primary purpose) of the arrangement is to induce referrals.
Violations of the Anti-Kickback Law carry potentially severe penalties including imprisonment
of up to five years, criminal fines of up to $25,000 per act, civil money penalties of up to
$50,000 per act, and additional damages of up to three times the amounts claimed or remuneration
offered or paid. Federal law also authorizes exclusion from the Medicare and Medicaid programs for
violations of the Anti-Kickback Law.
The Anti-Kickback Law contains several statutory exceptions to the broad prohibition. In
addition, Congress authorized the Office of Inspector General (“OIG”) to publish numerous “safe
harbors” that exempt some practices from enforcement action under the Anti-Kickback Law and related
laws. These statutory exceptions and regulatory safe harbors protect various bona fide employment
relationships, contracts for the rental of space or equipment, personal service arrangements, and
management contracts, among other things, provided that certain
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conditions set forth in the statute or regulations are satisfied. The safe harbor regulations,
however, do not comprehensively describe all lawful relationships between healthcare providers and
referral sources, and the failure of an arrangement to satisfy all of the requirements of a
particular safe harbor does not mean that the arrangement is unlawful. Failure to comply with the
safe harbor provisions, however, may mean that the arrangement will be subject to scrutiny.
Many states, including states where Vitas does business, have adopted similar prohibitions
against payments that are intended to induce referrals of patients, regardless of the source of
payment. Some of these state laws lack explicit “safe harbors” that may be available under federal
law. Sanctions under these state anti-kickback laws may include civil money penalties, license
suspension or revocation, exclusion from the Medicare or Medicaid programs, and criminal fines or
imprisonment. Little precedent exists regarding the interpretation or enforcement of these
statutes.
Vitas is required under the Medicare conditions of participation and some state licensing laws
to contract with numerous healthcare providers and practitioners, including physicians, hospitals
and nursing homes, and to arrange for these individuals or entities to provide services to Vitas’
patients. In addition, Vitas has contracts with other suppliers, including pharmacies, ambulance
services and medical equipment companies. Some of these individuals or entities may refer, or be
in a position to refer, patients to Vitas, and Vitas may refer, or be in a position to refer,
patients to these individuals or entities. These arrangements may not qualify for a safe harbor.
Vitas from time to time seeks guidance from regulatory counsel as to the changing and evolving
interpretations and the potential applicability of these anti-kickback laws to its programs, and in
response thereto, takes such actions as it deems appropriate. The Company generally believes that
Vitas’ contracts and arrangements with providers, practitioners and suppliers do not violate
applicable anti-kickback laws. However, the Company cannot assure that such laws will ultimately
be interpreted in a manner consistent with Vitas’ practices.
HIPAA Anti-Fraud Provisions. HIPAA includes several revisions to existing health care fraud
laws by permitting the imposition of civil monetary penalties in cases involving violations of the
anti-kickback statute or contracting with excluded providers. In addition, HIPAA created new
statutes making it a federal felony to engage in fraud, theft, embezzlement, or the making of false
statements with respect to healthcare benefit programs, which include private, as well as
government programs. In addition, federal enforcement officials have the ability to exclude from
the Medicare and Medicaid programs any investors, officers and managing employees associated with
business entities that have committed healthcare fraud, even if the investor, officer or employee
had no actual knowledge of the fraud.
OIG Fraud Alerts, Advisory Opinions and Other Program Guidance. In 1976, Congress established
the OIG to, among other things, identify and eliminate fraud, abuse and waste in HHS programs. To
identify and resolve such problems, the OIG conducts audits, investigations and inspections across
the country and issues public pronouncements identifying practices that may be subject to
heightened scrutiny. In the last several years, there have been a number of hospice related audits
and reviews conducted. These reviews and recommendations have included:
| • | Ensuring that Medicare hospice eligibility determinations are made in accordance with the Medicare regulations; and | ||
| • | Revising the annual cap on hospice benefits to better reflect the cost of care provided. |
From time to time, various federal and state agencies, such as HHS and the OIG, issue a
variety of pronouncements, including fraud alerts, the OIG’s Annual Work Plan and other reports,
identifying practices that may be subject to heightened governmental scrutiny. The Company cannot
predict what, if any, changes may be implemented in coverage, reimbursement, or enforcement
policies as a result of these OIG reviews and recommendations.
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On April 7, 2005 the Company announced the Office of Inspector General (“OIG”) for the
Department of Health and Human Services served Vitas with civil subpoenas relating to Vitas’
alleged failure to appropriately bill Medicare and Medicaid for hospice services. As part of this
investigation, the OIG selected medical records for 320 past and current patients from Vitas’ three
largest programs for review. It also sought policies and procedures dating back to 1998 covering
admissions, certifications, recertifications, and discharges. During the third quarter of 2005 and
again in May 2006, the OIG requested additional information of the Company. The court dismissed a
related qui tam complaint filed in U.S. District Court for the Southern District of Florida with
prejudice in July 2007. The plaintiffs appealed this dismissal, which the Court of Appeals
affirmed. The government continues to investigate the complaint’s allegations. In March 2009, we
received a letter from the government reiterating the basis of their investigation.
In May 2009, Vitas received an administrative subpoena from the U.S. Department of Justice
requesting Vitas deliver to the OIG documents, patient records, and policy and procedure manuals
for headquarters and its Texas programs concerning hospice services provided for the period
January 1, 2003 to the date of the letter. In August 2009, the OIG selected medical records for 59
past and current patients from a Texas program for review. Based on the early stage of the
investigation and the limited information we have at this time, we cannot predict the outcome of
this investigation. We believe that we are in material compliance with Medicare and Medicaid rules
and regulations applicable to hospice providers. In February 2010, we received a companion request
(“CID”) to this from the State of Texas Attorney General, seeking related documents. In September
2010 we recived a second CID and a second administrative subpoena seeking related documents.
Federal False Claims Acts. The federal law includes several criminal and civil false claims
provisions, which provide that knowingly submitting claims for items or services that were not
provided as represented may result in the imposition of multiple damages, administrative civil
money penalties, criminal fines, imprisonment, and/or exclusion from participation in federally
funded healthcare programs, including Medicare and Medicaid. In addition, the OIG may impose
extensive and costly corporate integrity requirements upon a healthcare provider that is the
subject of a false claims judgement or settlement. These requirements may include the creation of
a formal compliance program, the appointment of a government monitor, and the imposition of annual
reporting requirements and audits conducted by an independent review organization to monitor
compliance with the terms of the agreement and relevant laws and regulations.
The Civil False Claims Act prohibits the known filing of a false claim or the known use of
false statements to obtain payments. Penalties for violations include fines ranging from $5,500 to
$11,000, plus treble damages, for each claim filed. Provisions in the Civil False Claims Act also
permit individuals to bring actions against individuals or businesses in the name of the government
as so called “qui tam” relators. If a qui tam relator’s claim is successful, he or she is entitled
to share the government’s recovery.
Both direct enforcement activity by the government and quit tam actions have increased
significantly in recent years and have increased the risk that a healthcare company may have to
defend a false claims action, pay fines or be excluded from the Medicare and/or Medicaid programs
as a result of an investigation arising out of this type of an action. Because of the complexity
of the government regulations applicable to the healthcare industry, the Company cannot assure that
Vitas will not be the subject of other actions under the False Claims Act.
State False Claims Laws. Several states in which Vitas currently operates have adopted state
false claims laws that mirror to some degree the federal false claims laws. While these statutes
vary in scope and effect, the penalties for violating these false claims laws include
administrative, civil and/or criminal fines and penalties, imprisonment, and the imposition of
multiple damages.
The Stark Law and State Physician Self-Referral Laws. Section 1877 of the Social Security
Act, commonly known as the “Stark Law”, prohibits physicians from referring Medicare or Medicaid
patients for “designated health services” to entities in which they hold an ownership or investment
interest or with whom they have a compensation
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arrangement, subject to a number of statutory and regulatory exceptions. Penalties for violating
the Stark Law are severe and include:
| • | Denial of payment; | ||
| • | Civil monetary penalties of $15,000 per referral or $1,000,000 for “circumvention schemes;” | ||
| • | Assessments equal to 200% of the dollar value of each such service provided; and | ||
| • | Exclusion from the Medicare and Medicaid programs. |
Hospice care itself is not specifically listed as a designated health service; however,
certain services that Vitas provides, or in the future may provide, are among the services
identified as designated health services for purposes of the self-referral laws. The Company
cannot assure that future regulatory changes will not result in hospice services becoming subject
to the Stark Law’s ownership, investment or compensation prohibitions in the future.
Many states where Vitas operates have laws similar to the Stark Law, but with broader effect
because they apply regardless of the source of payment for care. Penalties similar to those listed
above as well as the loss of state licensure may be imposed in the event of a violation of these
state self-referral laws. Little precedent exists regarding the interpretation or enforcement of
these statutes.
Civil Monetary Penalties. The Civil Monetary Penalties Statute provides that civil penalties
ranging between $10,000 and $50,000 per claim or act may be imposed on any person or entity that
knowingly submits improperly filed claims for federal health benefits or that offers or makes
payment to induce a beneficiary or provider to reduce or limit the use of health care services or
to use a particular provider or supplier. Civil monetary penalties may be imposed for violations
of the anti-kickback statute and for the failure to return known overpayments, among other things.
Prohibition on Employing or Contracting with Excluded Providers. The Social Security Act and
federal regulations state that individuals or entities that have been convicted of a criminal
offense related to the delivery of an item or service under Medicare or Medicaid programs or that
have been convicted, under state and federal law, of a criminal offense relating to neglect or
abuse of residents in connection with the delivery of a healthcare item or service cannot
participate in any federal health care programs, including Medicare and Medicaid. Additionally,
individuals and entities convicted of fraud, that have had their licenses revoked or suspended, or
that have failed to provide services of adequate quality also may be excluded from the Medicare and
Medicaid programs. Federal regulations prohibit Medicare providers, including hospice programs,
from submitting claims for items or services or their related costs if an excluded provider
furnished those items or services. The OIG maintains a list of excluded persons and entities.
Nonetheless, it is possible that Vitas might unknowingly bill for services provided by an excluded
person or entity with whom it contracts. The penalty for contracting with an excluded provider may
range from civil monetary penalties of $50,000 and damages of up to three times the amount of
payment that was inappropriately received.
Corporate Practice of Medicine and Fee Splitting. Most states have laws that restrict or
prohibit anyone other than a licensed physician, including business entities such as corporations,
from employing physicians and/or prohibit payments or fee-splitting arrangements between physicians
and corporations or unlicensed individuals. Penalties for violations of corporate practice of
medicine and fee-splitting laws vary from state to state, but may include civil or criminal
penalties, the restructuring or termination of the business arrangements between the physician and
unlicensed individual or business entity, or even the loss of the physician’s license to practice
medicine. These laws vary widely from state to state both in scope and origin (e.g. statute,
regulation, Attorney General opinion, court ruling, agency policy) and in most instances have been
subject to only limited interpretation by the courts or regulatory bodies.
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Vitas employs or contracts with physicians to provide medical direction and patient care
services to its patients. Vitas has made efforts in those states where certain contracting or fee
arrangements are restricted or prohibited to structure those arrangements in compliance with the
applicable laws and regulations. Despite these efforts, however, the Company cannot assure that
agency officials charged with enforcing these laws will not interpret Vitas’ contracts with
employed or independent contractor physicians as violating the relevant laws or regulations.
Future determinations or interpretations by individual states with corporate practice of medicine
or fee splitting restrictions may force Vitas to restructure its arrangements with physicians in
those locations.
Health Information Practices. There currently are numerous legislative and regulatory
initiatives at both the state and federal levels that address patient privacy concerns. In
particular, federal regulations issued under the Health Insurance Portability and Accountability
Act of 1996 (“HIPAA”) require Vitas to protect the privacy and security of patients’ individual
health information. HIPAA does not automatically preempt applicable state laws and regulations
concerning Vitas’ use, disclosure and maintenance of patient health information, which means that
Vitas is subject to a complex regulatory scheme that, in many instances, requires Vitas to comply
with both federal and state laws and regulations.
In August 2000, HHS published final regulations establishing health care transaction
standards, and code sets for the electronic transmission of health care information in connection
with certain transactions, such as billing or health plan eligibility (the “Transactions
Standard”). The Centers for Medicare and Medicaid Services (“CMS”) is the division of HHS that is
responsible for interpreting and enforcing the Transactions Standard. Failure to comply with the
Transactions Standard may subject covered entities, including Vitas, to civil monetary penalties
and possibly to criminal penalties. Vitas believes that it is in compliance with the Transactions
Standard and developed an appropriate contingency plan as encouraged by CMS.
Additional Federal and State Regulation. Federal and state governments also regulate various
aspects of the hospice industry. In particular, Vitas’ operations are subject to federal and state
health regulatory laws covering professional services, the dispensing of drugs and certain types of
hospice activities. Some of Vitas’ employees are subject to state laws and regulations governing
the ethics and professional practice of medicine, respiratory therapy, pharmacy and nursing.
Compliance with Health Regulatory Laws. Vitas maintains an internal regulatory compliance
review program and from time to time retains regulatory counsel for guidance on compliance matters.
The Company cannot assure, however, that Vitas’ practices, if reviewed, would be found to be in
compliance with applicable health regulatory laws, as such laws ultimately may be interpreted, or
that any non-compliance with such laws would not have a material adverse effect, including an
effect on its brand reputation, on Vitas.
Environmental Matters
Roto-Rooter’s operations are subject to various federal, state, and local laws and regulations
regarding environmental matters and other aspects of the operation of a sewer and drain cleaning,
HVAC and plumbing services business. For certain other activities, such as septic tank and grease
trap pumping, Roto-Rooter is subject to state and local environmental health and sanitation
regulations.
At December 31, 2010, the Company’s accrual for its estimated liability for potential
environmental cleanup and related costs arising from the sale of DuBois Chemicals Inc. (“DuBois”)
amounted to $1.7 million. Of this balance, $901,000 is included in other liabilities and $826,000
is included in other current liabilities. The Company is contingently liable for additional
DuBois-related environmental cleanup and related costs up to a maximum of $14.9 million. On the
basis of a continuing evaluation of the Company’s potential liability, and in consultation with the
Company’s environmental attorney, management believes that it is not probable this additional
liability will be paid. Accordingly, no provision for this contingent liability has been recorded.
Although it is not presently possible to reliably project the timing of payments related to the
Company’s potential liability for
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environmental costs, management believes that any adjustments to its recorded liability will not
materially adversely affect its financial position or results of operations.
The Company, to the best of its knowledge, is currently in compliance in all material respects
with the environmental laws and regulations affecting its operations. Such environmental laws,
regulations and enforcement proceedings have not required the Company to make material increases in
or modifications to its capital expenditures and they have not had a material adverse effect on
sales or net income. Capital expenditures for the purpose of complying with environmental laws and
regulations during 2011 and 2012 with respect to continuing operations are not expected to be
material in amount; there can be no assurance, however, that presently unforeseen legislative
enforcement actions will not require additional expenditures.
Employees
On December 31, 2010, Chemed Corporation had a total of 13,058 employees.
Available Information
The Company’s Internet address is www.chemed.com . The Company’s Annual Report on Form 10-K,
quarterly reports on Form 10-Q, and current reports on Form 8-K, and amendments to those reports
filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act are electronically
available through the SEC (http://www.sec.gov) or the Company’s website as soon as reasonably
practicable after such reports are filed with, or furnished to, the SEC.
Annual reports, press releases, Board Committee charters, Code of Ethics, Corporate governance
guidelines and other printed materials may be obtained from the website or from Chemed Investor
Relations without charge by writing to 2600 Chemed Center, 255 East Fifth Street, Cincinnati, Ohio
45202 or by calling 800-2CHEMED or 513-762-6429.
Item 1A. Risk Factors
You should carefully consider the risks described below. They are not the only ones facing
the Company. Other risks and uncertainties not currently known to us or that we deem to be
immaterial may also materially and adversely affect our business, financial condition, or results
of operations.
GENERAL
We have incurred debt to finance the operations of the Company.
The Company has debt service obligations that may restrict our operating flexibility. We
cannot assure you that our cash flow from operations will be sufficient to service our debt, which
may require us to borrow additional funds, or restructure or otherwise refinance our debt. In
addition, the Company has the ability to expand its debt and borrowing capacity subject to various
restrictions and covenants defined by its creditors. The interest rate the Company pays will
fluctuate from time to time based upon a number of factors including current LIBOR rates and
Company operating performance. Significant changes in these factors could result in a material
change in the Company’s interest expense.
Our indebtedness could have important consequences for our business. Among other things, our
indebtedness may:
| • | Limit our ability to obtain additional financing; |
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| • | Limit our flexibility in planning for, or reacting to, changes in the markets in which we compete; | ||
| • | Place us at a competitive disadvantage relative to our competitors with less indebtedness; | ||
| • | Increase our exposure to interest rate increases due to variable interest rates on certain borrowings; | ||
| • | Limit our ability to complete future acquisitions; | ||
| • | Limit our ability to make capital expenditures; | ||
| • | Render us more vulnerable to general adverse economic and industry conditions; and | ||
| • | Require us to dedicate a substantial portion of our cash flow to service and repay our debt. |
Servicing our indebtedness will require a significant amount of cash, and our ability to
generate cash depends on many factors beyond our control.
Our ability to repay or to refinance our indebtedness and to pay interest on our indebtedness
will depend on our operating performance, which may be affected by factors beyond our control.
These factors could include operating difficulties, increased operating costs, our competitors’
actions and regulatory developments. Our ability to meet our debt service and other obligations
may depend in significant part on the extent to which we successfully implement our business
strategy. We cannot assure you that we will be able to implement our strategy fully or that the
anticipated results of our strategy will be realized. Current credit market conditions may make it
difficult for us to obtain new financing or refinance our current debt on terms and conditions
acceptable to us.
If our cash flows and capital resources are insufficient to fund our debt service obligations,
we may be forced to reduce or delay capital expenditures, sell assets, seek additional equity
capital or restructure our debt. We cannot assure you that our cash flows and capital resources
will be sufficient to make scheduled payments of principal and interest on our indebtedness in the
future or that alternative measures would successfully meet our debt service obligations.
As certain of our obligations under our credit facilities and certain other borrowings could
bear interest at floating rates, an increase in interest rates could further increase our debt
service costs and adversely affect our cash flows.
We have debt that is convertible into shares based on the Company’s stock price. This could
significantly dilute the ownership percentage of current stockholders.
The agreements and instruments governing our outstanding debt contain restrictions and limitations
that could significantly impact our ability to operate our business and adversely affect the price
of our Capital Stock.
The operating and financial restrictions and covenants in our instruments of indebtedness
restrict our ability to:
| • | Incur additional debt; | ||
| • | Pay dividends, make redemptions and purchases of Capital Stock and make other restricted payments; |
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| • | Issue and sell capital stock of subsidiaries; | ||
| • | Sell assets; | ||
| • | Engage in transactions with affiliates; | ||
| • | Restrict distributions from subsidiaries; | ||
| • | Incur liens; | ||
| • | Engage in business other than permitted businesses; | ||
| • | Engage in sale/leaseback transactions; | ||
| • | Engage in mergers or consolidations; | ||
| • | Make capital expenditures; | ||
| • | Make guarantees; | ||
| • | Make investments and acquisitions; | ||
| • | Enter into operating leases; | ||
| • | Hedge interest rates; and | ||
| • | Prepay other debt. |
Moreover, if we are unable to meet the terms of the financial covenants or if we breach any of
these covenants, a default could result under one or more of these agreements. A default, if not
waived by our lenders, could accelerate repayment of our outstanding indebtedness. If acceleration
occurs, we may not be able to repay our debt and it is unlikely that we would be able to borrow
sufficient additional funds to refinance such debt on acceptable terms. In the event of any
default under our credit facilities, the lenders thereunder could elect to declare all outstanding
borrowings, together with accrued and unpaid interest and other fees, to be due and payable, and to
require us to apply all of our available cash to repay these borrowings, any of which would be an
event of default.
We depend on our management team and the loss of their service could have a material adverse effect
on our business, financial condition and results of operations.
Our success depends to a large extent upon the continued services of our executive management
team. The loss of key personnel could have a material adverse effect on our business, financial
condition, results of operations and cash flows. Additionally, we cannot assure you that we will be
able to attract or retain other skilled personnel in the future.
Environmental compliance costs and liabilities could increase our expenses and adversely affect our
financial condition.
Our operations are subject to numerous environmental, health and safety laws and regulations
that prohibit or restrict the discharge of pollutants into the environment and regulate employee
exposure to hazardous substance
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in the workplace. Failure to comply with these laws could subject us to material costs and
liabilities, including civil and criminal fines, costs to cleanup contamination we cause and, in
some circumstances, costs to cleanup contamination we discover on our own property but did not
cause.
Because we use and generate hazardous materials in some of our operations, we are potentially
subject to material liabilities relating to the cleanup of contamination and personal injury
claims. In addition, we have retained certain environmental liabilities in connection with the
sale of former businesses. We are currently funding the cleanup of historical contamination at one
of our former properties and contributing to the cleanup of third-party sites as a result of our
sale of our former subsidiary DuBois Chemicals Inc. Although we have established a reserve for
these liabilities, actual cleanup costs may exceed our current estimates due to factors beyond our
control, such as the discovery of additional contamination or the enforcement of more stringent
cleanup requirements. New laws and regulations or their stricter enforcement, the discovery of
presently unknown conditions or the receipt of additional claims for indemnification could require
us to incur costs or become the basis for new or increased liabilities including impairment of our
brand that could have a material adverse effect on our business, financial condition and results of
operations.
We are subject to certain anti-takeover statutes that might make it more difficult to effect a
change in control of the Company.
We are subject to the anti-takeover provisions of Section 203 of the Delaware General
Corporation Law, which prohibits us from engaging in a “business combination” with an “interested
stockholder” for a period of three years after the date of the transaction in which the person
became an interested stockholder, unless the business combination is approved in a prescribed
manner. The application of Section 203 could have the effect of delaying or preventing a change of
control that could be advantageous to stockholders.
An adverse ruling against us in certain litigation could have an adverse effect on our financial
condition and results of operations.
We are involved in litigation incidental to the conduct of our business currently and from
time to time. The damages claimed against us in some of these cases are substantial.
See the “Legal Proceedings” sections of this 10-K for discussion of particular matters.
We cannot assure you that we will prevail in pending cases. Regardless of the outcome, such
litigation is costly to manage, investigate and defend, and the related defense costs, diversion of
management’s time and related publicity may adversely affect the conduct of our business and the
results of our operations.
ROTO-ROOTER
We face intense competition from numerous, fragmented competitors. If we do not compete
effectively, our business may suffer.
We face intense competition from numerous competitors, many of whom have less leverage than we
do. The sewer, drain and pipe cleaning, and plumbing repair businesses are highly fragmented, with
the bulk of the industries consisting of local and regional competitors. We compete primarily on
the basis of advertising, range of services provided, name recognition, availability of emergency
service, speed and quality of customer service, service guarantees and pricing. Our competitors
may succeed in developing new or enhanced products and services more successful than ours and in
marketing and selling existing and new products and services better than we do. In addition, new
competitors may emerge. We cannot make any assurances that we will continue to be able to compete
successfully with any of these companies.
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Our operations are subject to numerous laws and regulations, exposing us to potential claims and
compliance costs that could adversely affect our business.
We are subject to federal, state and local laws and regulations relating to franchising,
insurance and other aspects of our business. These are discussed in greater detail under
“Government Regulations” in the Description of Business section hereof. If we fail to comply with
existing or future laws and regulations, we may be subject to governmental or judicial fines and
sanctions. Our franchising activities are subject to various federal and state franchising laws
and regulations, including the rules and regulations of the Federal Trade Commission (the “FTC”)
regarding the offering or sale of franchises. The rules and regulations of the FTC require us to
provide all of our prospective franchisees with specific information regarding us and our franchise
program in the form of a detailed franchise offering circular. In addition, a number of states
require us to register our franchise offering prior to offering or selling franchises in such
states. Various state laws also provide for certain rights in favor of franchisees, including (i)
limitations on the franchisor’s ability to terminate a franchise except for good cause, (ii)
restrictions on the franchisor’s ability to deny renewal of a franchise, (iii) circumstances under
which the franchisor may be required to purchase certain inventory of franchisees when a franchise
is terminated or not renewed in violation of such laws and (iv) provisions relating to arbitration.
The ability to engage in the plumbing repair business is also subject to certain limitations and
restrictions imposed by the state and local licensing laws and regulations. We cannot predict
what legislation or regulations affecting our business will be enacted in the future, how existing
or future laws or regulations will be enforced, administered and interpreted, or the amount of
future expenditures that may be required to comply with these laws or regulations. Compliance
costs associated with governmental regulations could have a material adverse effect on our
business, financial condition and results of operations.
VITAS
Vitas is highly dependent on payments from Medicare and Medicaid. If there are changes in the rate
or methods governing these payments, Vitas’ net patient service revenue and profits could
materially decline.
In excess of 90% of Vitas’ net patient service revenue consists of payments from the Medicare
and Medicaid programs. Such payments are made primarily on a “per diem” basis, subject to annual
reimbursement caps. Because Vitas receives a per diem fee to provide eligible services to all
patients, Vitas’ profitability is largely dependent upon its ability to manage the costs of
providing hospice services to patients. Increases in operating costs, such as labor and supply
costs that are subject to inflation, without a compensating increase in Medicare and Medicaid
rates, could have a material adverse effect on Vitas’ business in the future. Medicare and
Medicaid currently adjust the various hospice payment rates annually based primarily on the
increase or decrease of the hospital wage index basket, regionally adjusted. However, the
increases may be less than actual inflation. Vitas’ profitability could be negatively impacted if
this adjustment were eliminated or reduced, or if Vitas’ costs of providing hospice services
increased more than the annual adjustment. In addition, cost pressures resulting from shorter
patient lengths of stay and the use of more expensive forms of palliative care, including drugs and
drug delivery systems, could negatively impact Vitas’ profitability. Many payors are increasing
pressure to control health care costs. In addition, both public and private payors are increasing
pressure to decrease, or limit increases in, reimbursement rates for health care services. Vitas’
levels of revenue and profitability will be subject to the effect of possible reductions in
coverage or payment rates by third-party payors, including payment rates from Medicare and
Medicaid.
Each state that maintains a Medicaid program has the option to provide reimbursement for
hospice services at reimbursement rates generally required to be at least as much as Medicare
rates. All states in which Vitas operates cover Medicaid hospice services; however, we cannot
assure you that the states in which Vitas is presently operating or states into which Vitas could
expand operations will continue to cover Medicaid hospice services. In addition, the Medicare and
Medicaid programs are subject to statutory and regulatory changes, retroactive and prospective rate
and payment adjustments, administrative rulings, freezes and funding reductions, all of which may
adversely affect the level of program payments and could have a material adverse effect on Vitas’
business. We cannot assure that Medicare and/or Medicaid payments to hospices will not decrease.
Reductions in amounts paid
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by government programs for services or changes in methods or regulations governing payments could
cause Vitas’ net patient service revenue and profits to materially decline.
Approximately 25% of Vitas’ hospice patients reside in nursing homes. Changes in the laws and
regulations regarding payments for hospice services and “room and board” provided to Vitas’ hospice
patients residing in nursing homes could reduce its net patient service revenue and profitability.
For Vitas’ hospice patients receiving nursing home care under certain state Medicaid programs
who elect hospice care under Medicare and Medicaid, the state generally must pay Vitas, in addition
to the applicable Medicare or Medicaid hospice per diem rate, an amount equal to at least 95% of
the Medicaid per diem nursing home rate for “room and board” furnished to the patient by the
nursing home. Vitas contracts with various nursing homes for the nursing homes’ provision of
certain “room and board” services that the nursing homes would otherwise provide Medicaid nursing
home patients. Vitas bills and collects from the applicable state Medicaid program an amount equal
to approximately 95% of the amount that would otherwise have been paid directly to the nursing home
under the state’s Medicaid plan. Under Vitas’ standard nursing home contracts, it pays the nursing
home for these “room and board” services at approximately 100% of the Medicaid per diem nursing
home rate.
The reduction or elimination of Medicare and Medicaid payments for hospice patients residing
in nursing homes would reduce Vitas’ net patient service revenue and profitability. In addition,
changes in the way nursing homes are reimbursed for “room and board” services provided to hospice
patients residing in nursing homes could affect Vitas’ ability to serve patients in nursing homes.
If Vitas is unable to maintain relationships with existing patient referral sources or to establish
new referral sources, Vitas’ growth and profitability could be adversely affected.
Vitas’ success is heavily dependent on referrals from physicians, long-term care facilities,
hospitals and other institutional health care providers, managed care companies, insurance
companies and other patient referral sources in the communities that its hospice locations serve,
as well as on its ability to maintain good relations with these referral sources. Vitas’ referral
sources may refer their patients to other hospice care providers or not to a hospice provider at
all. Vitas’ growth and profitability depend significantly on its ability to establish and maintain
close working relationships with these patient referral sources and to increase awareness and
acceptance of hospice care by its referral sources and their patients. We cannot assure you that
Vitas will be able to maintain its existing relationships or that it will be able to develop and
maintain new relationships in existing or new markets. Vitas’ loss of existing relationships or
its failure to develop new relationships could adversely affect its ability to expand or maintain
its operations and operate profitably. Moreover, we cannot assure you that awareness or acceptance
of hospice care will increase or remain at current levels.
Vitas operates in an industry that is subject to extensive government regulation and claims
reviews, and changes in law and regulatory interpretations could reduce its net patient service
revenue and profitability and adversely affect its financial condition and results of operations.
The healthcare industry is subject to extensive federal, state and local laws, rules and
regulations relating to, among others:
| • | Payment for services; | ||
| • | Conduct of operations, including fraud and abuse, anti-kickback prohibitions, self-referral prohibitions and false claims; | ||
| • | Privacy and security of medical records; | ||
| • | Employment practices; and |
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| • | Various state approval requirements, such as facility and professional licensure, certificate of need, compliance surveys and other certification or recertification requirements. |
Changes in these laws, rules and regulations or in interpretations thereof could reduce Vitas’
net patient service revenue and profitability. Vitas’ ability to comply with such regulations is a
key factor in determining the success of its business. See the “Government Regulations” section of
this 10-K for a greater description of these matters.
Fraud and Abuse Laws. Vitas contracts with a significant number of health care providers and
practitioners, including physicians, hospitals and nursing homes and arranges for these entities to
provide services to Vitas’ patients. Some of these health care providers and practitioners may
refer, or be in a position to refer, patients to Vitas (or Vitas may refer patients to them).
These arrangements may not qualify for a safe harbor. Vitas from time to time seeks guidance from
regulatory counsel as to the changing and evolving interpretations and the potential applicability
of the Anti-Kickback Law to its programs, and in response thereto, takes such actions as it deems
appropriate. Vitas generally believes that its contracts and arrangements with providers,
practitioners and suppliers should not be found to violate the Anti-Kickback Law. However, we
cannot assure you that such laws will ultimately be interpreted in a manner consistent with Vitas’
practices.
Several health care reform proposals have included an expansion of the Anti-Kickback Law to
include referrals of any patients regardless of payor source, which is similar to the scope of
certain laws that have been enacted at the state level. In addition, a number of states in which
Vitas operates have laws, which vary from state to state, prohibiting certain direct or indirect
remuneration or fee-splitting arrangements between health care providers, regardless of payor
source, for the referral of patients to a particular provider.
The federal Ethics in Patient Referral Act, Section 1877 of the Social Security Act (commonly
known as the “Stark Law”) prohibits physicians from referring Medicare or Medicaid patients for
“designated health services” to entities in which they hold an ownership or investment interest or
with whom they have a compensation arrangement, subject to certain statutory or regulatory
exceptions. We cannot assure you that future statutory or regulatory changes will not result in
hospice services being subject to the Stark Law’s ownership, investment, compensation or referral
prohibitions. Several states in which Vitas operates have similar laws which likewise are subject
to change. Any such changes could adversely affect the business, financial condition and operating
results of Vitas.
Further, under separate statutes, submission of claims for items or services that are “not
provided as claimed” may lead to civil money penalties, criminal fines and imprisonment and/or
exclusion from participation in Medicare, Medicaid and other federally funded state health care
programs. These false claims statutes include the federal False Claims Act, which allows any
person to bring suit on behalf of the federal government, known as a qui tam action, alleging false
or fraudulent Medicare or Medicaid claims or other violations of the statute and to share in any
amounts paid by the entity to the government in fines or settlement. See the discussion of the
governmental investigations pending against Vitas under Other Healthcare Regulations, above.
Certificate of Need Laws. Many states, including Florida, have certificate of need laws or
other similar health planning laws that apply to hospice care providers. These states may require
some form of state agency review or approval prior to opening a new hospice program, to adding or
expanding hospice services, to undertaking significant capital expenditures or under other
specified circumstances. Approval under these certificate of need laws is generally conditioned on
the showing of a demonstrable need for services in the community. Vitas may seek to develop,
acquire or expand hospice programs in states having certificate of need laws. To the extent that
state agencies require Vitas to obtain a certificate of need or other similar approvals to expand
services at existing hospice programs or to make acquisitions or develop hospice programs in new or
existing geographical markets, Vitas’ plans could be adversely affected by a failure to obtain a
certificate or approval. In addition, competitors may seek
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administratively or judicially to challenge such an approval or proposed approval by the state
agency. Such a challenge, whether or not ultimately successful, could adversely affect Vitas.
Other Federal and State Regulations. The federal government and all states regulate various
aspects of the hospice industry and Vitas’ business. In particular, Vitas’ operations are subject
to federal and state health regulatory laws, including those covering professional services, the
dispensing of drugs and certain types of hospice activities. Certain of Vitas’ employees are
subject to state laws and regulations governing professional practice. Vitas’ operations are
subject to periodic survey by governmental authorities and private accrediting entities to assure
compliance with applicable state licensing, and Medicare and Medicaid certification and
accreditation standards, as the case may be. From time to time in the ordinary course of business,
Vitas receives survey reports noting deficiencies for alleged failure to comply with applicable
requirements. Vitas reviews such reports and takes appropriate corrective action. The failure to
effect such action could result in one of Vitas’ hospice programs being terminated from the
Medicare hospice program. Any termination of one or more of Vitas’ hospice locations from the
Medicare hospice program could adversely affect Vitas’ net patient service revenue and
profitability and adversely affect its financial condition and results of operations. The failure
to obtain, renew or maintain any of the required regulatory approvals, certifications or licenses
could materially adversely affect Vitas’ business and could prevent the programs involved from
offering products and services to patients. In addition, laws and regulations often are adopted to
regulate new products, services and industries. We cannot assure you that either the states or the
federal government will not impose additional regulations on Vitas’ activities, which might
materially adversely affect Vitas, including impairing the value of its brand.
Claims Review. The Medicare and Medicaid programs and their fiscal intermediaries and other
payors periodically conduct pre-payment or post-payment reviews and other reviews and audits of
health care claims, including hospice claims. As a result of such reviews or audits, Vitas could
be required to return any amounts found to be overpaid, or amounts found to be overpaid could be
recouped through reductions in future payments. There is pressure from state and federal
governments and other payors to scrutinize health care claims to determine their validity and
appropriateness. During the past several years, Vitas’ claims have been subject to review and
audit. We cannot assure you that reviews and/or similar audits of Vitas’ claims will not result in
material recoupments, denials or other actions that could have a material adverse effect on Vitas’
business, financial condition and results of operations. See the discussion of OIG investigations
pending against Vitas under Other Health Care Regulations, above.
Regulation and Provision of Continuous Home Care. Vitas provides continuous home care to
patients requiring such care. Continuous home care is provided to patients while at home, during
periods of crisis when intensive monitoring and care, primarily nursing care, is required in order
to achieve palliation or management of acute medical symptoms. Continuous home care requires a
minimum of 8 hours of care within a 24-hour day, which begins and ends at midnight. The care must
be predominantly nursing care provided by either a registered nurse or licensed practical nurse.
Continuous home care can be challenging for a hospice to provide for a number of reasons,
including the need to have available sufficient skilled and trained staff to furnish such care, the
need to manage the staffing and provision of such care, and a shortage of nurses that can make it
particularly difficult to attract and retain nurses that are required to furnish a majority of such
care. Medicare reimbursement for continuous home care has been calculated by multiplying the
applicable continuous home care hourly rate by the number of hours of care provided. If the care
was provided for less than one hour, Medicare requires reporting in 15-minute increments of care
provided, with no rounding.
Medicare reimbursement for continuous home care is subject to a number of requirements posing
further challenges for a hospice providing such care. For example, if a patient requires skilled
interventions for palliation or symptom management that can be accomplished in less than 8
aggregate hours within the 24-hour period, if the majority of care can be accomplished by someone
other than a registered nurse or a licensed practical nurse (e.g., if a majority of care is
furnished by a home health aide or homemaker), or if for any reason less than 8 hours of direct
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care are provided (such as when a patient dies before 8 AM even if 7 or more hours of care has been
provided), the care rendered cannot be reimbursed by Medicare at the continuous home care rate
(although the care instead may be eligible for Medicare reimbursement at the reduced routine home
care day rate). As a result of such requirements, Vitas may incur the costs of providing services
intended to be continuous home care services yet be unable to bill or be reimbursed for such
services at the continuous home care rate. We cannot assure you that challenges in providing
continuous home care will not cause Vitas’ net patient service revenue and profits to materially
decline or that reviews and/or similar audits of Vitas’ claims will not result in material
recoupments, denials or other actions that could have a material adverse effect on Vitas’ business,
financial condition and results of operations.
Compliance. Vitas maintains an internal regulatory compliance review program and from time to
time retains regulatory counsel for guidance on compliance matters. We cannot assure you, however,
that Vitas’ practices, if reviewed, would be found to be in compliance with applicable health
regulatory laws, as such laws ultimately may be interpreted, or that any non-compliance with such
laws would not have a material adverse effect on Vitas.
Federal and state legislative and regulatory initiatives could require Vitas to expend substantial
sums on acquiring, implementing and supporting new information systems, which could negatively
impact its profitability.
There are currently numerous legislative and regulatory initiatives at both the state and
federal levels that address patient privacy concerns. We cannot predict the total financial or
other impact of the regulations on Vitas’ operations. In addition, although Vitas’ management
believes it is in compliance with the requirement of patient privacy regulations, we cannot assure
you that Vitas will not be found to have violated state and federal laws, rules or guidelines
surrounding patient privacy. Compliance with current and future HIPAA requirements or any other
federal or state privacy initiatives could require Vitas to make substantial investments, which
could negatively impact its profitability and cash flows.
Vitas’ growth strategies may not be successful, which could adversely affect its business.
A significant element of Vitas’ growth strategy is expected to include expansion of its
business in new and existing markets. This aspect of Vitas’ growth strategy may not be successful,
which could adversely impact its growth and profitability. We cannot assure you that Vitas will be
able to:
| • | Identify markets that meet its selection criteria for new hospice locations; | ||
| • | Hire and retain qualified management teams to operate each of its new hospice locations; | ||
| • | Manage a large and geographically diverse group of hospice locations; | ||
| • | Become Medicare and Medicaid certified in new markets; | ||
| • | Generate sufficient hospice admissions in new markets to operate profitably in these new markets; | ||
| • | Compete effectively with existing hospices in new markets; or | ||
| • | Obtain state licensure and/or a certificate of need from appropriate state agencies in new markets. |
In addition to growing existing locations and developing new hospice locations, Vitas’ growth
is expected to include expansion through acquisition of other hospices. We cannot assure you that
Vitas’ acquisition strategy will be successful. The success of Vitas’ acquisition strategy depends
upon a number of factors, including:
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| • | Its ability to identify suitable acquisition candidates; | ||
| • | Its ability to negotiate favorable acquisition terms, including purchase price, which may be adversely affected due to increased competition with other buyers; | ||
| • | The availability of financing on favorable terms, or at all; | ||
| • | Its ability to integrate effectively the systems and operations of acquired hospices; | ||
| • | Its ability to retain key personnel of acquired hospices; and | ||
| • | Its ability to obtain required regulatory approvals. |
Acquisitions involve a number of other risks, including diversion of management’s attention
from other business concerns and assuming known or unknown liabilities of acquired hospices,
including liabilities for failure to comply with health care laws and regulations. Integrating
acquired hospices may place significant strains on Vitas’ current operating and financial systems
and controls. Vitas may not successfully overcome these risks or any other problems encountered in
connection with its acquisition strategy.
In addition, since 1990, Vitas has acquired hospice programs, some of which involved
acquisitions of hospice programs from not-for-profit entities. Vitas believes that acquisitions of
not-for-profit programs are generally more complex than acquisitions from for-profit entities and
that a substantial number of acquisition opportunities are likely to involve acquisitions from
not-for-profit entities. Such acquisitions are subject to provisions of the Internal Revenue Code
and, in certain states, state attorney general powers, which have been interpreted to require that
the consideration paid for the assets purchased be at fair market value and, where applicable, that
any fees paid for services be reasonable. In many states there is no mechanism for state attorney
general pre-clearance of transactions to assure that applicable standards have been met. Entities
that acquired not-for-profit hospices could face potential liability if the acquisition transaction
is not structured to comply with Internal Revenue Code and state law requirements, and in some
cases the transaction could be enjoined or subject to rescission. The acquisition of
not-for-profit businesses, including the fairness of the purchase price paid, has received
increasing regulatory scrutiny by state attorneys general and other regulatory authorities.
Although Vitas believes that reasonable actions have been taken to date to establish the fair
market value of assets purchased in prior acquisitions of hospice operations from not-for-profit
entities and the reasonableness of fees paid for services, we cannot assure you that such
transactions or any future similar transactions will not be challenged or that, if challenged, the
results of such challenge would not have a material adverse effect on Vitas’ business.
Vitas’ loss of key management personnel or its inability to hire and retain skilled employees could
adversely affect its business, financial condition and results of operations.
Vitas’ future success significantly depends upon the continued service of its senior
management personnel. The loss of one or more of Vitas’ key senior management personnel or its
inability to hire and retain new skilled employees could negatively impact Vitas’ ability to
maintain or increase patient referrals, a key aspect of its growth strategy, and could adversely
affect its future operating results.
Competition for skilled employees is intense, and the process of locating and recruiting
skilled employees with the combination of qualifications and attributes required to care
effectively for terminally ill patients and their families can be difficult and lengthy. We cannot
assure you that Vitas will be successful in attracting, retaining or training highly skilled
nursing, management, community education, operations, admissions and other personnel. Vitas’
business could be disrupted and its growth and profitability negatively impacted if it is unable to
attract and retain skilled employees.
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A nationwide shortage of qualified nurses could adversely affect Vitas’ profitability, growth
and ability to continue to provide quality, responsive hospice services to its patients as nursing
wages and benefits increase.
The substantial majority of Vitas’ workforce is nurses. Vitas depends on qualified nurses to
provide quality, responsive hospice services to its patients. The current nationwide shortage of
qualified nurses impacts some of the markets in which Vitas provides hospice services. In response
to this shortage, Vitas has adjusted its wages and benefits to recruit and retain nurses and to
engage contract nurses. Vitas’ inability to attract and retain qualified nurses could adversely
affect its ability to provide quality, responsive hospice services to its patients and its ability
to increase or maintain patient census in those markets. Increases in the wages and benefits
required to attract and retain qualified nurses or an increase in reliance on contract nurses could
negatively impact profitability.
Vitas may not be able to compete successfully against other hospice providers, and competitive
pressures may limit its ability to maintain or increase its market position and adversely affect
its profitability, financial condition and results of operations.
Hospice care in the United States is highly competitive. In many areas in which Vitas’
hospices are located, they compete with a large number of organizations, including:
| • | Community-based hospice providers; | ||
| • | National and regional companies; | ||
| • | Hospital-based hospice and palliative care programs; | ||
| • | Physician groups; | ||
| • | Nursing homes; | ||
| • | Home health agencies; | ||
| • | Infusion therapy companies; and | ||
| • | Nursing agencies. |
Various health care companies have diversified into the hospice market. Other companies,
including hospitals and health care organizations that are not currently providing hospice care,
may enter the markets Vitas serves and expand the variety of services offered to include hospice
care. We cannot assure you that Vitas will not encounter increased competition in the future that
could limit its ability to maintain or increase its market position, including competition from
parties in a position to impact referrals to Vitas. Such increased competition could have a
material adverse effect on Vitas’ business, financial condition and results of operations.
Changes in rates or methods of payment for Vitas’ services could adversely affect its revenues and
profits.
Managed care organizations have grown substantially in terms of the percentage of the
population they cover and their control over an increasing portion of the health care economy.
Managed care organizations have continued to consolidate to enhance their ability to influence the
delivery of health care services and to exert pressure to control health care costs. Vitas has a
number of contractual arrangements with managed care organizations and other similar parties.
Vitas provides hospice care to many Medicare beneficiaries who receive their non-hospice
health care services from health maintenance organizations (“HMOs”) under Medicare risk contracts.
Under such contracts
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between HMOs and the federal Department of Health and Human Services, the Medicare payments for
hospice services are excluded from the per-member, per-month payment from Medicare to HMOs and
instead are paid directly by Medicare to the hospices. As a result, Vitas’ payments for Medicare
beneficiaries enrolled in Medicare risk HMOs are processed in the same way with the same rates as
other Medicare beneficiaries. We cannot assure, however, that payment for hospice services will
continue to be excluded from HMO payment under Medicare risk contracts and similar Medicare managed
care plans or that if not excluded, managed care organization or other large third-party payors
would not use their power to influence and exert pressure on health care providers to reduce costs
in a manner that could have a material adverse effect on Vitas’ business, financial condition and
results of operations.
Liability claims may have an adverse effect on Vitas, and its insurance coverage may be inadequate.
Participants in the hospice industry are subject to lawsuits alleging negligence, product
liability or other similar legal theories, many of which involve large claims and significant
defense costs. From time to time, Vitas is subject to such and other types of lawsuits. See the
description below under Legal Proceedings. The ultimate liability for claims, if any, could have a
material adverse effect on its financial condition or operating results. Although Vitas currently
maintains liability insurance intended to cover the claims, we cannot assure you that the coverage
limits of such insurance policies will be adequate or that all such claims will be covered by the
insurance. In addition, Vitas’ insurance policies must be renewed annually and may be subject to
cancellation during the policy period. While Vitas has been able to obtain liability insurance in
the past, such insurance varies in cost, is difficult to obtain and may not be available in the
future on terms acceptable to Vitas, if at all.
A successful claim in excess of the insurance coverage could have a material adverse effect on
Vitas. Claims, regardless of their merit or eventual outcome, also may have a material adverse
effect on Vitas’ business and reputation due to the costs of litigation, diversion of management’s
time and related publicity.
Vitas procures professional liability coverage on a claims-made basis. The insurance
contracts specify that coverage is available only during the term of each insurance contract.
Vitas’ management intends to renew or replace the existing claims-made policy annually but such
coverage is difficult to obtain, may be subject to cancellation and may be written by carriers that
are unable, or unwilling to pay claims. During fiscal 2001, Vitas was notified that one of its
prior carriers was ordered into rehabilitation, and in early fiscal 2002, into liquidation,
creating the possibility that certain prior year claims could be underinsured or uninsured.
Certain claims have been asserted where the coverage would be the responsibility of this prior
carrier and/or other carriers that may not have the financial wherewithal to satisfy the claims.
Additionally, some risks and liabilities, including claims for punitive damages, are not covered by
insurance.
Item 1B. Unresolved Staff Comments
None.
Item 2. Properties
The Company’s corporate offices and the headquarters for the Roto-Rooter Group are located in
Cincinnati, Ohio. Roto-Rooter has manufacturing and distribution center facilities in West Des
Moines, Iowa and has 71 leased and owned office and service facilities in 27 states. Vitas
headquartered in Miami, operates 45 programs from 135 leased facilities and 32 inpatient units in
15 states and the District of Columbia.
All “owned” property is held in fee and is subject to the security interests of the holders of
our debt instruments. The leased properties have lease terms ranging from one year to seven years.
Management does not foresee any difficulty in renewing or replacing the remainder of its current
leases. The Company considers all of its
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major operating properties to be maintained in good operating condition and to be generally
adequate for present and anticipated needs.
Item 3. Legal Proceedings
Vitas is party to a class action lawsuit filed in the Superior Court of California, Los
Angeles County, in September 2006 by Bernadette Santos, Keith Knoche and Joyce White. This case
alleges failure to pay overtime and failure to provide meal and rest periods to a purported class
of California admissions nurses, chaplains and sales representatives. The case seeks payment of
penalties, interest and Plaintiffs’ attorney fees. Vitas contests these allegations. In December
2009, the trial court denied plaintiff’s motion for class certification. The lawsuit is in its
early stage and we are unable to estimate our potential liability, if any, with respect to these
allegations.
On March 1, 2010 Anthony Morangelli and Frank Ercole filed a class action lawsuit in federal
district court for the Eastern District of New York seeking unpaid minimum wages and overtime
service technician compensation from Roto-Rooter Services Company and Chemed. They also seek
payment of penalties, interest and Plaintiffs’ attorney fees. The Company contests these
allegations. In September 2010, the Court conditionally certified a nationwide class of service
technicians, excluding those who signed dispute resolution agreements agreeing to arbitrate claims
arising out of their employment. There has been no final determination of the merits of collective
treatment of the case. We are unable to estimate our potential liability, if any, related to this
case.
Regardless of outcome, such litigation can adversely affect the Company through defense costs,
diversion of management’s time, and related publicity. In the normal course of business, we are a
party to various claims and legal proceedings. We record a reserve for these matters when an
adverse outcome is probable and the amount of the potential liability is reasonably estimable.
See also the OIG investigations pending against Vitas under Other Health Care Regulations,
above.
Item 4. Removed and Reserved
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Executive Officers of the Company
| Name | Age | Office | First Elected | |||||
Kevin J. McNamara
|
57 | President and Chief Executive Officer | August 2, 1994 (1) | |||||
Timothy S. O’Toole
|
55 | Executive Vice President | May 18, 1992 (2) | |||||
Spencer S. Lee
|
55 | Executive Vice President | May 15, 2000 (3) | |||||
David P. Williams
|
50 | Executive Vice President and Chief Financial Officer | March 5, 2004 (4) | |||||
Arthur V. Tucker, Jr.
|
61 | Vice President and Controller | February 1, 1989 (5) | |||||
| (1) | Mr. K. J. McNamara is President and Chief Executive Officer of the Company and has held these positions since August 1994 and May 2001, respectively. Previously, he served as an Executive Vice President, Secretary and General Counsel of the Company, since November 1993, August 1986 and August 1986, respectively. He previously held the position of Vice President of the Company, from August 1986 to May 1992. | |
| (2) | Mr. T.S. O’Toole is an Executive Vice President of the Company and has held this position since May 1992. He is also Chief Executive Officer of Vitas, a wholly owned subsidiary of the Company, and has held this position since February 24, 2004. Previously, from May 1992 to February 24, 2004, he also served the Company as Treasurer. | |
| (3) | Mr. S. S. Lee is an Executive Vice President of the Company and has held this position since May 15, 2000. Mr. Lee is also Chairman and Chief Executive Officer of Roto-Rooter Services Company, a wholly owned subsidiary of the Company, and has held this position since January 1999. Previously, he served as a Senior Vice President of Roto-Rooter Services Company from May 1997 to January 1999. | |
| (4) | Mr. D. P. Williams is an Executive Vice President and the Chief Financial Officer of the company and has held these positions since August 10, 2007 and March 5, 2004, respectively. Mr. Williams is also Senior Vice President and Chief Financial Officer of Roto-Rooter Group, Inc., and has held these positions since January 1999. | |
| (5) | Mr. A. V. Tucker, Jr. is a Vice President and Controller of the Company and has held these positions since February 1989. From May 1983 to February 1989, he held the position of Assistant Controller of the Company. |
Each executive officer holds office until the annual election at the next annual
organizational meeting of the Board of Directors of the Company which is scheduled to be held on
May 16, 2011.
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PART II
Item 5. Market for the Registrant’s Common Equity, Related Stockholder Matters and Issuer
Purchases of Equity Securities
The Company’s Capital Stock (par value $1 per share) is traded on the New York Stock Exchange
under the symbol CHE. The range of the high and low sale prices on the New York Stock Exchange and
dividends paid per share for each quarter of 2009 and 2010 are set forth below.
| Closing | Dividends Paid | |||||||||||
| High | Low | Per Share | ||||||||||
2009 |
||||||||||||
First Quarter |
$ | 44.86 | $ | 34.20 | $ | .06 | ||||||
Second Quarter |
43.01 | 37.18 | .06 | |||||||||
Third Quarter |
45.11 | 36.76 | .12 | |||||||||
Fourth Quarter |
48.79 | 43.50 | .12 | |||||||||
2010 |
||||||||||||
First Quarter |
$ | 57.18 | $ | 46.41 | $ | .12 | ||||||
Second Quarter |
58.34 | 51.31 | .12 | |||||||||
Third Quarter |
57.30 | 49.52 | .14 | |||||||||
Fourth Quarter |
64.66 | 55.41 | .14 | |||||||||
Future dividends are necessarily dependent upon the Company’s earnings and financial
condition, compliance with certain debt covenants and other factors not presently determinable.
As of February 15, 2011, there were approximately 2,389 stockholders of record of the
Company’s Capital Stock. This number only includes stockholders of record and does not include
stockholders with shares beneficially held in nominee name or within clearinghouse positions of
brokers, banks or other institutions.
During 2010, the number of shares of Capital Stock repurchased by the Company, the weighted
average price paid for each share, the cumulative shares repurchased under each program and the
dollar amounts remaining under each program were as follows:
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Company Purchase of Shares of Capital Stock
| Weighted | ||||||||||||||||
| Total Number | Average | Cumulative Shares | Dollar Amount | |||||||||||||
| Of Shares | Price Paid Per | Repurchased Under | Remaining Under | |||||||||||||
| Repurchased | Share | The Program | The Program | |||||||||||||
April 2007 Program |
||||||||||||||||
January 1 through January 31, 2010 |
31,375 | $ | 47.17 | 1,736,972 | $ | 51,718,696 | ||||||||||
February 1 through February 28, 2010 |
— | $ | — | 1,736,972 | $ | 51,718,696 | ||||||||||
March 1 through March 31, 2010 |
— | $ | — | 1,736,972 | $ | 51,718,696 | ||||||||||
First Quarter Total — April 2007
Program |
31,375 | $ | 47.17 | |||||||||||||
April 1 through April 30, 2010 |
— | $ | — | 1,736,972 | $ | 51,718,696 | ||||||||||
May 1 through May 31, 2010 |
38,492 | $ | 53.70 | 1,775,464 | $ | 49,651,677 | ||||||||||
June 1 through June 30, 2010 |
76,408 | $ | 55.65 | 1,851,872 | $ | 45,399,865 | ||||||||||
Second Quarter Total — April 2007
Program |
114,900 | $ | 54.99 | |||||||||||||
July 1 through July 31, 2010 |
— | $ | — | 1,851,872 | $ | 45,399,865 | ||||||||||
August 1 through August 30, 2010 |
— | $ | — | 1,851,872 | $ | 45,399,865 | ||||||||||
September 1 through September 30,
2010 |
— | $ | — | 1,851,872 | $ | 45,399,865 | ||||||||||
Third Quarter Total — April 2007
Program |
— | $ | — | |||||||||||||
October 1 through October 31, 2010 |
— | $ | — | 1,851,872 | $ | 45,399,865 | ||||||||||
November 1 through November 30, 2010 |
44,386 | $ | 60.28 | 1,896,258 | $ | 42,724,473 | ||||||||||
December 1 through December 31, 2010 |
1,457,386 | $ | 64.21 | 3,353,644 | $ | 19,143,606 | ||||||||||
Fourth Quarter Total — April 2007
Program |
1,501,772 | $ | 64.09 | |||||||||||||
On April 26, 2007, our Board of Directors authorized a $150 million share repurchase plan with no
expiration date.
On May 20, 2008, our Board of Directors authorized an additional $56 million under the April 2007
Program.
On December 27, 2010, our Board of Directors authorized an additional $70 million under the April
2007 Program.
As of December 31, 2010, the number of stock options outstanding under the Company’s equity
compensation plans, the weighted average exercise price of outstanding options, and the number of
securities remaining available for issuance were as follows:
29
Table of Contents
EQUITY COMPENSATION PLAN INFORMATION
| Number of securities | ||||||||||||
| remaining available | ||||||||||||
| Number of | for future issuance | |||||||||||
| securities | under equity | |||||||||||
| to be issued upon | Weighted-average | compensation plans | ||||||||||
| exercise of | exercise price of | [excluding | ||||||||||
| outstanding warrants | outstanding options, | securities reflected | ||||||||||
| and rights | warrants and rights | in column (a)] | ||||||||||
| Plan Category | (a) | (b) | (c) | |||||||||
Equity Compensation
plans approved by
stockholders |
2,564,366 | $ | 47.37 | 2,027,073 | ||||||||
Equity Compensation
plans not approved
by stockholders (1) |
22,280 | 26.54 | — | |||||||||
TOTAL |
2,586,646 | $ | 47.19 | 2,027,073 | ||||||||
| (1) | In May 1999 the Board of Directors adopted the 1999 Long-Term Employee Incentive Plan without stockholder approval. This plan permits the Company to grant up to 500,000 shares of non-qualified options and stock awards to a broad base of salaried and hourly employees (excluding officers and directors) of the Company. Except for the exclusion of officers and directors, this plan has the same general terms and provisions as the 2006 Stock Incentive Plan. In addition, pursuant to this plan no individual may be granted more than 50,000 stock options in a calendar year, the aggregate number of the shares of Capital Stock which may be issued pursuant to stock incentives in the form of Stock Awards shall not be more than 270,000, and no stock incentives shall be granted under the plan after May 17, 2009. |
Comparative Stock Performance
The graph below compares the yearly percentage change in the Company’s cumulative total
stockholder return on Capital Stock (as measured by dividing (i) the sum of (A) the cumulative
amount of dividends for the period December 31, 2005, to December 31, 2010, assuming dividend
reinvestment, and (B) the difference between the Company’s share price at December 31, 2005 and
December 31, 2010; by (ii) the share price at December 31, 2005) with the cumulative total return,
assuming reinvestment of dividends, of the (1) S&P 500 Stock Index and (2) Dow Jones Industrial
Diversified Index.
30
Table of Contents
Chemed Corporation
Cumulative Total Stockholder Return for
Five-Year Period Ending December 31, 2010
Cumulative Total Stockholder Return for
Five-Year Period Ending December 31, 2010
| December 31 | 2005 | 2006 | 2007 | 2008 | 2009 | 2010 | ||||||||||||||||||
Chemed Corporation |
100.00 | 74.83 | 113.55 | 81.29 | 98.89 | 132.17 | ||||||||||||||||||
S&P 500 Index — Total Returns |
100.00 | 115.81 | 122.17 | 76.96 | 97.31 | 111.98 | ||||||||||||||||||
Dow Jones US Diversified Industrials Index |
100.00 | 109.62 | 116.87 | 57.69 | 65.47 | 80.44 | ||||||||||||||||||
31
Table of Contents
Item 6. Selected Financial Data
The information called for by this Item for the five years ended December 31, 2010 is set
forth on page 34 of the 2010 Annual Report to Stockholders and is incorporated herein by reference.
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The information called for by this Item is set forth on pages 38 through 51 of the 2010 Annual
Report to Stockholders and is incorporated herein by reference.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
The Company’s primary market risk exposure relates to interest rate risk exposure through its
variable interest line of credit. At December 31, 2010 the Company had no variable rate debt
outstanding. For each $10 million dollars borrowed under the credit facility, an increase or
decrease of 100 basis points (1% point), increases or decreases the Company’s annual interest
expense by $100,000.
The Company continually evaluates this interest rate exposure and periodically weighs the cost
versus the benefit of fixing the variable interest rates through a variety of hedging techniques.
The market value of the Company’s long-term debt at December 31, 2010 is approximately $189.1
million versus a carrying value of $159.2 million.
Item 8. Financial Statements and Supplementary Data
The consolidated financial statements, together with the report thereon of
PricewaterhouseCoopers LLP dated February 28, 2011, appearing on pages 1 through 31 of the 2010
Annual Report to Stockholders, along with the Supplementary Data (Unaudited Summary of Quarterly
Results) appearing on pages 32-33, are incorporated herein by reference.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None.
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
The Company’s management, under the supervision of and with the participation of the Company’s
President and Chief Executive Officer, Executive Vice President and Chief Financial Officer and
Vice President and Controller, has evaluated the effectiveness of the Company’s disclosure controls
and procedures, as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), as of the end of the period covered by this
report. Based on such evaluation, the Company’s President and
Chief Executive Officer, Executive Vice President and Chief Financial Officer and Vice President
and Controller have concluded that, as of the end of such period, the Company’s disclosure controls
and procedures are effective and are reasonably designed to ensure that all material information
relating to the Company required to be included in the Company’s reports filed or submitted under
the Exchange Act is recorded, processed, summarized and reported within the time periods specified
in the rules and forms of the Securities and Exchange Commission and that such information is
accumulated and communicated to management, including the President and Chief Executive Officer,
Executive Vice President and Chief Financial Officer and Vice President and Controller, as
appropriate, to allow timely decisions regarding required disclosure.
32
Table of Contents
Management’s Report on Internal Control Over Financial Reporting
Refer to Management’s Report on Internal Control over Financial Reporting and Report of
Independent Registered Public Accounting Firm on pages 1 and 2 of the Company’s 2010 Annual Report
to Stockholders, which are incorporated herein by reference.
Changes in Internal Control Over Financial Reporting
There have not been any changes in the Company’s internal control over financial reporting, as
such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act during the Company’s
fiscal quarter ended December 31, 2010 that have materially affected, or are reasonably likely to
materially affect, the Company’s internal control over financial reporting.
Item 9B. Other Information
Not applicable.
PART III
Item 10. Directors, Executive Officers and Corporate Governance
The directors of the Company are:
Kevin J. McNamara
Joel F. Gemunder
Patrick P. Grace
Thomas C. Hutton
Walter L. Krebs
Andrea R. Lindell
Thomas P. Rice
Donald E. Saunders
George J. Walsh III
Frank E. Wood
Joel F. Gemunder
Patrick P. Grace
Thomas C. Hutton
Walter L. Krebs
Andrea R. Lindell
Thomas P. Rice
Donald E. Saunders
George J. Walsh III
Frank E. Wood
The additional information required under this Item is set forth in the Company’s 2011 Proxy
Statement and in Part I hereof under the caption “Executive Officers of the Registrant” and is
incorporated herein by reference.
The Company has adopted a Code of Ethics that applies to the Company’s principal executive
officer, principal financial officer, principal accounting officer, directors and employees. A
copy of this Code of Ethics is incorporated with this report as Exhibit 14 and it is also posted on
the Company’s Web site, www.chemed.com.
Item 11. Executive Compensation
Information required under this Item is set forth in the Company’s 2011 Proxy Statement, which
is incorporated herein by reference.
33
Table of Contents
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder
Matters
Information required under this Item is set forth in the Company’s 2011 Proxy Statement, which
is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions and Director Independence.
Information required under this Item is set forth in the Company’s 2011 Proxy Statement, which
is incorporated herein by reference.
A description of related party transactions is shown in Note 20 of the Notes to Consolidated
Financial Statements on page 27 of the 2010 Annual Report to Stockholders and is incorporated
herein by reference.
Item 14. Principal Accountant Fees and Services
Audit Fees
PricewaterhouseCoopers LLP billed the Company $1,530,000 for 2009 and $1,568,000 for 2010.
These fees were for professional services rendered for the integrated audit of the Company’s annual
financial statements and of its internal control over financial reporting, review of the financial
statements included in the Company’s Forms 10-Q and review of documents filed with the SEC.
Audit-Related Fees
PricewaterhouseCoopers LLP billed the Company $221,000 and $131,000 for 2009 and 2010,
respectively, for audit-related services. These services were related to the audit of one of
Vitas’ Florida subsidiaries.
Tax Fees
No such services were rendered in 2009 or 2010.
All Other Fees
No other services were rendered in 2009. For 2010, $30,000 was billed for Information
Technology Consulting Services.
The Audit Committee has adopted a policy which requires the Committee’s pre-approval of audit
and non-audit services performed by the independent auditor to assure that the provision of such
services does not impair the auditor’s independence. The Audit Committee pre-approved all of the
audit and non-audit services rendered by PricewaterhouseCoopers LLP as listed above.
34
Table of Contents
PART IV
Item 15 Exhibits and Financial Statement Schedule
Exhibits
3.1
|
Certificate of Incorporation of Chemed Corporation.* | |
3.2
|
Certificate of Amendment to Certificate of Incorporation.* | |
3.3
|
By-Laws of Chemed Corporation.* | |
10.1
|
1999 Stock Incentive Plan.*,** | |
10.2
|
1999 Long-Term Employee Incentive Plan as amended through May 20, 2002.*,** | |
10.3
|
2002 Stock Incentive Plan.*,** | |
10.4
|
2002 Executive Long-Term Incentive Plan, as amended May 18, 2004.*,** | |
10.5
|
2004 Stock Incentive Plan.*,** | |
10.6
|
2006 Stock Incentive Plan, as amended August 11, 2006.*,** | |
10.7
|
2010 Stock Incentive Plan.*,** | |
10.8
|
Repurchase Agreement dated May 8, 2007 by and among Chemed Corporation, J.P. Morgan Securities Inc. and Citigroup Global Markets, Inc.* | |
10.9
|
Convertible Senior Note Indenture dated May 14, 2007 for 1.875% Convertible Senior Notes due 2014 by and among Chemed Corporation, the Subsidiary Guarantors and LaSalle Bank NA, as Trustee.* | |
10.10
|
Employment Agreement with David P. Williams dated December 1, 2006.*,** | |
10.11
|
First Amendment to Employment Agreement with David P. Williams dated July 9, 2009.*,** | |
10.12
|
Employment Agreement with Timothy S. O’Toole dated May 6, 2007.*,** | |
10.13
|
First Amendment to Employment Agreement with Timothy S. O’Toole dated July 9, 2009.*,** | |
10.14
|
Employment Agreement with Kevin J. McNamara dated May 3, 2008.*,** | |
10.15
|
First Amendment to Employment Agreement with Kevin J. McNamara dated July 9, 2009.*,** | |
10.16
|
Registration Rights Agreement, dated May 14, 2007 by and among Chemed Corporation, J.P. Morgan Securities, Inc. and Citigroup Global Markets Inc.* |
35
Table of Contents
10.17
|
Confirmation of Convertible Note Hedge, dated May 8, 2007 between Chemed Corporation and J.P. Morgan Chase Bank, NA.* | |
10.18
|
Confirmation of Convertible Note Hedge, dated May 8, 2007 between Chemed Corporation and Citibank, NA.* | |
10.19
|
Form of Convertible Note Warrant Transaction, dated May 8, 2007 between Chemed Corporation and Citibank NA.* | |
10.20
|
Form of Convertible Note Warrant Transaction, dated May 8, 2007 between Chemed Corporation and J.P. Morgan Chase Bank, NA.* | |
10.21
|
Excess Benefits Plan, as restated and amended, effective June 1, 2001.*,** | |
10.22
|
Amendment No. 1 to Excess Benefits Plan, effective July 1, 2001.*,** | |
10.23
|
Amendment No. 2 to Excess Benefits Plan, effective November 7, 2003.*,** | |
10.24
|
Non-Employee Directors’ Deferred Compensation Plan.*,** | |
10.25
|
Chemed/Roto-Rooter Savings & Retirement Plan, effective January 1, 1999.*,** | |
10.26
|
First Amendment to Chemed/Roto-Rooter Savings & Retirement Plan, effective September 6, 2000.*,** | |
10.27
|
Second Amendment to Chemed/Roto-Rooter Savings & Retirement Plan, effective January 1, 2001.*,** | |
10.28
|
Third Amendment to Chemed/Roto-Rooter Savings & Retirement Plan, effective December 12, 2001.*,** | |
10.29
|
Directors Emeriti Plan.*,** | |
10.30
|
Chemed Corporation Change in Control Severance Plan, as amended July 9, 2009.*,** | |
10.31
|
Chemed Corporation Senior Executive Severance Policy, as amended July 9, 2009.*,** | |
10.32
|
Roto-Rooter Deferred Compensation Plan No. 1, as amended January 1, 1998.*,** | |
10.33
|
Roto-Rooter Deferred Compensation Plan No. 2.*,** | |
10.34
|
Agreement and Plan of Merger, dated as of December 18, 2003, among Roto-Rooter, Inc., Marlin Merger Corp. and Vitas Healthcare Corporation.* | |
10.35
|
Credit Agreement, dated as of May 2, 2007, among Chemed Corporation, the lenders from time to time parties thereto and J.P. Morgan Chase Bank, NA, as Administrative Agent.* | |
10.35a
|
Credit Agreement Exhibits, dated as of May 2, 2007, among Chemed Corporation, the lenders from time to time parties thereto and J.P. Morgan Chase Bank, NA, as Administrative Agent. |
36
Table of Contents
10.35b
|
Credit Agreement Schedules, dated as of May 2, 2007, among Chemed Corporation, the lenders from time to time parties thereto and J.P. Morgan Chase Bank, NA, as Administrative Agent. | |
10.36
|
Form of Restricted Stock Award.*,** | |
10.37
|
Form of Stock Option Grant.*,** | |
12
|
Computation of Ratio to Earnings to Fixed Charges. | |
13
|
2010 Annual Report to Stockholders. | |
14
|
Policies on Business Ethics of Chemed Corporation.* | |
21
|
Subsidiaries of Chemed Corporation. | |
23
|
Consent of Independent Registered Public Accounting Firm. | |
24
|
Powers of Attorney. | |
31.1
|
Certification by Kevin J. McNamara pursuant to Rule 13a-14(a)/15d-14(a) of the Exchange Act of 1934. | |
31.2
|
Certification by David P. Williams pursuant to Rule 13a-14(a)/15d-14(a) of the Exchange Act of 1934. | |
31.3
|
Certification by Arthur V. Tucker, Jr. pursuant to Rule 13a-14(a)/15d-14(a) of the Exchange Act of 1934. | |
32.1
|
Certification by Kevin J. McNamara pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
32.2
|
Certification by David P. Williams pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
32.3
|
Certification by Arthur V. Tucker, Jr. pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
101.INS
|
XBRL Instance Document* | |
101.SCH
|
XBRL Extension Schema* | |
101.CAL
|
XBRL Taxonomy Extension Calculation Linkbase* | |
101.LAB
|
XBRL Taxonomy Extension Label Linkbase* | |
101.PRE
|
XBRL Taxonomy Extension Presentation Linkbase* |
37
Table of Contents
*
|
This exhibit is being filed by means of incorporation by reference (see Index to Exhibits on page E-1). Each other exhibit is being filed with this Annual Report on Form 10-K. | |
**
|
Management contract or compensatory plan or arrangement. |
Financial Statement Schedule
See Index to Financial Statements and Financial Statement Schedule on page S-1.
38
Table of Contents
SIGNATURES
| Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. |
| February 28, 2011 | CHEMED CORPORATION |
|||
| By | /s/ Kevin J. McNamara | |||
| Kevin J. McNamara | ||||
| President and Chief Executive Officer | ||||
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been
signed below by the following persons on behalf of the registrant and in the capacities and on the
dates indicated.
| Signature | Title | Date | ||||||
/s/ Kevin J. McNamara
|
President and Chief | |||||||
Kevin J. McNamara
|
Executive Officer and | |||||||
| a Director (Principal | ||||||||
| Executive Officer) | ||||||||
/s/ David P. Williams
|
Executive Vice President and Chief | |||||||
David P. Williams
|
Financial Officer | |||||||
| (Principal Financial Officer) | ||||||||
/s/ Arthur V. Tucker, Jr.
|
Vice President and | February 28, 2011 | ||||||
Arthur V. Tucker, Jr.
|
Controller | |||||||
| (Principal Accounting Officer) | ||||||||
Joel F. Gemunder*
|
Thomas P. Rice* | |||||||
Patrick P. Grace*
|
Donald E. Saunders* | |||||||
Thomas C. Hutton*
|
George J Walsh III* | — Directors | ||||||
Walter L. Krebs*
|
Frank E. Wood* | |||||||
Andrea R. Lindell* |
||||||||
| * | Naomi C. Dallob by signing her name hereto signs this document on behalf of each of the persons indicated above pursuant to powers of attorney duly executed by such persons and filed with the Securities and Exchange Commission. |
February
28, 2011
|
/s/ Naomi C. Dallob | |
Date
|
Naomi C. Dallob (Attorney-in-Fact) |
39
Table of Contents
CHEMED CORPORATION AND SUBSIDIARY COMPANIES
INDEX TO FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULE
2008, 2009 AND 2010
2008, 2009 AND 2010
| Page(s) | ||||
Chemed Corporation Consolidated Financial
Statements and Financial Statement Schedule |
||||
Report of Independent Registered Public Accounting Firm |
2 | * | ||
Consolidated Statement of Income |
3 | * | ||
Consolidated Balance Sheet |
4 | * | ||
Consolidated Statement of Cash Flows |
5 | * | ||
Consolidated Statement of Changes in Stockholders’ Equity |
6 | * | ||
Notes to Consolidated Financial Statements |
7-31 | * | ||
| S-2 | ||||
| S-3 | ||||
| * | Indicates page numbers in Chemed Corporation 2010 Annual Report to Stockholders |
The consolidated financial statements of Chemed Corporation listed above, appearing in the
2010 Annual Report to Stockholders, are incorporated herein by reference. The Financial Statement
Schedule should be read in conjunction with the consolidated financial statements listed above.
Schedules not included have been omitted because they are not applicable or the required
information is shown in the financial statements or notes thereto as listed above.
S-1
Table of Contents
Report of Independent Registered Public Accounting
Firm on Financial Statement Schedule
Firm on Financial Statement Schedule
To the Board of Directors of Chemed Corporation
Our audits of the consolidated financial statements and the effectiveness of internal control over
financial reporting referred to in our report dated February 28, 2011 appearing in the 2010 Annual
Report to Stockholders of Chemed Corporation (which report and consolidated financial statements
are incorporated by reference in this Annual Report on Form 10-K) also included an audit of the
financial statement schedule listed in Item 15(a)(2) of this Form 10-K. In our opinion, this
financial statement schedule presents fairly, in all material respects, the information set forth
therein when read in conjunction with the related consolidated financial statements.
| /s/ PricewaterhouseCoopers LLP | ||||
| PricewaterhouseCoopers LLP | ||||
| Cincinnati, Ohio February 28, 2011 |
||||
S-2
Table of Contents
SCHEDULE II
CHEMED CORPORATION AND SUBSIDIARY COMPANIES
VALUATION AND QUALIFYING ACCOUNTS
(IN THOUSANDS)
DR/(CR)
VALUATION AND QUALIFYING ACCOUNTS
(IN THOUSANDS)
DR/(CR)
| ADDITIONS | ||||||||||||||||||||
| (CHARGED) | ||||||||||||||||||||
| CREDITED | (CHARGED) | |||||||||||||||||||
| BALANCE AT | TO COSTS | CREDITED | BALANCE | |||||||||||||||||
| BEGINNING | AND | TO OTHER | DEDUCTIONS | AT END | ||||||||||||||||
| DESCRIPTION | OF PERIOD | EXPENSES | ACCOUNTS | (a) | OF PERIOD | |||||||||||||||
Allowances for doubtful
accounts (b) |
||||||||||||||||||||
For the year 2010 |
$ | (12,595 | ) | $ | (9,118 | ) | $ | (472 | ) | $ | 8,853 | $ | (13,332 | ) | ||||||
For the year 2009 |
$ | (10,320 | ) | $ | (10,861 | ) | $ | (656 | ) | $ | 9,242 | $ | (12,595 | ) | ||||||
For the year 2008 |
$ | (9,746 | ) | $ | (9,870 | ) | $ | 13 | $ | 9,283 | $ | (10,320 | ) | |||||||
Allowances for doubtful
accounts — notes
receivable (c) |
||||||||||||||||||||
For the year 2010 |
$ | (408 | ) | $ | 40 | $ | — | $ | — | $ | (368 | ) | ||||||||
For the year 2009 |
$ | (482 | ) | $ | 28 | $ | 44 | $ | 2 | $ | (408 | ) | ||||||||
For the year 2008 |
$ | (529 | ) | $ | 51 | $ | (13 | ) | $ | 9 | $ | (482 | ) | |||||||
| (a) | With respect to allowances for doubtful accounts, deductions include accounts considered uncollectible or written off, payments, companies divested, etc. | |
| (b) | Classified in consolidated balance sheet as a reduction of accounts receivable. | |
| (c) | Classified in consolidated balance sheet as a reduction of other assets. |
S-3
Table of Contents
INDEX TO EXHIBITS
| Page Number | ||||||||
| or | ||||||||
| Incorporation by Reference | ||||||||
| Exhibit | File No. and | Previous | ||||||
| Number | Filing Date | Exhibit No. | ||||||
3.1
|
Certificate of Incorporation of Chemed Corporation | Form S-3 Reg. No. 33-44177 11/26/91 |
4.1 | |||||
3.2
|
Certificate of Amendment to Certificate of Incorporation | Form 8-K 5/16/06 | 3.1 | |||||
3.3
|
By-Laws of Chemed Corporation as amended November 10, 2009 | Form 8-K 11/13/09 | 3.1 | |||||
10.1
|
1999 Stock Incentive Plan | Form 10-K 3/29/00, ** | 10.11 | |||||
10.2
|
1999 Long Term Employee Incentive Plan as amended through May 20, 2002 | Form 10-K 3/28/03, ** | 10.16 | |||||
10.3
|
2002 Stock Incentive Plan | Form 10-K 3/28/03, ** | 10.17 | |||||
10.4
|
2002 Executive Long- Incentive Plan, as amended May 18, 2004 | Form 10-Q 8/19/04, ** | 10.16 | |||||
10.5
|
2004 Stock Incentive Plan | Proxy Statement 3/25/04, ** |
A | |||||
10.6
|
2006 Stock Incentive Plan, as amended August 11, 2006 | Form 10-Q 8/14/06, ** | 10.1 | |||||
10.7
|
2010 Stock Incentive Plan | Form 8-K 5/18/10, ** | 99.1 | |||||
10.8
|
Repurchase Agreement dated May 8, 2007 by and among Chemed Corporation, J.P. Morgan Securities Inc. and Citigroup Global Markets, Inc. | Form 8-K 5/17/07 | 1.1 | |||||
10.9
|
Convertible Senior Note Indenture dated May 14, 2007 for 1.875% Convertible Senior Notes due 2014 by and among Chemed Corporation, the Subsidiary Guarantors and LaSalle Bank NA, as Trustee. | Form 8-KA 5/22/07 | 4.1 | |||||
10.10
|
Employment Agreement with David P. Williams dated December 1, 2006. | Form 8-K 12/1/06, ** | 10.01 | |||||
1
Table of Contents
| Page Number | ||||||
| or | ||||||
| Incorporation by Reference | ||||||
| Exhibit | File No. and | Previous | ||||
| Number | Filing Date | Exhibit No. | ||||
10.11 |
First Amendment to Employment Agreement with David P. Williams | Form 10-Q | 10.02 | |||
| dated July 9, 2009. | 7/31/09, ** | |||||
10.12 |
Employment Agreement with Timothy S. O’Toole dated | Form 8-K | 10.02 | |||
| May 6, 2007. | 5/7/07, ** | |||||
10.13 |
First Amendment to Employment Agreement with Timothy S. O’Toole | Form 10-Q | 10.3 | |||
| dated July 9, 2009. | 7/31/09,** | |||||
10.14 |
Employment Agreement with Kevin J. McNamara | Form 8-K | 10.01 | |||
| dated May 3, 2008. | 5/6/08, ** | |||||
10.15 |
First Amendment to Employment Agreement with Kevin J. McNamara | Form 10-Q | 10.1 | |||
| dated July 9, 2009. | 7/31/09,** | |||||
10.16 |
Registration Rights Agreement, dated May 14, 2007 by and among | Form 8-K | 10.5 | |||
| Chemed Corporation, J.P. Morgan Securities, Inc. and Citigroup | 5/17/07 | |||||
| Global Markets Inc. | ||||||
10.17 |
Confirmation of Convertible Note Hedge, dated May 8, 2007 between | Form 8-K | 10.1 | |||
| Chemed Corporation and J.P. Morgan Chase Bank, NA. | 5/17/07 | |||||
10.18 |
Confirmation of Convertible Note Hedge, dated May 8, 2007 | Form 8-K | 10.2 | |||
| between Chemed Corporation and Citibank, NA. | 5/17/07 | |||||
10.19 |
Form of Convertible Note Warrant Transaction, dated May 8, 2007 | Form 8-K | 10.4 | |||
| between Chemed Corporation and Citibank, NA. | 5/17/07 | |||||
10.20 |
Form of Convertible Note Warrant Transaction, dated May 8, 2007 | Form 8-K | 10.5 | |||
| between Chemed Corporation and J.P. Morgan Chase Bank, NA. | 5/17/07 | |||||
10.21 |
Excess Benefits Plan, as restated and amended, effective | Form 10-K | 10.24 | |||
| June 1, 2001 | 3/12/04, ** | |||||
10.22 |
Amendment No. 1 to Excess Benefits Plan, effective July 1, 2002 | Form 10-K | 10.25 | |||
| 3/12/04, ** | ||||||
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Table of Contents
| Page Number | ||||||||
| or | ||||||||
| Incorporation by Reference | ||||||||
| Exhibit | File No. and | Previous | ||||||
| Number | Filing Date | Exhibit No. | ||||||
10.23
|
Amendment No. 2 to Excess Benefits Plan, effective November 7, 2003 | Form 10-K 3/12/04, ** | 10.26 | |||||
10.24
|
Non-Employee Directors’ Deferred Compensation Plan | Form 10-K 3/24/88, ** | 10.10 | |||||
10.25
|
Chemed/Roto-Rooter Savings & Retirement Plan, effective January 1, 1999 | Form 10-K 3/25/99, ** | 10.25 | |||||
10.26
|
First Amendment to Chemed/Roto-Rooter Savings & Retirement Plan effective September 6, 2000 | Form 10-K 3/28/02, ** | 10.22 | |||||
10.27
|
Second Amendment to Chemed/Roto-Rooter Savings & Retirement Plan effective January 1, 2001 | Form 10-K 3/28/02, ** | 10.23 | |||||
10.28
|
Third Amendment to Chemed/Roto-Rooter Savings & Retirement Plan effective December 12, 2001 | Form 10-K 3/28/02, ** | 10.24 | |||||
10.29
|
Directors Emeriti Plan | Form 10-Q 5/12/88, ** | 10.11 | |||||
10.30
|
Change in Control Severance Plan as amended July 9, 2009. | Form 10-Q 7/31/09, ** | 10.05 | |||||
10.31
|
Senior Executive Severance Policy as amended July 9, 2009. | Form 10-Q 7/31/09, ** | 10.04 | |||||
10.32
|
Roto-Rooter Deferred Compensation Plan No. 1, as amended January 1, 1998 | Form 10-K 3/28/01, ** | 10.37 | |||||
10.33
|
Roto-Rooter Deferred Compensation Plan No. 2 | Form 10-K 3/28/01, ** | 10.38 | |||||
10.34
|
Agreement and Plan of Merger, dated as of December 18, 2003, among Roto-Rooter, Inc., Marlin Merger Corp. and Vitas Healthcare Corporation | Form 8-K 12/19/03 | 99.2 | |||||
10.35
|
Credit Agreement, dated as of May 2, 2007, among Chemed Corporation, the lenders from time to time parties thereto and J. P. Morgan Chase Bank, NA, as Administrative Agent. | Form 8-K 5/07/07 | 10.01 | |||||
10.35a
|
Credit Agreement Exhibits, dated as of May 2, 2007, among Chemed Corporation, the lenders from time to time parties thereto and J.P. Morgan Chase Bank, NA, as Administrative Agent | * | ||||||
10.35b
|
Credit Agreement Schedules, dated as of May 2, 2007, among Chemed Corporation, the lenders from time to time parties thereto and J.P. Morgan Chase Bank, NA, as Administrative Agent | * | ||||||
3
Table of Contents
| Page Number | ||||||||
| or | ||||||||
| Incorporation by Reference | ||||||||
| Exhibit | File No. and | Previous | ||||||
| Number | Filing Date | Exhibit No. | ||||||
10.36
|
Form of Restricted Stock Award | Form 10-K 3/28/05, ** | 10.50 | |||||
10.37
|
Form of Stock Option Grant | Form 10-K 3/28/05, ** | 10.51 | |||||
12
|
Computation of Ratio of Earnings to Fixed Charges | * | ||||||
13
|
2010 Annual Report to Stockholders | * | ||||||
14
|
Policies on Business Ethics of Chemed Corporation | Form 10-K 3/12/04 | 14 | |||||
21
|
Subsidiaries of Chemed Corporation | * | ||||||
23
|
Consent of Independent Registered Public Accounting Firm | * | ||||||
24
|
Powers of Attorney | * | ||||||
31.1
|
Certification by Kevin J. McNamara pursuant to Rule 13a-14(a)/15d-14(a) of the Exchange Act of 1934. | * | ||||||
31.2
|
Certification by David P. Williams pursuant to Rule 13a-14(a)/15d-14(a) of the Exchange Act of 1934. | * | ||||||
31.3
|
Certification by Arthur V. Tucker, Jr. pursuant to Rule 13a-14(a)/15d-14(a) of the Exchange Act of 1934. | * | ||||||
32.1
|
Certification by Kevin J. McNamara pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | * | ||||||
32.2
|
Certification by David P. Williams pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | * | ||||||
32.3
|
Certification by Arthur V. Tucker, Jr. pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | * | ||||||
101.INS
|
XBRL Instance Document | * | ||||||
101.SCH
|
XBRL Extension Schema | * | ||||||
101.CAL
|
XBRL Taxonomy Extension Calculation Linkbase | * | ||||||
101.LAB
|
XBRL Taxonomy Extension Label Linkbase | * | ||||||
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Table of Contents
| Page Number | ||||||||
| or | ||||||||
| Incorporation by Reference | ||||||||
| Exhibit | File No. and | Previous | ||||||
| Number | Filing Date | Exhibit No. | ||||||
101.PRE
|
XBRL Taxonomy Extension Presentation Linkbase | * | ||||||
| * | Filed herewith. | |
| ** | Management contract or compensatory plan or arrangement. |
5