As filed with the Securities and Exchange Commission on September 3, 2019
File No. 001-38900
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 3
to
FORM 10
GENERAL FORM FOR REGISTRATION OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF
THE SECURITIES EXCHANGE ACT OF 1934
THE PENNANT GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware | 83-3349931 | |
(State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
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1675 East Riverside Drive Suite 150 Eagle, Idaho |
83616 (Zip Code) |
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(Address of Principal Executive Offices) |
(208) 506-6100
(Registrants telephone number, including area code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class to be so registered |
Name of each exchange on which each class is to be registered |
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Common stock, $0.001 par value per share | The NASDAQ Global Select Market |
Securities to be registered pursuant to Section 12(g) of the Act: None.
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company and emerging growth company in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
☐ |
Accelerated filer |
☐ |
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Non-accelerated filer |
☒ |
Smaller reporting company |
☐ |
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Emerging growth company |
☒ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☒
INFORMATION REQUIRED IN REGISTRATION STATEMENT
CROSS-REFERENCE SHEET BETWEEN INFORMATION STATEMENT AND ITEMS OF FORM 10
Item 1. Business
The information required by this item is contained under the sections Summary, Risk Factors, Special Note About Forward-Looking Statements, Unaudited Pro Forma Combined Financial Statements, Managements Discussion and Analysis of Financial Condition and Results of Operations, Our Business, Management, Executive and Director Compensation, Certain Relationships and Related Party Transactions and Index to Financial Statements of the information statement filed as Exhibit 99.1 to this Form 10 (the information statement). Those sections are incorporated herein by reference.
Item 1A. Risk Factors
The information required by this item is contained under the sections Risk Factors and Special Note About Forward-Looking Statements of the information statement. Those sections are incorporated herein by reference.
Item 2. Financial Information
The information required by this item is contained under the sections SummarySummary Historical and Unaudited Pro Forma Combined Financial Data, Capitalization, Selected Historical Combined Financial Data, Unaudited Pro Forma Combined Financial Statements and Managements Discussion and Analysis of Financial Condition and Results of Operations of the information statement. Those sections are incorporated herein by reference.
Item 3. Properties
The information required by this item is contained under the section Our BusinessProperties of the information statement. That section is incorporated herein by reference.
Item 4. Security Ownership of Certain Beneficial Owners and Management
The information required by this item is contained under the section Security Ownership of Certain Beneficial Owners and Management of the information statement. That section is incorporated herein by reference.
Item 5. Directors and Executive Officers
The information required by this item is contained under the section Management of the information statement. That section is incorporated herein by reference.
Item 6. Executive Compensation
The information required by this item is contained under the sections Security Ownership of Certain Beneficial Owners and Management, Management and Executive and Director Compensation of the information statement. Those sections are incorporated herein by reference.
Item 7. Certain Relationships and Related Transactions, and Director Independence
The information required by this item is contained under the sections Management, Executive and Director Compensation and Certain Relationships and Related Party Transactions of the information statement. Those sections are incorporated herein by reference.
Item 8. Legal Proceedings
The information required by this item is contained under the section Our BusinessLegal Proceedings of the information statement. That section is incorporated herein by reference.
Item 9. Market Price of and Dividends on the Registrants Common Equity and Related Stockholder Matters
The information required by this item is contained under the sections Risk Factors, The Spin-Off, Trading Market, Dividend Policy, Executive and Director Compensation and Description of Capital Stock of the information statement. Those sections are incorporated herein by reference.
Item 10. Recent Sales of Unregistered Securities
Not applicable.
Item 11. Description of Registrants Securities to be Registered
The information required by this item is contained under the sections Risk FactorsRisks Related to Ownership of Our Common Stock, Dividend Policy and Description of Capital Stock of the information statement. Those sections are incorporated herein by reference.
Item 12. Indemnification of Directors and Officers
The information required by this item is contained under the sections Certain Relationships and Related Party TransactionsIndemnification Agreements and Description of Capital StockLimitations on Liability of Directors and Indemnification of Directors and Officers of the information statement. Those sections are incorporated herein by reference.
Item 13. Financial Statements and Supplementary Data
The information required by this item is contained under the sections Selected Historical Combined Financial Data, Unaudited Pro Forma Combined Financial Statements, Managements Discussion and Analysis of Financial Condition and Results of Operations and Index to Financial Statements and the financial statements referenced therein of the information statement. Those sections are incorporated herein by reference.
Item 14. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None.
Item 15. Financial Statements and Exhibits
(a) Financial Statements
The information required by this item is contained under the sections Unaudited Pro Forma Combined Financial Statements and Index to Financial Statements beginning on page F-1 of the information statement and the financial statements referenced therein. Those sections are incorporated herein by reference.
(b) Exhibits
The following documents are filed as exhibits hereto:
* |
Previously filed |
** |
Filed herewith |
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized.
THE PENNANT GROUP, INC. | ||
BY: |
/s/ Daniel H Walker |
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Name: Daniel H Walker |
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Title: Chairman, Chief Executive Officer and President |
Date: September 3, 2019
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
THE PENNANT GROUP, INC.
The Pennant Group, Inc. (the Corporation), a corporation organized and existing under the General Corporation Law of the State of Delaware (the DGCL), hereby certifies that:
FIRST: The Certificate of Incorporation of the Corporation (the Original Certificate of Incorporation) was originally filed in the Office of the Secretary of the State of Delaware on January 24, 2019.
SECOND: This Amended and Restated Certificate of Incorporation of the Corporation (this Amended and Restated Certificate of Incorporation) has been duly approved by the board of directors of the Corporation in accordance with the provisions of Sections 242 and 245 of the DGCL, and was approved by the written consent of the sole stockholder of the Corporation in accordance with the provisions of Section 228 of the DGCL.
THIRD: This Amended and Restated Certificate of Incorporation amends, restates and integrates the Original Certificate of Incorporation.
FOURTH: The Original Certificate of Incorporation is hereby amended and restated to read in its entirety as follows:
ARTICLE I
The name of the Corporation is The Pennant Group, Inc.
ARTICLE II
The address of the Corporations registered office in the State of Delaware is 1209 Orange Street, City of Wilmington, New Castle County, Delaware 19801. The name of the Corporations registered agent at that address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the DGCL, as amended from time to time.
ARTICLE IV
The total number of shares of capital stock the Corporation is authorized to issue is One Hundred and One Million (101,000,000) shares, consisting of One Hundred Million (100,000,000) shares of common stock, par value $0.001 per share (the Common Stock), and One Million (1,000,000) shares of preferred stock, par value $0.001 per share (Preferred Stock).
A. The holders of shares of the Common Stock shall be entitled to vote on all matters to be voted on by the stockholders of the Corporation and shall be entitled to one vote for each share thereof held of record.
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B. The Preferred Stock may be issued from time to time by the board of directors as shares of one or more classes or series, without further stockholder approval. Subject to the provisions hereof and the limitations prescribed by law, the board of directors is expressly authorized, by adopting resolutions providing for the issuance of shares of any particular class or series and, if and to the extent from time to time required by law, by filing with the Delaware Secretary of State a certificate setting forth the resolutions so adopted pursuant to the DGCL, to establish the number of shares to be included in each such class or series and to fix the designation and relative powers, including voting powers (which may be full, limited or non-voting powers), preferences, rights, qualifications and limitations and restrictions thereof, relating to the shares of each such class or series. The rights, privileges, preferences and restrictions of any such additional class or series may be subordinated to, pari passu with (including, without limitation, inclusion in provisions with respect to liquidation and acquisition preferences, redemption and/or approval of matters by vote), or senior to any of those of any present or future class or series of Preferred Stock or Common Stock. The board of directors is also authorized to increase or decrease the number of authorized shares of any class or series of Preferred Stock prior or subsequent to the issue of that class or series, but not below the number of shares of such class or series then outstanding. In case the number of shares of any class or series shall be so decreased, the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such class or series.
The authority of the board of directors with respect to each class or series shall include, but not be limited to, determination of the following:
(i) the distinctive class or serial designation of such class or series and the number of shares constituting such class or series;
(ii) the annual dividend rate on shares of such class or series, if any, whether dividends shall be cumulative and, if so, from which date or dates;
(iii) whether the shares of such class or series shall be redeemable and, if so, the terms and conditions of such redemption, including the date or dates upon and after which such shares shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates;
(iv) the obligation, if any, of the Corporation to retire shares of such class or series pursuant to a sinking fund;
(v) whether shares of such class or series shall be convertible into, or exchangeable for, shares of stock of any other class or classes and, if so, the terms and conditions of such conversion or exchange, including the price or prices or the rate or rates of conversion or exchange and the terms of adjustment, if any;
(vi) whether the shares of such class or series shall have voting rights, in addition to any voting rights provided by law, and, if so, the terms of such voting rights;
(vii) the rights of the shares of such class or series in the event of voluntary or involuntary liquidation, dissolution or winding-up of the Corporation; and
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(viii) any other relative rights, powers, preferences, qualifications, limitations or restrictions thereof relating to such class or series.
ARTICLE V
The number of directors to constitute the whole board of directors shall be such number (not less than four nor more than eleven) as shall be fixed from time to time by resolution of the board of directors adopted by such vote as may be required in the bylaws. The board of directors shall be divided into three classes as nearly equal in number as may be feasible, hereby designated as Class I, Class II and Class III, with the term of office of one class expiring each year. For the purposes hereof, the initial Class I, Class II and Class III directors shall be so designated by a resolution of the board of directors. Each director shall serve for a term ending on the third annual meeting of stockholders following the annual meeting of stockholders at which such director was elected, or until his or her earlier death, resignation or removal; provided, however, that the directors first elected to Class I shall serve for a term ending on the Corporations first annual meeting of stockholders following the effectiveness of this Amended and Restated Certificate of Incorporation, the directors first elected to Class II shall serve for a term ending on the Corporations second annual meeting of stockholders following the effectiveness of this Amended and Restated Certificate of Incorporation, and the directors first elected to Class III shall serve for a term ending on the Corporations third annual meeting of stockholders following the effectiveness of this Amended and Restated Certificate of Incorporation. Subject to the rights, if any, of the holders of any Preferred Stock then outstanding, any vacancy in the board of directors, whether because of death, resignation, disqualification, an increase in the authorized number of directors, removal, or any other cause, may be filled by a vote of the majority of the remaining directors, although less than a quorum, or by a sole remaining director. When the board of directors fills a vacancy, the director chosen to fill that vacancy shall complete the term of the director he or she succeeds (or shall complete the term of the class of directors in which the new directorship was created) and shall hold office until such directors successor shall have been elected and qualified or until such directors earlier death, resignation or removal. No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of such directors term of office. Directors shall continue in office until others are elected and qualified in their stead, or until their earlier death, resignation or removal. When the number of directors is changed, each director then serving as such shall nevertheless continue as a director of the class of which he or she is a member until the expiration of his or her current term, and any newly created directorships or any decrease in directorships shall be so assigned among the classes by a majority of the directors then in office, though less than a quorum, as to make all classes as nearly equal in number as may be feasible. Subject to the rights of the holders of any series of Preferred Stock then outstanding and notwithstanding any other provision of this Amended and Restated Certificate of Incorporation, directors may be removed only for cause and only upon the affirmative vote of stockholders representing at least sixty-six and two-thirds percent (662/3%) of the voting power of all of the shares of the Common Stock outstanding entitled to vote thereon, at a meeting of the Corporations stockholders called for that purpose. Any director may resign at any time upon written notice to the Corporation.
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Advance notice of stockholder nominations for the election of members of the board of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the bylaws of the Corporation. Elections of directors need not be by written ballot unless the bylaws of the Corporation shall so provide.
ARTICLE VI
To the extent permitted by law, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if: (i) a consent in writing, setting forth the action so taken shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present, and (ii) such action has been earlier approved by the board of directors. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Special meetings of stockholders may be called only by the Chairman of the Board or the Chief Executive Officer or by the board of directors acting pursuant to a resolution adopted by a majority of the board of directors.
ARTICLE VII
In furtherance and not in limitation of the power conferred upon the board of directors by law, the board of directors shall have power to adopt, amend, alter and repeal from time to time the bylaws of the Corporation by majority vote of all directors except that any provision of the bylaws requiring, for board action, a vote of greater than a majority of the board shall not be amended, altered or repealed except by such supermajority vote. The stockholders of the Corporation may only adopt, amend or repeal bylaws with the affirmative vote of the holders of at least a majority of the voting power of all of the shares of the Common Stock outstanding and entitled to vote thereon.
ARTICLE VIII
The Corporation reserves the right to amend this Amended and Restated Certificate of Incorporation in any manner provided herein or permitted by the DGCL, and all rights and powers, if any, conferred herein on stockholders, directors and officers are subject to the reserved power. Notwithstanding the foregoing, without the affirmative vote of the holders of record of a majority of the voting power of all of the shares of the Common Stock outstanding entitled to vote thereon, the Corporation shall not alter, amend or repeal Article V, Article VI or Article VIII, of this Amended and Restated Certificate of Incorporation or the provisions of Article IV providing for undesignated Preferred Stock.
ARTICLE IX
A. To the fullest extent permitted by the DGCL, as the same exists or as may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.
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B. The Corporation shall indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he or she, his or her testator or intestate is or was a director or officer of the Corporation or any predecessor of the Corporation, or serves or served at any other enterprise as a director or officer at the request of the Corporation, or any predecessor to the Corporation.
C. Neither any amendment nor repeal of this Article IX, nor the adoption of any provision of this Amended and Restated Certificate of Incorporation inconsistent with this Article IX, shall eliminate or reduce the effect of this Article IX in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Article IX, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
ARTICLE X
A. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for any (1) derivative action or proceeding brought on behalf of the Corporation, (2) action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation to the Corporation or its stockholders, or any claim for aiding and abetting any such alleged breach, (3) action asserting a claim against the Corporation or any director or officer of the Corporation arising pursuant to any provision of the DGCL or this Amended and Restated Certificate of Incorporation or the bylaws of the Corporation, or (4) action asserting a claim against the Corporation or any director or officer of the Corporation governed by the internal affairs doctrine except for, as to each of (1) through (4) above, any claim (a) as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination), (b) which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or (c) arising under the federal securities laws, including the Securities Act of 1933, as amended, as to which the Court of Chancery and the federal district court for the District of Delaware shall concurrently be the sole and exclusive forums. Notwithstanding the foregoing, the provisions of this paragraph A of this Article X will not apply to suits brought to enforce any liability or duty created by the Exchange Act of 1934, as amended, or any other claim for which the federal district courts of the United States of America shall be the sole and exclusive forum.
B. If any action the subject matter of which is within the scope of this Article X is filed in a court other than a court located within the State of Delaware (a foreign action) in the name of any stockholder, such stockholder shall be deemed to have consented to: (x) the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce this Article X above (an enforcement action), and (y) having service of process made upon such stockholder in any such enforcement action by service upon such stockholders counsel in the foreign action as agent for such stockholder.
C. If any provision or provisions of this Article X shall be held to be invalid, illegal or unenforceable as applied to any person or entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article X (including, without limitation, each portion of any sentence of this Article X containing any such provision held to be
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invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article X.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be executed on its behalf by its duly authorized officer on this [] day of [], 2019.
THE PENNANT GROUP, INC. | ||
By: |
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Name: [] | ||
Title: [] |
[Signature Page to the Amended and Restated Certificate of Incorporation of The Pennant Group, Inc.]
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
THE PENNANT GROUP, INC.
(Effective as of , 2019)
ARTICLE I
OFFICES
Section 1.01 Registered Office. The registered office of The Pennant Group, Inc. (the corporation) in the State of Delaware shall be at 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801. The name of the corporations registered agent at that address shall be The Corporation Trust Company.
Section 1.02 Other Offices. The corporation also may have an office or offices at such other place or places either within or without the State of Delaware as the board of directors of the corporation (the board or the board of directors) may from time to time determine or the business of the corporation may from time to time require.
Section 1.03 Books and Records. The books and records of the corporation may be kept at the corporations headquarters in Eagle, Idaho or at such other locations within or without the State of Delaware as may from time to time be designated by the board of directors.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01 Place of Meetings. Each meeting of the stockholders of the corporation shall be held at such place either within or without the State of Delaware as shall be fixed by resolution of the board of directors and specified in the notice of said meeting. If no designation is made by the board of directors, the place of meeting shall be the principal office of the corporation.
Section 2.02 Annual Meetings. The annual meeting of the stockholders for the transaction of such business as may properly come before the meeting shall be held at such place, date and time as shall be determined by the board of directors.
Section 2.03 Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time only by the chairman of the board, the chief executive officer or by a majority of the board of directors.
Section 2.04 Notice of Annual and Special Meetings. Except as otherwise required by law, written, printed or electronic notice stating the place, date and hour of each meeting of stockholders, whether annual or special, and the purposes for which the meeting is called shall be given not less than ten (10) days nor more than sixty (60) days before the date of the meeting, either personally, by mail or, to the extent permitted by law, by a form of electronic transmission (as such term is defined in the Delaware General Corporation Law), to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the U.S. mail with postage thereon prepaid, addressed to the stockholder at his address as it appears on the stock transfer books of the corporation. Notice given by a form of electronic transmission that satisfies the requirements of the Delaware General Corporation Law
and has been consented to by the stockholder to whom notice is given shall be deemed given at the times specified with respect to the giving of notice by electronic transmission in the Delaware General Corporation Law. An affidavit of the corporations secretary, an assistant secretary or an agent of the corporation that notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated in the affidavit. Any previously scheduled meeting of stockholders (whether an annual meeting or a special meeting) may be cancelled, rescheduled or postponed by resolution of the board of directors upon public notice given prior to the time previously scheduled for such meeting of stockholders.
Section 2.05 Business at Annual and Special Meetings. The business, including the nomination of directors, to be transacted at any annual or special meeting of stockholders shall be limited to business that is properly brought before the meeting. For the purposes of these bylaws, properly brought before the meeting shall mean the business that is (i) specified in the notice of the meeting (or any supplement thereto) given by or at the direction of the board of directors, (ii) otherwise brought before an annual meeting by or at the direction of the board of directors, or (iii) a proper matter for stockholder action under the Delaware General Corporation Law that has been otherwise properly brought before an annual meeting by a stockholder who is a stockholder of record on the date of the giving of the notice provided for in this Section 2.05 and on the record date for the determination of stockholders entitled to notice of and to vote at such annual meeting, who is entitled to vote at such annual meeting and who complies with the notice procedures set forth in this Section 2.05. In order for business to be properly brought before an annual meeting by a stockholder, the stockholder must, in addition to any other applicable requirements, give written notice in proper form of such stockholders intent to bring a matter before the annual meeting, which notice must be received by the secretary of the corporation at the corporations principal executive offices no later than the close of business on the sixtieth (60th) day, nor earlier than the close of business on the ninetieth (90th) day, prior to the anniversary date of the immediately preceding annual meeting; provided, however, that in the event that no annual meeting was held in the previous year or the annual meeting is called for a date that is not within thirty (30) days before or after such anniversary date, notice by the stockholder to be timely must be so received not earlier than the close of business on the ninetieth (90th) day prior to such annual meeting and not later than the close of business on the later of the sixtieth (60th) day prior to such annual meeting, or not later than the close of business on the 10th day following the day on which public disclosure of the date of the meeting was made by the corporation, whichever occurs first; provided, further, that for the purpose of calculating the timeliness of stockholder notices for the first annual meeting of stockholders following the effectiveness of these bylaws, the date of the immediately preceding annual meeting shall be deemed to be June 1, 2019. In no event shall the public announcement of a postponement or adjournment of an annual meeting to a later date or time commence a new time period for the giving of a stockholders notice as described above. Except with respect to nominations for the election of directors, which shall be governed by Section 3.02 hereof, to be in proper form, each such notice shall set forth: (a) the name and address of the stockholder who intends to bring such matter before a meeting; (b) the class or series and number of shares of capital stock of the corporation entitled to vote at such meeting which are owned beneficially or of record by such stockholder; (c) a representation that the stockholder is a holder of record of stock of the corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to bring such matter before the meeting; (d) a description of the business desired to be brought before the meeting and the reasons therefor; (e) such other information
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regarding the stockholder and the business proposed by such stockholder as would be required to be included in the proxy statement pursuant to the rules and regulations of the Securities and Exchange Commission; and (f) a representation as to the stockholders material interest in the business being proposed. In addition, the stockholder making such proposal shall promptly provide any other information reasonably requested by the corporation. Notwithstanding the foregoing, in order to include information with respect to a stockholder proposal in the proxy statement and form of proxy for a stockholders meeting, stockholders must provide notice as required by, and otherwise comply with the requirements of, the Securities Exchange Act of 1934, as amended, and the regulations promulgated thereunder. The presiding officer of the meeting shall refuse to acknowledge any business proposed to be brought before an annual or special meeting not made in compliance with the foregoing procedures.
Section 2.06 Quorum and Adjourned Meetings. The holders of a majority of the voting power of the stock entitled to vote at a meeting of the stockholders, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business, except as otherwise provided by statute or by the certificate of incorporation. Where a separate vote by a class or series or classes or series of stock is required at a meeting, the presence, in person or by proxy, of the holders of a majority of the voting power of each such class or series shall also be required to constitute a quorum. If, however, such quorum shall not be present or represented at any meeting of the stockholders, either the chairperson of the meeting or the holders of a majority of the voting power of the stock entitled to vote thereat, present in person or represented by proxy, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting, at which the quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. Notice of an adjourned meeting need not be given if the time and place, if any, are announced at the meeting so adjourned, except that if the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. A quorum, once established at a meeting, shall not be broken by the withdrawal of the holders of enough voting power to leave less than a quorum. If a quorum is present at an original meeting, a quorum need not be present at an adjourned session of that meeting.
Section 2.07 Required Vote. When a quorum is present at any meeting, the vote of the holders of a majority of the voting power of the stock entitled to vote thereat, present in person or represented by proxy, shall decide any question brought before such meeting, unless the question is one upon which, by express provision of statute or by the certificate of incorporation or these bylaws, a different level of vote is required, in which case such express provisions shall govern and control the decision of such question. Notwithstanding the preceding sentence, elections of directors at all meetings of the stockholders at which directors are to be elected shall be by written ballot, and, except with respect to the right, if any, of the holders of any series of preferred stock or any other series or class of stock to elect additional directors under specified circumstances, a plurality of the voting power of the stock, present in person or represented by proxy, at the meeting and entitled to vote on the matter shall elect directors.
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Section 2.08 Conduct of Meetings of Stockholders. The chairman of the board of directors, or if there shall be none or in his or her absence, the chief executive officer or if there shall be none or in his or her absence, the president, who is present at the meeting, or in all of their absences an individual designated by the board of directors, shall call to order and act as the chair of any meeting of the stockholders of the corporation. The stockholders shall not have the right to elect a different person as chairman of the meeting. The secretary of the corporation shall serve as the secretary of the meeting or, if there shall be none or in his or her absence, the secretary of the meeting shall be such person as the chair of the meeting appoints. The board of directors may, to the extent not prohibited by law, adopt by resolution such rules, regulations and procedures for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules, regulations and procedures as adopted by the board of directors, the chair of the meeting shall have the right and authority to convene and adjourn or recess (for any or no reason) the meeting (whether or not a quorum is present), prescribe such rules, regulations and procedures and to take or refrain from taking such actions as, in the sole judgment of the chair of the meeting, are necessary, appropriate or convenient for the conduct of the meeting, including, without limitation, establishing an agenda or order of business for the meeting, rules, regulations and procedures for maintaining order at the meeting and the safety of those present, limitations on participation in the meeting to stockholders of record of the corporation, their duly authorized proxies and such other persons as the chair of the meeting shall permit, restrictions on the use of audio and/or visual recording devices, restrictions on entry to the meeting after the time fixed for commencement thereof, limitations on the time allotted to questions or comments by participants and regulation of the opening and closing of the polls for balloting and matters which are to be voted on by ballot. Unless and to the extent otherwise determined by the board of directors or the chair of the meeting, it shall not be necessary to follow Roberts Rules of Order or any other rules of parliamentary procedure at the meeting of stockholders. Following completion of the business of the meeting as determined by the chair of the meeting, the chair of the meeting shall have the exclusive authority to adjourn the meeting.
Section 2.09 Conduct of Business. No business shall be conducted at an annual or special meeting of stockholders of the corporation except business brought before the meeting in accordance with the procedures set forth in these bylaws. If the introduction of any business at an annual or special meeting of stockholders does not comply with the procedures specified in this Article, the chair of the meeting shall declare that such business is not properly before the meeting and shall not be considered at the meeting.
Section 2.10 Stockholder List. The secretary of the corporation shall prepare and make available, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, at the corporations principal place of business. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.
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Section 2.11 Inspectors of Elections. The board of directors by resolution shall appoint one or more inspectors of election, which inspector or inspectors may include individuals who serve the corporation in other capacities, including, without limitation, as officers, employees, agents or representatives of the corporation, to act at the meeting (or any adjournment thereof) and make a written report thereof. Such inspector shall decide upon the qualification of the voters and shall certify and report the number of shares represented at the meeting and entitled to vote on any question, determine the number of votes entitled to be cast by each share, shall conduct the vote and, when the voting is completed, accept the votes and ascertain and report the number of shares voted respectively for and against each question, and determine, and retain for a reasonable period a record of the disposition of, any challenge made to any determination made by such inspector. One or more persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate has been appointed to act, or if all inspectors or alternates who have been appointed are unable to act, at a meeting of stockholders, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall have the duties prescribed by the General Corporation Law of the State of Delaware.
Section 2.12 Fixing Record Date. If the corporation proposes to take any action for which the Delaware General Corporation Law would permit it to fix a record date, the board of directors may fix such a record date as provided under the Delaware General Corporation Law.
Section 2.13 Action Without a Meeting. To the extent permitted by law, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken only with regards to an action that has been earlier approved by the board, without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken and earlier approved by the board, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
ARTICLE III
BOARD OF DIRECTORS
Section 3.01 General Powers. The business, property and affairs of the corporation shall be managed under the direction of the board of directors.
Section 3.02 Nomination of Directors. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors, except as may be otherwise provided in the certificate of incorporation with respect to the right, if any, of holders of a class of preferred stock of the corporation to nominate and elect a specified number of directors. To be properly brought before an annual meeting of the stockholders, or any special meeting of the stockholders called for the purpose of electing directors, nominations for the election of a director must be (i) made by or at the direction of the board of directors (or any duly authorized committee thereof) and specified in the notice of meeting (or any supplement thereto) given by or at the direction of the board of directors, (ii) made by or at the direction of the board
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of directors (or any duly authorized committee thereof) to be brought before an annual meeting, or (iii) made by any stockholder of the corporation who is a stockholder of record on the date of the giving of the notice provided for in this Section 3.02 and on the record date for the determination of stockholders entitled to notice of and to vote at such meeting, who is entitled to vote at such meeting and who complies with the notice procedures set forth in this Section 3.02. In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the secretary of the corporation. To be timely, such stockholders notice must be received by the secretary of the corporation at the corporations principal executive offices, (i) in the case of an annual meeting, in accordance with the time provisions set forth in Section 2.05, and, (ii) in the case of a special meeting of the stockholders called for the purpose of electing directors, not later than the close of business on the tenth (10th) day following the day on which notice of the date of the special meeting was mailed or public disclosure of the date of the special meeting was made by the corporation, whichever first occurs. To be in proper written form, each such stockholders notice shall set forth: (a) the name, age, business address, residence address and principal occupation or employment of each nominee (present and for the past five years), and the name and address of the stockholder making the nomination, (b) the class or series and number of shares of capital stock of the corporation entitled to vote at such meeting which are owned beneficially or of record by each nominee and by the stockholder making the nomination, (c) a representation that the nominating stockholder is a stockholder of record of the corporations stock entitled to vote at the meeting and intends to appear in person or by proxy at such meeting to nominate the person specified in the notice, (d) each nominees qualifications for membership on the board of directors, (e) a description of all direct and indirect compensation and other monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between the nominating stockholder, on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the nominating stockholder were the registrant for purposes of such rule and the nominee were a director or executive officer of such registrant, (f) all information relating to the person that would be required by this Section 3.02 to be set forth in a stockholders notice with respect to a director nomination if such nominee were a stockholder providing notice of a director nomination to be made at the meeting, (g) a notarized letter stating the persons written consent to being named in any proxy statement as a nominee and to serve as a director if elected, (h) all of the information relating to each nominee and the stockholder making the nomination that would be required in a proxy statement soliciting proxies for the election of the nominee as a director, or would otherwise be required, in each case pursuant to the rules and regulations of the Securities and Exchange Commission, (i) a complete and accurate description of all direct or indirect arrangements or understandings between the nominating stockholder and each nominee, any other person or persons (naming such person or persons) pursuant to whose request the nomination is being made by the stockholder, any person controlling, directly or indirectly, or acting in concert with, such nominating stockholder or such beneficial owner and any person controlling, controlled by or under common control with such nominating stockholder or such beneficial owner in connection with the nomination of any nominee to serve as a member of the board of directors or the proposal of any other business at any meeting of the stockholders of the corporation, (j) all other companies to which each nominee is being recommended as a nominee for director, (k) a signed
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written consent of the nominee to cooperate with reasonable background checks and personal interviews, to be named in the proxy statement and to serve as a director of the corporation, if elected, (l) a completed and signed (A) questionnaire (as defined below) and (B) representation and agreement (as defined below), and (m) such additional information as the board of directors or a nomination or similar committee appointed by the board of directors may require pursuant to resolutions of the board of directors or such committees charter. In addition, the stockholder making such nomination shall promptly provide any other information reasonably requested by the corporation, including, without limitation, such other information as may be reasonably required to determine (x) the eligibility of a nominee to serve as a director of the corporation, and (y) whether such nominee qualifies as an independent director or audit committee financial expert under applicable law, securities exchange rule or regulation or any publicly disclosed corporate governance guideline or committee charter of the corporation. Notwithstanding the foregoing, in order to include information with respect to a stockholder nomination in the proxy statement and form of proxy for a stockholders meeting, stockholders must provide notice as required by, and otherwise comply with the requirements of, the Securities Exchange Act of 1934, as amended, and the regulations promulgated thereunder. The presiding officer of the meeting shall refuse to acknowledge the nomination of any person not made in compliance with the foregoing procedure.
To be eligible to be a nominee for election or reelection as a director of the corporation, a nominee must deliver (in the case of nominee nominated by a stockholder pursuant to this Section 3.02, in accordance with the time periods prescribed for delivery of notice under these bylaws and applicable law) to the secretary of the corporation at the principal executive offices of the corporation (i) a written questionnaire with respect to the background and qualification of such person and the background of any other person or entity on whose behalf the nomination is being made (in the form provided by the secretary of the corporation upon written request) (a questionnaire) and (ii) a written representation and agreement (in the form provided by the secretary of the corporation upon written request) that such person (A) is not and will not become a party to (1) any agreement, arrangement or understanding (whether written or oral) with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the corporation, will act or vote in such capacity on any issue or question (a voting commitment) that has not been disclosed to the corporation or (2) any voting commitment that could limit or interfere with such persons ability to comply, if elected as a director of the corporation, with such persons fiduciary duties under applicable law; (B) is not and will not become a party to any agreement, arrangement or understanding (whether written or oral) with any person or entity other than the corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the corporation that has not been disclosed to the corporation and (C) in such persons individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a director of the corporation, and will comply with all applicable law and all applicable rules of the U.S. stock exchanges upon which shares of capital stock of the corporation are listed and all applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and other guidelines of the corporation duly adopted by the board of directors (a representation and agreement).
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A stockholder providing notice of any nomination or other business proposed to be brought before a meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 3.02 shall be true and correct (i) as of the record date for the meeting and (ii) as of the date that is ten (10) business days prior to the meeting or any adjournment, recess, rescheduling or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the secretary of the corporation at the principal executive offices of the corporation not later than five (5) business days after the record date for the meeting (in the case of the update and supplement required to be made as of the record date) and not later than seven (7) business days prior to the meeting or, if practicable, any adjournment, recess, rescheduling or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned, recessed, rescheduled or postponed) (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment, recess, rescheduling or postponement thereof).
Notwithstanding anything in these bylaws to the contrary, unless otherwise required by law, if a stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the corporation and present his or her proposed business or nomination, such proposed business will not be transacted and the nomination will be disregarded, notwithstanding that proxies in respect of such vote may have been received by the corporation. For purposes of this Section 3.02, to be considered a qualified representative of a stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder (or a reliable reproduction or electronic transmission of the writing) stating that such person is authorized to act for such stockholder as a proxy at the meeting of stockholders, and such person must produce proof that he or she is a duly authorized officer, manager or partner of such stockholder or such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, as well as valid government-issued photo identification, at the meeting of stockholders.
Section 3.03 Number of Directors. The number of directors to constitute the whole board of directors shall be such number (not less than four nor more than eleven) as shall be fixed from time to time by resolution adopted by a majority of the entire board of directors. Directors need not be stockholders.
Section 3.04 Quorum and Manner of Acting. A majority of the number of the directors in office at the time shall constitute a quorum for the transaction of business at any meeting. Thereafter, a quorum shall be deemed present for purposes of conducting business and determining the vote required to take action for so long as at least a third of the total number of directors is present. Except as otherwise required by the certificate of incorporation or these bylaws, the affirmative vote of a majority of the directors present at any meeting at which a quorum is present shall be required for the taking of any action by the board of directors. In the absence of a quorum at any meeting of the board, such meeting need not be held, or a majority of the directors present thereat or, if no director is present, the secretary, may adjourn such meeting from time to time until a quorum shall be present. Notice of any adjourned meeting need not be given.
Section 3.05 Offices; Place of Meetings. The board of directors may hold meetings and have an office or offices at such place or places within or without the State of Delaware, as the board of directors may from time to time determine.
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Section 3.06 Annual Meeting. A regular meeting of the board of directors shall be held without notice immediately after and at the same place as the annual meeting of the stockholders.
Section 3.07 Regular Meeting. Regular meetings of the board of directors shall be held at such places and at such times as the board of directors shall from time to time determine. Notice of regular meetings of the board of directors need not be given.
Section 3.08 Special Meetings and Notice. Special meetings of the board of directors shall be held whenever called by the chairman of the board, the chief executive officer or any two of the directors. Except as otherwise provided by law or by these bylaws, notice of each such special meeting shall be given by the secretary (i) in person or by telephone to the director at least 24 hours in advance of the meeting, (ii) by personally delivering written notice to the directors last known business or home address at least 48 hours in advance of the meeting, (iii) by delivering an electronic transmission (including, without limitation, via telefacsimile or electronic mail) to the directors last known number or address for receiving electronic transmissions of that type at least 48 hours in advance of the meeting, (iv) by depositing written notice with a reputable delivery service or overnight carrier addressed to the directors last known business or home address for delivery to that address no later than the business day preceding the date of the meeting or (v) by depositing written notice in the U.S. mail, postage prepaid, addressed to the directors last known business or home address no later than the third business day preceding the date of the meeting. Each such notice shall state the time and place of the meeting but need not state the purposes thereof except as otherwise herein expressly provided. Notice of any such meeting need not be given to any director, however, if waived by him or her in writing or by facsimile, electronic transmission or similar means, or by mail, whether before or after such meeting shall be held, or if he or she shall be present at such meeting; and any meeting of the board shall be a legal meeting without any notice thereof having been given if all of the directors shall be present thereat.
Section 3.09 Organization. At each meeting of the board of directors, the chairman of the board, or in the absence of the chairman of the board, if they be directors, the chief executive officer, or in the absence of the chief executive officer, the president, or in the absence of the president, any director chosen by a majority of the directors present thereat, shall preside. The secretary, or in his or her absence an assistant secretary of the corporation, or in the absence of the secretary and all assistant secretaries, a person whom the chairman of such meeting shall appoint, shall act as secretary of such meeting and keep the minutes thereof.
Section 3.10 Order of Business. At all meetings of the board of directors, business shall be transacted in the order determined by the board of directors.
Section 3.11 Action by Unanimous Consent. Any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting if all members of the board or of such committee, as the case may be, consent to the action in writing or by electronic transmission. The writing or writings or electronic transmission or transmissions shall be filed with the minutes of the proceedings of the board of directors or of the relevant committee.
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Section 3.12 Telephone, etc. Meetings. Members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute the presence of such person at such meeting.
Section 3.13 Resignation. Any director of the corporation may resign, as a director or as a committee member or both, at any time by giving notice in writing or by electronic transmission of his or her resignation to the chairman of the board, the chief executive officer or the secretary of the corporation. Such resignation shall take effect at the time specified therein (if the remaining directors agree to such time), or, if the time when it shall become effective shall not be specified therein, then it shall take effect when received. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Section 3.14 Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the corporation such amount per annum, or such fees for attendance at board and committee meetings, or both, or such other compensation, including options to acquire capital stock of the corporation, as the board of directors shall from time to time determine by resolution. The board of directors likewise may provide by resolution that the corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity and receiving proper compensation therefor.
Section 3.15 Removal. Unless otherwise specified by law or the certificate of incorporation, any director or the entire board of directors may be removed at any time by the affirmative vote of the holders of at least sixty-six and two-thirds percent (662/3%) of the shares then entitled to vote at an election of directors, but only for cause.
Section 3.16 Vacancies. Except as otherwise provided in the certificate of incorporation and subject to the rights, if any, of the holders of any preferred stock then outstanding, any vacancy in the board, whether because of death, resignation, disqualification, an increase in the authorized number of directors, removal, or any other cause, may be filled by a vote of the majority of the remaining directors, although less than a quorum, or by a sole remaining director. When the board fills a vacancy, the director chosen to fill that vacancy shall complete the term of the director he or she succeeds (or shall complete the term of the class of directors in which the new directorship was created) and shall hold office until such directors successor shall have been elected and qualified or until such directors earlier death, resignation or removal. No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of such directors term of office.
Section 3.17 Chairman and Vice-Chairman of the Board. The board of directors may elect from its members a chairman of the board and a vice chairman. If a chairman has been elected and is present, the chairman shall preside at all meetings of the board of directors and the stockholders. The chairman shall have such other powers and perform such other duties as the board of directors may designate. If the board of directors elects a vice chairman, the vice chairman shall, in the absence or disability of the chairman, perform the duties and exercise the powers of the chairman and have such other powers and perform such other duties as the board of directors may designate.
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ARTICLE IV
COMMITTEES
The board of directors may, by resolution or resolutions passed by a majority of the full board of directors, designate one or more committees, each such committee to consist of one or more directors of the corporation, which, to the extent provided in said resolution or resolutions and the committees charter and subject to the limitations contained in the Delaware General Corporation Law, shall have and may exercise all the powers of the board of directors in the management of the business and affairs of the corporation. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. The board of directors may make, alter and repeal a committees charter or other rules for the conduct of such committees business. Any such committee shall keep written minutes of its meetings and report the same to the board at the next regular meeting of the board. Unless the board or these bylaws shall otherwise prescribe the manner of proceedings of any such committee, meetings of such committee may be regularly scheduled in advance and may be called at any time by the chairman of the committee or by any two (2) members thereof; otherwise, the provisions of these bylaws with respect to notice and conduct of meetings of the board shall govern. The board of directors shall have power to change the members of any such committee at any time, to fill vacancies and to discharge any such committee, either with or without cause, at any time, unless otherwise provided in such committees charter, or other rules for the conduct of its business, adopted by the board of directors.
ARTICLE V
OFFICERS
Section 5.01 Number. The principal officers of the corporation shall be chosen by the board of directors and shall be a chief executive officer, a chief financial officer, a president, one or more vice presidents as the board of directors from time to time may appoint (the number thereof and their respective titles to be determined by the board of directors and one or more of whom may be designated as executive or senior vice presidents), a secretary and a treasurer. In addition, there may be such subordinate officers, agents and employees as may be appointed in accordance with the provisions of Section 5.03. Any two or more offices may be held by the same person. Any officer may be, but need not be, a director or stockholder. The offices of the corporation for which officers may be elected shall be set forth from time to time by resolution of the board of directors.
Section 5.02 Election, Qualification and Term of Office. Each officer of the corporation shall be elected by the board of directors from time to time and shall hold office until his or her successor shall have been duly elected and qualified, unless a different term is specified in the resolution electing the officer, or until his or her death, or until he or she shall have resigned or shall have been removed in the manner herein provided.
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Section 5.03 Other Officers. The corporation may have such other subordinate officers, agents and employees as the board of directors may deem necessary, including one or more assistant secretaries, one or more assistant treasurers, a controller and one or more assistant controllers, each of whom shall have such authority and perform such duties as the board of directors may from time to time determine.
Section 5.04 Removal. Any officer may be removed, either with or without cause, by resolution of the board of directors. Such removal from office shall not affect any rights that such removed officer may have under any employment or stockholder agreement.
Section 5.05 Resignation. Any officer may resign at any time by giving notice in writing or by electronic transmission to the board of directors, the chairman of the board or the chief executive officer. Any such resignation shall take effect at the time specified therein (if the board agrees to such time) or, if the time when it shall become effective shall not be specified therein, then it shall take effect when accepted by action of the board of directors. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
Section 5.06 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these bylaws for regular election or appointment to such office.
Section 5.07 Powers. Unless otherwise specified by the board of directors, each officer shall have those powers and shall perform those duties that are (i) set forth in these bylaws (if any are so set forth), (ii) set forth in the resolution of the board of directors electing that officer or any subsequent resolution of the board of directors with respect to that officers duties or (iii) commonly incident to the office held.
Section 5.08 Chief Executive Officer. The chief executive officer shall have general supervisory management over the business, affairs and policies of the corporation and over its officers, shall report to the board of directors and shall see that all orders and resolutions of the board of directors are carried into effect, all subject to the general direction and control of the board of directors. The chief executive officer shall have the authority to sign all certificates, contracts and other instruments on behalf of the corporation and take such actions required in connection therewith. In the absence of the chairman of the board for any reason, including the failure of the board of directors to elect the chairman of the board, or in the event of the chairmans inability or refusal to act, the chief executive officer shall have all the powers of, and be subject to all the restrictions upon, the chairman of the board.
Section 5.09 President. The president shall be subject to the direction and control of the chief executive officer and the board of directors and shall be responsible for the general active management of the business, affairs and policies of the corporation, shall perform such other duties as may be prescribed by the board of directors or the chief executive officer and shall have authority to sign all certificates, contracts and other instruments on behalf of the corporation and take such actions required in connection therewith. In the absence of the chief executive officer for any reason, including the failure of the board of directors to elect a chief executive officer, or in the event of the chief executive officers inability or refusal to act, the president shall have all the powers of, and be subject to all the restrictions upon, the chief executive officer.
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Section 5.10 Chief Financial Officer. The chief financial officer shall be subject to the direction and control of the board of directors and the chief executive officer, shall have primary responsibility for the financial affairs of the corporation and shall (i) keep accurate financial records for the corporation; (ii) deposit all moneys, drafts and checks in the name of, and to the credit of, the corporation in such banks and depositories as the board of directors shall, from time to time, designate or otherwise authorize; (iii) have the power to endorse, for deposit, all notes, checks and drafts received by the corporation; (iv) disburse the funds of the corporation in accordance with the corporations policies and procedures as adopted by resolution of the board of directors, making or causing to be made proper vouchers therefor; (v) render to the chief executive officer and the board of directors, whenever requested, an account of all of his or her transactions as chief financial officer and of the financial condition of the corporation, and (vi) perform such other duties as may, from time to time, be prescribed by the board of directors or by the chief executive officer. The powers and duties specified herein may be modified or limited at any time by the board of directors.
Section 5.11 Vice President. The vice president or, if there be more than one, the vice presidents, in the order determined by the board of directors (or if there is no such determination, then in the order of their election), shall be subject to the direction and control of the board of directors and the chief executive officer, shall have such powers and duties as the board of directors or the chief executive officer may assign to them, and shall, in the absence of the president for any reason, including the failure of the board of directors to elect a president or in the event of the presidents inability or refusal to act, perform the duties of the president, and, when so acting, have all the powers of, and be subject to all of the restrictions upon, the president. If the board of directors elects more than one vice president, then it shall determine their respective titles, seniority and duties. The vice president or vice presidents shall perform such other duties and have such other powers as the board of directors or the chief executive officer may from time to time prescribe.
Section 5.12 Secretary. The secretary shall, to the extent practicable, attend all meetings of the stockholders and the board of directors. The secretary shall record or cause to be recorded in books kept for such purpose the minutes of the meetings (and the actions by written consent) of the stockholders, the board of directors and all committees of which a secretary shall not have been appointed; shall see that all notices are duly given in accordance with the provisions of these bylaws and as required by law; shall be custodian of all corporate records (other than financial); shall see that the books, reports, statements, certificates and all other documents and records required by law are properly kept and filed; and, in general, shall perform all duties as may from time to time be assigned to him or her by the board of directors or the chief executive officer.
Section 5.13 Assistant Secretary. The assistant secretary, or if there be more than one, the assistant secretaries, in the order determined by the board of directors (or if there be no such determination, then in the order of their election), shall have such powers and duties as the board of directors or the chief executive officer may assign to them and shall, in the absence of the secretary for any reason, including the failure of the board of directors to elect a secretary or in the event of the secretarys inability or refusal to act, perform the duties and exercise the powers of the secretary and perform such other duties and have such other powers as the board of directors or chief executive officer may from time to time prescribe. Any assistant secretary shall have authority to attest by his or her signature to the same extent as the secretary.
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Section 5.14 Treasurer. The treasurer shall have charge and custody of, and be responsible for, all funds and securities of the corporation, and shall deposit all such funds to the credit of the corporation in such banks, trust companies or other depositories as shall be selected by the board of directors or any officer or officers authorized by board of directors to make such determinations; shall disburse the funds of the corporation as may be ordered by the board of directors or any officer or officers authorized by the board of directors to make such determinations, making proper vouchers for such disbursements; shall keep full and accurate accounts of all funds received and paid on account of the corporation and shall render to the board of directors or the chief executive officer, whenever the board or the chief executive officer may require him or her so to do, a statement of all his or her transactions as treasurer; and, in general, shall perform all the duties incident to the office of treasurer and such other duties as from time to time may be assigned to him or her by the board of directors or the chief executive officer. In the absence of the chief financial officer for any reason, including the failure of the board of directors to elect a chief financial officer or in the event of the chief financial officers inability or refusal to act, the treasurer shall perform the duties of the chief financial officer, and, when so acting, have all the powers of, and be subject to all of the restrictions upon, the chief financial officer.
Section 5.15 Assistant Treasurer. The assistant treasurer, or if there be more than one, the assistant treasurers, in the order determined by the board of directors (or if there be no such determination, then in the order of their election), shall, in the absence of the treasurer, for any reason, including the failure of the board of directors to elect a treasurer, or the treasurers inability or refusal to act, perform the duties and exercise the powers of the treasurer, and perform such other duties and have such other powers as the board of directors and chief executive officer may from time to time prescribe.
Section 5.16 Compensation. The compensation of the officers shall be fixed from time to time by or in the manner prescribed by the board of directors, and none of such officers shall be prevented from receiving compensation by reason of the fact that he or she is also a director of the corporation. The application of this Section 5.16 shall not affect the right any officer may have regarding compensation under an employment agreement.
ARTICLE VI
STOCK CERTIFICATES AND TRANSFERS
Section 6.01 Stock Certificates. The shares of stock of the corporation shall be uncertificated, provided that the board of directors of the corporation may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be represented by certificates. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the corporation. Every holder of stock represented by certificates shall be entitled to have a certificate signed by, or in the name of the corporation by, (i) the chairman of the board, or the president or vice president and (ii) the treasurer or an assistant treasurer, or the secretary or an assistant secretary. Any or all signatures on any such certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed, whose
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facsimile signature has been used on or who has duly affixed a facsimile signature or signatures to any such certificate or certificates shall cease to be such officer, transfer agent or registrar of the corporation whether because of death, resignation or otherwise before such certificate or certificates have been issued by the corporation, such certificate or certificates may nevertheless be issued as though the person or persons who signed such certificate or certificates, whose facsimile signature or signatures have been used thereon or who duly affixed a facsimile signature or signatures thereon had not ceased to be such officer, transfer agent or registrar of the corporation.
Section 6.02 Lost, Stolen or Destroyed Certificates. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his/her legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed or the issuance of such new certificate or certificates or uncertificated shares.
Section 6.03 Stock Transfers. The shares of the stock of the corporation shall be transferred on the books of the corporation by the holder thereof in person or by his attorney, (i) with regard to certificated shares, upon surrender for cancellation of certificates for the same number of shares, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, and with such proof of the authenticity of the signature as the corporation or its agents may reasonably require, and (ii) with regard to uncertificated shares, upon delivery of an instruction duly executed, and with such proof of the authenticity of the signature as the corporation or its agents may reasonably require. Whenever any transfer of shares shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of transfer if, when the certificates are presented to the corporation for transfer or uncertificated shares are requested to be transferred, both the transferor and transferee request the corporation to do so.
Section 6.04 Registered Stockholders. The corporation shall be entitled to recognize the exclusive right of a person registered on its records as the owner of shares of stock of the corporation to receive dividends, to vote, to receive notifications and otherwise to exercise all the rights and powers of an owner of such shares. The corporation shall not be bound to recognize any equitable or other claim to or interest in any such shares of stock on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.
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ARTICLE VII
GENERAL PROVISIONS
Section 7.01 Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purposes as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created.
Section 7.02 Contracts and Checks. Except as otherwise required by law or the certificate of incorporation, any bonds, contracts, deeds, leases, checks, drafts or other orders for payment of money, demands for money, notes or other evidence of indebtedness, or other instruments may be executed and delivered in the name and on the behalf of the corporation by such officer or officers of the corporation as provided in these bylaws or as the board of directors may from time to time direct. Such authority may be general or confined to specific instances as the board of directors may determine, and unless so authorized by the board or by these bylaws, no officer, agent, or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount. The chairman of the board, the chief executive officer, the chief financial officer, the president or any vice president may execute bonds, contracts, deeds, leases, checks, drafts or other orders for payment of money, demands for money, notes or other evidence of indebtedness, and other instruments to be made or executed for or on behalf of the corporation. Subject to any restrictions imposed by the board of directors or the chairman of the board, the chief executive officer, the chief financial officer or the president of the corporation may delegate contractual powers to others under his jurisdiction, it being understood, however, that any such delegation of power shall not relieve such officer of responsibility with respect to the exercise of such delegated power.
Section 7.03 Fiscal Year and Audits. The fiscal year of the corporation shall begin on the first day of January and end on the thirty-first day of December of each year, unless otherwise fixed by resolution of the board of directors. The accounts, books and records of the corporation shall be audited upon the conclusion of each fiscal year by an independent certified public accountant selected by the board of directors, and it shall be the duty of the board of directors to cause such audit to be made annually.
Section 7.04 Seal. The Board of Directors may adopt a corporate seal having inscribed thereon the name of the corporation, the year of its organization and the words Corporate Seal, Delaware. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 7.05 Waiver of Notices. Whenever notice is required to be given by these bylaws or the certificate of incorporation or by law, the person entitled to said notice may waive such notice in writing, either before or after the time stated therein, and such waiver shall be deemed equivalent to notice.
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Section 7.06 Electronic Transmission. For purposes of these bylaws, electronic transmission shall mean a form of communication not directly involving the physical transmission of paper that satisfies the requirements with respect to such communications contained in the Delaware General Corporation Law.
Section 7.07 Voting Stock of Other Organizations. Except as the board of directors may otherwise designate, each of the chief executive officer and the chief financial officer may waive notice of, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for the corporation (with power of substitution) at any meeting of the stockholders, members or other owners of any other corporation or organization the securities or ownership interests of which are owned by the corporation.
ARTICLE VIII
INDEMNIFICATION
Section 8.01 Indemnification. The corporation shall, to the fullest extent permitted by law, indemnify every person who is or was a party or is or was threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative (an Action), by reason of the fact that such person is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director, officer, trustee, plan administrator or plan fiduciary of another corporation, partnership, limited liability company, trust, employee benefit plan or other enterprise (an Indemnified Person), against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement or other disposition that the Indemnified Person actually and reasonably incurs in connection with the Action and shall reimburse each such person for all legal fees and expenses reasonably incurred by such person in seeking to enforce its rights to indemnification under this Article (by means of legal action or otherwise).
Section 8.02 Advancement of Expenses. Upon written request from an Indemnified Person, the corporation shall pay the expenses (including attorneys fees) incurred by such Indemnified Person in connection with any Action in advance of the final disposition of such Action. The corporations obligation to pay expenses pursuant to this Section shall be contingent upon the Indemnified Person providing the undertaking required by the Delaware General Corporation Law.
Section 8.03 Non-Exclusivity. The rights of indemnification and advancement of expenses contained in this Article shall not be exclusive of any other rights to indemnification or similar protection to which any Indemnified Person may be entitled under any agreement, vote of stockholders or disinterested directors, insurance policy or otherwise.
Section 8.04 Heirs and Beneficiaries. The rights created by this Article shall inure to the benefit of each Indemnified Person and each heir, executor and administrator of such Indemnified Person.
Section 8.05 Effect of Amendment. Neither the amendment, modification or repeal of this Article nor the adoption of any provision in these bylaws inconsistent with this Article shall adversely affect any right or protection of an Indemnified Person with respect to any act or omission that occurred prior to the time of such amendment, modification, repeal or adoption.
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ARTICLE IX
AMENDMENTS
Except as otherwise set forth in these bylaws, the certificate of incorporation or the Delaware General Corporation Law, these bylaws may be altered, amended or repealed, or new bylaws may be adopted, by the board of directors or a majority of the voting power of all of the shares of common stock outstanding and entitled to vote thereon. If the power to adopt, amend or repeal bylaws is conferred upon the board of directors by the certificate of incorporation, it shall not divest or limit the power of the stockholders to adopt, amend or repeal bylaws.
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CERTIFICATE OF SECRETARY
OF THE PENNANT GROUP, INC.
The undersigned, Derek J. Bunker, hereby certifies that he is the duly elected and acting Secretary of The Pennant Group, Inc., a Delaware corporation, and that the bylaws attached hereto constitute the bylaws of said corporation as duly adopted by the board of directors on , 2019 to be effective as of , 2019.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed his name this day of , 2019.
By: |
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Name: Derek Bunker | ||
Title: Secretary |
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Exhibit 10.9
THE PENNANT GROUP, INC.
2019 LONG TERM INCENTIVE PLAN
THE PENNANT GROUP, INC.
2019 LONG TERM INCENTIVE PLAN
Section 1. Purpose
The purpose of the Plan is to promote the interests of the Company by aiding the Company in attracting and retaining employees, officers, consultants, independent contractors and directors capable of assuring the future success of the Company and its Affiliates, to offer such persons incentives to continue in the employ or service of the Company or its Affiliates and to afford such persons an opportunity to acquire a proprietary interest, or otherwise increase their proprietary interest, in the Company.
Section 2. Definitions
As used in the Plan, the following terms shall have the meanings set forth below:
(a) Affiliate shall mean (i) any entity that, directly or indirectly through one or more intermediaries, is controlled by the Company, (ii) any entity in which the Company has a significant equity interest, in each case as determined by the Committee and (iii) The Ensign Group, Inc. and its subsidiaries and affiliates.
(b) Award shall mean any Restricted Stock granted under the Plan.
(c) Award Agreement shall mean any written agreement, contract or other instrument or document evidencing an Award granted under the Plan. Each Award Agreement shall be subject to the applicable terms and conditions of the Plan and any other terms and conditions (not inconsistent with the Plan) determined by the Committee.
(d) Board shall mean the Board of Directors of Pennant.
(e) Cause shall mean (i) the willful and continued failure by Participant substantially to perform his or her duties and obligations (other than any such failure resulting from his or her incapacity due to physical or mental illness), (ii) Participants conviction or plea bargain of any felony or gross misdemeanor involving moral turpitude, fraud or misappropriation of funds, or (iii) the willful engaging by Participant in misconduct which causes substantial injury to the Company or its affiliates, its other employees or the employees of its affiliates or its clients or the clients of its affiliates, whether monetarily or otherwise. For purposes of this paragraph, no action or failure to act on Participants part shall be considered willful unless done or omitted to be done, by Participant in bad faith and without reasonable belief that his or her action or omission was in the best interests of the Company. However, if the term or concept has been defined in an employment agreement between the Company and Participant, then Cause shall have the definition set forth in such employment agreement. The foregoing definition shall not in any way preclude or restrict the right of the Company (or any Affiliate) to discharge or dismiss Participant or other person providing Service to the Company (or any Affiliate) for any other acts or omissions but such other acts or omissions shall not be deemed, for purposes of this Agreement, to constitute grounds for termination for Cause.
(f) Change in Control shall mean a change in ownership or control of the Company effected through any of the following transactions: (i) a merger, consolidation or other reorganization unless securities representing more than 50% of the total combined voting power of the voting securities of the successor corporation are immediately thereafter beneficially owned, directly or indirectly and in substantially the same proportion, by the persons who beneficially owned the Companys outstanding voting securities immediately prior to such transaction; (ii) a sale, transfer or other disposition of all or substantially all of the Companys assets; or (iii) the acquisition, directly or indirectly, by any person or related group of persons (other than the Company or a person that directly or indirectly controls, is controlled by, or is under common control with, the Company), of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of securities possessing more than 50% of the total combined voting power of the Companys outstanding securities pursuant to a tender or exchange offer made directly to the Companys stockholders. Change in Control shall not include an Initial Public Offering (IPO) by the Company of its equity securities to the public pursuant to an effective registration statement filed under the Securities Act of 1933, as amended, or under any similar law then in effect.
(g) Code shall mean the Internal Revenue Code of 1986, as amended from time to time, and any regulations promulgated thereunder.
(h) Committee shall mean a committee of the Board appointed to administer the Plan; provided if there is no compensation committee, the Board means the compensation committee of the Board.
(i) Company shall mean The Pennant Group, Inc., a Delaware Corporation, and any successor corporation.
(j) Director shall mean a member of the Board of Directors of the Company.
(k) Eligible Person shall mean any employee, officer, consultant, independent contractor or director providing services to the Company or any Affiliate who the Committee determines to be an Eligible Person. An Eligible Person must be a natural person.
(l) Equity Restructuring shall mean a dividend or other distribution (whether in the form of cash, Shares, other securities or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase or exchange of Shares or other securities of the Company, issuance of warrants or other rights to purchase Shares or other securities of the Company or other similar corporate transaction or event that affects the Shares such that an adjustment is necessary in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan.
(m) Exchange Act shall mean the Securities Exchange Act of 1934, as amended.
(n) Market Value shall mean, for purposes of the Plan, unless otherwise required by any applicable provision of the Code or any regulations issued thereunder, the market value as determined by the Committee in good faith in whatever manner it considers appropriate, taking into account the requirements of Section 409A of the Code and any other applicable laws, rules or regulations.
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(o) Participant shall mean an Eligible Person designated to be granted an Award under the Plan.
(p) Person shall mean any individual or entity, including a corporation, partnership, limited liability company, association, joint venture or trust.
(q) Plan shall mean The Pennant Group, Inc. 2019 Long Term Incentive Plan, as amended from time to time, the provisions of which are set forth herein.
(r) Securities Act shall mean the Securities Act of 1933, as amended.
(s) Service shall mean the Participants performance of services for the Company (or any Affiliate) in the capacity of an employee, officer, consultant, independent contractor or director.
(t) Share or Shares shall mean a share or shares of common stock, $0.001 par value per share, of the Company or such other securities or property as may become subject to Awards pursuant to an adjustment made under Section 4(c) of the Plan.
Section 3. Administration
(a) Power and Authority of the Committee. The Plan shall be administered by the Committee. Subject to the express provisions of the Plan and to applicable law, the Committee shall have full power and authority to: (i) designate Participants; (ii) determine the type or types of Awards to be granted to each Participant under the Plan; (iii) determine the number of Shares to be covered by (or the method by which payments or other rights are to be determined in connection with) each Award; (iv) determine the terms and conditions of any Award or Award Agreement; (v) amend the terms and conditions of any Award or Award Agreement or waive any restrictions relating to any Award; (vi) determine whether, to what extent and under what circumstances Awards may be exercised in cash, Shares, other securities, other Awards or other property, or canceled, forfeited or suspended; (vii) interpret and administer the Plan and any instrument or agreement, including an Award Agreement, relating to the Plan; (viii) establish, amend, suspend or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; and (ix) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan. Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations and other decisions under or with respect to the Plan or any Award or Award Agreement shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive and binding upon any Eligible Person and any holder or beneficiary of any Award.
(b) Power and Authority of the Board. Notwithstanding anything to the contrary contained herein, the Board may, at any time and from time to time, without any further action of the Committee, exercise the powers and duties of the Committee under the Plan.
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Section 4. Shares Available for Awards
(a) Shares Available. Subject to adjustment as provided in Section 4(c) of the Plan, the aggregate number of Shares that may be issued under the Plan shall be 500,000 Shares, or (ii) such lesser number of Shares as determined by the Board. Shares to be issued under the Plan may be either authorized but unissued Shares or Shares re-acquired and held in treasury. Any Shares that are used by a Participant as full or partial payment to the Company of the purchase price relating to an Award, or in connection with the satisfaction of tax obligations relating to an Award, shall again be available for granting Awards under the Plan. In addition, if any Shares covered by an Award or to which an Award relates are not purchased or are forfeited, or if an Award otherwise terminates without delivery of any Shares, then the number of Shares counted against the aggregate number of Shares available under the Plan with respect to such Award, to the extent of any such forfeiture or termination, shall again be available for granting Awards under the Plan.
(b) Accounting for Awards. For purposes of this Section 4, if an Award entitles the holder thereof to receive or purchase Shares, the number of Shares covered by such Award or to which such Award relates shall be counted on the date of grant of such Award against the aggregate number of Shares available for granting Awards under the Plan. Any Shares that are used by a Participant as full or partial payment to the Company of the purchase price relating to an Award or in connection with the satisfaction of tax obligations relating to an Award, shall again be available for granting Awards under the Plan. In addition, if any Shares covered by an Award or to which an Award relates are not purchased or are forfeited, or if an Award otherwise terminates without delivery of any Shares, then the number of Shares counted against the aggregate number of Shares available under the Plan with respect to such Award, to the extent of any such forfeiture or termination, shall again be available for granting Awards under the Plan.
(c) Adjustments. In the event of any Equity Restructuring, the number and type of Shares (or other securities or other property) subject to outstanding Awards, and the purchase price or exercise price with respect to any Award will be proportionately adjusted to avoid dilution or enlargement of rights resulting from such event; provided, however, that the number of Shares covered by any Award or to which such Award relates shall always be a whole number. The adjustments provided under this Section 4(c) shall be nondiscretionary and shall be final and binding on the affected Participant and the Company. The Committee shall make such proportionate adjustments to appropriately reflect such Equity Restructuring with respect to the number and kind of Shares that may be issued under the Plan (including, but not limited to, adjustments of the limitations in Sections 4(a) hereof). Notwithstanding the above, in the event (i) of any reorganization, merger, consolidation, split-up, spin-off, combination, repurchase or exchange of Shares or other securities of the Company or any other similar corporate transaction or event or (ii) the Company shall enter into a written agreement to undergo such a transaction or event, any or all outstanding Awards may be canceled and the holders of any such Awards that are otherwise vested, may be paid in cash, the value of such Awards based upon the price per share of capital stock received or to be received by other stockholders of the Company in such event. Notwithstanding anything to the contrary herein, any such adjustment will be made in accordance with the provisions of Section 409A of the Code to the extent applicable. The number of Shares granted hereunder covered by any Award may also be adjusted if the total Shares granted hereunder equal greater than two percent (2%) of the outstanding shares of common stock of the Company following its spin-off from The Ensign Group, Inc. In such event, all Awards granted hereunder shall be adjusted pro rata such that they will total less than two percent (2%) of the outstanding shares of the common stock of the Company following such spin-off.
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Section 5. Eligibility
Any Eligible Person shall be eligible to be designated a Participant. In determining which Eligible Persons shall receive an Award and the terms of any Award, the Committee may take into account the nature of the services rendered by the respective Eligible Persons, their present and potential contributions to the success of the Company or such other factors as the Committee, in its discretion, shall deem relevant.
Section 6. Awards
(a) Restricted Stock Awards. The Committee is hereby authorized to grant Restricted Stock to Eligible Persons with the following terms and conditions and with such additional terms and conditions not inconsistent with the provisions of the Plan, the terms and conditions of any Award, as the Committee shall determine:
(i) Restrictions. Shares of Restricted Stock shall be subject to such restrictions the Committee may impose (including, without limitation, a restriction on or prohibition against the right to receive any dividend or other right or property with respect thereto), which restrictions may lapse separately or in combination at such time or times, in such installments or otherwise as the Committee may deem appropriate.
(ii) Vesting of Restricted Stock Awards. A Restricted Stock Award shall vest in accordance with the schedule designated by the Committee as set forth in the Award Notice.
(iii) Issuance of Shares. Any Restricted Stock granted under the Plan may be evidenced in such manner as the Board may deem appropriate, including book-entry registration or issuance of a stock certificate or certificates, which certificate or certificates shall be held by the Company. Such certificate or certificates shall be registered in the name of the Participant and shall bear an appropriate legend referring to the restrictions and possible forfeiture applicable to such Restricted Stock as set forth in the Award Agreement.
(iv) Forfeiture. Except as otherwise determined by the Committee, (A) upon a Participants termination of Service (as determined under criteria established by the Committee) during the applicable restriction period or prior to the vesting of such Awards, all applicable Shares of Restricted Stock at such time subject to restriction shall be forfeited to the Company; (B) upon a Participants death or disability all applicable Shares of Restricted Stock at such time subject to restriction or that are not vested shall be forfeited to the Company, provided, however, that the Committee may, when it finds that a waiver would be in the best interest of the Company, waive in whole or in part any or all remaining restrictions with respect to Shares of Restricted Stock or any such award.
(b) General Consideration for Awards. Awards may be granted for no cash consideration or for any cash or other consideration as determined by the Committee and required by applicable law.
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(i) Awards May Be Granted Separately or Together. Awards may, in the discretion of the Committee, be granted either alone or in addition to, in tandem with any other Award or any award granted under any plan of the Company or any Affiliate. Awards granted in addition to or in tandem with other Awards or in addition to or in tandem with awards granted under any such other plan of the Company or any Affiliate may be granted either at the same time as or at a different time from the grant of such other Awards or awards.
(ii) Forms of Payment under Awards. Subject to the terms of the Plan and of any applicable Award Agreement, payments or transfers to be made by the Company or an Affiliate upon the grant, exercise or payment of an Award may be made in such form or forms as the Committee shall determine (including, without limitation, cash, Shares, other securities, other Awards or other property or any combination thereof), and may be made in a single payment or transfer, in installments or on a deferred basis, in each case in accordance with rules and procedures established by the Committee.
(iii) Limits on Transfer of Awards. No Award and no right under any such Award shall be transferable by a Participant and the Company shall not be required to recognize any attempted assignment of such rights by any Participant; provided, however, that, if so determined by the Committee or as set forth in the terms and conditions of any Awards (which have been previously approved by the Committee), a Participant may, in the manner established by the Committee, designate a beneficiary or beneficiaries to exercise the rights of the Participant and receive any property distributable with respect to any Award upon the death of the Participant. Except as otherwise determined by the Committee or as set forth in the terms and conditions of any Awards (which have been previously approved by the Committee), each Award or right under any such Award shall be exercisable during the Participants lifetime only by the Participant or, if permissible under applicable law, by the Participants guardian or legal representative. Except as otherwise determined by the Committee, no Award or right under any such Award may be pledged, alienated, attached or otherwise encumbered, and any purported pledge, alienation, attachment or other encumbrance thereof shall be void and unenforceable against the Company or any Affiliate.
(iv) Restrictions; Securities Exchange Listing. All Shares or other securities delivered under the Plan pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the Plan, applicable federal or state securities laws and regulatory requirements, and the Committee may direct appropriate stop transfer orders and cause other legends to be placed on the certificates for such Shares or other securities to reflect such restrictions. If the Shares or other securities are traded on a securities exchange, the Company shall not be required, and shall have no liability for failure, to deliver any Shares or other securities covered by an Award unless and until such Shares or other securities have been and continue to be admitted for trading on such securities exchange. No Shares shall be issued or delivered pursuant to the Plan, and the Company shall have no liability for failure to issue or deliver Shares under the Plan, if doing so would violate any internal policies of the Company.
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Section 7. Amendment and Termination; Adjustments
(a) Amendments to the Plan. The Board may amend, alter, suspend, discontinue or terminate the Plan at any time; provided, however, that, such amendment, alteration, suspension, discontinuation or termination shall be consistent with the terms the Securities Act.
(b) Amendments to Awards. The Committee may waive any conditions of or rights of the Company under any outstanding Award, prospectively or retroactively. Except as otherwise provided herein or in an Award Agreement, the Committee may not amend, alter, suspend, discontinue or terminate any outstanding Award, prospectively or retroactively, if such action would adversely affect the rights of the holder of such Award, without the consent of the Participant or holder or beneficiary thereof.
(c) Correction of Defects, Omissions and Inconsistencies. The Committee may correct any defect, supply any omission or reconcile any inconsistency in the Plan or in any Award or Award Agreement in the manner and to the extent it shall deem desirable to implement or maintain the effectiveness of the Plan.
Section 8. Income Tax Withholding
In order to comply with all applicable federal, state or local income tax laws or regulations, the Company may take such action as it deems appropriate to ensure that all applicable federal, state or local payroll, withholding, income or other taxes, which are the sole and absolute responsibility of a Participant, are withheld or collected from such Participant. In order to assist a Participant in paying all or a portion of the federal, state and local taxes to be withheld or collected upon exercise or receipt of (or the lapse of restrictions relating to) an Award, the Committee, in its discretion and subject to such additional terms and conditions as it may adopt, may permit the Participant to satisfy such tax obligation by (i) electing to have the Company withhold a portion of the Shares otherwise to be delivered upon exercise or receipt of (or the lapse of restrictions relating to) such Award with a Market Value equal to the amount of such taxes (up to the maximum marginal tax rate in the Participants jurisdiction) or (ii) delivering to the Company Shares other than Shares issuable upon exercise or receipt of (or the lapse of restrictions relating to) such Award with a Market Value equal to the amount of such taxes (but only to the extent of the minimum amount required to be withheld under applicable laws or regulations). The election, if any, must be made on or before the date that the amount of tax to be withheld is determined.
Section 9. General Provisions
(a) No Rights to Awards. No Eligible Person or other Person shall have any claim to be granted any Award under the Plan, and there is no obligation for uniformity of treatment of Eligible Persons or holders or beneficiaries of Awards under the Plan. The terms and conditions of Awards need not be the same with respect to any Participant or with respect to different Participants.
(b) Award Agreements. No Participant will have rights under an Award granted to such Participant unless and until an Award Agreement shall have been duly executed on behalf of the Company and, if requested by the Company, signed by the Participant.
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(c) Plan Provisions Control. In the event that any provision of an Award Agreement conflicts with or is inconsistent in any respect with the terms of the Plan as set forth herein or subsequently amended, the terms of the Plan shall control.
(d) No Rights of Stockholders. Neither a Participant nor the Participants legal representative shall have any voting rights, dividend rights, or cash dividend rights with respect to any Award or issuance of Shares under this plan other than those rights that are mandated by operation of law.
(e) No Limit on Other Compensation Arrangements. Nothing contained in the Plan shall prevent the Company or any Affiliate from adopting or continuing in effect other or additional compensation arrangements, and such arrangements may be either generally applicable or applicable only in specific cases.
(f) No Right to Employment. The grant of an Award shall not be construed as giving a Participant the right to be retained in the employ, nor will it affect in any way the right of the Company or an Affiliate to terminate a Participants employment or Service at any time, with or without cause. In addition, the Company or an Affiliate may at any time dismiss a Participant from employment, free from any liability or any claim under the Plan or any Award, unless otherwise expressly provided in the Plan or in any Award Agreement. Nothing in this Plan shall confer on any person any legal or equitable right against the Company or any Affiliate, directly or indirectly, or give rise to any cause of action at law or in equity against the Company or an Affiliate. The Awards granted hereunder shall not form any part of the wages or salary of any Eligible Person for purposes of severance pay or termination indemnities, irrespective of the reason for termination of employment. Under no circumstances shall any person ceasing to be an employee of the Company or any Affiliate be entitled to any compensation for any loss of any right or benefit under the Plan which such employee might otherwise have enjoyed but for termination of employment, whether such compensation is claimed by way of damages for wrongful or unfair dismissal, breach of contract or otherwise. By participating in the Plan, each Participant shall be deemed to have accepted all the conditions of the Plan and the terms and conditions of any rules and regulations adopted by the Committee and shall be fully bound thereby.
(g) Governing Law. The validity, construction and effect of the Plan or any Award, and any rules and regulations relating to the Plan or any Award, shall be determined in accordance with the internal laws, and not the law of conflicts, of the State of Delaware.
(h) Severability. If any provision of the Plan or any Award is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable laws, or if it cannot be so construed or deemed amended without, in the determination of the Committee, materially altering the purpose or intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction or Award, and the remainder of the Plan or any such Award shall remain in full force and effect.
(i) No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any Affiliate and an Eligible Person or any other Person. To the extent that any Person acquires a right to receive payments from the Company or any Affiliate pursuant to an Award, such right shall be no greater than the right of any unsecured general creditor of the Company or any Affiliate.
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(j) Other Benefits. No compensation or benefit awarded to or realized by any Participant under the Plan shall be included for the purpose of computing such Participants compensation under any compensation-based retirement, disability, or similar plan of the Company unless required by law or otherwise provided by such other plan.
(k) No Fractional Shares. No fractional Shares shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall determine whether cash shall be paid in lieu of any fractional Shares or whether such fractional Shares or any rights thereto shall be canceled, terminated or otherwise eliminated.
(l) Headings. Headings are given to the Sections and subsections of the Plan solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of the Plan or any provision thereof.
(m) Conditions Precedent to Issuance of Shares. Shares shall not be issued, and the Company shall not have any liability for failure to issue Shares, pursuant to the exercise or payment of the purchase price relating to an Award unless such exercise or payment and the issuance and delivery of such Shares pursuant thereto shall comply with all relevant provisions of law, including, without limitation, the Securities Act, the Exchange Act, the rules and regulations promulgated thereunder, the requirements of any applicable Stock Exchange and the Delaware General Corporation Law. As a condition to the exercise or payment of the purchase price relating to such Award, the Company may require that the person exercising or paying the purchase price represent and warrant that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation and warranty is required by law.
Section 10. Effective Date of the Plan
The Plan shall be effective as of August 27, 2019.
Section 11. Term of the Plan
No Award shall be granted under the Plan after (a) the tenth anniversary of the later of (i) the date on which this Plan was adopted by the Board or (ii) the date this Plan was approved by the stockholders of the Company, or (b) any earlier date of discontinuation or termination established pursuant to Section 7(a) of the Plan. However, unless otherwise expressly provided in the Plan or in an applicable Award Agreement, any Award theretofore granted may extend beyond such date, and the authority of the Committee provided for hereunder with respect to the Plan and any Awards, and the authority of the Board to amend the Plan, shall extend beyond the termination of the Plan.
9
Exhibit 10.10
Notice of Restricted Stock Award
Grantee: |
Restricted Stock Number: |
|
Address: |
Plan: 2019 Long Term Incentive Plan |
Notice is hereby given of the following award (the Restricted Stock Award) of Common Stock of The Pennant Group, Inc. (the Corporation):
Grant Date: | Grant Price1: *** *** | |
Type of Award: Restricted Stock |
V E S T I N G
Vesting Schedule: [Vesting to be inserted at the time of grant.]
Except as otherwise provided in the Restricted Stock Agreement, the Restricted Stock will be vested in the Grantee in accordance with the following schedule:
On or after each of the following dates | Number of Restricted Stock Shares vested |
By accepting this Restricted Stock Award, Grantee acknowledges and agrees that the Restricted Stock Shares granted herein are subject to and in accordance with the terms of (i) the enclosed RESTRICTED STOCK AWARD TERMS AND CONDITIONS (together with this Notice of Restricted Stock Award, the Restricted Stock Agreement), and (ii) THE PENNANT GROUP, INC. 2019 LONG TERM INCENTIVE PLAN (the Plan), both of which are incorporated herein by this reference. The validity of this award is subject to the completion of the spin-off of the Corporation from The Ensign Group, Inc. All capitalized terms in this Notice of Restricted Stock Award shall have the meaning assigned to them in the Restricted Stock Agreement of the Plan.
EXECUTED AND DELIVERED as of the Grant Date set forth above.
THE PENNANT GROUP, INC. |
||
a Delaware corporation |
||
By: |
||
Name: |
||
Title: |
1 |
The number of shares of restricted stock actually granted will be determined on October 1, 2019 based on a per share price determined at the time of the spin-off of the Corporation from The Ensign Group, Inc. The number of shares granted by this award may also be adjusted if the total shares of common stock of the Corporation granted under the 2019 Long Term Incentive Plan equal greater than two percent (2%) of the outstanding shares of common stock of the Corporation following the spin-off. In such event, all awards granted under the 2019 Long Term Incentive Plan shall be adjusted pro rata such that they will total less than two percent (2%) of the outstanding shares of the common stock of the Corporation following the spin-off. |
THE PENNANT GROUP, INC.
RESTRICTED STOCK AWARD
TERMS AND CONDITIONS
These RESTRICTED STOCK AWARD TERMS AND CONDITIONS are an integral part of the foregoing Notice Restricted Stock Award (the Notice, and together with these Terms and Conditions, the Restricted Stock Agreement or this Agreement) made by The Pennant Group, Inc., a Delaware corporation (the Company) to the individual Grantee named therein. All capitalized terms used herein but not defined in this Restricted Stock Agreement shall have the meanings given to them in the Pennant Group, Inc. 2019 Long Term Incentive Plan (the Plan), the terms and conditions of which are incorporated herein by this reference.
1. Definitions. For the purposes of this Agreement, the following terms shall have the meanings set forth below:
Cause shall mean (i) the willful and continued failure by Grantee substantially to perform his or her duties and obligations (other than any such failure resulting from his or her incapacity due to physical or mental illness), (ii) Grantees conviction or plea bargain of any felony or gross misdemeanor involving moral turpitude, fraud or misappropriation of funds, or (iii) the willful engaging by Grantee in misconduct which causes substantial injury to the Company or its Affiliates, its other employees or the employees of its affiliates or its clients or the clients of its affiliates, whether monetarily or otherwise. For purposes of this paragraph, no action or failure to act on Grantees part shall be considered willful unless done or omitted to be done, by Grantee in bad faith and without reasonable belief that his or her action or omission was in the best interests of the Company or its Affiliates. However, if the term or concept has been defined in an employment agreement between the Company and Grantee, then Cause shall have the definition set forth in such employment agreement. The foregoing definition shall not in any way preclude or restrict the right of the Company (or any Affiliate) to discharge or dismiss Grantee or other person providing Service to the Company (or any Affiliate) for any other acts or omissions but such other acts or omissions shall not be deemed, for purposes of this Agreement, to constitute grounds for termination for Cause.
Vested Shares shall mean (i) all Shares issued pursuant to this Agreement that are vested pursuant to Section 3 hereof and (ii) all Shares issued with respect to the Common Stock referred to in clause (i) above by way of stock dividend or stock split or in connection with any conversion, merger, consolidation or recapitalization or other reorganization affecting the Shares. Vested Shares shall continue to be Vested Shares in the hands of any holder other than Grantee (except for the Company or its Affiliates and purchasers pursuant to a public offering under the Securities Act), and each such transferee thereof shall succeed to the rights and obligations of a holder of Vested Shares hereunder.
2. Issuance of Stock. In partial consideration for Grantees services to the Company or its Affiliates, Grantee has been issued the number of Shares set forth in the Notice (the Restricted Stock), subject to the consummation of the spin-off of the Company from The Ensign Group, Inc. (the Transaction). For the avoidance of doubt, if the Transaction is not consummated, this Agreement and the grant of Restricted Stock provided for hereunder shall automatically be terminated and void ab initio.
3. Vesting.
(a) Normal Vesting. Except as set forth in this Restricted Stock Agreement, the Restricted Stock shall vest in accordance with the schedule set forth in the Notice and shall become fully vested on the fifth anniversary of the date hereof (the Vesting Date).
(b) If Grantees employment with the Company or its Affiliates terminates for any reason prior to the Vesting Date, all unvested Restricted Stock shall be forfeited and automatically transferred to the Company without consideration on the date of Grantees employment termination and Grantee shall have no further rights with respect to the Restricted Stock. For purposes of this Agreement, employment with a Subsidiary of the Company or its Affiliates shall be considered employment with the Company or its Affiliates.
4. Restrictions on Transfer.
(a) Non-Transferability. Restricted Stock, and any rights and interests with respect thereto, issued under this Agreement and the Plan shall not, prior to vesting, be sold, exchanged, transferred, assigned or otherwise disposed of in any way by the Grantee (or any beneficiary(ies) of the Grantee), other than by testamentary disposition by the Grantee or the laws of descent and distribution. Any such Restricted Stock, and any rights and interests with respect thereto, shall not, prior to vesting, be pledged or encumbered in any way by the Grantee (or any beneficiary(ies) of the Grantee) and shall not, prior to vesting, be subject to execution, attachment or similar legal process. Any attempt to sell, exchange, transfer, assign, pledge, encumber or otherwise dispose of in any way any of the Restricted Stock, or the levy of any execution, attachment or similar legal process upon the Restricted Stock, contrary to the terms and provisions of this Agreement and/or the Plan shall be null and void and without legal force or effect.
(b) Securities Laws; Restrictions on Transfer of Vested Shares. Grantee understands and hereby acknowledges that, in addition to transfer restrictions in this Agreement, the Plan and federal and state securities laws govern and restrict Grantees right to offer, sell or otherwise dispose of any Vested Shares unless such offer, sale or other disposition thereof is registered or qualified under the Securities Act and applicable state securities laws, or in the opinion of the Companys counsel, such offer, sale or other disposition is exempt from registration or qualification thereunder. Grantee agrees that he or she shall not offer, sell or otherwise dispose of any Vested Shares in any manner which would: (i) require the Company to file any registration statement with the Securities and Exchange Commission (or any similar filing under state law) or to amend or supplement any such filing or (ii) violate or cause the Company to violate the Securities Act, the rules and regulations promulgated thereunder or any other state or federal law. Grantee further understands that the certificates for any Vested Shares shall bear such legends as the Company deems necessary or desirable in connection with the Securities Act or other rules, regulations or laws. Grantee may not sell, transfer or dispose of any Vested Shares (except pursuant to an effective registration statement under the Securities Act) without first obtaining from the Company an opinion of the Companys counsel that registration under the Securities Act or any applicable state securities law is not required in connection with such transfer. If requested, Grantee agrees to provide the Company with written assurances, in form and substance satisfactory to the Company, that (1) the proposed disposition does not require registration of the Shares under the Securities Act or (2) all appropriate action necessary for compliance with the registration requirements of the Securities Act or any exemption from registration available under the Securities Act (including Rule 144) has been taken.
(c) Restrictive Legend. The certificates representing the Restricted Stock, if any, shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON __________, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ACT), OR UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, REPURCHASE RIGHTS AND FORFEITURE PROVISIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN A RESTRICTED STOCK AGREEMENT BETWEEN THE COMPANY AND __________ DATED AS OF __________, ___, A COPY OF WHICH MAY BE OBTAINED BY THE HOLDER HEREOF AT THE COMPANYS PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE.
(d) Restrictions on Transfer after Vesting. The transfer or sale of Vested Shares in accordance with this Section 4 of this Agreement shall be subject to the Company or its Affiliates Policy Regarding Insider Trading, as amended from time to time, including any preclearance procedures or black-out periods that specifically apply to Grantee.
5. Conformity with Plan. The Restricted Stock is intended to conform in all respects with, and is subject to all applicable provisions of, the Plan (which is incorporated herein by reference). Inconsistencies between this Agreement and the Plan shall be resolved in accordance with the terms of the Plan. By executing and returning the enclosed copy of this Agreement, Grantee acknowledges receipt of this Agreement and the Plan and agrees to be bound by all of the terms of this Agreement and the Plan.
6. Rights of Employment. Nothing in this Agreement shall interfere with or limit in any way the right of the Company or its Affiliates to terminate Grantees employment at any time (with or without Cause), nor confer upon Grantee any right to continue in the employ of the Company or its Affiliates for any period of time or to continue his or her present (or any other) rate of compensation, and in the event of Grantees termination of employment (including, but not limited to, termination by the Company or its Affiliates without Cause), any portion of Grantees Restricted Stock that was not previously vested shall be forfeited, except as otherwise provided herein. Nothing in this Agreement shall confer upon Grantee any right to be selected again as a Plan participant, and nothing in the Plan or this Agreement shall provide for any adjustment to the number of shares of Restricted Stock upon the occurrence of subsequent events except as provided in Section 7 below.
7. Withholding of Taxes.
(a) Subject to compliance with applicable law and any insider trading policy of the Company or its Affiliates, the Company or its Affiliates may permit the Grantee to satisfy the Companys or its Affiliates tax withholding obligations in accordance with procedures established by the Company providing for either (i) delivery by the Grantee to the Company or a broker approved by the Company of properly executed instructions, in a form approved by the Company previously obtained and held by Grantee in an amount necessary to cover the Companys withholding obligations, or (ii) payment by check. The Grantee shall deliver written notice of any such permitted election to the Company on a form specified by the Company for this purpose at least thirty (30) days (or such other period established by the Company) prior to the date on which the Companys tax withholding obligation arises (the Withholding Date). If the Grantee elects payment by check, the Grantee agrees to deliver a check for the full amount of the required tax withholding to the Company on or before the second business day following the Withholding Date. If additional withholding is or becomes required (as a result of the vesting of any Restricted Stock or as a result of disposition of Vested Shares) beyond any amount deposited before delivery of the certificates, the Grantee shall pay such amount to the Company, in cash or by check, on demand. The Company shall be entitled, if necessary or desirable, to withhold from Grantee any amounts due and payable by the Company, including wages, to Grantee (or secure payment from Grantee in lieu of withholding), the amount of any withholding or other tax due from the Company with respect to any Restricted Stock issuable under this Agreement, and the Company may defer such issuance unless indemnified by Grantee to its satisfaction.
(b) The Company or its Affiliates may permit the Grantee to satisfy all or any portion of a Companys or its Affiliates tax withholding obligations by deducting a number of whole, Vested Shares otherwise deliverable to the Grantee or by the Grantees tender to the Company of a number of whole, Vested Shares or Vested Shares acquired otherwise than pursuant to this Agreement having, in any such case, a fair market value, as determined by the Company as of the date on which the tax withholding obligations arise, up to the maximum marginal tax rates in the Grantees jurisdiction.
(c) Grantee acknowledges that he or she has reviewed with his or her own tax advisors the federal, state, local and foreign tax consequences of this investment and the transactions contemplated by this Agreement. Grantee is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. Grantee understands that he or she (and not the Company) shall be responsible for any tax liability that may arise as a result of the transactions contemplated by this Agreement. Grantee further understands that Section 83 of the Code, taxes as ordinary income the difference between the purchase price, if any, for the Shares and the fair market value of the Shares as of the date the forfeiture provisions in Section 3 lapse. Grantee understands that he or
she may elect to be taxed at the time the Restricted Stock is issued rather than when and as the forfeiture provisions lapse expires by filing an election under Section 83(b) of the Code with the IRS within 30 days from the date of hereof. THE FORM FOR MAKING THIS SECTION 83(b) ELECTION IS ATTACHED TO THIS AGREEMENT AS EXHIBIT A AND GRANTEE (AND NOT THE COMPANY, ITS AFFILIATES OR ANY OF ITS AGENTS) SHALL BE SOLELY RESPONSIBLE FOR APPROPRIATELY FILING SUCH FORM, EVEN IF GRANTEE REQUESTS THE COMPANY, ITS AFFILIATES OR ITS AGENTS TO MAKE THIS FILING ON GRANTEES BEHALF.
8. Adjustments. In the event of a reorganization, recapitalization, stock dividend or stock split, or combination or other change in the Shares, the number and type of shares of Grantees Restricted Stock shall be adjusted by the Committee as necessary, provided that any such adjustments shall not adversely affect the Grantee.
9. Rights as a Shareholder. Except as otherwise provided in this Agreement and the Plan, Grantee shall have all of the rights of a shareholder of the Company with respect to the Shares of Restricted Stock, including the right to vote such shares and the right to receive dividends. There is no guarantee by the Company or its Affiliates that dividends will be paid. All dividends and other distributions paid with respect to Restricted Stock, including with respect to unvested Restricted Stock and whether paid in cash, Shares, or other property, shall be paid by the Company on the same date that dividend payments are made with respect to all of the Companys outstanding Shares.
10. Remedies. The parties hereto shall be entitled to enforce their rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in their favor. The parties hereto acknowledge and agree that money damages would not be an adequate remedy for any breach of the provisions of this Agreement and that any party hereto shall be entitled to specific performance and/or injunctive relief (without posting bond or other security) from any court of law or equity of competent jurisdiction in order to enforce or prevent any violation of the provisions of this Agreement.
11. Amendment. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only with the prior written consent of Grantee and the Company.
12. Successors and Assigns. Except as otherwise expressly provided herein, all covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and permitted assigns of the parties hereto whether so expressed or not.
13. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.
14. Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall constitute an original, but all of which taken together shall constitute one and the same Agreement.
15. Descriptive Headings. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
16. Governing Law. The corporate law of the state of Delaware shall govern all questions concerning the relative rights of the Company and its stockholders. All other questions concerning the construction, validity and interpretation of this Agreement shall be governed by the internal law, and not the law of conflicts, of the state of Delaware.
17. Entire Agreement. This Agreement and the Plan constitute the entire understanding between Grantee and the Company, and supersedes all other agreements, whether written or oral, with respect to the acquisition by Grantee of Common Stock of the Company. If there are any conflicts in terms and conditions between this Agreement and the Plan, the terms and conditions of the Plan shall govern, unless otherwise determined by the Committee or the Board.
* * * * *
Exhibit 21.1
List of Subsidiaries of The Pennant Group, Inc.
The following is a list of subsidiaries of The Pennant Group, Inc. immediately following the completion of the spin-off.
Subsidiary |
Jurisdiction |
|
2410 Stillhouse Senior Living, Inc. | Nevada | |
Alpowa Healthcare, Inc. | Nevada | |
Arches Home Care, Inc. | Nevada | |
Autumn Ridge Senior Living, Inc. | Nevada | |
Beach City Senior Living LLC | Nevada | |
Brenwood Park Senior Living, Inc. | Nevada | |
Brookhollow Senior Living LLC | Nevada | |
Brown Road Senior Housing LLC | Nevada | |
Bruce Neenah Senior Living, Inc. | Nevada | |
Canyon Healthcare, Inc. | Nevada | |
Capitol Healthcare, Inc. | Nevada | |
Cedar Senior Living, Inc. | Nevada | |
Clear Creek Healthcare, Inc. | Nevada | |
Connected Healthcare, Inc. | Nevada | |
Copper Basin Healthcare, Inc. | Nevada | |
Comfort Assisting Hospice, Inc. | California | |
Cornerstone Healthcare, Inc. | Nevada | |
Cornerstone Service Center, Inc. | Nevada | |
Custom Care Healthcare, Inc. | Nevada | |
De Soto Senior Living, Inc. | Nevada | |
Denmark Senior Living, Inc. | Nevada | |
Eagle Pass Senior Living LLC | Nevada | |
Emblem Healthcare, Inc. | Nevada | |
Emerald Healthcare, Inc. | Nevada | |
Eureka Healthcare, Inc. | Nevada | |
Exemplar Healthcare, Inc. | Nevada | |
Finding Home Healthcare, Inc. | Nevada | |
Gateway Cities Senior Living, Inc. | Nevada | |
Glacier Peak Healthcare, Inc. | Nevada | |
Go Assisted, Inc. | Nevada | |
Granite Healthcare, Inc. | Nevada | |
Granite Hills Senior Living, Inc. | Nevada | |
Great Lakes Healthcare, Inc. | Nevada | |
Great Plains Healthcare, Inc. | Nevada | |
Green Bay Senior Living, Inc. | Nevada | |
Heartland Healthcare, Inc. | Nevada |
iCare Private Duty, Inc. | Nevada | |
Iron Bridge Healthcare, Inc. | Nevada | |
Jameson Senior Living, Inc. | Nevada | |
Joshua Tree Healthcare, Inc. | Nevada | |
Kenosha Senior Living, Inc. | Nevada | |
Keystone Hospice Care, Inc. | Nevada | |
Lake Pointe Senior Living, Inc. | Nevada | |
Lemon Senior Living, Inc. | Nevada | |
Lowes Senior Living, Inc. | Nevada | |
Madison Senior Living, Inc. | Nevada | |
Manitowoc Senior Living, Inc. | Nevada | |
McFarland Senior Living, Inc. | Nevada | |
Mesa Grande Senior Living, Inc. | Nevada | |
Mesa Springs Senior Living LLC | Nevada | |
Mission Inn Senior Living LLC | Nevada | |
Mohave Healthcare, Inc. | Nevada | |
Monument Healthcare, Inc. | Nevada | |
Moss Bay Senior Living, Inc. | Nevada | |
Mountain Peak Home Care, Inc. | Nevada | |
Mountain Vista Senior Living, Inc. | Nevada | |
Oceano Senior Living, Inc. | Nevada | |
Oceanside Healthcare, Inc. | Nevada | |
Orange Senior Living, Inc. | Nevada | |
Orangewood Senior Living, Inc. | Nevada | |
Painted Sky Healthcare Inc. | Nevada | |
Paragon Healthcare, Inc. | Nevada | |
Pearl Senior Living, Inc. | Nevada | |
Pennant Services, Inc. | Nevada | |
Pinnacle Service Center LLC | Nevada | |
Pleasant Run Senior Living, Inc. | Nevada | |
Prairie View Healthcare, Inc. | Nevada | |
Primrose Senior Living, Inc. | Nevada | |
Prospect Senior Living, Inc. | Nevada | |
Racine Senior Living, Inc. | Nevada | |
Red Rock Healthcare, Inc. | Nevada | |
River Oaks Senior Living LLC | Nevada | |
Riverview Village Senior Living, Inc. | Nevada | |
Rockbrook Senior Living, Inc. | Nevada | |
Rolling Hills Healthcare, Inc. | Nevada | |
Rosenburg Senior Living, Inc. | Nevada | |
Saguaro Senior Living, Inc. | Nevada | |
San Gabriel Senior Living, Inc. | Nevada | |
Sand Lily Healthcare, Inc. | Nevada | |
Sandstone Senior Living, Inc. | Nevada |
Sheboygan Senior Living, Inc. | Nevada | |
Silver Lake Healthcare Inc. | Nevada | |
Snohomish Healthcare, Inc. | Nevada | |
Somers Kenosha Senior Living, Inc. | Nevada | |
South Bay Healthcare. Inc. | Nevada | |
South Plains Healthcare, Inc. | Nevada | |
Spokane Healthcare, Inc. | Nevada | |
Spring Valley Assisted Living, Inc. | Nevada | |
Star Valley Healthcare, Inc. | Nevada | |
Stevens Point Senior Living, Inc. | Nevada | |
Stonebridge Healthcare, Inc. | Nevada | |
Stoughton Senior Living, Inc. | Nevada | |
Sand Lily Healthcare, Inc. | Nevada | |
Sandstone Senior Living, Inc. | Nevada | |
Sheboygan Senior Living, Inc. | Nevada | |
Silver Lake Healthcare Inc. | Nevada | |
Snohomish Healthcare, Inc. | Nevada | |
Somers Kenosha Senior Living, Inc. | Nevada | |
South Bay Healthcare. Inc. | Nevada | |
South Plains Healthcare, Inc. | Nevada | |
Spokane Healthcare, Inc. | Nevada | |
Spring Valley Assisted Living, Inc. | Nevada | |
Star Valley Healthcare, Inc. | Nevada | |
Stevens Point Senior Living, Inc. | Nevada | |
Stonebridge Healthcare, Inc. | Nevada | |
Stoughton Senior Living, Inc. | Nevada | |
Summerlin Healthcare, Inc. | Nevada | |
Surf City Senior Living, Inc. | Nevada | |
Sycamore Senior Living, Inc. | Nevada | |
Symbol Healthcare, Inc. | Nevada | |
Terrace Senior Living, Inc. | Nevada | |
Teton Healthcare, Inc. | Nevada | |
Thomas Road Senior Housing, Inc. | Nevada | |
Thousand Peaks Healthcare, Inc. | Nevada | |
Two Rivers Senior Living, Inc. | Nevada | |
Vesper Healthcare, Inc. | Nevada | |
Victoria Ventura Assisted Living Community, Inc. | Nevada | |
Virgin River Healthcare, Inc. | Nevada | |
Willow Creek Senior Living, Inc. | Nevada | |
Wisconsin Rapids Senior Living, Inc. | Nevada |
Exhibit 99.1
, 2019
Dear Stockholder of The Ensign Group, Inc.:
I am pleased to inform you that the board of directors of The Ensign Group, Inc. (Ensign) has approved the spin-off (the spin-off) of The Pennant Group, Inc. (Pennant), a wholly-owned subsidiary of Ensign. Upon completion of the spin-off, the stockholders of Ensign will own substantially all of the outstanding shares of common stock of Pennant, and will continue to own 100% of the outstanding shares of common stock of Ensign. Pennant will be a new, publicly-traded holding company comprised of Ensigns home health and hospice agencies and substantially all of Ensigns senior living businesses. Pennants operating subsidiaries provide services to the growing senior population across Arizona, California, Colorado, Idaho, Iowa, Nevada, Oklahoma, Oregon, Texas, Utah, Washington, Wisconsin and Wyoming. Following the spin-off, Ensign will continue to be a holding company comprised of post-acute service providers, including skilled nursing, senior living and other ancillary operations in Arizona, California, Colorado, Idaho, Iowa, Kansas, Nebraska, Nevada, South Carolina, Texas, Utah, Washington and Wisconsin.
We believe the spin-off is in the best interests of Ensign, its stockholders and other constituents, as it will result in two publicly-traded companies, each with enhanced focus and leadership opportunities, increased ability to raise funds through capital market offerings and enhanced opportunity to continue executing their respective acquisition strategies. The success of Pennant and Ensign following the spin-off will illustrate the power of Ensigns innovative operating model to improve the clinical, cultural and financial results in the communities we serve.
The spin-off will be completed by way of a pro rata distribution of Pennant common stock to Ensigns stockholders of record on September 20, 2019, the spin-off record date. Each Ensign stockholder will receive one share of Pennant common stock for every two shares of Ensign common stock held by such stockholder on the record date. The distribution of these shares will be made in book-entry form, meaning no physical share certificates will be issued. Ensign stockholder approval of the distribution is not required, and you will automatically receive your shares of Pennant common stock upon the consummation of the spin-off.
The distribution is subject to the satisfaction or waiver of certain conditions, including, among other things: final approval of the distribution by the Ensign board of directors; the Registration Statement on Form 10, of which this information statement forms a part, being declared effective by the Securities and Exchange Commission; Pennant common stock being approved for listing on the NASDAQ Global Select Market (NASDAQ); the receipt of an opinion from Kirkland & Ellis LLP with respect to certain tax matters related to the distribution; the receipt of any required material governmental approvals; no order, injunction or decree issued by any governmental entity preventing the consummation of all or any portion of the distribution being in effect; and the completion of the financing transaction described in this information statement. We expect that your receipt of shares of Pennant common stock in the spin-off will be tax-free for U.S. federal income tax purposes, except for cash received in lieu of fractional shares. You are urged to consult your tax advisor as to the particular tax consequences of the distribution to you, including potential tax consequences under state, local and non-U.S. tax laws.
Immediately following the spin-off, you will own common stock in Ensign and Pennant. Ensign common stock will continue to trade on NASDAQ under the symbol ENSG. We intend to have Pennant common stock listed on NASDAQ under the symbol PNTG.
We have prepared the enclosed information statement, which describes the spin-off in detail and contains important information about Pennant, including historical financial statements. Ensign stockholders will receive via mail a notice with instructions on how to access the information statement online. We urge you to carefully read the information statement.
We thank you for supporting our company, and look forward to your continued support in the future.
Very truly yours, |
Christopher R. Christensen |
Executive Chairman |
, 2019
Dear Stockholder of The Pennant Group, Inc.:
It is my pleasure to welcome you to The Pennant Group, Inc. (Pennant). Following the distribution of all of the shares of our common stock owned by The Ensign Group, Inc. (Ensign) to its stockholders, we will be a newly listed, publicly-traded holding company of operating subsidiaries that provide home health, hospice and senior living services across Arizona, California, Colorado, Idaho, Iowa, Nevada, Oklahoma, Oregon, Texas, Utah, Washington, Wisconsin and Wyoming.
As a Pennant stockholder, you will be an investor in a publicly-traded holding company comprised of healthcare providers serving the growing senior population in the United States. We strive to be the provider of choice in the communities we serve through our innovative operating model. We believe our key differentiators are (i) our innovative operating model focused on empowering and developing strong local leaders, (ii) our disciplined growth strategy, and (iii) our ability to achieve quality care outcomes in lower cost settings. In our experience, healthcare is a local endeavor, largely dependent upon personal and professional relationships, community reputation and an ability to adapt to the changing needs of patients, partners and communities. As our operational leaders build strong relationships with key partners in their local healthcare communities, they are empowered to make informed and critical operational decisions that produce quality care outcomes and more effectively meet the needs of our patients.
We believe a spin-off of our businesses from Ensign expands our ability to provide life changing home health, hospice and senior living services to the communities we serve. Like Ensign, our unique organizational structure empowers our highly dedicated local leaders and staff to make key operational decisions, while providing them with a platform of support from industry expert resources and top-of-the-line clinical and financial systems. An essential ingredient of our model is our mentality of shared ownership and peer accountability. Our leaders and resources feel a collective sense of ownership for the clinical, financial and cultural success of our affiliated operations and hold each other accountable for successes and failures in an environment that fosters transparency and improvement.
We also believe the spin-off will foster better understanding by public stockholders, analysts and other stakeholders about how the application of Ensigns core operating principles to these lines of business has the ability to produce extraordinary results. More education about and visibility into these uniquely situated operations will create a better understanding of the value we believe remains somewhat hidden and overshadowed by the markets perception of the skilled nursing industry at large, despite Ensigns successful history of outperforming industry peers in many key metrics. We also will be well positioned amongst publicly-traded peers in the post-acute care marketplace because of a well-diversified payor mix between government, third-party and private sources.
Following the spin-off, we will have the ability to tap public markets for capital as we execute on our strategic and organic growth objectives, which in many ways overlap but in other ways diverge from Ensigns, resulting in different capital needs and pressures. As Ensign and Pennant each pursue its independent strategies, we expect our common core values, guiding principles and operating model will create continued opportunities to collaborate, create accountability around quality clinical and financial outcomes, and work together on joint opportunities as appropriate and when such action is in the best interests of each organization. Furthermore, we believe our position as a separate company following the spin-off will be a powerful recruiting tool that will attract strong leaders from both within and outside the post-acute care continuum looking for opportunities to grow and develop meaningful careers.
We invite you to learn more about Pennant by reviewing the enclosed information statement. We look forward to our future as an independent, publicly-traded company and to your support as a holder of Pennant common stock.
Sincerely, |
Daniel H Walker |
Chairman, Chief Executive Officer and President |
Information contained herein is subject to completion or amendment. A Registration Statement on Form 10 relating to these securities has been submitted with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended.
SUBJECT TO COMPLETION, DATED SEPTEMBER 3, 2019
Information Statement
Distribution of Common Stock of
THE PENNANT GROUP, INC.
by
THE ENSIGN GROUP, INC.
to
THE ENSIGN GROUP, INC. STOCKHOLDERS
This information statement is being sent to you in connection with the separation of The Pennant Group, Inc. (collectively with its consolidated subsidiaries, Pennant) from The Ensign Group, Inc. (collectively with its consolidated subsidiaries, Ensign), following which The Pennant Group, Inc. will be an independent, publicly-traded company. As part of the separation, Ensign will undergo an internal reorganization, after which it will complete the separation by distributing substantially all of the outstanding shares of common stock of The Pennant Group, Inc., par value $0.001 (Pennant common stock or our common stock), on a pro rata basis to the holders (Ensign stockholders) of The Ensign Group, Inc.s common stock, par value $0.001 (Ensign common stock). We refer to this pro rata distribution as the distribution and we refer to the separation, including the internal reorganization and distribution, as the spin-off. We expect that the distribution will be tax-free to the stockholders of The Ensign Group, Inc. for U.S. federal income tax purposes, except to the extent of cash received in lieu of fractional shares. Each Ensign stockholder will receive one share of our common stock for every two shares of Ensign common stock held by such stockholder on September 20, 2019, the record date. Ensign will not distribute any fractional shares of Pennant common stock. Instead, the distribution agent will aggregate fractional shares into whole shares, sell the whole shares in the open market at prevailing market prices and distribute the aggregate net cash proceeds from the sales pro rata to each holder who would otherwise have been entitled to receive a fractional share in the spin-off. The distribution of shares will be made in book-entry form only. The distribution will be effective as of October 1, 2019. Immediately after the distribution becomes effective, The Pennant Group, Inc. will be an independent, publicly-traded company.
No vote or other action of Ensign stockholders is required in connection with the spin-off. We are not asking you for a proxy and Ensign requests that you do not send Ensign a proxy. Ensign stockholders will not be required to pay any consideration for the shares of Pennant common stock they receive in the spin-off, and they will not be required to surrender or exchange their shares of Ensign common stock or take any other action in connection with the spin-off.
All of the outstanding shares of Pennant common stock are currently owned by The Ensign Group, Inc. Accordingly, there is no current trading market for Pennant common stock. We anticipate that a limited market, commonly known as a when-issued trading market, will develop shortly before the record date, and that regular-way trading in shares of Pennant common stock will begin on the first trading day following the distribution date. If trading begins on a when-issued basis, you may purchase or sell Pennant common stock up to and including the distribution date, in which case your transaction will settle within two trading days after regular-way trading commences following the distribution. We intend to list Pennant common stock on the NASDAQ Global Select Market (NASDAQ) under the ticker symbol PNTG. As discussed under Trading Market, if you sell your Ensign common stock in the regular-way market before the distribution date, you also will be selling your right to receive shares of Pennant common stock in connection with the spin-off. However, if you sell your Ensign common stock in the ex-distribution market before the distribution date, you will still receive shares of Pennant common stock in the spin-off.
We are an emerging growth company as defined under the federal securities laws and, as such, may elect to comply with certain reduced public company reporting requirements. See SummaryImplications of Being an Emerging Growth Company.
In reviewing this information statement, you should carefully consider the matters described in Risk Factors beginning on page 31 of this information statement.
Neither the Securities and Exchange Commission (the SEC) nor any state securities commission has approved or disapproved these securities or determined if this information statement is truthful or complete. Any representation to the contrary is a criminal offense.
This information statement is not an offer to sell, or a solicitation of an offer to buy, any securities.
The date of this information statement is , 2019.
A Notice of Internet Availability of Information Statement Materials containing instructions describing how to access this information statement was first mailed to Ensign stockholders on or about , 2019.
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MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT |
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Unless otherwise indicated or the context otherwise requires, references herein to Pennant, we, our, us, the Company and our company refer (i) prior to the consummation of our internal reorganization described under The Spin-OffManner of Effecting the Spin-OffInternal Reorganization, to the home health and hospice agencies and substantially all of the senior living businesses of The Ensign Group, Inc. (the combination of these assets is also referred to herein as New Ventures) and (ii) after the consummation of such internal reorganization, to The Pennant Group, Inc. and its consolidated subsidiaries. Unless otherwise indicated or the context otherwise requires, references herein to Ensign refer to The Ensign Group, Inc. and its consolidated subsidiaries prior to the consummation of the spin-off.
Each of the Companys affiliated operations is owned and operated by a separate, independent subsidiary that has its own management, employees and assets. Each of Ensigns affiliated operations is operated by a separate, independent subsidiary that has its own management, employees, and assets. References herein to the consolidated Pennant, Company, Ensign, Parent and its, their or our assets and activities are not meant to imply, nor should they be construed as meaning, that The Pennant Group, Inc. or The Ensign Group, Inc. has any direct operating assets, employees or revenue, or that any of the subsidiaries are operated by The Pennant Group, Inc. or The Ensign Group, Inc.
Unless otherwise indicated or the context otherwise requires, all information in this information statement gives effect to the effectiveness of our amended and restated certificate of incorporation and amended and restated bylaws, the forms of which are filed as exhibits to the registration statement of which this information statement forms a part.
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FINANCIAL STATEMENT PRESENTATION
This information statement includes certain historical combined financial and other data for New Ventures. To effect the separation, The Ensign Group, Inc. will undertake an internal reorganization, following which The Pennant Group, Inc. will hold, directly or through its subsidiaries, New Ventures. The Pennant Group, Inc. is the registrant under the registration statement of which this information statement forms a part and will be the financial reporting entity following the consummation of the spin-off. Our historical combined financial information as of December 31, 2018 and 2017 and for the years ended December 31, 2018, 2017 and 2016 has been derived from the audited combined financial statements of New Ventures (the Audited Combined Financial Statements) included elsewhere in this information statement. Our historical combined financial information as of June 30, 2019 and for the six months ended June 30, 2019 and 2018 has been derived from the unaudited condensed combined financial statements of New Ventures (the Interim Financial Statements) included elsewhere in this information statement.
This information statement also includes an unaudited pro forma combined balance sheet as of June 30, 2019 and unaudited pro forma combined statement of income for the year ended December 31, 2018 and for the six months ended June 30, 2019, which present our combined financial position and results of operations after giving effect to the spin-off, including the internal reorganization and the distribution, and the other transactions described under Unaudited Pro Forma Combined Financial Statements. The unaudited pro forma combined financial statements are presented for illustrative purposes only and are not necessarily indicative of the operating results or financial position that would have occurred if the relevant transactions had been consummated on the date indicated, nor is it indicative of future operating results.
You should read the sections titled Selected Historical Combined Financial Data and Unaudited Pro Forma Combined Financial Statements, each of which is qualified in its entirety by reference to the Audited Combined Financial Statements and Interim Financial Statements and related notes thereto and the financial and other information, including in the sections titled Risk Factors, Capitalization and Managements Discussion and Analysis of Financial Condition and Results of Operations, in each case included elsewhere in this information statement.
The Pennant Group, Inc. was formed on January 24, 2019 in connection with the spin-off. The financial statements of The Pennant Group, Inc. as of June 30, 2019 and January 24, 2019 have been included in this information statement. In connection with the internal reorganization, The Pennant Group, Inc. will become the parent of the subsidiaries included in the Audited Combined Financial Statements and Interim Financial Statements of New Ventures.
INDUSTRY AND MARKET DATA
The industry, market and competitive position data and certain other statistical information used in this information statement are based on independent industry publications, government publications or other published independent sources. These sources generally state that the information they provide has been obtained from sources believed to be reliable, but that the accuracy and completeness of the information are not guaranteed. The forecasts and projections are based on industry surveys and the preparers experience in the industry, and there is no assurance that any of the projected amounts will be achieved. We believe that the surveys and market research others have performed are reliable, but we have not independently verified this information. The Centers for Medicare and Medicaid Services and the U.S. Census Bureau are the primary sources for third-party market data and industry statistics in this information statement. Forward-looking information obtained from third-party sources is subject to the same qualifications and the uncertainties regarding the other forward-looking statements in this information statement. See Risk Factors and Special Note About Forward-Looking Statements.
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CERTAIN DEFINED TERMS
Except where the context suggests otherwise, we define certain terms in this information statement as follows:
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ACA is defined as the Patient Protection and Affordable Care Act of 2010 and the Healthcare Education and Reconciliation Act; |
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average daily census is defined as the average number of patients who are receiving hospice care during any measurement period divided by number of days during such measurement period; |
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average Medicare revenue per completed 60-day episode is defined as the average amount of home health revenue for each completed 60-day episode generated from patients who are receiving care under Medicare reimbursement programs; |
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average monthly revenue per occupied unit is defined as the revenue for senior living services during any measurement period divided by actual occupied senior living units for such measurement period; |
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CAGR is defined as the compound annual growth rate; |
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CMS is defined as the Centers for Medicare and Medicaid Services; |
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Code is defined as the Internal Revenue Code of 1986, as amended; |
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Ensign Leases is defined as certain triple-net lease agreements between our operating subsidiaries and subsidiaries of Ensign for the lease of certain senior living properties, which we anticipate will amend and restate or replace existing leases in connection with the spin-off; |
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FASB is defined as the Financial Accounting Standards Board; |
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FCA is defined as the federal False Claims Act; |
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FERA is defined as the Fraud Enforcement and Recovery Act; |
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GAAP is defined as accounting principles generally accepted in the United States of America; |
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HIPAA is defined as the Health Insurance Portability and Accountability Act of 1996; |
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HUD is defined as the Department of Housing and Urban Development; |
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IRS is defined as the U.S. Internal Revenue Service; |
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MACRA is defined as the Medicare Access and Chip Reauthorization Act; |
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New Ventures is defined as the home health and hospice agencies and substantially all of the senior living businesses of The Ensign Group, Inc., which will be transferred to The Pennant Group, Inc. in connection with the spin-off; |
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Occupancy is defined as the ratio of actual number of days our units are occupied during any measurement period to the number of units available for occupancy during such measurement period; |
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OIG is defined as the Office of the Inspector General; |
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Parent is defined as The Ensign Group, Inc.; |
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PDGM is defined as the Patient-Driven Groupings Model; |
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SEC is defined as the Securities and Exchange Commission; |
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SNF is defined as skilled nursing facility; and |
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Tax Act is defined as the Tax Cuts and Jobs Act of 2017. |
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This summary highlights information contained in this information statement and provides an overview of the Company, our spin-off from Ensign and the distribution of our common stock by Ensign to its stockholders. For a more complete understanding of our business and the spin-off, you should read this entire information statement carefully, particularly the sections titled Risk Factors and Unaudited Pro Forma Combined Financial Statements and the Audited Combined Financial Statements and Interim Financial Statements and the notes thereto included in this information statement.
Our Company
We are a leading provider of high quality healthcare services to the growing senior population in the United States. We strive to be the provider of choice in the communities we serve through our innovative operating model. We operate in multiple lines of business including home health, hospice and senior living across Arizona, California, Colorado, Idaho, Iowa, Nevada, Oklahoma, Oregon, Texas, Utah, Washington, Wisconsin and Wyoming.
We believe our key differentiators are (i) our innovative operating model focused on empowering and developing strong local leaders, (ii) our disciplined growth strategy, and (iii) our ability to achieve quality care outcomes in lower cost settings. In our experience, healthcare is a local endeavor, largely dependent upon personal and professional relationships, community reputation and an ability to adapt to the changing needs of patients, partners and communities. As our operational leaders build strong relationships with key partners in their local healthcare communities, they are empowered to make informed and critical operational decisions that produce quality care outcomes and more effectively meet the needs of our patients.
In our home health and hospice business, we believe we are able to achieve quality outcomesas measured by many industry and value-based metrics such as hospital readmission ratesin a lower cost setting. In our senior living business, we believe we are able to offer our residents a better quality of life experience at an affordable cost, thus appealing to a broader population. With our platform of diversified service offerings, we believe that we are well-positioned to take advantage of favorable demographic shifts as well as industry trends that reward providers offering quality care in lower cost settings.
As of June 30, 2019, we provided home health and hospice services through 62 agencies. Our home health services generally consist of providing some combination of clinical services including nursing, speech, occupational and physical therapy, medical social work and home health aide services. Home health is often a cost-effective solution for patients and can also increase their quality of life by allowing them to receive excellent clinical services in the comfort and convenience of a familiar setting. Using CMSs star rating criteria, our home health agencies achieved an average of 4 out of 5 stars across all agencies compared to the industry average of 3.5 stars. Our hospice services focus on the physical, spiritual and psychosocial needs of terminally ill patients and their families and consist primarily of clinical care, education and counseling. During the six months ended June 30, 2019 and the year ended December 31, 2018, we generated 67.9% and 68.6%, respectively, of our home health and hospice revenue from Medicare.
As of June 30, 2019, we provided senior living services at 51 communities with 3,872 total units in our assisted living, independent living and memory care business. Our senior living operations provide a variety of services based on residents needs including residential accommodations, activities, meals, housekeeping and assistance in the activities of daily living to seniors who are independent or who require some support, but not the level of clinical care provided in a skilled nursing facility. We generate revenue at these communities primarily from private pay and other sources, with a portion earned from Medicaid. During the six months ended June 30, 2019 and the year ended December 31, 2018, 78.7% and 79.8%, respectively, of our senior living revenue was derived from private pay sources.
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Payor Mix for the Six Months Ended June 30, 2019
Combined | Home Health and Hospice | Senior Living | ||
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Our Innovative Operating Model
Our innovative operating model is the foundation of our superior performance and success. Our operating model is founded on two core principles: (1) healthcare is a local business where providers are most successful when key operational decision-making meets local community needs and occurs close to patients and employees, and (2) peer accountability from operational and resource partners is more effective at driving excellent clinical and financial results than traditional hierarchical or top-down accountability structures.
Our model is innovative because each operation has been and will continue to be an independent operating subsidiary that functions under the direction of local clinical and operational leaders, each of whom are empowered to make decisions based on the unique needs of the patients, partners and communities they serve. This is in contrast to typical models where control and key decision-making is centralized at the corporate level. Moreover, we utilize a cluster model, where every operation is part of a defined cluster, which is a group of geographically proximate operations working together to allow leaders to communicate and provide support and accountability to each other. This creates incentives for leaders to share best practices and real-time data and benchmark clinical and financial performance against their cluster partners. We believe this locally-driven data-sharing and peer accountability model is unique amongst healthcare providers and has proven effective in improving clinical care, enhancing patient satisfaction and promoting operational efficiencies. This cluster operating model is the same model used by local leaders prior to the spin-off and will be key to the success of our future operations.
This organizational structure empowers our highly dedicated leaders and staff at the local level to make key decisions and creates a sense of ownership over operational and clinical results and the employee experience. Each leader and his or her staff are encouraged to make their operations the provider of choice in the community they serve. To accomplish this goal, leaders work closely with clinical staff and our expert resources to identify unique patient needs and priorities in a given community and create superior service offerings tailored to those needs. We believe that our localized approach to program development and patient care leads prospective patients and referral sources to choose or recommend our operations to others. Similarly, our emphasis on empowering local decision-makers encourages leaders to strive to become the employer of choice in the community they serve. One of our core values is the principle that the best patient care is provided by employees that experience significant work satisfaction because they are valued as individuals. Our leaders work hard to embody this core value and to attract, train and retain outstanding clinical staff by creating a work environment that fosters critical thinking, measurement, and relevance. Our local teams are motivated and empowered to quickly and proactively meet the needs of those they serve, without waiting for permission to act or being bound to a one-size-fits-all corporate strategy. In many markets, we attribute census growth and
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excellent clinical and financial outcomes to a healthy organizational culture built on these principles. With strong employee satisfaction across the organization, we believe we can continue to attract and retain the best talent in our industries.
Lastly, while our teams are local, they are also supported by cutting-edge systems and a Service Center staffed with teams of subject matter expert resources that advise on their respective fields of information technology, compliance, human resources, accounting, payroll, legal, risk management, education and other services. The partnership and peer accountability that exists between our local leaders and Service Center resources allows each operation to improve while benefiting from the technical expertise, systems and accountability of the Service Center.
Our Disciplined Growth Strategy
Much of our historical growth can be attributed to our expertise in acquiring strategic and underperforming operations and transforming them into market leaders in clinical quality, staff competency and financial performance. Our local leaders are trained to identify these opportunities for long-term organic growth as we strive to become the provider of choice in our local communities. Accordingly, we plan to continue to drive organic growth and acquire additional operations in existing and new markets in a disciplined manner.
From 2013 to 2018, we grew our home health and hospice services and senior living services revenue by 330.2%.
Revenue Growth Since 2013 (Dollars in Millions)
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Reflects the adoption of ASC 606, which includes a reduction to revenue of $1.8 million and $1.4 million for the year ended December 31, 2018 and the six months ended June 30, 2019, respectively. |
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From 2013 to June 30, 2019, we grew the number of our home health and hospice agencies and senior living units by 287.5% and 208.3%, respectively.
Agency and Unit Growth Since 2013
Home Health and Hospice Agencies | Senior Living Units | |
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Partner of Choice in Local Healthcare Communities
We view healthcare services primarily as a local business driven by personal relationships, reputation and the ability to identify and address unmet community needs. We believe our success is largely a result of our ability to build strong relationships within local healthcare communities based on a solid foundation of reliably superior care.
We believe we are a partner of choice to payors, providers, patients and employees in the healthcare communities we serve. As a partner, we focus on improving care outcomes and the quality of life of our patients in home or home-like settings. Our local leadership approach facilitates the development of strong professional relationships, allowing us to better understand and meet the needs of our partners. We believe our emphasis on working closely with other providers, payors and patients yields unique, customized solutions and programs that meet local market needs and improve clinical outcomes, which in turn accelerates revenue growth and profitability.
We are a trusted partner to, and work closely with, payors and other acute and post-acute providers to deliver innovative healthcare solutions in lower cost settings. In the markets we serve, we have developed formal and informal preferred provider relationships with key referral sources and transitional care programs that result in better coordination within the care continuum. These partnerships have resulted in significant benefits to payors, patients and other providers including reduced hospital readmission rates, appropriate transitions within the care continuum, overall cost savings, increased patient satisfaction and improved quality outcomes. Positive, repeated interactions and data-sharing result in strong local relationships and encourage referrals from our acute and post-acute care partners. As we continue to strengthen these formal and informal relationships and expand our referral base, we believe we will continue to drive revenue growth and operational results.
Industry Trends
The healthcare sector is one of the largest and fastest-growing sectors of the U.S. economy. According to the Centers for Medicare and Medicaid Services, national healthcare spending increased from 8.9% of U.S. gross
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domestic product (GDP), or $255 billion, in 1980 to an estimated 18% of GDP, or $3.6 trillion, in 2018. CMS projects national healthcare spending will grow by an average of 5.6% annually from 2018 through 2026, accounting for approximately 20% of U.S. GDP in 2026.
The home health, hospice and senior living segments are growing within the overall healthcare landscape in the United States. The home health market is estimated at approximately $90 billion and is growing at an estimated CAGR of 7%. The hospice industry is estimated at approximately $35 billion and is growing at an estimated CAGR of 5%. The senior living market is estimated at approximately $53 billion and growing at an estimated CAGR of 5%. We believe that the industries in which we operate will continue to benefit from several macroeconomic and regulatory trends highlighted below:
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Increased Demand Driven by Aging Populations. As seniors account for an increasing percentage of the total U.S. population, we believe the demand for home health and hospice and senior living services will continue to increase. According to the census projection released by the U.S. Census Bureau in early 2018, between 2010 and 2030, the number of individuals over 65 years old is projected to be one of the fastest growing segments of the United States population, growing from 13% to 21%. The Bureau expects this segment to increase nearly 90% to 73 million, as compared to the total U.S. population which is projected to increase by 17% over that time period. Furthermore, the generation currently retiring has accumulated less savings than in the past, creating demand for more affordable senior housing and in-home care options. As a high quality provider in lower cost settings, we believe we are well-positioned to benefit from this trend. |
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Shift of Patient Care to Lower Cost Alternatives. The growth of the senior population in the U.S. continues to increase healthcare costs, often faster than the available funding from government-sponsored healthcare programs. In response, government payors have adopted measures that encourage the treatment of patients in their homes and other cost-effective settings where the staffing requirements and associated costs are often significantly lower than the alternatives. With our emphasis on the home health, hospice and senior living industries, which are among the lowest cost settings within the post-acute care continuum, we expect this shift to continue to drive our growth. |
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Transition to Value-Based Payment Models. In response to rising healthcare spending, commercial, government and other payors are generally shifting away from fee-for-service payment models toward value-based models, including risk-based payment models that tie financial incentives to quality, efficiency and coordination of care. We believe that payors will continue to emphasize reimbursement models driven by value and that our clinical outcomes combined with our services in lower cost settings will be increasingly rewarded. Many of our home health agencies already receive value-based payments, and we are well-positioned to capitalize on this growth. |
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Significant Acquisition and Consolidation Opportunities. The home health, hospice and senior living industries are highly fragmented markets with thousands of small and regional providers and only a handful of large national players. There are over 12,300 Medicare-certified home health agencies, with the top ten largest operators accounting for about 21.0% of the market. There are approximately 4,200 hospice agencies in the U.S. with the top five largest operators accounting for about 14.0% of the total market share. As with the home health and hospice industries, there is significant fragmentation in the senior housing industry, with approximately 17,000 providers in the U.S. We believe that our strategy of acquiring strategic and underperforming operations in these highly fragmented markets will be an instrumental piece of our future growth. |
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Changing Regulatory Framework. Regulations and reimbursement change frequently in our industries. Our model is designed to successfully navigate these regulatory and reimbursement changes. For example, in January 2017, CMS announced its intent to significantly modify the home health conditions of participation. Prior to the effective date in January 2018, our resources and operators worked together with local teams to formulate systems, policies and procedures to meet the |
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new regulatory requirements at each operation, resulting in strong outcomes at our home health operations that have been surveyed. Similarly, CMS has proposed changes to the home health prospective payment system with the proposed implementation of the Patient-Driven Groupings Model (PDGM). This new reimbursement structure involves case mix calculation methodology refinements, changes to low utilization payment adjustment (LUPA) thresholds, the elimination of therapy thresholds, a change to the unit of payment from a 60-day episode to a 30-day episode, and phase out in 2020 and full elimination in 2021 of requests for anticipated payment (RAP). Just as we have navigated other major reimbursement and regulatory changes, we believe that our unique operating model will mitigate the negative impacts of PDGM as local operations and clinical leaders, supported by our expert resources, effectively adapt to the new reimbursement environment. |
Our Competitive Strengths
We believe that we are well-positioned to benefit from the ongoing changes within the home health, hospice and senior living industries. We believe that we will achieve clinical, financial and cultural success as a direct result of the following key competitive strengths:
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Innovative Operating Model. We believe healthcare services is primarily a local business. Our local leadership-centered operating model encourages our leaders to make key operational decisions that meet the individualized needs of their patients and community partners. Recognizing the local nature of our business, our leaders develop each operations reputation at the local level, rather than being bound by a traditional organization-wide branding strategy. In addition, our local leaders work closely with their cluster partners to share data and improve clinical and financial outcomes. Moreover, we do not maintain a traditional corporate headquarters, rather we operate a Service Center that accelerates operational results by developing world-class systems and by providing expertise in fields such as information technology, compliance, human resources, accounting, legal and education. This enables individual operations to function with the strength, synergies and economies of scale found in larger organizations without the disadvantages of a top-down management structure or corporate hierarchy. We believe this approach is unique within our industries and allows us to preserve the one-operation-at-a-time focus and culture that has contributed to our success. |
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Proven Track Record of Successful Acquisitions. We adhere to a disciplined acquisition strategy focused on sourcing and selectively acquiring operations within our target markets. Local leaders are heavily involved in the acquisition process and are recognized and rewarded as these acquired operations become the provider of choice in the communities they serve. Through our innovative operating model and disciplined approach to strategic growth, we have completed and successfully transitioned dozens of value-add operations. Our expertise in acquiring and transforming strategic and underperforming operations allows us to consider a broad range of potential acquisition targets and will be a key element of our future success. |
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Superior Clinical Outcomes and Quality Care. We will continue to achieve success by delivering high quality home health, hospice and senior living services. Our locally-driven, patient-centered approach to clinical care allows us to meet the unique needs of our patients, resulting in improved clinical outcomes including reduced hospital readmission rates. These improved outcomes are driven by both our talented local clinicians and our data-driven analytical approach to patient care and risk stratification. We believe that our achievement of high quality clinical outcomes positions us as a solution for patients and referral sources, leading to census growth and improved profitability. |
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Diversified Portfolio by Payor and Services. As of June 30, 2019, we operated 62 home health and hospice agencies and 51 senior living communities across 13 states. Because of this diversified portfolio, our blended payor mix was approximately 40.7% Medicare, 13.4% Medicaid, 8.6% managed care and 37.3% private pay for the six months ended June 30, 2019. Our balanced payor mix provides |
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greater business stability through economic cycles and mitigates volatility arising from government-driven reimbursement changes. For the six months ended June 30, 2019, we generated approximately 60.0% of our revenue from home health and hospice services and 40.0% of our revenue from senior living services. This diversified service portfolio allows us to opportunistically execute on our acquisition strategy as valuations fluctuate over industry cycles. |
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Proven Track Record of Talent Recruitment, Development and Retention. We have been successful in attracting, developing and retaining outstanding business and clinical leaders to lead our operating subsidiaries. Our unique operating model, which emphasizes local decision-making and team building, supported by our platform of expert resources and best-in-class systems, attracts a highly talented and entrepreneurial group of leaders. Our operational leaders are committed to ongoing training and participate in regular leadership development and educational programs. We believe that our commitment to professional development strengthens the quality of our operational leaders and staff and will continue to differentiate us from our competitors. |
Our Strategy
We believe that the following strategies are primarily responsible for our growth to date and will continue to drive the growth of our business:
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Grow Talent Base and Develop Future Leaders. Our growth strategy is focused on expanding our talent base and developing future leaders. A key component of our organizational culture is our belief that strong local leadership is a primary ingredient to operational success. We use a multi-faceted strategy to identify and recruit proven business leaders from various industries and backgrounds. To develop these leaders, we have a rigorous CEO-in-Training Program that includes significant in-person instruction on leadership, clinical and operational topics as well as extensive on-the-ground training and active learning with key leaders from across the organization. After placement in a local operation, our leaders continue to receive training and regular feedback and support from operational and resource peers as they seek to achieve great results. We believe our model of empowering local leaders and providing them a platform of support from expert resources and systems will continue to attract and retain highly talented and entrepreneurial leaders. |
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Focus on Organic Growth. We believe that we have a significant opportunity to drive organic growth within our current portfolio and recently acquired operations. As we improve clinical outcomes, quality of care and operational results at each of our existing and newly acquired operations, we become a provider of choice in the communities we serve, which leads to census growth. Through this census growth, and as we continue to expand our service offerings, we believe we will continue to translate revenue growth into bottom line success with rigorous adherence to our core operating principles. By effectively using data systems and analytics and embracing a culture of transparency and accountability, our local leaders have a track record of steadily improving operational results. We believe our unique operating model will continue to cultivate steady and consistent organic growth in the future. |
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Pursue Disciplined Acquisition Strategy. The disciplined acquisition and integration of strategic and underperforming operations is a key element of our past success and future growth. We have proven the ability to successfully transition both turnaround and stable acquisitions, transforming them into top-quality operations preferred by referral sources, thus creating a strong return on investment. We plan to continue to take advantage of the fragmented home health, hospice and senior living industries by acquiring strategic and underperforming operations within both our existing and new geographic markets. With experienced leaders in place at the local level and demonstrated success in significantly improving operating conditions at acquired businesses, we believe we are well positioned to continue successfully expanding our footprint. |
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Leverage Our Operational Capabilities to Expand Partnerships. We have a unique and proven operating model with a track record of becoming the provider of choice through deep local payor and provider relationships. Our local leadership approach enables us to adapt to and efficiently meet the needs of our partners in the communities we serve. Our clinical and data analytics capabilities foster solutions and allow us to optimize clinical outcomes. We use this data to communicate with key partners in an effort to reduce overall cost of care and drive improved clinical outcomes. We will continue to expand formal and informal partnerships throughout the healthcare continuum by strategically investing in programs and data analytics that help us and our partners improve care transitions, achieve better outcomes and reduce costs. |
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Strategically Invest In and Integrate Other Post-Acute Healthcare Businesses. Another important element to our growth strategy includes in-house development and acquisition of other post-acute care businesses that are adjacent to our existing service offerings. These businesses either directly or indirectly benefit our patients, help us collaborate more effectively with our partners, and allow us to compete more effectively in the rapidly-changing healthcare environment. Our leadership development programs facilitate these investments, and we have supported local leaders in exploring new business opportunities. We expect to continue to selectively incubate ancillary solutions in a disciplined manner that incentivizes our local leaders and bolsters the depth and breadth of services we offer within the post-acute care continuum. |
Implications of Being an Emerging Growth Company
As a company with less than $1.07 billion in revenue during our last fiscal year, we qualify as an emerging growth company as defined in the Jumpstart Our Business Startups Act of 2012 (the JOBS Act). We will continue to be an emerging growth company until the earliest to occur of:
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the last day of the fiscal year following the fifth anniversary of the distribution; |
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the last day of the fiscal year with at least $1.07 billion in annual revenues; |
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the last day of the fiscal year in which we are deemed to be a large accelerated filer, which means that we have been public for at least twelve months, have filed at least one annual report and the market value of our common stock that is held by non-affiliates exceeds $700 million as of the last day of our then-most recently completed second fiscal quarter; or |
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the date on which we have issued more than $1 billion of non-convertible debt during the prior three-year period. |
Until we cease to be an emerging growth company, we may take advantage of reduced reporting requirements generally unavailable to other public companies. Those provisions allow us to:
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provide reduced disclosure regarding our executive compensation arrangements pursuant to the rules applicable to smaller reporting companies, which means we do not have to include a compensation discussion and analysis and certain other disclosure regarding our executive compensation; |
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not provide an auditor attestation of our internal control over financial reporting as required under Section 404 of the Sarbanes-Oxley Act of 2002, as amended; and |
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not hold a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. |
We have elected to adopt the reduced disclosure requirements described above for purposes of the information statement. In addition, for so long as we qualify as an emerging growth company, we expect to take
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advantage of certain of the reduced reporting and other requirements of the JOBS Act with respect to the periodic reports we will file with the SEC and proxy statements that we use to solicit proxies from our stockholders. As a result of these elections, the information that we provide in this information statement may be different than the information you may receive from other public companies in which you hold equity interests. In addition, it is possible that some investors will find our common stock less attractive as a result of these elections, which may result in a less active trading market for our common stock and higher volatility in our stock price.
In addition, the JOBS Act permits an emerging growth company to take advantage of an extended transition period to comply with new or revised accounting standards applicable to public companies. We have elected to not take advantage of the extended transition period that allows an emerging growth company to delay the adoption of certain accounting standards until those standards would otherwise apply to private companies, which means that the financial statements included in this information statement, as well as financial statements we file in the future, will be subject to all new or revised accounting standards generally applicable to public companies. Our election not to take advantage of the extended transition period is irrevocable.
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Summary Risk Factors
Our business is subject to numerous risks described in the section entitled Risk Factors and elsewhere in this information statement. You should carefully consider these risks before making an investment. Some of these risks include, but are not limited to:
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Our revenue could be impacted by federal and state changes to reimbursement and other aspects of Medicaid and Medicare. |
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Reforms to the U.S. healthcare system could impose new requirements upon us and may lower our reimbursements. |
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Increased competition for, or a shortage of, nurses and other skilled personnel could increase our staffing and labor costs and subject us to monetary fines. |
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We are subject to extensive and complex federal and state government laws and regulations which could change at any time and increase our cost of doing business and subject us to enforcement actions. |
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We are subject to litigation that could result in significant legal costs and large settlement amounts or damage awards. |
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We may be unable to complete future acquisitions at attractive prices or at all, which may adversely affect our revenue; we may also elect to dispose of underperforming or non-strategic operating subsidiaries, which would also decrease our revenue. |
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We face significant competition from other healthcare providers and may not be successful in attracting patients and residents to our affiliated operations. |
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If we do not achieve and maintain competitive quality of care or if the frequency of CMS surveys and enforcement sanctions increases, our business may be negatively affected. |
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If we are unable to obtain insurance, or if insurance becomes more costly for us to obtain, our business may be adversely affected. |
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Our systems are subject to security breaches and other cyber-security incidents. |
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We may be unable to achieve some or all of the benefits that we expect to achieve from our spin-off from Ensign. |
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We may have received better terms from unaffiliated third parties than the terms we received in our agreements with Ensign entered into in connection with the spin-off. |
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Our success will depend in part on our ongoing relationship with Ensign after the spin-off. |
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If the distribution, together with certain related transactions, were to fail to qualify as a reorganization for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Code, then our stockholders, we and Ensign might be required to pay substantial U.S. federal income taxes (including as a result of indemnification under the tax matters agreement). |
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We may not be able to engage in desirable strategic transactions and equity issuances following the spin-off because of certain restrictions related to preserving the tax-free treatment of the spin-off. In addition, we could be liable for adverse tax consequences resulting from engaging in significant strategic or capital-raising transactions. |
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There is no existing market for our common stock, and a trading market that will provide you with adequate liquidity may not develop for our common stock, which could limit your ability to sell your shares of our common stock at an attractive price, or at all. |
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We are an emerging growth company under the JOBS Act, and any decision on our part to comply with certain reduced reporting and disclosure requirements applicable to emerging growth companies could make our common stock less attractive to investors. |
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Our stock price may be volatile or may decline regardless of our operating performance, and you may not be able to sell your shares at an attractive price or at all. |
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Your percentage ownership in Pennant may be diluted in the future because of equity awards that we expect will be issued to our directors, and officers and employees of our subsidiaries and the accelerated vesting of certain equity awards with respect to our common stock. |
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Anti-takeover provisions in our organizational documents and Delaware law might discourage or delay acquisition attempts for us that you might consider favorable. |
These and other risks relating to our business, our industry, the spin-off and our common stock are discussed in greater detail under the heading Risk Factors in this information statement. You should read and consider all of these risks carefully.
Company Information
The Pennant Group, Inc. was incorporated in Delaware on January 24, 2019. Our principal executive offices are at 1675 East Riverside Drive, Suite 150, Eagle, Idaho 83616, and our telephone number is (208) 506-6100. Our website is www.pennantgroup.com. The information and other content contained in, or accessible through, our website are not part of, and is not incorporated into, this information statement, and investors should not rely on any such information in deciding whether to invest in our common stock.
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The Spin-Off
The following provides only a summary of the terms of the spin-off. For a more detailed description of the matters described below, see The Spin-Off.
Overview
On May 6, 2019, Ensign announced its intention to implement the spin-off of Pennant from Ensign, following which The Pennant Group, Inc. will be an independent, publicly-traded company, and Ensign will have no continuing stock ownership interest in Pennant.
Before our spin-off from Ensign, we will enter into a master separation agreement and several other agreements with Ensign related to the spin-off. These agreements, including an employee matters agreement, a tax matters agreement, a transition services agreement and the Ensign Leases, will govern the relationship between us and Ensign after completion of the spin-off and provide for the allocation between us and Ensign of various assets, liabilities, rights and obligations. In addition, subsidiaries of Ensign and Pennant may opt into a voluntary joint post-acute care preferred provider network called the Ensign Pennant Care Continuum, which will allow participants to collaborate together to enhance voluntary transitions between clinical care settings. See Certain Relationships and Related Party Transactions.
The distribution is subject to the satisfaction or waiver of certain conditions. In addition, until the distribution has occurred, the board of directors of The Ensign Group, Inc. (the Ensign board of directors) has the right to not proceed with the distribution, even if all of the conditions are satisfied. See The Spin-OffConditions to the Distribution.
Financing Transactions
We expect to put in place a capital structure that provides us with the flexibility to grow and a cost of debt capital that allows us to compete for investment opportunities. Subject to market conditions, we expect to enter into a credit agreement (the Credit Agreement), which is expected to provide for a revolving credit facility with a syndicate of banks with a borrowing capacity of $75.0 million (the Revolving Credit Facility). We anticipate the interest rates applicable to loans under the Revolving Credit Facility to be, at the Companys election, either LIBOR (Adjusted LIBOR as defined in the Credit Agreement) plus a margin ranging from 2.5% to 3.5% per annum or Base Rate plus a margin ranging from 1.5% to 2.5% per annum, in each case based on the ratio of Consolidated Total Net Debt to Consolidated EBITDA (each, as defined in the Credit Agreement). In addition, we expect that we will pay a commitment fee on the undrawn portion of the commitments under the Revolving Credit Facility that is estimated to be 0.6% per annum.
We anticipate that the Revolving Credit Facility will not be subject to interim amortization. We expect that the Company will not be required to repay any loans under the Revolving Credit Facility prior to maturity. We expect that the Company will be permitted to prepay all or any portion of the loans under the Revolving Credit Facility prior to maturity without premium or penalty, subject to reimbursement of any LIBOR breakage costs of the lenders. This information is based on our current negotiations with the lead banks in an anticipated syndicate.
As a result of the financing transaction, we expect to have outstanding indebtedness of approximately $30.0 million. The amount reflects proceeds from issuance of indebtedness under the Revolving Credit Facility, including approximately $1.2 million in estimated financing cost. The foregoing summarizes some of the currently expected terms of the Revolving Credit Facility. However, the foregoing summary does not purport to be complete, and the terms of the Revolving Credit Facility have not yet been finalized. There may be changes to the expected size and other terms of the Revolving Credit Facility, some of which may be material.
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We expect that we will use approximately $25.0 million of the proceeds from the financing transaction to pay transaction fees and to pay a dividend to Ensign in connection with the contribution of assets to us by Ensign prior to the spin-off. We expect to retain approximately $5.0 million in cash for working capital, acquisitions and other general purposes. We expect that Ensign would use the funds received from us to repay certain outstanding third-party bank debt and other indebtedness and/or pay dividends to Ensigns stockholders. After the spin-off, we expect that we will use borrowings under the Revolving Credit Facility for working capital purposes, to fund acquisitions and for other general purposes. See The Spin-OffFinancing Transactions and Description of Certain Indebtedness.
Questions and Answers About the Spin-Off
The following provides only a summary of the terms of the spin-off. For a more detailed description of the matters described below, see The Spin-Off.
Q: What is the spin-off?
A: The spin-off is the method by which we will separate from Ensign. In the spin-off, The Ensign Group, Inc. will distribute to Ensign stockholders substantially all of the outstanding shares of Pennant common stock. We refer to this as the distribution. Following the spin-off, The Pennant Group, Inc. will be an independent, publicly-traded company, and Ensign will not retain any ownership interest in Pennant.
Q: What will I receive in the spin-off?
A: As a holder of Ensign common stock, you will retain your shares of Ensign common stock and will receive one share of Pennant common stock for every two shares of Ensign common stock you own as of the record date. The number of shares of Ensign common stock you own and your proportionate interest in Ensign will not change as a result of the spin-off. You will receive only whole shares of Pennant common stock in the distribution, as well as cash payment in lieu of any fractional shares. See The Spin-Off.
Q: What is The Pennant Group, Inc.?
A: After the spin-off is completed, The Pennant Group, Inc. will be a new independent, publicly-traded holding company of Ensigns home health and hospice agencies and substantially all of Ensigns senior living businesses. The Pennant Group, Inc. is currently a wholly owned subsidiary of The Ensign Group, Inc.
Q: Why is the separation of Pennant from Ensign structured as a spin-off?
A: Ensign determined, and continues to believe, that a spin-off that is generally tax-free to Ensign and Ensign stockholders for U.S. federal income tax purposes will enhance the long-term value of both Ensign and Pennant. Further, Ensign believes that a spin-off offers the most efficient way to accomplish a separation of its home health and hospice agencies and substantially all of its senior living businesses, a higher degree of certainty of completion in a timely manner and a lower risk of disruption to current business operations. See The Spin-OffReasons for the Spin-Off.
Q: What are the conditions to the distribution?
A: The distribution is subject to the satisfaction, or waiver by the Ensign board of directors, of the following conditions:
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the final approval of the distribution by the Ensign board of directors, which approval may be given or withheld in its absolute and sole discretion; |
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our Registration Statement on Form 10, of which this information statement forms a part, shall have been declared effective by the SEC, with no stop order in effect with respect thereto, and a notice of internet availability of this information statement shall have been mailed to Ensign stockholders; |
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the mailing by Ensign of this information statement (or notice of internet availability thereof) to record holders of Ensign common stock as of the record date; |
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Pennant common stock shall have been approved for listing on NASDAQ, subject to official notice of distribution; |
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Ensign shall have obtained an opinion from Kirkland & Ellis LLP, Ensigns tax counsel, in form and substance satisfactory to Ensign, to the effect that, subject to the assumptions and limitations described therein, the distribution of Pennant common stock and certain related transactions will qualify as a reorganization under Sections 368(a)(1)(D) and 355 of the Code, in which no gain or loss is recognized by The Ensign Group, Inc. or its stockholders, except, in the case of Ensign stockholders, for cash received in lieu of fractional shares; |
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any required material governmental approvals and other consents necessary to consummate the distribution or any portion thereof shall have been obtained and be in full force and effect; |
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the absence of any events or developments having occurred prior to the spin-off that, in the judgment of the Ensign board of directors, would result in the spin-off having a material adverse effect on Ensign or its stockholders; |
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the adoption by Pennant of its amended and restated certificate of incorporation and amended and restated bylaws filed by Pennant with the SEC as exhibits to the Registration Statement on Form 10, of which this information statement forms a part; |
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no order, injunction or decree issued by any governmental entity of competent jurisdiction or other legal restraint or prohibition preventing the consummation of all or any portion of the distribution shall be in effect, and no other event shall have occurred or failed to occur that prevents the consummation of all or any portion of the distribution; |
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the internal reorganization shall have been completed, except for such steps as Ensign in its sole discretion shall have determined may be completed after the distribution date; |
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each of the master separation agreement, the tax matters agreement, the employee matters agreement, the transition services agreement, the Ensign Leases and the other ancillary agreements shall have been executed and delivered by each party thereto and be in full force and effect; |
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Ensign shall have completed its own financing transactions, including amending and restating its existing credit facility, to be effective on or prior to the distribution date; and |
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the financing transaction described herein shall have been completed on or prior to the distribution date. |
See The Spin-OffConditions to the Distribution.
Q: Can Ensign decide to not proceed with the distribution even if all of the conditions to the distribution have been met?
A: Yes. Until the distribution has occurred, the Ensign board of directors has the right to not proceed with the distribution, even if all of the conditions are satisfied.
Q: What is being distributed in the spin-off?
A: Based on information available as of the date of this information statement, we estimate that approximately 28.0 million shares of our common stock will be outstanding immediately after the spin-off, based
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on the number of shares of Ensign common stock that we expect will be outstanding as of the record date, the distribution ratio and the anticipated exchange of equity awards in Ensigns majority-owned subsidiary, Cornerstone Healthcare, Inc. (Cornerstone) for Pennant equity awards in anticipation of the distribution. The shares of Pennant common stock distributed by The Ensign Group, Inc. will constitute substantially all of the issued and outstanding shares of Pennant common stock immediately prior to the distribution. Pennant is also anticipating that Cornerstone equity awards granted to certain individuals will be exchanged for Pennant common stock immediately prior to the distribution. See Description of Capital StockCommon Stock.
Q: When is the record date for the distribution?
A: The record date will be the close of business of NASDAQ on September 20, 2019.
Q: When will the distribution occur?
A: The distribution date of the spin-off is October 1, 2019. We expect that it will take the distribution agent, acting on behalf of Ensign, up to two weeks after the distribution date to fully distribute the shares of Pennant common stock to Ensign stockholders.
Q: What do I have to do to participate in the spin-off?
A: Nothing. You are not required to take any action, although we urge you to read this entire information statement carefully. No stockholder approval of the distribution is required or sought. You are not being asked for a proxy and Ensign requests that you do not send Ensign a proxy. No action is required on your part to receive your shares of Pennant common stock. You will neither be required to pay anything for the new shares nor be required to surrender any shares of Ensign common stock to participate in the spin-off.
Q: Do I have appraisal rights in connection with the spin-off?
A: No. Holders of Ensign common stock are not entitled to appraisal rights in connection with the spin-off.
Q: How will fractional shares be treated in the spin-off?
A: Fractional shares of Pennant common stock will not be distributed. Fractional shares of Pennant common stock to which Ensign stockholders of record would otherwise be entitled will be aggregated and sold in the public market by the distribution agent at prevailing market prices. The distribution agent, in its sole discretion, will determine when, how, at what prices to sell these shares and through which broker-dealers, provided that such broker-dealers are not affiliates of Ensign or Pennant. The aggregate net cash proceeds of the sales will be distributed ratably to those stockholders who would otherwise have received fractional shares of Pennant common stock. See The Spin-OffTreatment of Fractional Shares for a more detailed explanation. Receipt by a stockholder of proceeds from these sales in lieu of a fractional share generally will result in a taxable gain or loss to those stockholders for U.S. federal income tax purposes. Each stockholder entitled to receive cash proceeds from these shares should consult his, her or its own tax advisor as to such stockholders particular circumstances. We describe the material U.S. federal income tax consequences of the distribution in more detail under The Spin-OffMaterial U.S. Federal Income Tax Consequences of the Spin-Off.
Q: Why has Ensign determined to undertake the spin-off?
A: The Ensign board of directors has determined that the spin-off is in the best interests of Ensign, Ensign stockholders and other constituents because the spin-off will provide a number of benefits, including:
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(1) amplification of the results of Ensigns unique operating model in the home health, hospice and senior living industries; (2) creation of additional opportunities for key leaders within Pennant and Ensign; (3) enhanced ability to continue both companies growth strategy; (4) increased ability to raise funds through capital market offerings; (5) improved opportunities for partnership outside of Ensign; (6) highlight Pennants uniquely diversified payor mix; (7) equity compensation awards more closely tied to value created by our leaders and employees; and (8) improved investor understanding about our businesses. For a more detailed discussion of the reasons for the spin-off, see The Spin-OffReasons for the Spin-Off.
Q: What are the U.S. federal income tax consequences of the spin-off?
A: The spin-off is conditioned on the receipt of an opinion of Kirkland & Ellis LLP to the effect that, subject to the assumptions and limitations described therein, the distribution and certain related transactions will be treated as a reorganization for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Code in which no gain or loss is recognized by The Ensign Group, Inc. or its stockholders, except, in the case of Ensign stockholders, for cash received in lieu of fractional shares. Although Ensign has no current intention to do so, such condition is solely for the benefit of Ensign and Ensign stockholders and may be waived by Ensign in its sole discretion. The material U.S. federal income tax consequences of the distribution are described in more detail under The Spin-OffMaterial U.S. Federal Income Tax Consequences of the Spin-Off.
Q: Will Pennant common stock be listed on a stock exchange?
A: Yes. Although there is not currently a public market for Pennant common stock, before completion of the spin-off, Pennant will apply to list its common stock on NASDAQ under the symbol PNTG. We anticipate that a limited market, commonly known as a when-issued trading market, will develop shortly before the record date, and that regular-way trading in shares of Pennant common stock will begin on the first trading day following the distribution date. If trading begins on a when-issued basis, you may purchase or sell Pennant common stock up to and including the distribution date, in which case your transaction will settle within two trading days after regular-way trading commences following the distribution. If you sell your Ensign common stock in the regular-way market before the distribution date, you also will be selling your right to receive shares of Pennant common stock in connection with the spin-off. However, if you sell your Ensign common stock in the ex-distribution market before the distribution date, you will still receive shares of Pennant common stock in the spin-off. We cannot predict the trading prices of Pennant common stock before, on or after the distribution date. See Trading Market.
Q: Will my shares of Ensign common stock continue to trade?
A: Yes. Ensign common stock is expected to continue to be listed on NASDAQ under its symbol, ENSG.
Q: If I sell, on or before the distribution date, shares of Ensign common stock that I held as of the record date, am I still entitled to receive shares of Pennant common stock distributable with respect to the shares of Ensign common stock I sold?
A: Beginning on or shortly before the record date and continuing through the distribution date for the spin-off, it is expected that there will be two markets in Ensign common stock: a regular-way market and an ex-distribution market. If you hold shares of Ensign common stock as of the record date for the distribution and choose to sell those shares in the regular-way market after the record date for the distribution and on or before the distribution date, you will also be selling the right to receive the shares of Pennant common stock in connection with the spin-off. However, if you hold shares of Ensign common stock as of the record date for the distribution and choose to sell those shares in the ex-distribution market after the record date for the distribution and on or before the distribution date, you will still receive the shares of Pennant common stock in the spin-off.
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Q: Will the spin-off affect the trading price of my Ensign common stock?
A: Yes. The trading price of shares of Ensign common stock immediately following the distribution is expected to be lower than immediately prior to the distribution because its trading price will no longer reflect the value of Pennants home health, hospice and senior living businesses. However, we cannot predict the price at which the shares of Ensign common stock will trade following the spin-off.
Q: What financing transactions will be undertaken in connection with the spin-off?
A: We expect to put in place a capital structure that provides us with the flexibility to grow and a cost of debt capital that allows us to compete for investment opportunities. Subject to market conditions, we expect to enter into the Revolving Credit Facility with a syndicate of banks with a borrowing capacity of $75.0 million. We anticipate the interest rates applicable to loans under the revolving credit facility to be, at the Companys election, either LIBOR plus a margin ranging from 2.5% to 3.5% per annum or Base Rate plus a margin ranging from 1.5% to 2.5% per annum, in each case based on the ratio of Consolidated Total Net Debt to Consolidated EBITDA (each, as defined in the Credit Agreement). In addition, we expect that we will pay a commitment fee on the undrawn portion of the commitments under the Revolving Credit Facility that is estimated to be 0.6% per annum.
We anticipate that the Revolving Credit Facility will not be subject to interim amortization. We expect that the Company will not be required to repay any loans under the Revolving Credit Facility prior to maturity. We expect that the Company will be permitted to prepay all or any portion of the loans under the Revolving Credit Facility prior to maturity without premium or penalty, subject to reimbursement of any LIBOR breakage costs of the lenders. This information is based on our current negotiations with the lead banks in an anticipated syndicate.
As a result of the financing transaction, we expect to have outstanding indebtedness of approximately $30.0 million. The amount reflects proceeds from issuance of indebtedness under the Revolving Credit Facility, including approximately $1.2 million in estimated financing cost. The foregoing summarizes some of the currently expected terms of the Revolving Credit Facility. However, the foregoing summary does not purport to be complete, and the terms of the Revolving Credit Facility have not yet been finalized. There may be changes to the expected size and other terms of the Revolving Credit Facility, some of which may be material.
We expect that we will use approximately $25.0 million of the proceeds from the financing transaction to pay transaction fees and to pay a dividend to Ensign in connection with the contribution of assets to us by Ensign prior to the spin-off. We expect to retain approximately $5.0 million in cash for working capital, acquisitions and other general purposes. We expect that Ensign would use the funds received from us to repay certain outstanding third-party bank debt and other indebtedness and/or pay dividends to Ensigns stockholders. After the spin-off, we expect that we will use borrowings under the Revolving Credit Facility for working capital purposes, to fund acquisitions and for other general purposes. See The Spin-OffFinancing Transactions and Description of Certain Indebtedness.
Q: Who will form the senior management team and board of directors of The Pennant Group, Inc. after the spin-off?
A: The executive officers and members of the board of directors of The Pennant Group, Inc. (our board of directors) following the spin-off will include: Daniel H Walker, our Chairman, Chief Executive Officer and President; Christopher R. Christensen, director; John G. Nackel, Ph.D, director; Stephen M. R. Covey, director; JoAnne Stringfield, director; Scott E. Lamb, director, Roderic W. Lewis, director; Jennifer L. Freeman, Chief Financial Officer; John J. Gochnour, Chief Operating Officer; and Derek J. Bunker, Chief Investment Officer, Executive Vice President & Secretary. See Management for information on our executive officers and board of directors.
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Q: What will the relationship be between Ensign and Pennant after the spin-off?
A: Following the spin-off, The Pennant Group, Inc. will be an independent, publicly-traded company, and Ensign will have no continuing stock ownership interest in Pennant. We will have entered into a master separation agreement and several other agreements with Ensign related to the spin-off. These agreements, including an employee matters agreement, a tax matters agreement, a transition services agreement and the Ensign Leases, will govern the relationship between us and Ensign after completion of the spin-off and provide for the allocation between us and Ensign of various assets, liabilities, rights and obligations. In addition, subsidiaries of Ensign and Pennant may opt into a voluntary joint post-acute care preferred provider network called the Ensign Pennant Care Continuum, which will establish methodologies and protections for operational data sharing and guiding principles for the mutually beneficial collaboration on acquisition, and ancillary business opportunities. See Certain Relationships and Related Party Transactions.
Q: What will Pennants dividend policy be after the spin-off?
A: We do not intend to pay dividends on our common stock for the foreseeable future. Instead, we anticipate that all of our future earnings will be retained to support our operations and to finance the growth and development of our business. Any decision to declare and pay dividends will be made at the sole discretion of our board of directors and will depend on a number of factors, including: our historic and projected financial condition, liquidity and results of operations; our capital levels and needs; tax considerations; any acquisitions or potential acquisitions that we may consider; statutory and regulatory prohibitions and other limitations; the terms of any credit agreements or other borrowing arrangements that restrict our ability to pay cash dividends; general economic conditions; and other factors deemed relevant by our board of directors. See Dividend Policy.
Q: What will happen to equity awards in connection with the spin-off?
A: The board of directors of Ensign has determined that outstanding equity awards of Ensign and Cornerstone will be treated in a manner as set forth below, in connection with the spin-off. Generally, for each holder of outstanding Ensign and Cornerstone equity awards as of immediately prior to the spin-off, Ensigns intent is that the economic value and substantive terms and conditions associated with such awards shall effectively be maintained and continued as of immediately following the spin-off.
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The following table provides additional information regarding each type of Ensign equity award held by employees who will remain as an employee of a subsidiary of Ensign or Pennant following the distribution date after giving effect to the spin-off:
Type of Award | Treatment in Connection with the Spin-Off | |
Restricted Stock Awards |
Awards of restricted stock held by employees of subsidiaries of Ensign or Pennant will be treated in the same manner as other shares of Ensign common stock regardless of the employer following the spin-off and remain subject to the same vesting schedule, if any. |
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Stock Options |
Employees of Ensign subsidiaries shall continue to hold Ensign stock options, but the number of options covered by such awards and exercise prices associated with such awards will be adjusted to maintain economic value.
Ensign stock options held by employees of Pennant subsidiaries will be converted into Pennant stock options but the number of options covered by such awards and exercise prices associated with such awards will be adjusted to maintain economic value. |
The following table provides additional information regarding each type of Cornerstone equity award after giving effect to the spin-off and the reverse merger between Cornerstone and a subsidiary of Pennant, whereby Cornerstone shall be the surviving entity and a direct subsidiary of Pennant:
Type of Award | Treatment in Connection with the Spin-Off | |
Restricted Stock Awards |
Cornerstone restricted stock will be converted into restricted stock of Pennant pursuant to the 2016 Cornerstone Omnibus Incentive Plan (the Subsidiary Equity Plan), with the number of shares covered by such awards adjusted to maintain economic value. |
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Stock Options |
Cornerstone stock options will be converted into Pennant stock options pursuant to the Subsidiary Equity Plan, with the number of shares covered by such awards and exercise prices associated with such awards adjusted to maintain economic value. |
Q: What are the anti-takeover effects of the spin-off?
A: Some provisions of Delaware law, certain of our agreements with Ensign, and our amended and restated certificate of incorporation and our amended and restated bylaws (as each will be in effect immediately following the spin-off) may have the effect of making it more difficult to acquire control of Pennant in a transaction not approved by our board of directors. For example, our amended and restated certificate of incorporation and amended and restated bylaws will, among other things, require advance notice for stockholder proposals and nominations, place limitations on convening stockholder meetings, authorize our board of directors to issue one or more series of preferred stock and provide for the classification of our board of directors. In addition, Ensign and Pennant may mutually agree to enter into certain restrictive covenants restricting certain activities of each for a period of time following the spin-off. Further, under the tax matters agreement, Pennant will agree, subject to certain terms, conditions and exceptions, not to enter into certain transactions for a period of two years following the distribution date involving an acquisition of Pennant common stock or certain other transactions that could cause the distribution to be taxable to Ensign. The parties will agree to indemnify each other for any tax resulting from any transaction to the extent a partys actions caused such tax liability, regardless of whether the indemnified party consented to such transaction or the indemnifying party was otherwise permitted to enter into such transaction under the tax matters agreement, and for all or a portion of any tax liabilities resulting from the distribution under certain other circumstances. Generally, Ensign will recognize a taxable gain on the distribution
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if there are (or have been) one or more direct or indirect acquisitions (including issuances) of Pennant capital stock representing 50% or more of Pennant common stock, measured by vote or value, and the acquisitions are deemed to be part of a plan or series of related transactions that include the distribution. Any such acquisition of Pennant common stock within two years before or after the day of the distribution (with exceptions, including public trading by less-than-5% stockholders and certain compensatory stock issuances) generally will be presumed to be part of such a plan unless that presumption is rebutted. As a result, these obligations may discourage, delay or prevent a change of control of Pennant. See Description of Capital StockAnti-Takeover Effects of Our Amended and Restated Certificate of Incorporation, Amended and Restated Bylaws and Delaware Law and The Spin-OffTreatment of the Spin-Off for more information.
Q: What are the risks associated with the spin-off?
A: There are a number of risks associated with the spin-off and ownership of Pennant common stock. These risks are discussed under Risk Factors.
Q: Who will be the distribution agent, transfer agent and registrar for Pennant common stock?
A: The distribution agent, transfer agent and registrar for Pennant common stock will be Broadridge Corporate Issuer Solutions, Inc. (Broadridge). For questions relating to the transfer or mechanics of the stock distribution, you should contact Broadridge toll-free at (877) 830-4936.
Q: Where can I get more information?
A: If you have any questions relating to the mechanics of the distribution, you should contact the distribution agent at:
Broadridge Corporate Issuer Solutions, Inc.
P.O. Box 1342
Brentwood, NY 11717
Toll-Free Number: (877) 830-4936
Toll Number: (720) 378-5591
Before the spin-off, if you have any questions relating to the spin-off, you should contact Ensign at:
The Ensign Group, Inc.
Investor/Media Relations
29222 Rancho Viejo Road, Suite 127
San Juan Capistrano, CA 92675
Phone: (949) 487-9500
Email: ir@ensigngroup.net
http://investor.ensigngroup.net/investor-relations
After the spin-off, if you have any questions relating to Pennant, you should contact Pennant at:
The Pennant Group, Inc.
Investor/Media Relations
1675 East Riverside Drive, Suite 150
Eagle, Idaho 83616
Phone: (208) 506-6100
Email: ir@pennantgroup.com
http://investor.pennantgroup.com/investor-relations
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Summary of the Spin-Off
Distributing Company |
The Ensign Group, Inc., a Delaware corporation. After the distribution, Ensign will not own any shares of Pennant common stock. |
Distributed Company |
The Pennant Group, Inc., a Delaware corporation and, prior to the spin-off, a wholly owned subsidiary of The Ensign Group, Inc. After the spin-off, The Pennant Group, Inc. will be an independent, publicly-traded company. |
Distributed Securities |
All of the outstanding shares of Pennant common stock owned by The Ensign Group, Inc., which will be substantially all of the Pennant common stock issued and outstanding immediately prior to the distribution. |
Record Date |
The record date for the distribution is September 20, 2019. |
Distribution Date |
The distribution date is October 1, 2019. |
Internal Reorganization |
As part of the spin-off, Ensign will undergo an internal reorganization, pursuant to which, among other things: (i) the assets and liabilities associated with Ensigns home health and hospice agencies and substantially all of its senior living businesses will be transferred to Pennant; and (ii) all other assets and liabilities of Ensign will be retained by Ensign. The senior living communities that will become part of Pennant consist primarily of those that are geographically and operationally strategic to its home health and hospice operations. The operational synergies and resource infrastructure support available in each market will better position each individual operation to best benefit the local healthcare community by providing consistent quality care, resulting in an overall better patient experience across the continuum of care. See The Spin-OffManner of Effecting the Spin-Off-Internal Reorganization. |
After completion of the spin-off: |
The Pennant Group, Inc. will be an independent, publicly-traded company (NASDAQ:PNTG), and through its subsidiaries will own Ensigns home health and hospice agencies and substantially all of Ensigns senior living businesses; and |
The Ensign Group, Inc. will continue to be an independent, publicly-traded company (NASDAQ:ENSG) and will include transitional and skilled services, rehabilitative care services, healthcare campuses, post-acute-related new business ventures and real estate investments. |
Distribution Ratio |
Each holder of Ensign common stock will receive one share of Pennant common stock for every two shares of Ensign common stock held at the close of business on September 20, 2019. |
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Immediately following the spin-off, The Pennant Group, Inc. expects to have approximately 300 record holders of shares of its common stock and approximately 28.0 million shares of common stock outstanding, based on the number of stockholders and shares of Ensign common stock that we expect will be outstanding as of the record date, the distribution ratio and the anticipated exchange of Cornerstone equity awards for Pennant equity awards in anticipation of the distribution. The estimation of the number of shares of common stock outstanding following the spin-off incorporates the currently available valuations and assumptions which may vary from the actual number. The actual number of shares to be distributed will be determined as of the record date and will reflect any repurchases of shares of Ensign common stock and issuances of shares of Ensign common stock in respect of awards under The Ensign Group, Inc. equity-based incentive plans between the date the Ensign board of directors declares the dividend for the distribution and the record date for the distribution. |
In connection with the internal reorganization, we expect individuals holding Cornerstone equity awards, including the Named Executive Officers, will receive equity awards of The Pennant Group, Inc., in exchange for their Cornerstone equity awards. |
The Distribution |
On the distribution date, The Ensign Group, Inc. will release the shares of Pennant common stock to the distribution agent to distribute to Ensign stockholders. The distribution of shares will be made in book-entry form only, meaning that no physical share certificates will be issued. It is expected that it will take the distribution agent up to two weeks to issue shares of Pennant common stock to you or to your bank or brokerage firm electronically on your behalf by way of direct registration in book-entry form. Trading of our shares will not be affected during that time. You will not be required to make any payment, surrender or exchange your shares of Ensign common stock or take any other action to receive your shares of Pennant common stock. |
Fractional Shares |
The distribution agent will not distribute any fractional shares of Pennant common stock to Ensign stockholders. Fractional shares of Pennant common stock to which Ensign stockholders of record would otherwise be entitled will be aggregated and sold in the public market by the distribution agent. The aggregate net cash proceeds of the sales will be distributed ratably to those stockholders who would otherwise have received fractional shares of Pennant common stock. Receipt of the proceeds from these sales generally will result in a taxable gain or loss to those stockholders for U.S. federal income tax purposes. In addition, each Cornerstone stockholder who exchanges Cornerstone equity for interests in Pennant will also generally recognize taxable income to the extent of cash received in lieu of fractional shares. Each stockholder entitled to receive cash proceeds from these shares should consult his, her or its own tax advisor as to such stockholders particular circumstances. The material U.S. federal income tax consequences of the distribution are described in more detail under |
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The Spin-OffMaterial U.S. Federal Income Tax Consequences of the Spin-Off. |
Conditions to the Distribution |
The distribution is subject to the satisfaction, or waiver by The Ensign Group, Inc., of the following conditions: |
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the final approval of the distribution by the Ensign board of directors, which approval may be given or withheld in its absolute and sole discretion; |
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our Registration Statement on Form 10, of which this information statement forms a part, shall have been declared effective by the SEC, with no stop order in effect with respect thereto, and a notice of internet availability of this information statement shall have been mailed to Ensign stockholders; |
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the mailing by Ensign of this information statement (or notice of internet availability thereof) to record holders of Ensign common stock as of the record date; |
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Pennant common stock shall have been approved for listing on NASDAQ, subject to official notice of distribution; |
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Ensign shall have obtained an opinion from Kirkland & Ellis LLP, in form and substance satisfactory to Ensign, to the effect that, subject to the assumptions and limitations described therein, the distribution of Pennant common stock and certain related transactions will qualify as a reorganization under Sections 368(a)(1)(D) and 355 of the Code, in which no gain or loss is recognized by The Ensign Group, Inc. or its stockholders, except, in the case of Ensign stockholders, for cash received in lieu of fractional shares; |
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any required material governmental approvals and other consents necessary to consummate the distribution or any portion thereof shall have been obtained and be in full force and effect; |
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the absence of any events or developments having occurred prior to the spin-off that, in the judgment of the Ensign board of directors, would result in the spin-off having a material adverse effect on Ensign or its stockholders; |
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the adoption by Pennant of its amended and restated certificate of incorporation and amended and restated bylaws filed by Pennant with the SEC as exhibits to the Registration Statement on Form 10, of which this information statement forms a part; |
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no order, injunction or decree issued by any governmental entity of competent jurisdiction or other legal restraint or prohibition preventing the consummation of all or any portion of the distribution shall be in effect, and no other event shall have occurred or failed to occur that prevents the consummation of all or any portion of the distribution; |
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the internal reorganization shall have been completed, except for such steps as Ensign in its sole discretion shall have determined may be completed after the distribution date; |
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each of the master separation agreement, the tax matters agreement, the employee matters agreement, the transition services agreement, the Ensign Leases and the other ancillary agreements shall have been executed and delivered by each party thereto and be in full force and effect; |
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Ensign shall have completed its own financing transactions, including amending and restating its existing credit facility, to be effective on or prior to the distribution date; and |
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the financing transaction described herein shall have been completed on or prior to the distribution date. |
We are not aware of any material federal, foreign or state regulatory requirements that must be complied with or any material approvals that must be obtained, other than compliance with SEC and OIG rules and regulations, approval for listing on NASDAQ and the declaration of effectiveness of the Registration Statement on Form 10, of which this information statement forms a part, by the SEC, in connection with the distribution. Some of these conditions may not be met and The Ensign Group, Inc. may waive any of the conditions to the distribution. In addition, until the distribution has occurred, the Ensign board of directors has the right to not proceed with the distribution, even if all of the conditions are satisfied. For more information, see The Spin- OffConditions to the Distribution. |
Trading Market and Symbol |
We intend to list Pennant common stock on NASDAQ under the ticker symbol PNTG. We anticipate that a limited market, commonly known as a when-issued trading market, will develop shortly before the record date, and that regular-way trading in shares of Pennant common stock will begin on the first trading day following the distribution. If trading begins on a when-issued basis, you may purchase or sell Pennant common stock up to the distribution date, in which case your transaction will settle within two trading days after regular-way trading commences following the distribution. If you sell your Ensign common stock in the regular-way market before the distribution date, you also will be selling your right to receive shares of Pennant common stock in connection with the spin-off. However, if you sell your Ensign common stock in the ex-distribution market before the distribution date, you will still receive shares of Pennant common stock in the spin-off. We cannot predict the trading prices of Pennant common stock before, on or after the distribution date. For more information, see Trading Market. |
Tax Consequences of the Distribution |
The distribution is conditioned upon, among other things, the receipt of an opinion from Kirkland & Ellis LLP to the effect that, subject to |
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the assumptions and limitations described therein, the distribution and certain related transactions will be treated as a reorganization for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Code, in which no gain or loss is recognized by The Ensign Group, Inc. or its stockholders, except, in the case of Ensign stockholders, for cash received in lieu of fractional shares. See The Spin-OffMaterial U.S. Federal Income Tax Consequences of the Spin-Off. |
Each stockholder is urged to consult his, her or its tax advisor as to the specific tax consequences of the spin-off to such stockholder, including the effect of any state, local or non-U.S. tax laws and of changes in applicable tax laws. |
Relationship with Ensign after the Spin-Off |
Before our spin-off from Ensign, we will enter into a master separation agreement and several other agreements with Ensign related to the spin-off. These agreements will govern the relationship between us and Ensign after completion of the spin-off and provide for the allocation between us and Ensign of various assets, liabilities, rights and obligations. These agreements include: |
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a master separation agreement with The Ensign Group, Inc., which will provide for the allocation of assets and liabilities between us and Ensign and will establish certain rights and obligations between the parties following the distribution; |
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a transition services agreement with The Ensign Group, Inc., pursuant to which certain services will be provided by each of Ensign and Pennant to the other, in each case on an interim basis following the distribution; |
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a tax matters agreement with The Ensign Group, Inc., regarding the sharing of tax liabilities incurred, and tax assets generated, before and after completion of the spin-off, certain indemnification rights with respect to tax matters; |
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an employee matters agreement with The Ensign Group, Inc., which will set forth the agreements between us and Ensign concerning certain employee, compensation and benefit-related matters; and |
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certain triple-net lease agreements between our operating subsidiaries and subsidiaries of Ensign for the lease of certain senior living properties, which will amend and restate or replace existing leases in connection with the spin-off. |
In addition, subsidiaries of Ensign and Pennant may opt into a voluntary joint post-acute care preferred provider network called the Ensign Pennant Care Continuum, which will allow participants to collaborate together to enhance voluntary transitions between clinical care settings. |
We describe these arrangements in greater detail under Certain Relationships and Related Party Transactions and describe some of |
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the risks of these arrangements under Risk FactorsRisks Related to the Spin-Off. |
Dividend Policy |
We do not intend to pay dividends on our common stock for the foreseeable future. Instead, we anticipate that all of our future earnings will be retained to support our operations and to finance the growth and development of our business. Any decision to declare and pay dividends will be made at the sole discretion of our board of directors and will depend on a number of factors, including: our historic and projected financial condition, liquidity and results of operations; our capital levels and needs; tax considerations; any acquisitions or potential acquisitions that we may consider; statutory and regulatory prohibitions and other limitations; the terms of any credit agreements or other borrowing arrangements that restrict our ability to pay cash dividends; general economic conditions; and other factors deemed relevant by our board of directors. See Dividend Policy. |
Financing Transactions |
We expect to put in place a capital structure that provides us with the flexibility to grow and a cost of debt capital that allows us to compete for investment opportunities. Subject to market conditions, we expect to enter into the Revolving Credit Facility with a syndicate of banks with a borrowing capacity of $75.0 million. We anticipate the interest rates applicable to loans under the Revolving Credit Facility to be, at the Companys election, either LIBOR plus a margin ranging from 2.5% to 3.5% per annum or Base Rate plus a margin ranging from 1.5% to 2.5% per annum, in each case based on the ratio of Consolidated Total Net Debt to Consolidated EBITDA (each, as defined in the Credit Agreement). In addition, we expect that we will pay a commitment fee on the undrawn portion of the commitments under the Revolving Credit Facility that is estimated to be 0.6% per annum. |
We anticipate that the Revolving Credit Facility will not be subject to interim amortization. We expect that the Company will not be required to repay any loans under the Revolving Credit Facility prior to maturity. We expect that the Company will be permitted to prepay all or any portion of the loans under the Revolving Credit Facility prior to maturity without premium or penalty, subject to reimbursement of any LIBOR breakage costs of the lenders. This information is based on our current negotiations with the lead banks in an anticipated syndicate. |
As a result of the financing transaction, we expect to have outstanding indebtedness of approximately $30.0 million. The amount reflects proceeds from issuance of indebtedness under the Revolving Credit Facility, including approximately $1.2 million in estimated financing cost. The foregoing summarizes some of the currently expected terms of the Revolving Credit Facility. However, the foregoing summary does not purport to be complete, and the terms of the Revolving Credit Facility have not yet been finalized. There may be changes to |
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the expected size and other terms of the Revolving Credit Facility, some of which may be material. |
We expect that we will use approximately $25.0 million of the proceeds from the financing transaction to pay transaction fees and to pay a dividend to Ensign in connection with the contribution of assets to us by Ensign prior to the spin-off. We expect to retain approximately $5.0 million in cash for working capital, acquisitions and other general purposes. We expect that Ensign would use the funds received from us to repay certain outstanding third-party bank debt and other indebtedness and/or pay dividends to Ensigns stockholders. After the spin-off, we expect that we will use borrowings under the Revolving Credit Facility for working capital purposes, to fund acquisitions and for other general purposes. |
See The Spin-OffFinancing Transactions and Description of Certain Indebtedness. |
Transfer Agent |
Broadridge. |
Risk Factors |
We face both general and specific risks and uncertainties relating to our business and our industry, the spin-off and our common stock. We also are subject to risks relating to our relationship with Ensign and our being an independent, publicly-traded company following the spin-off. You should carefully read the risk factors set forth in the section titled Risk Factors in this information statement. |
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Summary Historical and Unaudited Pro Forma Combined Financial Data
We derived the summary historical statement of income data for the years ended December 31, 2018, 2017 and 2016 and the summary historical balance sheet data as of December 31, 2018 and 2017 from the Audited Combined Financial Statements of New Ventures included elsewhere in this information statement. We derived the summary historical combined statement of income data for each of the six months ended June 30, 2019 and 2018, and the summary historical balance sheet data as of June 30, 2019 from our Interim Financial Statements included elsewhere in this information statement.
Following the consummation of the spin-off, The Pennant Group, Inc. will hold, directly or through its subsidiaries, New Ventures and will be the financial reporting entity. The following summary unaudited pro forma combined financial data of Pennant has been prepared to reflect the spin-off and related transactions described under Unaudited Pro Forma Combined Financial Statements. The summary unaudited pro forma combined balance sheet data as of June 30, 2019 has been prepared to reflect the spin-off and related transactions as if they had occurred on June 30, 2019. The summary unaudited pro forma combined statement of income data for the year ended December 31, 2018 and the six months ended June 30, 2019 has been prepared to reflect the spin-off and related transactions as if they had occurred on January 1, 2018. The summary unaudited pro forma financial data is presented for illustrative purposes only and is not necessarily indicative of the operating results or financial position that would have occurred if the relevant transactions had been consummated on the date indicated, nor is it indicative of future operating results. The assumptions used and pro forma adjustments derived from such assumptions are based on currently available information, and we believe such assumptions are reasonable under the circumstances.
This summary historical and unaudited pro forma combined financial data is not indicative of our future performance and does not necessarily reflect what our financial position and results of operations would have been had we been operating as an independent, publicly-traded company during the periods presented, including changes that will occur in our operations and capitalization as a result of the spin-off from Ensign. For example, the historical combined financial statements of New Ventures include certain indirect general and administrative costs allocated from the subsidiaries of The Ensign Group, Inc. for certain functions and services, including executive management, finance, legal, information technology, human resources, employee benefits administration, treasury, risk management, procurement, and other shared services. These costs may not be representative of the future costs we will incur as an independent, public company.
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The summary historical and unaudited pro forma combined financial data below should be read together with the Audited Combined Financial Statements and Interim Financial Statements of New Ventures and related notes thereto, as well as the sections titled Capitalization, Selected Historical Combined Financial Data, Unaudited Pro Forma Combined Financial Statements, Managements Discussion and Analysis of Financial Condition and Results of Operations and Description of Certain Indebtedness, and the other financial information included elsewhere in this information statement.
Six Months Ended June 30, | Year Ended December 31, | |||||||||||||||||||||||||||
Pro forma
2019 |
2019 | 2018 |
Pro forma
2018 |
2018 | 2017 | 2016 | ||||||||||||||||||||||
(In thousands) | ||||||||||||||||||||||||||||
Summary Statement of Income Data |
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Total revenue |
$ | 160,641 | $ | 160,641 | $ | 137,768 | $ | 286,058 | $ | 286,058 | $ | 250,991 | $ | 217,225 | ||||||||||||||
Total expenses |
152,650 | 155,502 | 127,656 | 268,371 | 265,427 | 235,589 | 204,243 | |||||||||||||||||||||
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Income from operations |
7,991 | 5,139 | 10,112 | 17,687 | 20,631 | 15,402 | 12,982 | |||||||||||||||||||||
Interest expense |
1,039 | | | 1,944 | | | | |||||||||||||||||||||
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Income before provision for income taxes |
6,952 | 5,139 | 10,112 | 15,743 | 20,631 | 15,402 | 12,982 | |||||||||||||||||||||
Provision for income taxes (benefit) |
421 | (32 | ) | 2,200 | 3,130 | 4,352 | 5,375 | 5,065 | ||||||||||||||||||||
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Net income |
6,531 | 5,171 | 7,912 | 12,613 | 16,279 | 10,027 | 7,917 | |||||||||||||||||||||
Less: net income attributable to noncontrolling interest |
| 350 | 370 | | 595 | 160 | 26 | |||||||||||||||||||||
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Net income attributable to New Ventures |
$ | 6,531 | $ | 4,821 | $ | 7,542 | $ | 12,613 | $ | 15,684 | $ | 9,867 | $ | 7,891 | ||||||||||||||
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Selected financial data by business segment: |
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Revenue |
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Home health and hospice services |
$ | 96,325 | $ | 96,325 | $ | 81,007 | $ | 169,037 | $ | 169,037 | $ | 142,403 | $ | 115,813 | ||||||||||||||
Senior living services |
64,316 | 64,316 | 56,761 | 117,021 | 117,021 | 108,588 | 101,412 | |||||||||||||||||||||
Segment income before provision for income taxes(1) |
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Home health and hospice services |
12,888 | 12,888 | 11,087 | 23,375 | 23,375 | 16,832 | 13,676 | |||||||||||||||||||||
Senior living services |
5,638 | 7,434 | 8,016 | 12,399 | 16,099 | 13,033 | 11,754 |
(1) |
General and administrative expenses are not allocated to any segment for determining segment profit or loss. |
As of June 30, | As of December 31, | |||||||||||||||
Pro forma
2019 |
2019 | 2018 | 2017 | |||||||||||||
(In thousands) | ||||||||||||||||
Summary Balance Sheet Data |
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Total assets |
$ | 403,168 | $ | 356,665 | $ | 98,151 | $ | 88,289 | ||||||||
Total liabilities |
336,957 | 270,177 | 32,863 | 28,373 | ||||||||||||
Total equity |
66,211 | 86,488 | 65,288 | 59,916 |
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Six Months Ended June 30, | Year Ended December 31, | |||||||||||||||||||
2019 | 2018 | 2018 | 2017 | 2016 | ||||||||||||||||
Operating Statistics |
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Home health services |
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Average Medicare revenue per 60-day completed episode |
$ | 3,024 | $ | 2,951 | $ | 2,982 | $ | 3,028 | $ | 2,986 | ||||||||||
Hospice services |
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Average daily census |
1,544 | 1,275 | 1,329 | 1,102 | 905 | |||||||||||||||
Senior living services |
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Occupancy |
80.1 | % | 78.7 | % | 79.5 | % | 79.9 | % | 79.2 | % | ||||||||||
Average monthly revenue per occupied unit |
$ | 3,109 | $ | 3,054 | $ | 3,044 | $ | 2,979 | $ | 2,916 |
Other Financial Measures
We believe that certain non-GAAP measures, such as combined and segment EBITDA and Adjusted EBITDA and combined Adjusted EBITDAR when presented in conjunction with comparable GAAP measures, are useful because they are appropriate measures for performance, valuation or liquidity. These measures should be considered in addition to, not a substitute for or superior to, measures of financial performance evaluating our operating results prepared in accordance with GAAP. The non-GAAP financial measures presented below may not be comparable to similarly titled measures.
Combined and segment EBITDA and Adjusted EBITDA and combined Adjusted EBITDAR are non-GAAP financial measures we use in evaluating our operating performance and trends as well as our performance and valuation relative to competitors and peers. See Managements Discussion and Analysis of Financial Condition and Results of OperationsResults of Operations for an explanation of how we define each of these measures, a detailed description of why we believe such measures are useful and the limitations of each measure, and a reconciliation of net income to each of these measures.
Six Months Ended June 30, | Year Ended December 31, | |||||||||||||||||||||||||||
Non-GAAP Measures |
Pro
forma 2019 |
2019 | 2018 |
Pro
forma 2018 |
2018 | 2017 | 2016 | |||||||||||||||||||||
Combined Non-GAAP Measures | (In thousands) | |||||||||||||||||||||||||||
EBITDA |
$ | 9,763 | $ | 6,561 | $ | 11,177 | $ | 20,651 | $ | 23,000 | $ | 17,786 | $ | 15,811 | ||||||||||||||
Adjusted EBITDA |
11,757 | 13,203 | 12,403 | 23,192 | 26,297 | 21,480 | 18,345 | |||||||||||||||||||||
Adjusted EBITDAR |
30,374 | 30,024 | 58,061 | 57,466 |
Six Months Ended June 30, | Year Ended December 31, | |||||||||||||||||||||||||||
Segment Non-GAAP Measures(1) |
Pro
forma 2019 |
2019 | 2018 |
Pro
forma 2018 |
2018 | 2017 | 2016 | |||||||||||||||||||||
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EBITDA(1) |
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Home health and hospice services |
$ | 13,468 | $ | 13,118 | $ | 11,243 | $ | 24,420 | $ | 23,825 | $ | 17,617 | $ | 14,574 | ||||||||||||||
Senior living services |
6,780 | 8,576 | 8,925 | 14,318 | 18,018 | 14,632 | 13,685 | |||||||||||||||||||||
Adjusted EBITDA(1) |
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Home health and hospice services |
14,319 | 13,969 | 11,387 | 24,771 | 24,176 | 19,220 | 15,020 | |||||||||||||||||||||
Senior living services |
6,917 | 8,713 | 9,075 | 14,612 | 18,312 | 14,903 | 13,889 |
(1) |
General and administrative expenses are not allocated to any segment for determining segment profit or loss. |
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You should carefully consider each of the following risk factors and all other information set forth in this information statement. The risk factors generally have been separated into three groups: risks relating to our business and industry, risks relating to the spin-off and risks relating to our common stock. Based on the information currently known to us, we believe that the following information identifies the most significant risk factors affecting our company in each of these categories of risks. However, the risks and uncertainties we face are not limited to those set forth in the risk factors described below. Additional risks and uncertainties not presently known to us or that we currently believe to be immaterial may also adversely affect our business. In addition, past financial performance may not be a reliable indicator of future performance and historical trends should not be used to anticipate results or trends in future periods.
If any of the following risks and uncertainties develops into actual events, these events could have a material adverse effect on our business, financial condition or results of operations. In such case, the trading price of our common stock could decline.
Risks Related to Our Business and Industry
Our revenue could be impacted by federal and state changes to reimbursement and other aspects of Medicaid and Medicare.
We derived 54.1% and 52.7% of our revenue from the Medicaid and Medicare programs for the six months ended June 30, 2019 and 2018, respectively, and 53.1% for the year ended December 31, 2018. If reimbursement rates under these programs are reduced or fail to increase as quickly as our costs, or if there are changes in the way these programs pay for services, our business and results of operations would be adversely affected. The services for which we are currently reimbursed by Medicaid and Medicare may not continue to be reimbursed at adequate levels or at all. Further limits on the scope of services being reimbursed, delays or reductions in reimbursement or changes in other aspects of reimbursement could impact our revenue. For example, in the past, the enactment of the Deficit Reduction Act of 2005, the Medicaid Voluntary Contribution and Provider-Specific Tax Amendments of 1991 and the Balanced Budget Act of 1997 caused changes in government reimbursement systems, which, in some cases, made obtaining reimbursements more difficult and costly and lowered or restricted reimbursement rates for some of our patients.
The Medicaid and Medicare programs are subject to statutory and regulatory changes affecting base rates or basis of payment, retroactive rate adjustments, annual caps that limit the amount that can be paid (including deductible and coinsurance amounts) for rehabilitation therapy services rendered to Medicare beneficiaries, administrative or executive orders and government funding restrictions, all of which may materially adversely affect the rates and frequency at which these programs reimburse us for our services. For example, the Medicaid Integrity Contractor program is increasing the scrutiny placed on Medicaid payments, and could result in recoupments of alleged overpayments in an effort to rein in Medicaid spending. Recent budget proposals and legislation at both the federal and state levels have called for cuts in reimbursement for healthcare providers participating in the Medicare and Medicaid programs. Measures to reduce or delay reimbursement could result in substantial reductions in our revenue and profitability. Payors may disallow our requests for reimbursement based on determinations that certain costs are not reimbursable or reasonable because either adequate or additional documentation was not provided or because certain services were not covered or considered medically necessary. Additionally, revenue from these payors can be retroactively adjusted after a new examination during the claims settlement process or as a result of post-payment audits. New legislation and regulatory proposals could impose further limitations on government payments to healthcare providers.
Various healthcare reform provisions became law upon enactment of the ACA. The reforms contained in the ACA have affected our business in some manner and are directed in large part at increased quality and cost reductions. Several of the reforms are very significant and could ultimately change the nature of our services, the
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methods of payment for our services and the underlying regulatory environment. These reforms include the possible modifications to the conditions of qualification for payment, bundling of payments to cover both acute and post-acute care and the imposition of enrollment limitations on new providers. As discussed below under the heading Our business may be materially impacted if certain aspects of the ACA are amended, repealed, or successfully challenged, any further amendments or revisions to the ACA or its implementing regulations could materially impact our business.
Home Health
On July 11, 2019, CMS issued a proposed rule updating the Medicare Home Health Prospective Payment System (HH PPS) rates and wage index for calendar year 2020. The rule proposes a 1.3% increase in home health payments, resulting from a 1.5% payment percentage update and a 0.2% decrease in aggregate payments because of changes to the rural add-on policy. The proposed rule implements PDGM, a revised case mix adjustment methodology, for home health services beginning on or after January 1, 2020, and proposes to adjust reimbursement under PDGM for assumed provider behavioral changes. The proposed rule also changes the unit of payment from 60-day episodes of care to 30-day periods of care, modifies payment regulations related to the content of the home health plan of care; allows therapist assistants to furnish maintenance therapy under the supervision of a licensed therapist; and proposes to change and phase out in 2020 and full elimination in 2021 of RAPs. Finally, this rule will include proposals related to the implementation of the permanent home infusion therapy benefit in 2021. These include proposed payment categories, amounts, and required and optional adjustments.
On November 13, 2018, CMS published a final rule which updates the HH PPS rates, including the conversion factor and case-mix weights for calendar years 2019 and 2020. This rule finalizes the definition of remote patient monitoring which will be allowed as an administrative expense on the home health agencys cost report. Further, effective January 1, 2020, CMS will implement PDGM as mandated by the Bipartisan Budget Act of 2018. Under PDGM, the initial certification of patient eligibility, plan of care, and comprehensive assessment will remain valid for 60-day episodes of care, but payments for home health services will be made based upon 30-day payment periods. PDGM refines case mix calculation methodology by removing therapy thresholds and calculating reimbursement based on clinical characteristics including clinical group coding, comorbidity coding, and achievement of LUPA thresholds. While the proposed changes are to be implemented in a budget neutral manner to the industry, CMSs current proposal includes a negative 6.42% adjustment to account for assumed provider behavioral changes. The ultimate impact of these changes will vary by provider based on factors including patient mix and admission source. The finalization of these assumptions could negatively impact our future rate of reimbursement and could have a material adverse effect on our business and consolidated financial condition, results of operations and cash flows. This rule also finalizes changes to the Home Health Value-Based Purchasing (HHVBP) model and Home Health Quality Reporting Program (HHQRP). These changes focus on providing value over volume of services to patients. Once the changes are implemented, health payments will no longer be based on the number of visits provided, but rather the patients medical condition and care needs. In calendar year 2019, there was an increase of 2.2% in reimbursement to home health agencies based on the agencys finalized policies.
On November 1, 2017, CMS issued a final rule that became effective on January 1, 2018 and updated the calendar year 2018 Medicare payment rates and the wage index for home health agencies serving Medicare beneficiaries. The rule also finalized proposals for the HHVBP model and the HHQRP. Under the final rule, Medicare payments will be reduced by 0.4%. This decrease reflects the effects of a 1% home health payment update, an adjustment to the national, standardized 60-day episode payment rate to account for nominal case-mix growth for an impact of negative 0.9%, and the distributional effects of a 0.5% reduction in payments due to the sunset of the rural add-on provision.
On January 13, 2017, CMS issued a final rule that modernized the Home Health Conditions of Participation (CoPs). This rule is a continuation of CMSs effort to improve quality of care while streamlining provider
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requirements to reduce unnecessary procedural requirements. The rule makes significant revisions to the conditions currently in place, including (1) adding new conditions of participation related to quality assurance and performance improvement programs and infection control; and (2) expanding or revising requirements related to patient rights, comprehensive evaluations, coordination and care planning, home health aide training and supervision, and discharge and transfer summary and time frames. The new CoPs became effective on January 13, 2018.
On October 31, 2016, CMS issued final payment changes to HH PPS for calendar year 2017. Under this rule, Medicare payments were reduced by 0.7%. This decrease reflects a negative 0.97% adjustment to the national, standardized 60-day episode payment rate to account for nominal case-mix growth from 2012 through 2014; a 2.3% reduction in payments due to the final year of the four-year phase-in of the rebasing adjustments to the national, standardized 60-day episode payment rate, the national per-visit payment rates and the non-routine medical supplies conversion factor; and the effects of the revised fixed-dollar loss ratio used in determining outlier payments; partially offset by the home health payment update of 2.5%.
On November 5, 2015, CMS issued final payment changes to HH PPS for calendar year 2016. Under this rule, Medicare payments were reduced by 1.4%. This decrease reflected a 1.9% home health payment update percentage; a 0.9% decrease in payments due to the 0.97% payment reduction to the national, standardized 60-day episode payment rate to account for nominal case-mix growth from 2012 through 2014; and a 2.4% decrease in payments due to the third year of the four-year phase-in of the rebasing adjustments to the national, standardized 60-day episode payment rate, the national per-visit payment rates, and the NRS conversion factor. Along with the payment update, CMS revised the International Classification of Diseases 10 (ICD-10) CM translation list and adding certain initial encounter codes to the HH PPS Grouper based upon revised ICD-10-CM coding guidance.
Pursuant to the rule, CMS also implemented a HHVBP model effective for calendar year 2016, in which all Medicare-certified home health agencies in selected states are required to participate. The model applied a reduction or increase to Medicare payments depending on quality performance, for all agencies delivering services within nine randomly-selected states. Payment adjustments are applied on an annual basis, beginning at 3% in the first payment adjustment year, 5% in the second payment adjustment year, 6% in the third payment adjustment year and 8% in the final two payment adjustment years.
Lastly, CMS implemented a standardized cross-setting measure for calendar year 2016. The CoPs require home health agencies to submit OASIS assessments within 30 days of completing the assessment of the beneficiary, as a condition of payment and also for quality measurement purposes. Commencing on April 3, 2017, if the OASIS assessment is not found in the quality system upon receipt of a final claim for a home health episode and the receipt date of the claim is more than 30 days after the assessment completion date, Medicare systems will deny the claim. Home health agencies that do not submit quality measure data to CMS incur a 2% reduction in their annual home health payment update percentage. Under the rule, all home health agencies are required to timely submit both Start of Care (initial assessment) or Resumption of Care OASIS assessment and a Transfer or Discharge OASIS assessment for a minimum of 70% of all patients with episodes of care occurring during the annual reporting period starting July 1, 2015 and ending June 30, 2016, 80% of all patients with episodes occurring during the reporting period starting July 1, 2016 and ending June 30, 2017, and 90% for all episodes beginning on or after July 1, 2017.
Hospice
On July 31, 2019, CMS issued a final rule that updated the fiscal year 2020 hospice payment rates, wage index and cap amount. The final rule calls for a 2.6% increase in hospice payment rates for fiscal year 2020. This increase is based on the proposed fiscal year 2020 hospital market basket increase of 3.0% reduced by the multifactor productivity adjustment of 0.4%. The rule establishes a rebasing of the continuous home care, general inpatient care, and the inpatient respite care per diem payment rates in a budget-neutral manner to more
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accurately align Medicare payments with the costs of providing care. Specifically, the rule proposes to increase these rates by 36.6%, 161.2%, and 31.0%, respectively, to account for the disparity between reimbursement and cost. In order to maintain budget neutrality, CMS also proposes to correspondingly reduce the Routine Home Care (RHC) rate by 2.7%. Hospices that fail to meet quality reporting requirements receive a 2.0% reduction to the annual market basket update for the year. Further, the rule establishes the hospice cap amount for the fiscal year 2020 cap year at $29,964.78, which is equal to the fiscal year 2019 cap amount of $29,205.44 updated by the final rule for fiscal year 2020 hospice payment update percentage of 2.6%. In addition to payment updates, the final rule contains new regulations to modify the election statement requirements and require hospices to prepare an addendum to the election entitled Patient Notification of Hospice Non-Covered Items, Services, and Drugs, which will provide the patient with information related to any diagnoses, treatment, or medications that are considered by the hospice to be unrelated to the terminal diagnoses. In addition to its preparation, the hospice is required to provide the addendum upon request by the patient or the patients representative within five days, if requested at the time of election, or within 72 hours if requested thereafter.
On August 1, 2018, CMS issued its final rule outlining the fiscal year 2019 Medicare payment rates, wage index, and cap amount for hospices serving Medicare beneficiaries. Under the final rule, the hospice payment update is 1.8%, which reflects a market basket update of 2.9%, reduced 0.8% by a MFP adjustment, as well as another 0.3% reduction, which decreases are mandated by the ACA. Hospice payments will be reduced by an additional 2%, for a net negative 0.2%, for hospices that do not submit the required quality data. The final rule also specifies that the hospice cap will be updated using the hospice payment update percentage rather than the consumer price index, thus it is anticipated there will be a 1.8% increase in aggregate cap payments made to hospices annually. The final rule also includes language that reflects the change in the Bipartisan Budget Act of 2018 which recognizes physician assistants as attending physicians for Medicare hospice beneficiaries, effective January 1, 2019. Physician assistants will be reimbursed at 85% of the fee schedule amount for their services as designated attending physicians. This change may positively impact reimbursement from Medicare as this may increase the number of episodes that can be reimbursed by Medicare in the aggregate by physicians, nurse practitioners and physician assistants. Additionally, the rule finalizes changes to the Hospice Quality Reporting Program (HQRP), also effective January 1, 2019, including changes to the data review and correction timeline for data submitted using the Hospice Item Set.
On August 1, 2017, CMS issued its final rule outlining the fiscal year 2018 Medicare payment rates, wage index and cap amount for hospices serving Medicare beneficiaries. The final rule used a net market basket percentage increase of 1% to update the federal rates, as mandated by section 411(d) of the MACRA. Although, if a hospice fails to comply with quality reporting program requirements, there will be a net 2% reduction to the market basket update for the fiscal year involved. The hospice cap amount for fiscal year 2018 was increased by 1%, which is equal to the 2017 cap amount updated by the fiscal year 2018 hospice payment update percentage of 1%. In addition, this rule discussed changes to the HQRP, including changes to the Consumer Assessment of Healthcare Providers & Systems (CAHPS) hospice survey measures and plans for sharing HQRP data in fiscal year 2017.
On July 29, 2016, CMS issued its final rule outlining fiscal year 2017 Medicare payment rates, wage index and cap amount for hospices serving Medicare beneficiaries. Under the final rule, there was a net 2.1% increase in hospices payments effective October 1, 2016. The hospice payment increase was the net result of a 2.7% inpatient hospital market basket update, reduced by a 0.3% productivity adjustment and by a 0.3% adjustment set by the ACA. The hospice cap amount for fiscal year 2017 increased by 2.1%, which is equal to the 2016 cap amount updated by the fiscal year 2017 hospice payment update percentage of 2.1%. In addition, this rule changes the hospice quality reporting program requirements, including care surveys and two new quality measures that will assess hospice staff visits to patients and caregivers in the last three and seven days of life and the percentage of hospice patients who received care processes consistent with guidelines.
On July 31, 2015, CMS issued its final rule outlining fiscal year 2016 Medicare payment rates and the wage index for hospices serving Medicare beneficiaries. Under the final rule, there was a net 1.1% increase in
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payments effective October 1, 2015. The hospice payment increase was the net result of a hospice payment update to the hospice per diem rates of 2.1% (a hospital market basket increase of 2.4% minus 0.3% for reductions required by law) and 1.2% decrease in payments to hospices due to updated wage data and the phase-out of its wage index budget neutrality adjustment factor, offset by the newly announced Core Based Statistical Areas delineation impact of 0.2%. The rule also created two different payment rates for RHC that resulted in a higher base payment rate for the first 60 days of hospice care and a reduced base payment rate for 61 or more days of hospice care and a Service Intensity Add-On (SIA) Payment for fiscal year 2016 and beyond in conjunction with the proposed RHC rates.
Senior Living Communities
Senior living services revenue is primarily derived from private pay residents at rates we establish based upon the needs of the resident, the amount of services we provide the resident, and market conditions in the area of operation. In addition, Medicaid or other state-specific programs may supplement payments for board and care services provided in senior living communities. A majority of states provide, or are approved to provide, Medicaid payments for personal care and medical services to some residents in licensed senior living communities under waivers granted by or under Medicaid state plans approved by CMS. State Medicaid programs control costs for assisted living and other home and community based services by various means such as restrictive financial and functional eligibility standards, enrollment limits and waiting lists. Because rates paid to senior living community operators are generally lower than rates paid to SNF operators, some states use Medicaid funding of senior living services as a means of lowering the cost of services for residents who may not need the higher level of health services provided in SNFs. States that administer Medicaid programs for services in senior living communities are responsible for monitoring the services at, and physical conditions of, the participating communities. As a result of the growth of assisted living in recent years, states have adopted licensing standards applicable to assisted living communities. Most state licensing standards apply to assisted living communities regardless of whether they accept Medicaid funding.
Since 2003, CMS has commenced a series of actions to increase its oversight of state quality assurance programs for assisted living communities and has provided guidance and technical assistance to states to improve their ability to monitor and improve the quality of services paid for through Medicaid waiver programs. CMS is encouraging state Medicaid programs to expand their use of home and community based services as alternatives to institutional services, pursuant to provisions of the ACA, and other authorities, through the use of several programs.
Regulations
The Improving Medicare Post-Acute Care Transformation Act of 2014 (the IMPACT Act), which was signed into law on October 6, 2014, requires the submission of standardized assessment data for quality improvement, payment and discharge planning purposes across the spectrum of post-acute care providers (PACs), including home health agencies. The IMPACT Act requires PACs to begin reporting: (1) standardized patient assessment data at admission and discharge by January 1, 2019 for home health agencies; (2) new quality measures, including functional status, skin integrity, medication reconciliation, incidence of major falls, and patient preference regarding treatment and discharge at various intervals between October 1, 2016 and January 1, 2019; and (3) resource use measures, including Medicare spending per beneficiary, discharge to community, and hospitalization rates of potentially preventable readmissions by January 1, 2017 for home health agencies. Failure to report such data when required would subject a PAC to a 2% reduction in market basket prices then in effect.
The IMPACT Act also included provisions impacting Medicare-certified hospices, including: (1) increasing survey frequency for Medicare-certified hospices to once every 36 months; (2) imposing a medical review process for operations with a high percentage of stays in excess of 180 days; and (3) updating the annual aggregate Medicare payment cap.
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Our future revenue, financial condition and results of operations could be impacted by continued cost containment pressures on Medicaid spending.
Medicaid, which is largely administered by the states, is a significant payor for our services. Rapidly increasing Medicaid spending, combined with slow state revenue growth, has led many states to institute measures aimed at controlling spending growth. Historically, state budget pressures have resulted in reductions in state spending. Given that Medicaid outlays are a significant component of state budgets, we can expect continuing cost containment pressures on Medicaid outlays for our services.
To generate funds to pay for the increasing costs of the Medicaid program, many states utilize financial arrangements such as provider taxes. Under provider tax arrangements, states collect taxes or fees from healthcare providers and then return the revenue to these providers as Medicaid expenditures. Congress, however, has placed restrictions on states use of provider tax and donation programs as a source of state matching funds. These restrictions may reduce Medicaid reimbursement rates, which would adversely affect our revenue, financial condition and results of operations.
Future cost containment initiatives undertaken by payors may limit our future revenue and profitability.
Our non-Medicare and non-Medicaid revenue and profitability may be affected by continuing efforts of third-party payors to maintain or reduce costs of healthcare by lowering payment rates, narrowing the scope of covered services, increasing case management review of services and negotiating pricing. In addition, sustained unfavorable economic conditions may affect the number of patients enrolled in managed care programs and the profitability of managed care companies, which could result in reduced payment rates. There can be no assurance that third-party payors will make timely payments for our services, or that we will continue to maintain our current payor or revenue mix. We are continuing our efforts to develop our non-Medicare and non-Medicaid sources of revenue and any changes in payment levels from current or future third-party payors could have a material adverse effect on our business and combined financial condition, results of operations and cash flows.
Reforms to the U.S. healthcare system could impose new requirements upon us and may lower our reimbursements.
The ACA includes sweeping changes to how healthcare is paid for and furnished in the United States. As discussed below under the heading Our business may be materially impacted if certain aspects of the ACA are amended, repealed, or successfully challenged, any further amendments or revisions to the ACA or its implementing regulations could materially impact our business. Presidential and congressional elections in the United States could result in significant changes in, and uncertainty with respect to, legislation, regulation, implementation of Medicare and/or Medicaid, and government policy that could significantly impact our business and the healthcare industry. We continually monitor these developments in an effort to respond to the changing regulatory environment impacting our business.
The ACA is projected to expand access to Medicaid for approximately 11 million to 13 million additional people each year between 2015 and 2024. It also reduces the projected growth of Medicare by $106 billion by 2020 by tying payments to providers more closely to quality outcomes.
To address potential fraud and abuse in federal healthcare programs, including Medicare and Medicaid, the ACA includes provider screening and enhanced oversight periods for new providers and suppliers, as well as enhanced penalties for submitting false claims. It also provides funding for enhanced anti-fraud activities. The new law imposes enrollment moratoria in elevated risk areas by requiring providers and suppliers to establish compliance programs. The ACA also provides the federal government with expanded authority to suspend payment if a provider is investigated for allegations or issues of fraud. Section 6402 of the ACA provides that Medicare and Medicaid payments may be suspended pending a credible investigation of fraud, unless the Secretary of the United States Department of Health and Human Services (HHS) determines that good cause
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exists not to suspend payments. To the extent the Secretary applies this suspension of payments provision to one of our affiliated operations for allegations of fraud, such a suspension could adversely affect our results of operations.
Under the ACA, HHS will establish, test and evaluate alternative payment methodologies for Medicare services through a five-year, national, voluntary pilot program, which started in 2013. This program will provide incentives for providers to coordinate patient care across the continuum and to be jointly accountable for an entire episode of care centered around a hospitalization. HHS will develop qualifying provider payment methods that may include bundled payments and bids from entities for episodes of care. The bundled payment will cover the costs of acute care inpatient services; physicians services delivered in and outside of an acute care hospital; outpatient hospital services including emergency department services; post-acute care services, including home health services; inpatient rehabilitation services; and inpatient hospital services. The payment methodology will include payment for services, such as care coordination, medication reconciliation, discharge planning and transitional care services, and other patient-centered activities. Payments for items and services cannot result in spending more than would otherwise be expended for such entities if the pilot program was not implemented. Payment arrangements among providers on the backside of the bundled payment must take into account significant hurdles under anti-kickback statutes and the Stark laws.
The ACA attempts to improve the healthcare delivery system through incentives to enhance quality, improve beneficiary outcomes and increase value of care. One of these key delivery system reforms is the encouragement of Accountable Care Organizations (ACOs). ACOs will facilitate coordination and cooperation among providers to improve the quality of care for Medicare beneficiaries and reduce unnecessary costs. Participating ACOs that meet specified quality performance standards will be eligible to receive a share of any savings if the actual per capita expenditures of their assigned Medicare beneficiaries are a sufficient percentage below their specified benchmark amount. Quality performance standards will include measures in such categories as clinical processes and outcomes of care, patient experience and utilization of services.
On June 9, 2017, CMS issued revised requirements for emergency preparedness for Medicare and Medicaid participating providers, including long-term care facilities, hospices, and home health agencies. The revised requirements update the conditions of participation for such providers. Specifically, outpatient operations, such as home health agencies, are required to ensure that patients with limited mobility are addressed within the emergency plan; home health agencies are also required to develop and implement emergency preparedness policies and procedures that are reviewed and updated at least annually and each patient must have an individual plan; hospice-operated inpatient care facilities are required to provide subsistence needs for hospice employees and patients and a means to shelter in place patients and employees who remain in the hospice; all hospices and home health agencies must implement procedures to follow up with on duty staff and patients to determine services that are needed in the event that there is an interruption in services during or due to an emergency; and hospices must train their employees in emergency preparedness policies.
On February 2, 2016, CMS issued its final rule concerning face-to-face requirements for Medicaid home health services. Under the rule, the Medicaid home health service definition was revised consistent with applicable sections of the ACA and MACRA. The rule also requires that for the initial ordering of home health services, the physician must document that a face-to-face encounter that is related to the primary reason the beneficiary requires home health services occurred no more than 90 days before or 30 days after the start of services. The final rule also requires that for the initial ordering of certain medical equipment, the physician or authorized non-physician provider must document that a face-to-face encounter that is related to the primary reason the beneficiary requires medical equipment occurred no more than six months prior to the start of services.
On July 6, 2015, CMS announced a proposal to launch the HHVBP model to test whether incentives for better care can improve outcomes in the delivery of home health services. The model applies a payment reduction or increase to current Medicare-certified home health agency payments, depending on quality
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performance, for all agencies delivering services within nine randomly-selected states. Payment adjustments would be applied on an annual basis, beginning at 5.0% in each of the first two payment adjustment years, 6% in the third payment adjustment year and 8% in the final two payment adjustment years.
On June 28, 2012, the U.S. Supreme Court ruled that the enactment of the ACA did not violate the Constitution of the United States. This ruling permits the implementation of most of the provisions of the ACA to proceed. The provisions of the ACA discussed above are only examples of federal health reform provisions that we believe may have a material impact on the long-term care industry and on our business. However, the foregoing discussion is not intended to constitute, nor does it constitute, an exhaustive review and discussion of the ACA. It is possible that these and other provisions of the ACA may be interpreted, clarified, or applied to our affiliated businesses in a way that could have a material adverse impact on the results of operations.
CMS has issued and will continue to issue rules to implement the ACA. Courts will continue to interpret and apply the ACAs provisions. We cannot predict what effect these changes will have on our business, including the demand for our services or the amount of reimbursement available for those services. However, it is possible these new laws may lower reimbursement and adversely affect our business.
The ACA and its implementation could negatively impact our business.
In addition, the ACA could result in sweeping changes to the existing U.S. system for the delivery and financing of healthcare. The details for implementation of many of the requirements under the ACA will depend on the promulgation of regulations by a number of federal government agencies, including the HHS. It is impossible to predict the outcome of these changes, what many of the final requirements of the ACA will be, and the net effect of those requirements on us.
A significant goal of federal healthcare reform is to transform the delivery of healthcare by changing reimbursement for healthcare services to hold providers accountable for the cost and quality of care provided. Medicare and many commercial third-party payors are implementing ACO models in which groups of providers share in the benefit and risk of providing care to an assigned group of individuals at lower cost. Other reimbursement methodology reforms include value-based purchasing, in which a portion of provider reimbursement is redistributed based on relative performance on designated economic, clinical quality, and patient satisfaction metrics. In addition, CMS is implementing programs to bundle acute care and post-acute care reimbursement to hold providers accountable for costs across a broader continuum of care. These reimbursement methodologies and similar programs are likely to continue and expand, both in public and commercial health plans. Providers who respond successfully to these trends and are able to deliver quality care at lower cost are likely to benefit financially.
The ACA and the programs implemented by the law may reduce reimbursements for home health and hospice services and may impact the demand for our services. In addition, various healthcare programs and regulations may be ultimately implemented at the federal or state level. Failure to respond successfully to these trends could negatively impact our business, results of operations and/or financial condition.
Our business may be materially impacted if certain aspects of the ACA are amended, repealed, or successfully challenged.
A number of lawsuits have been filed challenging various aspects of the ACA and related regulations. In addition, the efficacy of the ACA is the subject of much debate among members of Congress and the public. On December 14, 2018, U.S. District Judge Reed OConnor of the Northern District of Texas held the individual mandate provisions, and therefore the entirety of ACA, unconstitutional. The impact of the ruling is stayed as it is appealed to the Fifth Circuit Court of Appeals. Our business may be materially impacted if the ACA in part or in its entirety is ruled unconstitutional.
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Presidential and congressional elections in the United States could result in significant changes in, and uncertainty with respect to, legislation, regulation, implementation of Medicare and/or Medicaid, and government policy that could significantly impact our business and the healthcare industry. In the event that legal challenges are successful or the ACA is repealed or materially amended, particularly any elements of the ACA that are beneficial to our business or that cause changes in the health insurance industry, including reimbursement and coverage by private, Medicare or Medicaid payers, our business, operating results and financial condition could be harmed. While it is not possible to predict whether and when any such changes will occur, specific proposals discussed during and after the election, including a repeal or material amendment of the ACA, could harm our business, operating results and financial condition. In addition, even if the ACA is not amended or repealed, the President and the executive branch of the federal government, as well as CMS and HHS have a significant impact on the implementation of the provisions of the ACA, and the new administration could make changes impacting the implementation and enforcement of the ACA, which could harm our business, operating results and financial condition. If we are slow or unable to adapt to any such changes, our business, operating results and financial condition could be adversely affected.
Increased competition for, or a shortage of, nurses and other skilled personnel could increase our staffing and labor costs and subject us to monetary fines.
Our success depends upon our ability to retain and attract nurses, certified nurse assistants, social workers and speech, physical and occupational therapists. Our success also depends upon our ability to retain and attract skilled personnel who are responsible for the day-to-day operations of each of our affiliated operations. Each operation has a leader responsible for the overall day-to-day operations of the business, including quality of care, social services and financial performance. Depending upon the size of the operation, each leader is supported by staff that is directly responsible for day-to-day care of the patients, marketing and community outreach programs. We compete with various healthcare service providers in retaining and attracting qualified and skilled personnel.
Increased competition for, or a shortage of, nurses or other trained personnel, or general inflationary pressures may require that we enhance our pay and benefits packages to compete effectively for such personnel. We may not be able to offset such added costs by increasing the rates we charge to the patients of our business. Turnover rates and the magnitude of the shortage of nurses or other trained personnel vary substantially from operation to operation. An increase in costs associated with, or a shortage of, skilled nurses, could negatively impact our operating subsidiaries. In addition, if we fail to attract and retain qualified and skilled personnel, our affiliated subsidiaries ability to conduct their business operations effectively could be harmed.
We depend on our management team and the loss of their service could harm our business.
We believe that our success depends in part on the continued services of our executive management team. The loss of such key personnel could have a material adverse effect on our business and could adversely affect our strategic relationships and impede our ability to execute our business strategies. The market for qualified individuals may be highly competitive and finding and recruiting suitable replacements for senior management may be difficult, time consuming and costly.
We are subject to various government reviews, audits and investigations that could adversely affect our business, including an obligation to refund amounts previously paid to us, potential criminal charges, the imposition of fines, and/or the loss of our right to participate in Medicare and Medicaid programs.
As a result of our participation in the Medicaid and Medicare programs, we are subject to various governmental reviews, audits and investigations to verify our compliance with these programs and applicable laws and regulations. We are subject to regulatory reviews relating to Medicare services, billings and potential overpayments resulting from the Recovery Audit Contractors, Zone Program Integrity Contractors, Program Safeguard Contractors, Unified Program Integrity Contractors and Medicaid Integrity Contributors programs, (collectively referred to as Reviews), in which third party firms engaged by CMS conduct extensive reviews of
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claims data and medical and other records to identify potential improper payments under the Medicare programs. Private pay sources also reserve the right to conduct audits. We believe that billing and reimbursement errors and disagreements are common in our industry. We are regularly engaged in reviews, audits and appeals of our claims for reimbursement due to the subjectivities inherent in the process related to patient diagnosis and care, record keeping, claims processing and other aspects of the patient service and reimbursement processes, and the errors and disagreements those subjectivities can produce. An adverse review, audit or investigation could result in:
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an obligation to refund amounts previously paid to us pursuant to the Medicare or Medicaid programs or from private payors, in amounts that could be material to our business; |
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state or federal agencies imposing fines, penalties and other sanctions on us; |
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loss of our right to participate in the Medicare or Medicaid programs or one or more private payor networks; |
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an increase in private litigation against us; and |
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damage to our reputation in various markets. |
All findings of overpayment from CMS contractors are eligible for appeal through the CMS defined continuum. With the exception of rare findings of overpayment related to objective errors in Medicare payment methodology or claims processing, we utilize all defenses reasonably available to us to demonstrate that the services provided meet all clinical and regulatory requirements for reimbursement.
If the government or court were to conclude that such errors and deficiencies constituted criminal violations, or were to conclude that such errors and deficiencies resulted in the submission of false claims to federal healthcare programs, or if it were to discover other problems in addition to the ones identified by the probe reviews that rose to actionable levels, we and certain of our officers might face potential criminal charges and/or civil claims, administrative sanctions and penalties for amounts that could be material to our business, results of operations and financial condition. In addition, we and/or some of the key personnel of our operating subsidiaries could be temporarily or permanently excluded from future participation in state and federal healthcare reimbursement programs such as Medicaid and Medicare. In any event, it is likely that a governmental investigation alone, regardless of its outcome, would divert material time, resources and attention from our management team and our staff, and could have a materially detrimental impact on our results of operations during and after any such investigation or proceedings.
In cases where claim and documentation review by any CMS contractor results in repeated poor performance, an operation can be subjected to protracted oversight. This oversight may include repeat education and re-probe, extended pre-payment review, referral to recovery audit or integrity contractors, or extrapolation of an error rate to other reimbursement outside of specifically reviewed claims. Sustained failure to demonstrate improvement towards meeting all claim filing and documentation requirements could ultimately lead to Medicare decertification. As of June 30, 2019, five of our independent operating subsidiaries had Reviews scheduled, on appeal, or in a dispute resolution process, both pre- and post-payment.
Public and government calls for increased survey and enforcement efforts toward the home health, hospice and senior living industries could result in increased scrutiny by state and federal survey agencies. In addition, potential sanctions and remedies based upon alleged regulatory deficiencies could negatively affect our financial condition and results of operations.
Our home health, hospice and senior living operating subsidiaries are subject to regulation and licensing by federal, state and local regulatory authorities. The regulatory environment for our businesses continues to change and CMS and several states have undertaken several initiatives to increase or intensify Medicaid and Medicare survey and enforcement activities, including federal oversight of state actions. CMS is taking steps to focus more
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survey and enforcement efforts on operations with findings of substandard care or repeat violations of Medicaid and Medicare standards, and to identify providers with patterns of noncompliance. CMS is also increasing its oversight of state survey agencies and requiring state agencies to use enforcement sanctions and remedies more promptly when substandard care or repeat violations are identified, to investigate complaints more promptly, and to survey operations more consistently. The intensified and evolving enforcement environment impacts providers like us because of the increase in the scope or number of inspections or surveys by governmental authorities and the severity of consequent citations for alleged failure to comply with regulatory requirements. We also divert personnel resources to respond to federal and state investigations, audits and other enforcement actions. The diversion of these resources, including our management team, clinical and compliance staff, and others, take away from the time and energy that these individuals could otherwise spend on routine operations. As noted, from time to time in the ordinary course of business, we receive deficiency reports from state and federal regulatory bodies resulting from such inspections or surveys. The focus of these deficiency reports tends to vary from year to year and state to state. Although most inspection deficiencies are resolved through an agreed-upon plan of corrective action, the reviewing agency typically has the authority to take further action against a licensed or certified agency or facility, which could result in the imposition of fines, imposition of a provisional or conditional license, suspension or revocation of a license, suspension of new admission or denial of payment for new admissions, loss of certification as a provider under state or federal healthcare programs, or imposition of other sanctions, including criminal penalties. In the past, we have experienced inspection deficiencies that have resulted in the imposition of a provisional license and could experience these results in the future.
Furthermore, in some states, citations in one operation can impact other operations in the state. Revocation of a license or decertification at a given operation could therefore impair our ability to obtain new licenses or to renew existing licenses at other operations, which may also trigger defaults or cross-defaults under our leases and our credit arrangements, or adversely affect our ability to operate or obtain financing in the future. If state or federal regulators were to determine, formally or otherwise, that one operations regulatory history ought to impact another of our existing or prospective communities, this could also increase costs, result in increased scrutiny by state and federal survey agencies, and even impact our expansion plans. Therefore, our failure to comply with applicable legal and regulatory requirements in any single operation could negatively impact our financial condition and results of operations as a whole.
Depending on the type of operation and state regulation, unannounced surveys or inspections may occur annually, every other year, or every third year and following a regulators receipt of a complaint from a patient, resident or employee of an affiliated operation. During such surveys or inspections, operations may be found to be deficient under Medicare, Medicaid or state licensing standards. Most deficiencies can be resolved through a written plan of corrective action, but the reviewing agency may also have authority to impose additional sanctions on a provider, including civil monetary penalties or other fines, provisional or conditional license, the suspension or revocation of a license, or a suspension of new admissions or denial of payment for new Medicare and Medicaid admissions, focused state and federal oversight and even loss of eligibility for Medicaid and Medicare participation or state licensure. Sanctions such as denial of payment for new admissions often are scheduled to go into effect before surveyors return to verify compliance. Generally, if the surveyors confirm that the operation is in compliance upon their return, the sanctions never take effect. However, if they determine that the operation is not in compliance, the denial of payment goes into effect retroactive to the date given in the original notice. This possibility sometimes leaves affected operators, including us, with the difficult task of deciding whether to continue accepting patients after the potential denial of payment date, thus risking the retroactive denial of revenue associated with those patients care if the operators are later found to be out of compliance, or simply refusing admissions from the potential denial of payment date until the operation is actually found to be in compliance. In the past, some of our affiliated operations have been in denial of payment status due to findings of continued regulatory deficiencies, resulting in an actual loss of the revenue. In addition, from time to time, we have opted to voluntarily stop accepting new patients pending completion of a new state survey, in order to avoid possible denial of payment for new admissions during the deficiency cure period, or simply to avoid straining staff and other resources while retraining staff, upgrading operating systems or making other operational improvements. If we elect to voluntarily close any operations in the future or to opt to stop
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accepting new patients pending completion of a state or federal survey, it could negatively impact our financial condition and results of operation. The Company did not incur material losses of revenue related to denial of payment status due to findings of continued regulatory deficiencies in the six months ended June 30, 2019 or the years ended December 31, 2018, 2017 and 2016.
Operations with otherwise acceptable regulatory histories generally are given an opportunity to correct deficiencies and continue their participation in the Medicare and Medicaid programs by a certain date, usually within nine months, although where denial of payment remedies are asserted, such interim remedies go into effect much sooner. Operations with deficiencies that immediately jeopardize patient health and safety and those that experience repeat survey findings, however, are not always given an opportunity to correct their deficiencies prior to the imposition of remedies and other enforcement actions. Accordingly, operations that have poor regulatory histories before we acquire them and that develop new deficiencies after we acquire them are more likely to have sanctions imposed upon them by CMS or state regulators. The imposition of such sanctions could negatively impact our financial condition and results of operation.
Our hospice operating subsidiaries are subject to annual Medicare caps calculated by Medicare. If such caps were to be exceeded by any of our hospice providers, our business and combined financial condition, results of operations and cash flows could be materially adversely affected.
With respect to our hospice operating subsidiaries, overall payments made by Medicare to each provider number are subject to an inpatient cap amount and an overall payment cap, which are calculated and published by the Medicare fiscal intermediary on an annual basis covering the period from October 1 through September 30. The caps are detailed below:
The inpatient cap limits hospice care provided on an inpatient basis. This cap limits the number of days that are paid at the higher inpatient care rate to 20.0% of the total number of days of hospice care that are provided to all Medicare beneficiaries served by a provider. The daily rate for all days exceeding the cap is the standard Medicare hospice daily rate, and the provider must reimburse Medicare for any payments in excess of that amount.
The overall payment cap is calculated by the Medicare fiscal intermediary at the end of each hospice cap period to determine the maximum allowable payments to a hospice provider during the period. We estimate our potential cap exposure by using available information to compare our actual reimbursement for all hospice services provided during the period to the number of beneficiaries we served multiplied by the statutory per beneficiary cap amount.
If payments received by any one of our hospice provider numbers exceeds either of these caps, we are required to reimburse Medicare for payments received in excess of the caps, which could have a material adverse effect on our business and combined financial condition, results of operations and cash flows.
Failure to comply with quality reporting requirements may negatively impact reimbursement to our home health and hospice operating subsidiaries.
The ACA mandated the establishment of quality reporting requirements for home health and hospice providers. Beginning in fiscal year 2014, CMS mandated that failure to submit required quality data would result in a 2% reduction to a hospice providers market basket percentage increase for that fiscal year. For 2019, hospices are required to submit 12 months of data to the CAHPS Hospice Survey Data Warehouse. The participation requirements for calendar year 2019 will affect the fiscal year 2021 annual payment update. Participation requirements for subsequent years will impact subsequent annual payment updates. The HQRP is currently pay-for-reporting, meaning it is the act of submitting timely and complete data that determines compliance with the requirements.
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In the calendar year 2015 Home Health Final Rule, CMS established a new Pay-for-Reporting Performance Requirement with which provider compliance with quality reporting program requirements is measured. Home health providers that do not submit quality reporting data to CMS are subject to a 2% reduction in their annual home health payment update percentage. Home health providers are required to report prescribed quality assessment data for a minimum of 90.0% of all patients with episodes of care that occur on or after July 1, 2017.
Should our operating subsidiaries fail to meet quality reporting requirements in the future, it may result in one or more of our operations seeing a reduction in its Medicare reimbursements. We have incurred and are likely to continue to incur additional expenses in attempting to comply with these quality reporting requirements.
We are subject to extensive and complex federal and state government laws and regulations which could change at any time and increase our cost of doing business and subject us to enforcement actions.
We, along with other companies in the healthcare industry, are required to comply with extensive and complex laws and regulations at the federal, state and local government levels relating to, among other things:
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operation and professional licensure, certificates of need, permits and other government approvals; |
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adequacy and quality of healthcare services; |
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qualifications of healthcare and support personnel; |
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quality of medical equipment; |
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confidentiality, maintenance and security issues associated with medical records and claims processing; |
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relationships with physicians and other referral sources and recipients; |
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constraints on protective contractual provisions with patients and third-party payors; |
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operating policies and procedures; |
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certification of additional providers by the Medicare or Medicaid program; and |
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payment for services. |
The laws and regulations governing our operations, along with the terms of participation in various government programs, regulate how we do business, the services we offer, and our interactions with patients and other healthcare providers. These laws and regulations are subject to frequent change. We believe that such regulations may increase in the future and we cannot predict the ultimate content, timing or impact on us of any healthcare reform legislation. Changes in existing laws or regulations, or the enactment of new laws or regulations, could negatively impact our business. If we fail to comply with these applicable laws and regulations, we could suffer civil or criminal penalties and other detrimental consequences, including denial of reimbursement, imposition of fines, temporary suspension of admission of new patients, suspension or decertification from the Medicaid and Medicare programs, restrictions on our ability to acquire new operations or expand or operate existing operations, the loss of our licenses to operate and the loss of our ability to participate in federal and state reimbursement programs.
We are subject to federal and state laws, such as the FCA, state false claims acts, the illegal remuneration provisions of the Social Security Act, federal anti-kickback laws, state anti-kickback laws, and federal Stark laws, which govern financial and other arrangements among healthcare providers, their owners, vendors and referral sources, and that are intended to prevent healthcare fraud and abuse. Among other things, these laws prohibit kickbacks, bribes and rebates, as well as other direct and indirect payments or fee-splitting arrangements that are designed to induce the referral of patients to a particular provider for medical products or services payable by any federal healthcare program, and prohibit presenting a false or misleading claim for payment under a federal or state program. They also prohibit some physician self-referrals. Possible sanctions for violation of any of these restrictions or prohibitions include loss of eligibility to participate in federal and state
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reimbursement programs and civil and criminal penalties. Changes in these laws could increase our cost of doing business. If we fail to comply, even inadvertently, with any of these requirements, we could be required to alter our operations, refund payments to the government, enter into a corporate integrity agreement, deferred prosecution or similar agreements with state or federal government agencies, and become subject to significant civil and criminal penalties.
In May 2009, Congress passed FERA which made significant changes to the FCA, expanding the types of activities subject to prosecution and whistleblower liability. Following changes by FERA, healthcare providers face significant penalties for known retention of government overpayments, even if no false claim was involved. Healthcare providers can now be liable for knowingly and improperly avoiding or decreasing an obligation to pay money or property to the government. This includes the retention of any government overpayment. The government can argue, therefore, that a FCA violation can occur without any affirmative fraudulent action or statement, as long as it is knowingly improper. The ACA supplements FERA by imposing an affirmative obligation on healthcare providers to return an overpayment to CMS within 60 days of identification or the date any corresponding cost report is due, whichever is later. On August 3, 2015, the U.S. District Court for the Southern District of New York held that the 60 day clock following identification of an overpayment begins to run when a provider is put on notice of a potential overpayment, rather than the moment when an overpayment is conclusively ascertained. On February 12, 2016, CMS published a final rule with respect to Medicare Parts A and B clarifying that providers have an obligation to proactively exercise reasonable diligence, and that the 60 day clock begins to run after the reasonable diligence period has concluded, which may take at most 6 months from the from receipt of credible information, absent extraordinary circumstances. Retention of any overpayment beyond this period may result in FCA liability. In addition, FERA extended protections against retaliation for whistleblowers, including protections not only for employees, but also contractors and agents. Thus, there is no need for an employment relationship in order to qualify for protection against retaliation for whistleblowing.
We are also required to comply with state and federal laws governing the transmission, privacy and security of health information. HIPAA requires us to comply with certain standards for the use of individually identifiable health information within our company, and the disclosure and electronic transmission of such information to third parties, such as payors, business associates and patients. These include standards for common electronic healthcare transactions and information, such as claim submission, plan eligibility determination, payment information submission and the use of electronic signatures; unique identifiers for providers, employers and health plans; and the security and privacy of individually identifiable health information. In addition, some states have enacted comparable or, in some cases, more stringent privacy and security laws. If we fail to comply with these state and federal laws, we could be subject to criminal penalties and civil sanctions and be forced to modify our policies and procedures.
On January 25, 2013, HHS promulgated new HIPAA privacy, security, and enforcement regulations, which increase significantly the penalties and enforcement practices of the Department regarding HIPAA violations. In addition, any breach of individually identifiable health information can result in obligations under HIPAA and state laws to notify patients, federal and state agencies, and in some cases media outlets, regarding the breach incident. Breach incidents and violations of HIPAA or state privacy and security laws could subject us to significant penalties, and could have a significant impact on our business.
Our failure to obtain or renew required regulatory approvals or licenses or to comply with applicable regulatory requirements, the suspension or revocation of our licenses or our disqualification from participation in federal and state reimbursement programs, or the imposition of other harsh enforcement sanctions could increase our cost of doing business and expose us to potential sanctions. Furthermore, if we were to lose licenses or certifications for any of our affiliated operations as a result of regulatory action or otherwise, we could be deemed to be in default under some of our agreements, including agreements governing outstanding indebtedness and lease obligations.
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Increased civil and criminal enforcement efforts of government agencies against home health and hospice agencies and senior living communities could harm our business, and could preclude us from participating in federal healthcare programs.
Both federal and state government agencies have heightened and coordinated civil and criminal enforcement efforts as part of numerous ongoing investigations of healthcare companies. The focus of these investigations includes, among other things:
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cost reporting and billing practices; |
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quality of care; |
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financial relationships with referral sources; and |
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medical necessity of services provided. |
If any of our affiliated operations is decertified or loses its licenses, our revenue, financial condition or results of operations would be adversely affected. In addition, the report of such issues at any of our affiliated operations could harm our reputation for quality care and lead to a reduction in the patient referrals of our operating subsidiaries and ultimately a reduction in census at these operations. Also, responding to enforcement efforts would divert material time, resources and attention from our management team and our staff, and could have a materially detrimental impact on our results of operations during and after any such investigation or proceedings, regardless of whether we prevail on the underlying claim.
Federal law provides that practitioners, providers and related persons may not participate in most federal healthcare programs, including the Medicaid and Medicare programs, if the individual or entity has been convicted of a criminal offense related to the delivery of a product or service under these programs or if the individual or entity has been convicted under state or federal law of a criminal offense relating to neglect or abuse of patients in connection with the delivery of a healthcare product or service. Other individuals or entities may be, but are not required to be, excluded from such programs under certain circumstances, including, but not limited to, the following:
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medical necessity of services provided; |
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conviction related to fraud; |
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conviction relating to obstruction of an investigation; |
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conviction relating to a controlled substance; |
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licensure revocation or suspension; |
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exclusion or suspension from state or other federal healthcare programs; |
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filing claims for excessive charges or unnecessary services or failure to furnish medically necessary services; |
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ownership or control of an entity by an individual who has been excluded from the Medicaid or Medicare programs, against whom a civil monetary penalty related to the Medicaid or Medicare programs has been assessed or who has been convicted of a criminal offense under federal healthcare programs; and |
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the transfer of ownership or control interest in an entity to an immediate family or household member in anticipation of, or following, a conviction, assessment or exclusion from the Medicare or Medicaid programs. |
The OIG, among other priorities, is responsible for identifying and eliminating fraud, abuse and waste in certain federal healthcare programs. The OIG has implemented a nationwide program of audits, inspections and investigations and from time to time issues fraud alerts to segments of the healthcare industry on particular
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practices that are vulnerable to abuse. The fraud alerts inform healthcare providers of potentially abusive practices or transactions that are subject to criminal activity and reportable to the OIG. An increasing level of resources has been devoted to the investigation of allegations of fraud and abuse in the Medicaid and Medicare programs, and federal and state regulatory authorities are taking an increasingly strict view of the requirements imposed on healthcare providers by the Social Security Act and Medicaid and Medicare programs. Although we have created a corporate compliance program that we believe is consistent with the OIG guidelines, the OIG may modify its guidelines or interpret its guidelines in a manner inconsistent with our interpretation or the OIG may ultimately determine that our corporate compliance program is insufficient.
In some circumstances, if one operation is convicted of abusive or fraudulent behavior, then other operations under common control or ownership may be decertified from participating in Medicaid or Medicare programs. Federal regulations prohibit any corporation or operation from participating in federal contracts if it or its principals have been barred, suspended or declared ineligible from participating in federal contracts. In addition, some state regulations provide that all operations under common control or ownership licensed within a state may be de-licensed if one or more of the operations are de-licensed. If any of our operating subsidiaries were decertified or excluded from participating in Medicaid or Medicare programs, our revenue would be adversely affected.
The OIG or other regulatory authorities may choose to more closely scrutinize billing practices in areas where we operate or propose to expand, which could result in an increase in regulatory monitoring and oversight, decreased reimbursement rates, or otherwise adversely affect our business, financial condition and results of operations.
In July 2018, the OIG released a report entitled Vulnerabilities in the Medicare Hospice Program Affect Quality Care and Program Integrity: an OIG Portfolio (the OIG Portfolio). The OIG Portfolios methodology included a review of hospice services provided and claims billed since 2005, including looking at eligibility determinations and billing practices. The OIG found that improper billing by hospices costs Medicare hundreds of millions of dollars each year, including billing for ineligible patients, improper levels of care, duplicative services, and other forms of fraud. Among a total of 15 recommendations, the OIG recommended that CMS (1) strengthen the hospice survey process, including analyzing claims to identify hospices that engage in concerning practices, (2) create additional remedies for poor regulatory performance, and (3) improve billing oversight, including taking steps to tie payment to patient acuity and needs. Of these recommendations, CMS concurred with six recommendations and did not concur with nine recommendations. The OIG remains committed to enhanced oversight of the hospice benefit.
In March 2016, the OIG released a report entitled Hospices Inappropriately Billed Medicare Over $250 Million for General Inpatient Care. The report analyzed the results of a medical record review of hospice general inpatient care stays occurring in 2012 to estimate the percentage of such stays that were billed inappropriately, and found that hospices billed one-third of general inpatient stays inappropriately, costing Medicare $268 million in 2012. Consequently, the OIG recommended, and CMS concurred with such recommendations, that CMS (1) increase its oversight of hospice general inpatient stay claims and review Part D payments for drugs for hospice beneficiaries; (2) ensure that a physician is involved in the decision to use general inpatient care; (3) conduct prepayment reviews for lengthy general inpatient care stays; (4) increase surveyor efforts to ensure that hospices meet care planning requirements; (5) establish additional enforcement remedies for poor hospice performance; and (6) follow up on inappropriate general inpatient care stays.
In January 2015, the OIG released a report entitled Medicare Hospices Have Financial Incentives to Provide Care in Assisted Living Facilities. The report analyzed all Medicare hospices claims from 2007 through 2012, and raised concerns about the financial incentives created by the current payment system and the potential for hospices-especially for-profit hospices-to target beneficiaries in senior living communities because they may offer the hospices the greatest financial gain. Accordingly, the report recommended that CMS reform payments to reduce the incentive for hospices to target beneficiaries with certain diagnoses and those likely to have long
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stays, target certain hospices for review, develop and adopt claims-based measures of quality, make hospice data publicly available for the beneficiaries, and provide additional information to hospices to educate them about how they compare to their peers. CMS concurred with all five recommendations.
Additionally, following recommendations made by the OIG in an April 2014 report entitled Limited Compliance with Medicares Home Health Face-to-Face Documentation Requirements, CMS committed to implement a plan for oversight of home health agencies through Supplemental Medical Review Contractor audits of every home health agency in the country. In addition, in many of its recent OIG Work Plans, it indicated that it will review compliance with various aspects which impact reimbursement to home health or hospice providers, including the documentation in support of the claims paid by Medicare. Recent OIG Work Plans provides that the OIG will review documentation to determine if it meets the requirements for certain billing documentation related to Medicare payments for hospice and home health services to ensure they were made in accordance with Medicare requirements.
In August 2012, the OIG released a report entitled Inappropriate and Questionable Billing for Medicare Home Health Agencies. The report analyzed data from home health, inpatient hospital, and skilled nursing facilities claims from 2010 to identify inappropriate home health payments. The report found that in 2010, Medicare made overpayments largely in connection with three specific errors: overlapping with claims for inpatient hospital stays, overlapping with claims for skilled nursing facility stays, or billing for services on dates after beneficiaries deaths. The report also concluded that home health agencies with questionable billing were located mostly in Texas, Florida, California, and Michigan. The report recommended that CMS implement claims processing edits or improve existing edits to prevent inappropriate payments for the three specific errors referenced above, increase monitoring of billing for home health services, enforce and consider lowering the ten percent cap on the total outlier payments a home health agency may receive annually, consider imposing a temporary moratorium on new home health agency enrollments in Florida and Texas, and take appropriate action regarding the inappropriate payments identified and home health agencies with questionable billing. CMS concurred with all five recommendations.
Moratoria on enrollment of new home health agencies were subsequently put in place effective July 31, 2013, and were extended multiple times through January 31, 2019. These moratoria were enforced in states or various counties in Florida, Michigan, Texas, Illinois, Pennsylvania and New Jersey. Effective February 1, 2019, all moratoria have been lifted, and there are no active Medicare provider enrollment moratoria in the United States.
Efforts by officials and others to make or advocate for any increase in regulatory monitoring and oversight, reduce payment rates, revise methodologies for assessing and treating patients, conduct more frequent or intense reviews of our treatment and billing practices, or implement moratoria in areas where we operate or propose to expand, could reduce our reimbursement, increase our costs of doing business and otherwise adversely affect our business, financial condition and results of operations.
State efforts to regulate or deregulate the healthcare services industry or the construction or expansion of the number of home health, hospice or senior living operations could impair our ability to expand, or result in increased competition.
Some states require healthcare providers, including home health, hospice, and senior living operators to obtain prior approval, known as a certificate of need, for:
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the purchase, construction or expansion of home health, hospice, or senior living operations; |
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capital expenditures exceeding a prescribed amount; and |
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changes in services or unit capacity. |
In addition, other states that do not require certificates of need have effectively barred the expansion of existing operations and the establishment of new ones by placing partial or complete moratoria on the number of
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new providers they will certify in certain areas or in the entire state. Other states have established such stringent development standards and approval procedures for constructing new healthcare communities that the construction of new facilities, or the expansion or renovation of existing communities, may become cost-prohibitive or extremely time-consuming.
Our ability to acquire or establish new home health, hospice or senior living operations or expand or provide new services at existing operations would be adversely affected if we are unable to obtain the necessary approvals, if there are changes in the standards applicable to those approvals, or if we experience delays and increased expenses associated with obtaining those approvals. We may not be able to obtain licensure, certificate of need approval, Medicare or Medicaid certification, Attorney General approval or other necessary approvals for future expansion projects.
Conversely, and specific to the highly competitive industry of senior living, the elimination or reduction of state regulations that limit the construction, expansion or renovation of new or existing communities could result in increased competition to us. In general, regulatory and other barriers to entry into the senior living industry are not prohibitive. Over the last several years there has been a significant increase in the construction of new senior living communities, including in many of the states where we provide services. This new construction has resulted in increased competition in many of our markets. Such new competition may limit our ability to attract new residents, raise rents or otherwise expand our senior living business, which could have a material adverse effect on our revenues, results of operations and cash flow.
Changes in federal and state employment-related laws and regulations could increase our cost of doing business.
Our operating subsidiaries are subject to a variety of federal and state employment-related laws and regulations, including, but not limited to, the U.S. Fair Labor Standards Act which governs such matters as minimum wages, overtime and other working conditions, the Americans with Disabilities Act (the ADA) and similar state laws that provide civil rights protections to individuals with disabilities in the context of employment, public accommodations and other areas, the National Labor Relations Act, regulations of the Equal Employment Opportunity Commission, regulations of the Office of Civil Rights, regulations of state Attorneys General, family leave mandates and a variety of similar laws enacted by the federal and state governments that govern these and other employment law matters. Because labor represents such a large portion of our operating costs, changes in federal and state employment-related laws and regulations could increase our cost of doing business.
The compliance costs associated with these laws and evolving regulations could be substantial. For example, all of our affiliated operations are required to comply with the ADA. The ADA has separate compliance requirements for public accommodations and commercial properties, but generally requires that buildings be made accessible to people with disabilities. Compliance with ADA requirements could require removal of access barriers and non-compliance could result in imposition of government fines or an award of damages to private litigants. Further legislation may impose additional burdens or restrictions with respect to access by disabled persons. In addition, federal proposals to introduce a system of mandated health insurance and flexible work time and other similar initiatives could, if implemented, adversely affect our operations. We also may be subject to employee-related claims such as wrongful discharge, discrimination or violation of equal employment law. While we are insured for these types of claims, we could experience damages that are not covered by our insurance policies or that exceed our insurance limits, and we may be required to pay such damages directly, which would negatively impact our cash flow from operations.
Required regulatory approvals could delay or prohibit transfers of our healthcare operations, which could result in periods in which we are unable to receive reimbursement for such properties.
The operations of our operating subsidiaries must be licensed under applicable state law and, depending upon the type of operation, certified or approved as providers under the Medicare and/or Medicaid programs. In
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the process of acquiring or transferring operating assets, including in connection with the spin-off, our operations must receive change of ownership approvals from state licensing agencies, Medicare and Medicaid as well as third party payors. If there are any delays in receiving regulatory approvals from the applicable federal, state or local government agencies, or the inability to receive such approvals, such delays could result in delayed or lost reimbursement related to periods of service prior to the receipt of such approvals.
Compliance with federal and state fair housing, fire, safety and other regulations may require us to make unanticipated expenditures, which could be costly to us.
We must comply with the federal Fair Housing Act and similar state laws, which prohibit us from discriminating against individuals if it would cause such individuals to face barriers in gaining residency in any of our affiliated communities. Additionally, the Fair Housing Act and other similar state laws require that we advertise our services in such a way that we promote diversity and not limit it. We may be required, among other things, to change our marketing techniques to comply with these requirements.
In addition, we are required to operate our affiliated communities in compliance with applicable fire and safety regulations, building codes and other land use regulations and food licensing or certification requirements as they may be adopted by governmental agencies and bodies from time to time. Surveys occur on a regular (often annual or biannual) schedule, and special surveys may result from a specific complaint filed by a patient, a family member or one of our competitors. We may be required to make substantial capital expenditures to comply with these requirements.
We depend largely upon reimbursement from Medicare, Medicaid, and other third-party payors, and our revenue, financial condition and results of operations could be negatively impacted by any changes in the acuity mix of patients in our affiliated operations as well as payor mix and payment methodologies.
Our revenue is determined in part by the acuity of home health and hospice patients and senior living residents. Changes in the acuity level of patients we attract, as well as our payor mix among Medicaid, Medicare, private payors and managed care companies, significantly affect our profitability because we generally receive higher reimbursement rates for high acuity patients and because the payors reimburse us at different rates. For six months ended June 30, 2019 and the year ended December 31, 2018, 54.1% and 53.1%, respectively, of our revenue was provided by government payors that reimburse us at predetermined rates. If our labor or other operating costs increase, we will be unable to recover such increased costs from government payors. Accordingly, if we fail to maintain our proportion of high acuity patients or if there is any significant increase in the percentage of the patients of our operating subsidiaries for whom we receive Medicaid reimbursement, our results of operations may be adversely affected.
Initiatives undertaken by major insurers and managed care companies to contain healthcare costs may adversely affect our business. Among other initiatives, these payors attempt to control healthcare costs by contracting with healthcare providers to obtain services on a discounted basis. We believe that this trend will continue and may limit reimbursements for healthcare services. If insurers or managed care companies from whom we receive substantial payments were to reduce the amounts they pay for services, we may lose patients if we choose not to renew our contracts with these insurers at lower rates.
Compliance with state and federal employment, immigration, licensing and other laws could increase our cost of doing business.
Our operating subsidiaries have hired personnel, including nurses and therapists, from outside the United States. If immigration laws are changed, or if new and more restrictive government regulations proposed by the Department of Homeland Security are enacted, our access to qualified and skilled personnel may be limited.
Our subsidiaries operate in at least one state that requires them to verify employment eligibility using procedures and standards that exceed those required under federal Form I-9 and the statutes and regulations
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related thereto. Proposed federal regulations would extend similar requirements to all of the states in which our affiliated operations operate. To the extent that such proposed regulations or similar measures become effective, and our subsidiaries are required by state or federal authorities to verify work authorization or legal residence for current and prospective employees beyond existing Form I-9 requirements and other statutes and regulations currently in effect, it may make it more difficult for our subsidiaries to recruit, hire and/or retain qualified employees, may increase our risk of non-compliance with state and federal employment, immigration, licensing and other laws and regulations and could increase our cost of doing business.
We are subject to litigation that could result in significant legal costs and large settlement amounts or damage awards.
Our business involves a significant risk of liability given the age and health of the patients and residents of our operating subsidiaries and the services we provide. We and others in our industry may be subject to a large and increasing number of claims and lawsuits, including professional liability claims, alleging that our services have resulted in personal injury, elder abuse, wrongful death or other related claims. The defense of these lawsuits has in the past, and may in the future, result in significant legal costs, regardless of the outcome, and can result in large settlement amounts or damage awards. Plaintiffs tend to sue every healthcare provider who may have been involved in the patients care and, accordingly, we respond to multiple lawsuits and claims every year.
In addition, plaintiffs attorneys have become increasingly more aggressive in their pursuit of claims against healthcare providers, including home health, hospice and senior living providers, and have employed a wide variety of advertising and publicity strategies. Among other things, these strategies include establishing their own Internet websites, paying for premium advertising space on other websites, paying Internet search engines to optimize their plaintiff solicitation advertising so that it appears in advantageous positions on Internet search results, using newspaper, magazine and television ads targeted at customers of the healthcare industry generally, as well as at customers of large for-profit providers such as us. These advertising and solicitation activities could result in more claims and litigation, which could increase our liability exposure and legal expenses, divert the time and attention of the personnel from day-to-day business operations, and materially and adversely affect our financial condition and results of operations. Furthermore, to the extent the frequency and/or severity of losses from such claims and suits increases, our liability insurance premiums could increase and/or available insurance coverage levels could decline, which could materially and adversely affect our financial condition and results of operations.
Healthcare litigation (including class action litigation) is common and is filed based upon a wide variety of claims and theories, and we are routinely subjected to varying types of claims. Future claims could be brought that may materially affect our business, financial condition and results of operations. Other claims and suits, including class actions, could be filed against us and other companies in our industry. For example, there has been an increase in the number of wage and hour class action claims filed in several of the jurisdictions where we are present. Allegations typically include claimed failures to permit or properly compensate for meal and rest periods, or failure to pay for time worked. If there were a significant increase in the number of these claims or an increase in amounts owing should plaintiffs be successful in their prosecution of these claims, this could have a material adverse effect to our business, financial condition, results of operations and cash flows. In addition, we contract with a variety of landlords, lenders, vendors, suppliers, consultants and other individuals and businesses. These contracts typically contain covenants and default provisions. If the other party to one or more of our contracts were to allege that we have violated the contract terms, we could be subject to civil liabilities which could have a material adverse effect on our financial condition and results of operations.
Were litigation to be instituted against one or more of our subsidiaries, a successful plaintiff might attempt to hold us or another subsidiary liable for the alleged wrongdoing of the subsidiary principally targeted by the litigation. If a court in such litigation decided to disregard the corporate form, the resulting judgment could increase our liability and adversely affect our financial condition and results of operations.
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We conduct regular internal investigations into the care delivery, recordkeeping and billing processes of our operating subsidiaries. These reviews sometimes detect instances of noncompliance which we attempt to correct, which can decrease our revenue.
As an operator of healthcare operations, we have a program to help us comply with various requirements of federal and private healthcare programs. Our compliance program includes, among other things, (1) policies and procedures modeled after applicable laws, regulations, government manuals and industry practices and customs that govern the clinical, reimbursement and operational aspects of our subsidiaries, (2) training about our compliance process for all of the employees of our operating subsidiaries, our directors and officers, and training about Medicare and Medicaid laws, fraud and abuse prevention, clinical standards and practices, and claim submission and reimbursement policies and procedures for appropriate employees, and (3) internal controls that monitor, for example, the accuracy of claims, reimbursement submissions, cost reports and source documents, provision of patient care, services, and supplies as required by applicable standards and laws, accuracy of clinical assessment and treatment documentation, and implementation of judicial and regulatory requirements (i.e., background checks, licensing and training).
From time to time our systems and controls highlight potential compliance issues, which we investigate as they arise. Historically, we have, and would continue to do so in the future, initiated internal inquiries into possible recordkeeping and related irregularities. Through these internal inquiries, we have identified potential deficiencies in the assessment of and recordkeeping for small subsets of patients. We have also identified and, at the conclusion of such investigations, assisted in implementing, targeted improvements in the assessment and recordkeeping practices to make them consistent with the existing standards and policies. We continue to monitor the measures implemented for effectiveness, and perform follow-up reviews to ensure compliance. Consistent with healthcare industry accounting practices, we record any charge for refunded payments against revenue in the period in which the claim adjustment becomes known.
If additional reviews result in identification and quantification of additional amounts to be refunded, we would accrue additional liabilities for claim costs and interest, and repay any amounts due in normal course. Furthermore, failure to refund overpayments within required time frames (as described in greater detail above) could result in FCA liability. If future investigations ultimately result in findings of significant billing and reimbursement noncompliance which could require us to record significant additional provisions or remit payments, our business, financial condition and results of operations could be materially and adversely affected and our stock price could decline.
We may be unable to complete future acquisitions at attractive prices or at all, which may adversely affect our revenue; we may also elect to dispose of underperforming or non-strategic operating subsidiaries, which would also decrease our revenue.
To date, our revenue growth has been significantly impacted by our acquisition of new operations. Subject to general market conditions and the availability of essential resources and leadership within our company, we continue to seek both home health, hospice and senior living acquisition opportunities that are consistent with our geographic, financial and operating objectives.
We face competition for the acquisition of operations and businesses and expect this competition to increase. Based upon factors such as our ability to identify suitable acquisition candidates, the purchase price of the operations, prevailing market conditions, the availability of leadership to manage new operations and our own willingness to take on new operations, the rate at which we have historically acquired home health, hospice and senior living operations has fluctuated significantly. In the future, we anticipate the rate at which we may acquire these operations will continue to fluctuate, which may affect our revenue.
We have also historically acquired a few operations, either because they were included in larger, indivisible groups of operations or under other circumstances, which were or have proven to be non-strategic or less
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desirable, and we may consider disposing of such operations or exchanging them for operations which are more desirable. To the extent we dispose of such an operation without simultaneously acquiring an operation in exchange, our revenues might decrease.
We may not be able to successfully integrate acquired operations, and we may not achieve the benefits we expect from our acquisitions.
We may not be able to successfully or efficiently integrate new acquisitions with our existing operating subsidiaries, culture and systems. The process of integrating acquisitions into our existing operations may result in unforeseen operating difficulties, divert managements attention from existing operations, or require an unexpected commitment of staff and financial resources, and may ultimately be unsuccessful. Existing operations available for acquisition frequently serve or target different markets than those that we currently serve. We also may determine that renovations of acquired operations and changes in staff and operating management personnel are necessary to successfully integrate those acquisitions into our existing operations. We may not be able to recover the costs incurred to reposition or renovate newly operating subsidiaries. The financial benefits we expect to realize from many of our acquisitions are largely dependent upon our ability to improve clinical performance, overcome regulatory deficiencies, rehabilitate or improve the reputation of the operations in the community, increase and maintain census, control costs, and in some cases change the patient acuity mix. If we are unable to accomplish any of these objectives at the operating subsidiaries we acquire, we will not realize the anticipated benefits and we may experience lower than anticipated profits, or even losses.
From January 1, 2018 through June 30, 2019, we expanded our operations through the acquisition of eight stand-alone senior living operations, six home health agencies, six hospice agencies, and four home care agencies. This growth has placed and will continue to place significant demands on our current management resources. Our ability to manage our growth effectively and to successfully integrate new acquisitions into our existing business will require us to continue to expand our operational, financial and management information systems and to continue to retain, attract, train, motivate and manage key employees, including our local leaders. We may not be successful in attracting qualified individuals necessary for future acquisitions to be successful, and our management team may expend significant time and energy working to attract qualified personnel to manage operations we may acquire in the future. Also, the newly acquired operations may require us to spend significant time improving services that have historically been substandard, and if we are unable to improve such operations quickly enough, we may be subject to litigation and/or loss of licensure or certification. If we are not able to successfully overcome these and other integration challenges, we may not achieve the benefits we expect from any of our acquisitions, and our business may suffer.
In undertaking acquisitions, we may be adversely impacted by costs, liabilities and regulatory issues that may adversely affect our operations.
In undertaking acquisitions, we also may be adversely impacted by unforeseen liabilities attributable to the prior providers who operated the acquired operations, against whom we may have little or no recourse. Many operations we have historically acquired were underperforming financially and had clinical and regulatory issues prior to and at the time of acquisition. Even where we have improved operating subsidiaries and patient care at affiliated operations that we have acquired, we still may face post-acquisition regulatory issues related to pre-acquisition events. These may include, without limitation, payment recoupment related to our predecessors prior noncompliance, the imposition of fines, penalties, operational restrictions or special regulatory status. Further, we may incur post-acquisition compliance risk due to the difficulty or impossibility of immediately or quickly bringing non-compliant operations into full compliance. Diligence materials pertaining to acquisition targets, especially the underperforming operations that often represent the greatest opportunity for return, are often inadequate, inaccurate or impossible to obtain, sometimes requiring us to make acquisition decisions with incomplete information. Despite our due diligence procedures, operations that we have acquired or may acquire in the future may generate unexpectedly low returns, may cause us to incur substantial losses, may require unexpected levels of management time, expenditures or other resources, or may otherwise not meet a risk profile
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that our investors find acceptable. For example, in April 2010, one of our affiliated operating subsidiaries acquired a home health agency that had a history of intermittent noncompliance. Although the agency rapidly improved its compliance after acquisition, the review continued for a significant period of time and resulted in the expenditure of significant agency resources. The affiliated operation has successfully graduated from the targeted medical review and has developed a reputation for quality clinical care.
In addition, we might encounter unanticipated difficulties and expenditures relating to any of the acquired operations, including contingent liabilities. When we acquire an operation we generally assume its existing Medicare provider number for purposes of billing Medicare for services. If CMS later determines that the prior operator had received overpayments from Medicare for the period of time during which it operated, or had incurred fines in connection with service provided prior to our acquisition of the operation, CMS could hold us liable for repayment of the overpayments or fines. For example, one of our operating subsidiaries acquired a home health agency that had a history of intermittent noncompliance. In October 2012, a ZPIC reopened claims at the agency for home health services provided prior to our period of ownership. In March 2014, the ZPIC completed its review and notified the agency of its findings, including a finding that the agency would be required to repay a significant amount of its Medicare reimbursement. While in this instance our operating subsidiary was indemnified for its losses by the prior operator, in future situations where the prior operator is defunct or otherwise unable to reimburse us, we may be unable to recover these funds. We may be unable to improve every operation that we acquire. In addition, these operations may divert management time and attention from other operations and priorities, negatively impact cash flows, result in adverse or unanticipated accounting charges, or otherwise damage other areas of our company if they are not timely and adequately improved.
We also incur regulatory risk in acquiring certain operations due to the licensing, certification and other regulatory requirements affecting our right to operate the acquired operations. For example, in order to acquire operations on a predictable schedule, or to acquire declining operations quickly to prevent further pre-acquisition declines, we frequently acquire such operations prior to receiving license approval or provider certification. We operate as the interim manager for the outgoing licensee, assuming financial responsibility, among other obligations, for the operation. To the extent that we may be unable or delayed in obtaining a license, we may need to operate under a management agreement with the prior operator. Any inability in obtaining consent from the prior operator of a target acquisition to utilizing its license in this manner could impact our ability to acquire additional operations. If we were subsequently denied licensure or certification for any reason, we might not realize the expected benefits of the acquisition and would likely incur unanticipated costs and other challenges which could cause our business to suffer.
Termination of our residency agreements and the resulting vacancies in our affiliated senior living operations could cause revenue at our affiliated operations to decline.
Most state regulations governing senior living communities require written residency agreements with each resident. Several of these regulations also require that each resident have the right to terminate the residency agreement for any reason and without prior notice. Consistent with these regulations, all of our senior living resident agreements allow residents to terminate their agreements upon thirty days notice. Residents terminate their agreements from time to time for a variety of reasons, causing some fluctuations in our overall census as residents are admitted and discharged in normal course. If an unusual number of residents elected to terminate their agreements within a short time, census levels at our affiliated operations could decline. As a result, units may be unoccupied for a period of time, which would have a negative impact on our revenue, financial condition and results of operations.
We face significant competition from other healthcare providers and may not be successful in attracting patients and residents to our affiliated operations.
The home health, hospice and senior living industries are highly competitive, and we expect that these industries may become increasingly competitive in the future. Increased competition could limit our ability to
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attract and retain patients, attract and retain skilled personnel, maintain or increase private pay and managed care rates or expand our business.
We may not be successful in attracting patients to our operating subsidiaries, particularly Medicare, managed care, and private pay patients who generally come to us at higher reimbursement rates. Some of our competitors have greater financial and other resources than us, may have greater brand recognition and may be more established in their respective communities than we are. Competing companies may also offer newer communities or different programs or services than we do and may thereby attract current or potential patients. Other competitors may have lower expenses or other competitive advantages, and, therefore, present significant price competition for managed care and private pay patients. In addition, some of our competitors operate on a not-for-profit basis or as charitable organizations and have the ability to finance capital expenditures on a tax-exempt basis or through the receipt of charitable contributions, neither of which are available to us.
If we do not achieve and maintain competitive quality of care or if the frequency of CMS surveys and enforcement sanctions increases, our business may be negatively affected.
Providing quality patient care is the cornerstone of our business. We believe that hospitals, physicians and other referral sources refer patients to us in large part because of our reputation for delivering quality care. Clinical quality is becoming increasingly important within our industry. Effective October 2012, Medicare began to impose a financial penalty upon hospitals that have excessive rates of patient readmissions within 30 days from hospital discharge. We believe this regulation provides a competitive advantage to home health providers who can differentiate themselves based upon quality, particularly by achieving low patient acute care hospitalization readmission rates and by implementing disease management programs designed to be responsive to the needs of patients served by referring hospitals. We are focused intently upon improving our patient outcomes, particularly our patient acute care hospitalization readmission rates. If we should fail to attain our goals regarding acute care hospitalization readmission rates and other quality metrics, we expect our ability to generate referrals would be adversely impacted, which could have a material adverse effect upon our business and combined financial condition, results of operations and cash flows.
Medicare has established consumer-facing websites, Home Health Compare and Hospice Compare that present data regarding our performance on certain quality measures compared to state and national averages. If we should fail to achieve or exceed these averages, it may affect our ability to generate referrals, which could have a material adverse effect upon our business and combined financial condition, results of operations and cash flows.
CMS has undertaken an initiative to increase Medicaid and Medicare survey and enforcement activities, to focus more survey and enforcement efforts on facilities with findings of condition level deficiencies or repeat violations of Medicaid and Medicare standards, and to require state agencies to use enforcement sanctions and remedies more promptly when substandard care or repeat violations are identified.
On July 17, 2015, CMS announced Home Health Star Ratings for home health agencies. All Medicare-certified home health agencies are potentially eligible to receive a Quality of Patient Care Star Rating. The Star rating includes assessments of quality of patient care based on Medicare claims data and patient experience of care. The Star rating may impact patient choice of home health agencies and reimbursement from home health agencies, as a higher Star rating indicates better patient care than a lower Star rating. A low Star rating may decrease the number of patients for Medicare reimbursement. On December 14, 2017, CMS announced that the influenza vaccination measure would be removed from consideration in the Quality of Patient Care Star Rating beginning with the April 2018 Home Health Compare refresh, reducing the number of quality measures used from nine to eight.
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If we are unable to obtain insurance, or if insurance becomes more costly for us to obtain, our business may be adversely affected.
It may become more difficult and costly for us to obtain coverage for patient care liabilities and other risks, including property and casualty insurance. For example, the following circumstances may adversely affect our ability to obtain insurance at favorable rates:
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we experience higher-than-expected professional liability, property and casualty, or other types of claims or losses; |
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we receive survey deficiencies or citations of higher-than-normal scope or severity; |
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we acquire especially troubled operations that present unattractive risks to current or prospective insurers; |
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insurers tighten underwriting standards applicable to us or our industry; or |
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insurers or reinsurers are unable or unwilling to insure us or the industry at historical premiums and coverage levels. |
If any of these potential circumstances were to occur, our insurance carriers may require us to pay substantially higher premiums for the same or reduced coverage for insurance, including workers compensation, property and casualty, automobile, employment practices liability, directors and officers liability, employee healthcare and general and professional liability coverages.
In some states, the law prohibits or limits insurance coverage for the risk of punitive damages arising from professional liability and general liability claims or litigation. Coverage for punitive damages is also excluded under some insurance policies. As a result, we may be liable for punitive damage awards in these states that either are not covered or are in excess of our insurance policy limits. Claims against us, regardless of their merit or eventual outcome, also could inhibit our ability to attract patients or expand our business, and could require our management to devote time to matters unrelated to the day-to-day operation of our business.
With few exceptions, workers compensation and employee health insurance costs have also increased markedly in recent years. To partially offset these increases, our insurance deductibles in connection with general and professional liability and auto claims also increased. We also have implemented a self-insurance program for workers compensation in all states, except Washington and Texas, and elected non-subscriber status for workers compensation in Texas. In Washington, the insurance coverage is financed through premiums paid by the employers and employees. If we are unable to obtain insurance, or if insurance becomes more costly for us to obtain, or if the coverage levels we can economically obtain decline, our business may be adversely affected.
Self-insurance programs may expose us to significant and unexpected costs and losses.
Pennant may maintain certain self-insurance programs including general and professional liability insurance and workers compensation insurance to insure our self-insurance reimbursements (SIR) and deductibles as part of a continually evolving overall risk management strategy. Should we establish such programs, we will be required to establish the insurance loss reserves based on an estimation process that uses information obtained from both company-specific and industry data. The estimation process will require us to continuously monitor and evaluate the life cycle of the claims to develop information about the size of ultimate claims. The most significant assumptions used in the estimation process include determining the trend in costs, the expected cost of claims incurred but not reported and the expected costs to settle or pay damages with respect to unpaid claims. It is possible, however, that the actual liabilities may exceed our estimates of loss. We may also experience an unexpectedly large number of successful claims or claims that result in costs or liability significantly in excess of our projections. For these and other reasons, our self-insurance reserves could prove to be inadequate, resulting in liabilities in excess of our available insurance and self-insurance. If a successful claim is made against us and it is not covered by our insurance or exceeds the insurance policy limits, our business and operational results may be negatively impacted.
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We may also elect to self-insure our employee health benefits. The related reserves and premiums will be computed based on a mix of company specific and general industry data that is not specific to our own company. Even with a combination of limited company-specific loss data and general industry data, our loss reserves are based on actuarial estimates that may not correlate to actual loss experience in the future. Therefore, our reserves may prove to be insufficient and we may be exposed to significant and unexpected losses.
The actions of a national labor union that has pursued a negative publicity campaign criticizing our business in the past or unionization of our workers may adversely affect our revenue and our profitability.
We maintain our right to inform the employees of our operating subsidiaries about our views of the potential impact of unionization upon the workplace generally and upon individual employees. With one exception, to our knowledge the staffs at our affiliated operations that have been approached to unionize have uniformly rejected union organizing efforts. If employees decide to unionize, our cost of doing business could increase, and we could experience contract delays, difficulty in adapting to a changing regulatory and economic environment, cultural conflicts between unionized and non-unionized employees, strikes and work stoppages, and we may conclude that affected operations would be uneconomical to continue operating.
Because we lease all of our affiliated senior living communities, we could experience risks associated with leased property, including risks relating to lease termination, lease extensions and special charges, which could adversely affect our business, financial position or results of operations.
As of June 30, 2019, we leased all of our senior living communities and administrative offices. Most of our leases are triple-net leases, which means that, in addition to rent, we are required to pay for the costs related to the property (including property taxes, insurance, and maintenance and repair costs). We are responsible for paying these costs notwithstanding the fact that some of the benefits associated with paying these costs accrue to the landlords as owners of the associated communities.
Specifically, as of June 30, 2019, our operating subsidiaries leased 28 senior living operations pursuant to certain triple-net lease agreements between our operating subsidiaries and subsidiaries of Ensign, which we anticipate will be amended and restated or replaced by the Ensign Leases in connection with the spin-off. The existing leases with subsidiaries of Ensign are for initial terms of 15 years. After the spin-off, the Ensign Leases will be for initial terms ranging between 14 and 16 years. Fifteen of our affiliated senior living communities, excluding those operated under the Ensign Leases, are operated under two separate master lease arrangements. Under these master leases, a breach at a single community could subject one or more of the other communities covered by the same master lease to the same default risk. Failure to comply with provider requirements is a default under several of the leases and master lease agreements. In addition, other potential defaults related to an individual community may cause a default of an entire master lease portfolio and could trigger cross-default provisions in our outstanding debt arrangements and other leases. With an indivisible lease, it is difficult to restructure the composition of the portfolio or economic terms of the lease without the consent of the landlord.
Each lease provides that the landlord may terminate the lease for a number of reasons, including, subject to applicable cure periods, the default in any payment of rent, taxes or other payment obligations or the breach of any other covenant or agreement in the lease. Any default under the Ensign Leases or the other master lease agreements could be declared an event of default under such agreements, which could result in an acceleration of our indebtedness and the potential loss of certain of our communities. Any such occurrence would have a material adverse effect on our business, financial condition, results of operations, cash flows and profitability. There can be no assurance that we will be able to comply with all of our obligations under the leases in the future.
A housing downturn could decrease demand for assisted living services.
Seniors often use the proceeds of home sales to fund their admission to assisted living communities. A downturn in the housing markets could adversely affect seniors ability to afford our resident fees and entrance
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fees. If national or local housing markets enter a persistent decline, our occupancy rates, revenues, results of operations and cash flow could be negatively impacted.
If our referral sources fail to view us as an attractive provider, or if our referral sources otherwise refer fewer patients, our patient base may decrease.
We rely significantly on appropriate referrals from physicians, hospitals and other healthcare providers in the communities we serve to attract appropriate residents and patients to our affiliated operations. Our referral sources are not obligated to refer business to us and may refer business to other healthcare providers. We believe many of our referral sources refer business to us as a result of our quality patient care and our commitment to partnerships and communication. If we lose, or fail to maintain, existing relationships with our referral resources, fail to develop new relationships, or if we are perceived by our referral sources as not providing high quality patient care, our census could decline and our patient mix could change. In addition, if any of our referral sources have a reduction in patients whom they can refer due to a decrease in their business, our census could decline and our patient mix could change.
Our systems are subject to security breaches and other cyber-security incidents.
Our business is dependent on the proper functioning and availability of our computer systems and networks. While we have taken steps to protect the safety and security of our information systems and the patient health information and other data maintained within those systems, we cannot assure you that our safety and security measures and disaster recovery plan will prevent damage, interruption or breach of our information systems and operations. Because the techniques used to obtain unauthorized access, disable or degrade service, or sabotage systems change frequently and may be difficult to detect, we may be unable to anticipate these techniques or implement adequate preventive measures. In addition, hardware, software or applications we develop or procure from third parties may contain defects in design or manufacture or other problems that could unexpectedly compromise the security of our information systems. Unauthorized parties may attempt to gain access to our systems or operations, or those of third parties with whom we do business, through fraud or other forms of deceiving our employees or contractors.
On occasion, we have acquired additional information systems through our business acquisitions. We have upgraded and expanded our information system capabilities and have committed significant resources to maintain, protect, enhance existing systems and develop new systems to keep pace with continuing changes in technology, evolving industry and regulatory standards, and changing customer preferences.
We license certain third party software to support our operations and information systems. Our inability, or the inability of third party software providers, to continue to maintain and upgrade our information systems and software could disrupt or reduce the efficiency of our operations. In addition, costs and potential problems and interruptions associated with the implementation of new or upgraded systems and technology or with maintenance or adequate support of existing systems also could disrupt or reduce the efficiency of our operations.
A cyber-security attack or other incident that bypasses our information systems security could cause a security breach which may lead to a material disruption to our information systems infrastructure or business and may involve a significant loss of business or patient health information. If a cyber-security attack or other unauthorized attempt to access our systems or operations were to be successful, it could result in the theft, destruction, loss, misappropriation or release of confidential information or intellectual property, and could cause operational or business delays that may materially impact our ability to provide various healthcare services. Any successful cyber-security attack or other unauthorized attempt to access our systems or operations also could result in negative publicity which could damage our reputation or brand with our patients, referral sources, payors or other third parties and could subject us to substantial penalties under HIPAA and other federal and state privacy laws, in addition to private litigation with those affected.
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Failure to maintain the security and functionality of our information systems and related software, or a failure to defend a cyber-security attack or other attempt to gain unauthorized access to our systems, operations or patient health information could expose us to a number of adverse consequences, the vast majority of which are not insurable, including but not limited to disruptions in our operations, regulatory and other civil and criminal penalties, fines, investigations and enforcement actions (including, but not limited to, those arising from the SEC, Federal Trade Commission, the OIG or state attorneys general), fines, private litigation with those affected by the data breach, loss of customers, disputes with payors and increased operating expense, which either individually or in the aggregate could have a material adverse effect on our business, financial position, results of operations and liquidity.
Failure to generate sufficient cash flow to cover required payments or meet operating covenants under our long-term debt, including debt entered into in connection with the spin-off and long-term operating leases, could result in defaults under such agreements and cross-defaults under other debt or operating lease arrangements, which could harm our operating subsidiaries and cause us to lose operations or experience foreclosures.
We have significant future operating lease obligations. We intend to continue financing our operations through long-term operating leases, mortgage financing and other types of financing, including borrowings under our future credit facilities we may obtain. We may not generate sufficient cash flow from operations to cover required interest, principal and lease payments.
Our ability to make payments of principal and interest on our indebtedness and to make lease payments on our operating leases depends upon our future performance, which will be subject to general economic conditions, industry cycles and financial, business and other factors affecting our business, many of which are beyond our control. If we are unable to generate sufficient cash flow from operations in the future to service our debt or to make lease payments on our operating leases, we may be required, among other things, to seek additional financing in the debt or equity markets, refinance or restructure all or a portion of our indebtedness, sell selected assets, reduce or delay planned capital expenditures or delay or abandon desirable acquisitions. Such measures might not be sufficient to enable us to service our debt or to make lease payments on our operating leases. The failure to make required payments on our debt or operating leases or the delay or abandonment of our planned growth strategy could result in an adverse effect on our future ability to generate revenue and sustain profitability. In addition, any such financing, refinancing or sale of assets might not be available on terms that are economically favorable to us, or at all.
Additionally, in connection with the spin-off, we expect to incur indebtedness, and we will be responsible for servicing our own indebtedness and obtaining and maintaining sufficient working capital and other funds to satisfy our cash requirements. Our financing arrangements may contain restrictions, covenants and events of default that, among other things, could limit our ability to respond to market conditions, provide for capital investment needs or take advantage of business opportunities by restricting our ability to incur or guarantee additional indebtedness or requiring us to offer to repurchase such indebtedness in the event of a change of control or a change of control triggering event; pay dividends or make distributions; make investments or acquisitions; sell, transfer or otherwise dispose of certain assets; create liens; consolidate or merge; enter into transactions with affiliates; and prepay and repurchase or redeem certain indebtedness. In addition, our financing costs may be higher than they were prior to the spin-off from Ensign.
We may need additional capital to finance our growth, and we may not be able to obtain it on terms acceptable to us, or at all, which may limit our ability to grow.
Our ability to maintain and enhance our operating subsidiaries and equipment in a suitable condition to meet regulatory standards, operate efficiently and remain competitive in our markets requires us to commit substantial resources to continued investment in our affiliated operations. We are sometimes more aggressive than our competitors in capital spending to address issues that arise in connection with aging and obsolete facilities and
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equipment. In addition, continued expansion of our business through the acquisition of existing operations, expansion of our existing operations and construction of new communities may require additional capital, particularly if we were to accelerate our acquisition and expansion plans. Financing may not be available to us or may be available to us only on terms that are not favorable. In addition, some of our long-term leases restrict, among other things, our ability to incur additional debt. If we are unable to raise additional funds or obtain additional funds on terms acceptable to us, we may have to delay or abandon some or all of our growth strategies. Further, if additional funds are raised through the issuance of additional equity securities, the percentage ownership of our stockholders would be diluted. Any newly issued equity securities may have rights, preferences or privileges senior to those of our common stock.
The condition of the financial markets, including volatility and deterioration in the capital and credit markets, could limit the availability of debt and equity financing sources to fund the capital and liquidity requirements of our business, as well as negatively impact or impair the value of our future portfolio of cash, cash equivalents and investments.
Financial markets experienced significant disruptions from 2008 through 2010. These disruptions impacted liquidity in the debt markets, making financing terms for borrowers less attractive and, in certain cases, significantly reducing the availability of certain types of debt financing. As a result of these market conditions, the cost and availability of credit has been and may continue to be adversely affected by illiquid credit markets and wider credit spreads. Concern about the stability of the markets has led many lenders and institutional investors to reduce, and in some cases, cease to provide credit to borrowers.
Further, we anticipate that our future cash, cash equivalents and investments may be held in a variety of interest-bearing instruments. As a result of the uncertain domestic and global political, credit and financial market conditions, investments in these types of instruments pose risks arising from liquidity and credit concerns.
Though we anticipate that the cash amounts generated internally, together with amounts available under our future debt instruments, will be sufficient to implement our business plan for the foreseeable future, we may need additional capital if a substantial acquisition or other growth opportunity becomes available or if unexpected events occur or opportunities arise. We cannot assure you that additional capital will be available or available on terms favorable to us. If capital is not available, we may not be able to fund internal or external business expansion or respond to competitive pressures or other market conditions.
Delays in reimbursement may cause liquidity problems.
If we experience problems with our billing information systems or if issues arise with Medicare, Medicaid or other payors, we may encounter delays in our payment cycle. From time to time, we have experienced such delays as a result of government payors instituting planned reimbursement delays for budget balancing purposes or as a result of prepayment reviews.
In August 2016, CMS initiated its implementation of a three year Medicare pre-claim review demonstration for home health services provided to beneficiaries in the state of Illinois. As of December 10, 2018 this demonstration was set to expand to other states including Ohio, North Carolina, Florida and Texas; however, CMS suspended the program indefinitely, but can restart the demonstration in the announced states after providing 30 days notice. If the program were to restart, this process could result in increased administrative costs or delays in reimbursement for home health services in states subject to the demonstration. Our operating subsidiaries currently provide home health services in the state of Texas and would be impacted by the expansion of the demonstration in that state.
With the phaseout in 2020 and elimination in 2021 of RAPs, we may experience higher receivables as collections are delayed upon implementation.
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Compliance with the regulations of the Department of Housing and Urban Development may require us to make unanticipated expenditures which could increase our costs.
Seventeen of our affiliated senior living communities are currently subject to regulatory agreements with HUD that give the Commissioner of HUD broad authority to require us to be replaced as the operator of those communities in the event that the Commissioner determines there are operational deficiencies at such communities under HUD regulations. Compliance with HUDs requirements can often be difficult because these requirements are not always consistent with the requirements of other federal and state agencies. Appealing a failed inspection can be costly and time-consuming and, if we do not successfully remediate the failed inspection, we could be precluded from obtaining HUD financing in the future or we may encounter limitations or prohibitions on our operation of HUD-insured communities.
Failure to comply with existing environmental laws could result in increased expenditures, litigation and potential loss to our business and in our asset value.
Our operating subsidiaries are subject to regulations under various federal, state and local environmental laws, primarily those relating to the handling, storage, transportation, treatment and disposal of medical waste; the identification and warning of the presence of asbestos-containing materials in buildings, as well as the encapsulation or removal of such materials; and the presence of other substances in the indoor environment.
Our affiliated operations generate infectious or other hazardous medical waste due to the illness or physical condition of the patients. Each of our affiliated operations has an agreement with a waste management company for the proper disposal of all infectious medical waste, but the use of a waste management company does not immunize us from alleged violations of such laws for operating subsidiaries for which we are responsible even if carried out by a third party, nor does it immunize us from third-party claims for the cost to cleanup disposal sites at which such wastes have been disposed.
Some of the affiliated senior living communities we lease or may acquire may have asbestos-containing materials. Federal regulations require building owners and those exercising control over a buildings management to identify and warn their employees and other employers operating in the building of potential hazards posed by workplace exposure to installed asbestos-containing materials and potential asbestos-containing materials in their buildings. Significant fines can be assessed for violation of these regulations. Building owners and those exercising control over a buildings management may be subject to an increased risk of personal injury lawsuits. Federal, state and local laws and regulations also govern the removal, encapsulation, disturbance, handling and disposal of asbestos-containing materials and potential asbestos-containing materials when such materials are in poor condition or in the event of construction, remodeling, renovation or demolition of a building. Such laws may impose liability for improper handling or a release into the environment of asbestos- containing materials and potential asbestos-containing materials and may provide for fines to, and for third parties to seek recovery from, owners or operators of real properties for personal injury or improper work exposure associated with asbestos-containing materials and potential asbestos-containing materials. The presence of asbestos-containing materials, or the failure to properly dispose of or remediate such materials, also may adversely affect our ability to attract and retain patients and staff, to borrow when using such property as collateral or to make improvements to such property.
The presence of mold, lead-based paint, underground storage tanks, contaminants in drinking water, radon and/or other substances at any of the affiliated senior living communities we lease, own or may acquire may lead to the incurrence of costs for remediation, mitigation or the implementation of an operations and maintenance plan and may result in third party litigation for personal injury or property damage. Furthermore, in some circumstances, areas affected by mold may be unusable for periods of time for repairs, and even after successful remediation, the known prior presence of extensive mold could adversely affect the ability of a community to retain or attract patients and staff and could adversely affect a communitys market value and ultimately could lead to the temporary or permanent closure of the community.
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If we fail to comply with applicable environmental laws, we would face increased expenditures in terms of fines and remediation of the underlying problems, potential litigation relating to exposure to such materials, and a potential decrease in value to our business and in the value of our underlying assets.
In addition, because environmental laws vary from state to state, expansion of our operating subsidiaries to states where we do not currently operate may subject us to additional restrictions in the conduct and management of our affiliated operations.
We are a holding company with no operations and rely upon our independent operating subsidiaries to provide us with the funds necessary to meet our financial obligations. Liabilities of any one or more of our subsidiaries could be imposed upon us or our other subsidiaries.
We are a holding company with no direct operating assets, employees or revenues. Each of our affiliated operations is operated through a separate, independent subsidiary, which has its own management, employees and assets. Our principal assets are the equity interests we directly or indirectly hold in our operating subsidiaries. As a result, we are dependent upon distributions from our subsidiaries to generate the funds necessary to meet our financial obligations and pay dividends. Our subsidiaries are legally distinct from us and have no obligation to make funds available to us. The ability of our subsidiaries to make distributions to us will depend substantially on their respective operating results and will be subject to restrictions under, among other things, the laws of their jurisdiction of organization, which may limit the amount of funds available for distribution to investors or stockholders, agreements of those subsidiaries, the terms of our financing arrangements and the terms of any future financing arrangements of our subsidiaries.
Changes in federal and state income tax laws and regulations could adversely affect our provision for income taxes and estimated income tax liabilities.
We are subject to both state and federal income taxes. Our effective tax rate could be adversely affected by changes in the mix of earnings in states with different statutory tax rates, changes in the valuation of deferred tax assets and liabilities, changes in tax laws and regulations, changes in interpretations of tax laws, including pending tax law changes. In addition, in certain cases more than one state in which we operate has indicated an intent to attempt to tax the same assets and activities, which could result in double taxation if successful. Unanticipated changes in our tax rates or exposure to additional income tax liabilities could affect our profitability.
The Tax Act was approved by Congress and signed into law in December 2017. This legislation made significant changes to the Code. Such changes include a reduction in the corporate tax rate and limitations on certain corporate deductions and credits, among other changes. Certain of these changes could have a negative impact on our business. In addition, further legislative action could be taken to address questions or issues caused by the Tax Act or the interpretations or guidance thereunder. State governments may also enact tax laws in response to the Tax Act that could result in further changes to our tax obligations and adversely impact our business, results of operations and financial condition.
The U.S. Treasury Department, the Internal Revenue Service, and other standard-setting bodies could interpret or issue additional guidance on how provisions of the Tax Act or other provisions of the Code will be applied or otherwise administered that is different from our interpretations. As we continue our ongoing analysis of the Tax Act and recent regulations promulgated thereunder and the related interpretations, collect and prepare necessary data, and interpret any additional guidance, we may be required to make adjustments to amounts and positions that we have, or intend to, record that may adversely impact our business, results of operations and financial condition.
We may be subject to the continuous examination of our income tax returns by the Internal Revenue Service and other local, state and foreign tax authorities. We regularly assess the likelihood of outcomes resulting from
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these examinations to determine the adequacy of our estimated income tax liabilities. The outcomes from these continuous examinations could adversely affect our provision for income taxes and estimated income tax liabilities.
Risks Related to the Spin-Off
The distribution may not be completed on the terms or timeline currently contemplated, if at all.
While we are actively engaged in planning for the distribution, unanticipated developments could delay or negatively affect the distribution, including those related to the filing and effectiveness of appropriate filings with the SEC, the listing of our common stock on a trading market and receiving any required regulatory approvals. In addition, until the distribution has occurred, the Ensign board of directors has the right to not proceed with the distribution, even if all of the conditions are satisfied. Therefore, the distribution may not be completed on the terms or timeline currently contemplated, if at all.
We may be unable to achieve some or all of the benefits that we expect to achieve from our spin-off from Ensign.
We believe that as a standalone, independent public company, our results will benefit from, among other things, allowing our management to design and implement corporate policies and strategies that are based primarily on the characteristics of our business, allowing us to focus our financial resources wholly on our own operations and implement and maintain a capital structure designed to meet our own specific needs. However, by separating from Ensign, we may be more susceptible to market fluctuations and other adverse events than we would have been were we still a part of Ensign. If we fail to achieve some or all of the benefits that we expect to achieve as an independent company, or do not achieve them in the time we expect, our results of operations and financial condition could be materially adversely affected.
We have no operating history as a separate public company; our historical and pro forma financial information is not necessarily representative of the results we would have achieved as a separate publicly-traded company and may not be a reliable indicator of our future results; we may be unable to make, on a timely or cost-effective basis, the changes necessary to operate as an independent company, and as a result, we may experience increased costs.
Prior to the spin-off, Ensign performed various corporate functions for us, including executive management, accounting, human resources, information technology, legal, payroll, insurance, tax, treasury, and other general and administrative items. Our historical and pro forma financial results reflect allocations of corporate expenses from Ensign for these and similar functions that may be less than the comparable expenses we would have incurred had we operated as a separate publicly-traded company. Prior to the spin-off, we shared economies of scope and scale in costs, employees, vendor relationships and relationships with our partners. While we expect to enter into short-term transition agreements and certain other longer-term agreements that will govern certain commercial and other relationships between us and Ensign, those arrangements may not capture the benefits our business has enjoyed as a result of being integrated with the other affiliates of Ensign.
Generally, our working capital requirements, including acquisitions and capital expenditures, have historically been satisfied as part of the company-wide cash management policies of Ensign. Following the completion of the spin-off, Ensign will not be providing us with funds to finance our working capital or other cash requirements, and we may need to obtain financing from banks, through public offerings or private placements of debt or equity securities, strategic relationships or other arrangements. We may be unable to replace in a timely manner or on comparable terms and costs the services or other benefits that Ensign previously provided to us.
The loss of the benefits from being a part of Ensign could have an adverse effect on our business, results of operations and financial condition following the completion of the spin-off. Other significant changes may occur
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in our cost structure, management, financing and business operations as a result of our operating as a company separate from Ensign.
We may have received better terms from unaffiliated third parties than the terms we received in our agreements with Ensign entered into in connection with the spin-off.
The agreements related to the spin-off from Ensign were negotiated in the context of the spin-off from Ensign while we were still part of Ensign. Although these agreements are intended to be on an arms-length basis, they may not reflect terms that would have resulted from arms-length negotiations among unaffiliated third parties. The terms of the agreements being negotiated in the context of the separation are related to, among other things, allocations of assets and liabilities, rights and indemnification and other obligations between us and Ensign. To the extent that certain terms of those agreements provide for rights and obligations that could have been procured from third parties, we may have received better terms from third parties because third parties may have competed with each other to win our business. See Certain Relationships and Related Party TransactionsAgreements with Ensign Related to the Spin-Off.
Our accounting and other management systems and resources may not meet the financial reporting and other requirements to which we will be subject following the spin-off, and failure to achieve and maintain effective internal controls could have a material adverse effect on our business and the price of our common stock.
As a result of the spin-off, we will be directly subject to reporting and other obligations under U.S. securities laws and will be required to comply with internal controls and reporting requirements thereunder. These reporting and other obligations may place significant demands on our management, administrative and operational resources, including accounting systems and resources and may require us to upgrade our systems, implement additional financial and management controls, reporting systems and procedures and hire additional accounting and finance staff. If we are unable to obtain or maintain adequate financial and management controls, reporting systems, information technology systems and procedures in a timely and effective fashion, our ability to comply with the financial reporting requirements and other rules that apply to reporting companies under U.S. securities laws may be impaired. We expect to incur additional annual expenses for the purpose of addressing these requirements that may be significant.
The spin-off and related transactions may expose us to potential liabilities arising out of state and federal fraudulent conveyance laws and legal distribution requirements.
While we believe that we and Ensign will be adequately capitalized immediately after the spin-off, the spin-off could be challenged under various state and federal fraudulent conveyance laws. An unpaid creditor could claim that Ensign did not receive fair consideration or reasonably equivalent value in the spin-off, and that the spin-off left Ensign insolvent or with unreasonably small capital or that Ensign intended or believed it would incur debts beyond its ability to pay such debts as they mature. If a court were to agree with such a plaintiff, then such court could void the spin-off as a fraudulent transfer and could impose a number of different remedies, including without limitation, returning our assets or your shares in our company to Ensign or providing Ensign with a claim for money damages against us in an amount equal to the difference between the consideration received by Ensign and the fair market value of our company at the time of the spin-off.
Our success will depend in part on our ongoing relationship with Ensign after the spin-off.
In connection with the spin-off, we will enter into a number of agreements with Ensign that will govern the ongoing relationships between Ensign and us after the spin-off. We also intend to establish the Ensign Pennant Care Continuum, a voluntary post-acute preferred provider network that will provide for robust data sharing and the implementation of tailored transitional care pathways between Ensign and Pennant affiliates. Our success will depend, in part, on the maintenance of these ongoing relationships with Ensign, and Ensigns performance of its obligations under these agreements. If we are unable to maintain a good relationship with Ensign, or if Ensign
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does not perform its obligations under these agreements or does not renew such agreements following their expiration, our profitability and revenues could decrease and our growth potential may be adversely affected.
Certain of our directors will continue to serve as directors of the Ensign board of directors, and ownership of shares of Ensign common stock or equity awards of Ensign by our directors and executive officers may create conflicts of interest or the appearance of conflicts of interest.
Certain of our directors who serve on our board of directors will continue to serve on the Ensign board of directors. This could create, or appear to create, potential conflicts of interest when our or Ensigns management and directors face decisions that could have different implications for us and Ensign, including the resolution of any dispute regarding the terms of the agreements governing the spin-off and the relationship between us and Ensign after the spin-off, any commercial agreements entered into in the future between us and Ensign and the allocation of such directors time between us and Ensign.
Because of their current or former positions with Ensign, substantially all of our executive officers and some of our non-employee directors will own shares of Ensign common stock. The continued ownership of Ensign common stock by Pennants directors and executive officers following the spin-off creates or may create the appearance of conflicts of interest when these directors and executive officers are faced with decisions that could have different implications for us and Ensign.
If the distribution, together with certain related transactions, were to fail to qualify as a reorganization for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Code, then our stockholders, we and Ensign might be required to pay substantial U.S. federal income taxes (including as a result of indemnification under the tax matters agreement).
The distribution is conditioned upon Ensigns receipt of an opinion of Kirkland & Ellis LLP to the effect that, subject to the assumptions and limitations described therein, the distribution, together with certain related transactions, will qualify as a reorganization for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Code in which no gain or loss is recognized by Ensign or its stockholders, except, in the case of Ensign stockholders, for cash received in lieu of fractional shares. The opinion of Kirkland & Ellis LLP will be based on, among other things, certain assumptions as well as on the continuing accuracy of certain factual representations and statements that we and Ensign make to Kirkland & Ellis LLP. In rendering its opinion, Kirkland & Ellis LLP will also rely on certain covenants that we and Ensign enter into. If any of the representations or statements that we or Ensign make are or become inaccurate or incomplete, or if we or Ensign breach any of our covenants, the distribution and such related transactions might not qualify for such tax treatment. The opinion of Kirkland & Ellis LLP is not binding on the Internal Revenue Service or a court, and there can be no assurance that the Internal Revenue Service will not challenge the validity of the distribution and such related transactions as a reorganization for U.S. federal income tax purposes under Sections 368(a)(1)(D) and 355 of the Code eligible for tax-free treatment, or that any such challenge ultimately will not prevail.
If the spin-off or any other related transaction does not qualify as a tax-free transaction for any reason, including as a result of a breach of a representation or covenant, Ensign or other members of its affiliated group would recognize a substantial gain attributable to us for U.S. federal income tax purposes. In such case, under U.S. Treasury regulations, each member of the Ensign consolidated group at the time of the spin-off would be jointly and severally liable for the entire resulting amount of any U.S. federal income tax liability. Additionally, if the distribution of our common stock does not qualify as tax-free under Section 355 of the Code, Ensign stockholders will be treated as having received a taxable distribution equal to the value of our stock distributed, treated as a taxable dividend to the extent of Ensigns current and accumulated earnings and profits, and then would have a tax-free basis recovery up to the amount of their tax basis in their shares, and then would have taxable gain from the sale or exchange of the shares to the extent of any excess.
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We may not be able to engage in desirable strategic transactions and equity issuances following the spin-off because of certain restrictions related to preserving the tax-free treatment of the spin-off. In addition, we could be liable for adverse tax consequences resulting from engaging in significant strategic or capital-raising transactions.
Our ability to engage in significant strategic transactions and equity issuances may be limited or restricted after the spin-off in order to preserve, for U.S. federal income tax purposes, the tax-free nature of the spin-off. Even if the spin-off otherwise qualifies for tax-free treatment under Sections 368(a)(1)(D) and 355 of the Code, it may result in corporate level taxable gain to Ensign under Section 355(e) of the Code if 50.0% or more, by vote or value, of shares of our stock or Ensigns stock are acquired or issued as part of a plan or series of related transactions that includes the spin-off. The process for determining whether an acquisition or issuance triggering these provisions has occurred is complex, inherently factual and subject to interpretation of the facts and circumstances of a particular case. Any acquisitions or issuances of our stock or Ensign stock within a two-year period after the spin-off generally are presumed to be part of such a plan, although we or Ensign, as applicable, may be able to rebut that presumption.
Under the tax matters agreement that we will enter into with Ensign, we also will generally be responsible for any taxes imposed on Ensign that arise from the failure of the spin-off to qualify as tax-free for U.S. federal income tax purposes, within the meaning of Sections 368(a)(1)(D) and 355 of the Code, to the extent such failure to qualify is attributable to actions, events or transactions relating to our stock, assets or business, or a breach of the relevant representations or any covenants made by us in the tax matters agreement or the representation letter provided to counsel in connection with the tax opinion of Kirkland & Ellis LLP.
Risks Related to Ownership of Our Common Stock
There is no existing market for our common stock, and a trading market that will provide you with adequate liquidity may not develop for our common stock, which could limit your ability to sell your shares of our common stock at an attractive price, or at all.
There is currently no public market for our common stock and an active trading market for our common stock may not develop as a result of the distribution or be sustained in the future. We cannot predict the extent to which investor interest in our company will lead to the development of an active trading market in our common stock or how liquid that market might become. An active public market for our common stock may not develop or be sustained after the consummation of the spin-off. If an active public market does not develop or is not sustained, it may be difficult for you to sell your shares of common stock at a price that is attractive to you, or at all. Further, an inactive market may also impair our ability to raise capital by selling shares of our common stock and may impair our ability to enter into strategic transactions by using our shares of common stock as consideration.
We are an emerging growth company under the JOBS Act, and any decision on our part to comply with certain reduced reporting and disclosure requirements applicable to emerging growth companies could make our common stock less attractive to investors.
We are an emerging growth company, and, for as long as we continue to be an emerging growth company, we currently intend to take advantage of exemptions from various reporting requirements applicable to other public companies but not to emerging growth companies, including, but not limited to, not being required to have our independent registered public accounting firm audit our internal control over financial reporting under Section 404 of the Sarbanes-Oxley, reduced disclosure obligations regarding executive compensation in our registration statements, periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. We will cease to be an emerging growth company upon the earliest of: (i) the end of the fiscal year following the fifth anniversary of the distribution; (ii) the last day of the first fiscal year during which our total annual gross revenue is $1.07 billion or more; (iii) the date on which we have, during the
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previous three-year period, issued more than $1 billion in non-convertible debt securities; or (iv) the end of any fiscal year in which the market value of our common stock held by non-affiliates exceeded $700 million as of the end of the second quarter of that fiscal year. We cannot predict if investors will find our common stock less attractive if we choose to rely on exemptions from certain disclosure requirements. If some investors find our common stock less attractive as a result of any choices to reduce future disclosure, there may be a less active trading market for our common stock and the price of our common stock may be more volatile.
In addition, as our business grows, we may cease to satisfy the conditions of an emerging growth company. Under the JOBS Act, emerging growth companies can delay adopting new or revised accounting standards until such time as those standards apply to private companies. We have irrevocably elected not to avail ourselves of this exemption from new or revised accounting standards and, therefore, we will be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies.
We are currently evaluating and monitoring developments with respect to these new rules, and we may not be able to take advantage of all of the benefits from the JOBS Act.
Our stock price may be volatile or may decline regardless of our operating performance, and you may not be able to sell your shares at an attractive price or at all.
After consummation of the spin-off, the market price for our common stock is likely to be volatile, in part because our shares have not been traded publicly. In addition, the market price of our common stock may fluctuate significantly in response to a number of factors, most of which we cannot control, including:
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quarterly variations in our operating results compared to market expectations; |
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public reactions to our press releases, public announcements and/or filings with the SEC; |
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speculation in the press or investment community; |
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size of the public float; |
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stock price performance and valuations of our competitors; |
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fluctuations in stock market prices and volumes; |
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default on our indebtedness; |
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actions by competitors; |
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changes in senior management or key personnel; |
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actions by our stockholders; |
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changes in financial estimates by securities analysts or our failure to meet any such estimates; |
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publication of research reports by securities analysts about us, our competitors or our industry; |
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strategic decisions by us or our competitors, such as acquisitions, divestitures, spin-offs, joint ventures, strategic investments or changes in business strategy; |
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negative earnings or other announcements by us; |
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downgrades in our credit ratings or the credit ratings of our competitors; |
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issuances (or sales by our stockholders) of common stock; |
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changes in accounting principles; |
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litigation and governmental investigations; |
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terrorist acts, acts of war or periods of widespread civil unrest; |
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natural disasters and other calamities; |
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general market conditions; |
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global economic, legal and regulatory factors unrelated to our performance; and |
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the realization of any of the risks described in this section, or other risks that may materialize in the future. |
For many reasons, including the risks identified in this information statement, the market price of our common stock following the spin-off may be more volatile than the market price of Ensign common stock before the consummation of the spin-off. These factors may result in short-term or long-term negative pressure on the value of our common stock. Stock markets in general have experienced volatility that has often been unrelated to the operating performance of a particular company. These broad market fluctuations may adversely affect the trading price of our common stock.
Your percentage ownership in Pennant may be diluted in the future because of equity awards that we expect will be issued to our directors and officers and employees of our subsidiaries and the accelerated vesting of certain equity awards with respect to our common stock.
Your percentage ownership in Pennant may be diluted in the future because of equity awards that we expect will be issued to our directors and officers and employees of our subsidiaries and the accelerated vesting of certain equity awards with respect to our common stock. Based on information available as of the date of this information statement, we estimate that approximately 28.0 million shares of Pennant common stock will be outstanding immediately after the spin-off, based on the number of shares of Ensign common stock that we expect will be outstanding as of the record date, the distribution ratio, the anticipated exchange of Cornerstone equity awards for Pennant equity awards in anticipation of the distribution.
Anti-takeover provisions in our organizational documents and Delaware law might discourage or delay acquisition attempts for us that you might consider favorable.
Our amended and restated certificate of incorporation and amended and restated bylaws that will become effective immediately prior to the consummation of this spin-off will contain provisions that may make the merger or acquisition of our company more difficult without the approval of our board of directors. Among other things, these provisions:
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would allow us to authorize the issuance of undesignated preferred stock, the terms of which may be established and the shares of which may be issued without stockholder approval, and which may include super voting, special approval, dividend, or other rights or preferences superior to the rights of the holders of common stock; |
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would provide for the election of directors by a plurality of the votes cast at the annual stockholder meeting; |
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establish advance notice requirements for nominations for elections to our board or for proposing matters that can be acted upon by stockholders at stockholder meetings; |
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creating a classified board of directors whose members serve staggered three-year terms; |
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limiting the liability of, and providing indemnification to, our directors and officers; |
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limiting the ability of our stockholders to call and bring business before special meetings; and |
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controlling the procedures for the conduct and scheduling of board of directors and stockholder meetings. |
Further, as a Delaware corporation, we are also subject to provisions of Delaware law, which may impair a takeover attempt that our stockholders may find beneficial. These anti-takeover provisions and other provisions
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under Delaware law could discourage, delay or prevent a transaction involving a change in control of our company, including actions that our stockholders may deem advantageous, or negatively affect the trading price of our common stock. These provisions could also discourage proxy contests and make it more difficult for you and other stockholders to elect directors of your choosing and to cause us to take other corporate actions you desire.
We do not expect to pay any cash dividends for the foreseeable future.
The continued operation and expansion of our business will require substantial funding. Accordingly, we do not anticipate that we will pay any cash dividends on shares of our common stock for the foreseeable future. Any determination to pay dividends in the future will be at the discretion of our board of directors and will depend upon results of operations, financial condition, contractual restrictions, restrictions imposed by applicable law and other factors our board of directors deems relevant. Additionally, our ability to pay dividends on our common stock will be limited by restrictions on the ability of our subsidiaries and us to pay dividends or make distributions, including restrictions under the terms of any agreements governing any of our future indebtedness.
We will incur increased costs as a result of becoming a public company, particularly after we are no longer an emerging growth company.
As a public company, we will incur significant legal, accounting, insurance and other expenses that we have not incurred as a private company, including costs associated with public company reporting requirements. As a result of the spin-off, we will become obligated to file with the SEC annual and quarterly reports and other reports that are specified in Section 13 and other sections of the Securities Exchange Act of 1934, as amended (the Exchange Act). We will also be required to ensure that we have the ability to prepare financial statements that are fully compliant with all SEC reporting requirements on a timely basis. In addition, we will become subject to other reporting and corporate governance requirements, including certain requirements of NASDAQ, and certain provisions of Sarbanes-Oxley and the regulations promulgated thereunder, which will impose significant compliance obligations upon us.
The expenses incurred by public companies generally for reporting and corporate governance purposes have been increasing. We expect these rules and regulations to increase our legal and financial compliance costs and to make some activities more time-consuming and costly. These laws and regulations could also make it more difficult or costly for us to obtain certain types of insurance, including director and officer liability insurance, and we may be forced to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. These laws and regulations could also make it more difficult for us to attract and retain qualified persons to serve on our board of directors, our board committees or as our executive officers. Furthermore, if we are unable to satisfy our obligations as a public company, we could be subject to delisting of our common stock, fines, sanctions and other regulatory action and potentially civil litigation. In addition, if we fail to implement the requirements with respect to our internal accounting and audit functions, our ability to report our operating results on a timely and accurate basis could be impaired. If we do not implement such requirements in a timely manner or with adequate compliance, we might be subject to sanctions or investigation by regulatory authorities, such as the SEC and NASDAQ. Any such action could harm our reputation and the confidence of investors and customers in us and could materially adversely affect our business and cause our share price to fall.
After we are no longer an emerging growth company, we expect to incur additional management time and cost to comply with the more stringent reporting requirements applicable to companies that are deemed accelerated filers or large accelerated filers, including complying with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley). See We are an emerging growth company under the JOBS Act, and any decision on our part to comply with certain reduced reporting and disclosure requirements applicable to emerging growth companies could make our common stock less attractive to investors.
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Our amended and restated certificate of incorporation will designate the Court of Chancery of the State of Delaware as the sole and exclusive forum for certain types of actions and proceedings that may be initiated by our stockholders, which could limit our stockholders ability to obtain a favorable judicial forum for disputes with our company or our companys directors, officers or other employees.
Our amended and restated certificate of incorporation will provide that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for any (1) derivative action or proceeding brought on behalf of our company, (2) action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or agent of our company to our company or our stockholders, or any claim for aiding and abetting any such alleged breach, (3) action asserting a claim against our company or any director or officer of our company arising pursuant to any provision of the Delaware General Corporation Law (the DGCL) or our amended and restated certificate of incorporation or our amended and restated bylaws, or (4) action asserting a claim against us or any director or officer of our company governed by the internal affairs doctrine except for, as to each of (1) through (4) above, any claim (a) as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination), (b) which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or (c) arising under the federal securities laws, including the Securities Act of 1933, as amended (the Securities Act), as to which the Court of Chancery and the federal district court for the District of Delaware shall concurrently be the sole and exclusive forums. Notwithstanding the foregoing, the provisions of this paragraph will not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal district courts of the United States of America shall be the sole and exclusive forum. Any person or entity purchasing or otherwise acquiring any interest in any shares of our capital stock shall be deemed to have notice of and to have consented to the forum provisions in our amended and restated certificate of incorporation. If any action the subject matter of which is within the scope the forum provisions is filed in a court other than a court located within the State of Delaware (a foreign action) in the name of any stockholder, such stockholder shall be deemed to have consented to: (x) the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce the forum provisions (an enforcement action), and (y) having service of process made upon such stockholder in any such enforcement action by service upon such stockholders counsel in the foreign action as agent for such stockholder.
This choice-of-forum provision may limit a stockholders ability to bring a claim in a judicial forum that it finds favorable for disputes with our company or its directors, officers or other employees, which may discourage such lawsuits. Alternatively, if a court were to find this provision of our amended and restated certificate of incorporation inapplicable or unenforceable with respect to one or more of the specified types of actions or proceedings, we may incur additional costs associated with resolving such matters in other jurisdictions, which could materially and adversely affect our business, financial condition and results of operations and result in a diversion of the time and resources of our management and board of directors.
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SPECIAL NOTE ABOUT FORWARD-LOOKING STATEMENTS
This information statement contains forward-looking statements including in the sections titled Summary, Risk Factors, The Spin-Off, Trading Market, Dividend Policy, Managements Discussion and Analysis of Financial Condition and Results of Operations and Our Business, that are based on our managements beliefs and assumptions and on information currently available to our management. Forward-looking statements include, but are not limited to, statements related to our expectations regarding the performance of our business, our financial results, our liquidity and capital resources, the benefits resulting from the spin-off, the effects of competition and the effects of future legislation or regulations and other non-historical statements. Forward-looking statements include all statements that are not historical facts and can be identified by the use of forward-looking terminology such as the words outlook, believes, expects, outlook, potential, continues, may, might, will, should, could, seeks, approximately, goals, future, projects, predicts, guidance, target, intends, plans, estimates, anticipates or the negative version of these words or other comparable words.
The risk factors discussed in Risk Factors could cause our results to differ materially from those expressed in forward-looking statements. Factors that could cause actual results to differ materially from those in the forward-looking statements include, but are not limited to:
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federal and state changes to, or delays receiving, reimbursement and other aspects of Medicaid and Medicare; |
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changes in the regulation of the healthcare services industry; |
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increased competition for, or a shortage of, skilled personnel; |
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government reviews, audits and investigations of our business; |
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changes in federal and state employment related laws; |
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compliance with state and federal employment, immigration, licensing and other laws; |
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competition from other healthcare providers; |
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actions of national labor unions; |
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the leases of our affiliated senior living communities; |
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inability to complete future community or business acquisitions and failure to successfully integrate acquired communities and businesses into our operations; |
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general economic conditions; |
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security breaches and other cyber security incidents; |
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the performance of the financial and credit markets; |
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uncertainties that may delay or negatively impact the spin-off or cause the spin-off to not occur at all; |
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uncertainties related to our ability to realize the anticipated benefits of the spin-off; |
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uncertainties related to our ability to successfully complete the spin-off on a tax-free basis within the expected time frame or at all, unanticipated developments that delay or otherwise negatively affect the spin-off; and |
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uncertainties related to our ability to obtain financing or the terms of such financing. |
Forward-looking statements involve risks, uncertainties and assumptions. Actual results may differ materially from those expressed in these forward-looking statements. You should not place undue reliance on any forward-looking statements in this information statement. We do not have any obligation to update forward-looking statements after we distribute this information statement except as required by law.
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Background
On May 6, 2019, Ensign announced its intention to implement the spin-off of Pennant from Ensign, following which The Pennant Group, Inc. will be an independent, publicly-traded company, and Ensign will have no continuing stock ownership interest in Pennant. As part of the spin-off, Ensign will effect an internal reorganization to properly align the appropriate businesses within each of Pennant and Ensign whereby, among other things: (i) the assets and liabilities associated with Ensigns home health and hospice agencies and substantially all of its senior living businesses will be transferred to Pennant; and (ii) all other assets and liabilities of Ensign will be retained by Ensign. See Manner of Effecting the Spin-OffInternal Reorganization.
To complete the spin-off, Ensign will, following the internal reorganization, distribute to Ensign stockholders substantially all of the outstanding shares of Pennant common stock. The distribution will occur on the distribution date, which is expected to be October 1, 2019. Each holder of Ensign common stock will receive one share of our common stock for every two shares of Ensign common stock held at the close of business on September 20, 2019, the record date. After completion of the spin-off:
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The Pennant Group, Inc. will be an independent, publicly-traded company (NASDAQ:PNTG), and through its subsidiaries will own Ensigns home health and hospice agencies and substantially all of Ensigns senior living businesses; and |
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The Ensign Group, Inc. will continue to be an independent, publicly-traded company (NASDAQ:ENSG) and will include transitional and skilled services, rehabilitative care services, healthcare campuses, post-acute-related new business ventures and real estate investments. |
Each holder of Ensign common stock will continue to hold his, her or its shares in Ensign. No vote of Ensign stockholders is required or is being sought in connection with the spin-off, including the internal reorganization, and Ensign stockholders will not have any appraisal rights in connection with the spin-off.
The distribution is subject to the satisfaction or waiver of certain conditions. In addition, until the distribution has occurred, the Ensign board of directors has the right to not proceed with the distribution, even if all of the conditions are satisfied. See Conditions to the Distribution.
Reasons for the Spin-Off
The Ensign board of directors believes that the spin-off is in the best interests of Ensign and Ensign stockholders because the spin-off is expected to provide various benefits, including the following:
Amplification of Ensigns Operating and Accountability Model. Our innovative operating model is built upon the balance between providing locally-driven healthcare services with the backing of a strong balance sheet that helps our local leaders maintain focus on becoming the provider of choice in the healthcare communities they serve. An essential ingredient of our model is our mentality of shared ownership and peer accountability. Our leaders and resources feel a collective sense of ownership for the clinical, financial and cultural success of our affiliated operations and hold each other accountable for successes and failures in an environment that fosters transparency and improvement. A spin-off of our businesses expands that model and provides our local leaders even more transparency, accountability and support from cutting-edge data systems and an innovative Service Center.
Creation of Additional Leadership Opportunities within Pennant and Ensign. We believe the spin-off will create more opportunities for leadership and growth within our talented pool of existing leaders. We also believe our position as a separate company following the spin-off will be a powerful recruiting tool that will attract strong leaders from both within and outside the post-acute care continuum looking for opportunities to grow and develop meaningful careers.
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Enhanced Ability to Continue Our Growth Strategy. We plan to continue to take advantage of the fragmented home health, hospice and senior living industries by acquiring strategic and underperforming operations within both our existing and new geographic markets. With experienced leaders in place at the local level in each of these industries and demonstrated success in significantly improving operating conditions at acquired businesses, we will be well equipped to successfully expand our footprint. We believe a spin-off will generate even more opportunities for off-market strategic acquisitions as we increase understanding of our innovative operating model, patient-centered approach to care, and emphasis on healthy culture in the home health, hospice and senior living markets.
Increased Ability to Raise Funds Through Capital Market Offerings. Following the spin-off, we will have the ability to tap public markets for capital as we execute on our strategic and organic growth objectives, which in many ways overlap but in other ways diverge from Ensigns, resulting in different capital needs and pressures. Following the spin-off, we will be able to raise capital in ways and at times that Ensign may not. Relatedly, the public market appetite for investments (both debt and equity) in the skilled nursing space stands in contrast to the appetite for similar investments in home health, hospice and senior living businesses, which may attract better equity valuations and more favorable debt financing via certain offerings.
Improved Opportunities for Partnership Outside of Ensign. Some organizations unaffiliated with Ensign may hesitate to refer patients to Ensign-affiliated ancillary service providers despite superior service and clinical outcomes, for no apparent reason other than their affiliation with a competitor. A separation of our home health and hospice and senior living operating subsidiaries allows us freedom to provide services to a broader base of payors, patients and other providers in the acute and post-acute care continuum. Simultaneously, since Ensign-affiliated companies are not, and never have been, obligated to contract with each other or with our businesses, existing partnerships between Ensigns SNFs and our operations are built on a foundation of quality clinical outcomes, effective care coordination and transparent communication. These partnerships will continue to model the deep community relationships that are necessary for success in todays integrated care delivery models.
Pennants Diversified Payor Mix. We will be well positioned amongst publicly-traded peers in the post-acute care marketplace because of a well diversified payor mix between government, third-party and private sources. While home health and hospice agencies primarily rely on Medicare for reimbursement of services, with a moderate amount of revenue coming from private and commercial payors, our senior living communities receive a majority of their revenue from private pay sources, with a smaller amount from Medicaid and other state-specific programs. Together, these companies will share a balance sheet that we believe will position us well to weather reimbursement changes, market downturns, labor shortages, and a number of other macroeconomic changes.
Equity Compensation Awards More Closely Tied to Value Creation. An important component of a successful personnel recruiting and retention program is an active equity compensation plan that supports our service-minded leaders with opportunities to participate in the financial upside they help create by becoming the provider of choice in the healthcare communities they serve. An appropriate stock incentive plan helps reward leaders and employees that focus on improving the clinical, cultural and financial outcomes of their organizations. An equity plan that allows leaders and employees of our subsidiaries to share in ownership of Pennant helps better align the value created by those leaders and employees with the value of Pennants common stock.
Improved Investor Understanding. While home health and hospice services and senior living services are disclosed as separate businesses on many of Ensigns public financial disclosures, we believe a spin-off of Pennants businesses will foster better understanding by public stockholders, analysts and other stakeholders about how the application of Ensigns core operating principles to these lines of business has the ability to produce extraordinary clinical, cultural and financial results. More education about and visibility into these uniquely situated operations will create better understanding of the value that we believe remains somewhat hidden and overshadowed by the markets perception of the skilled nursing industry at large.
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Manner of Effecting the Spin-Off
The general terms and conditions relating to the spin-off will be set forth in the master separation agreement between The Pennant Group, Inc. and The Ensign Group, Inc.
Internal Reorganization
The Pennant Group, Inc. was incorporated as a Delaware corporation on January 24, 2019 for the purpose of holding Ensigns home health and hospice agencies and substantially all of its senior living businesses. The senior living communities that will become part of Pennant consist primarily of those that are geographically and operationally strategic to its home health and hospice operations. The operational synergies and resource infrastructure support available in each market will better position each individual operation to best benefit the local healthcare community by providing consistent quality care, resulting in an overall better patient experience across the continuum of care.
As part of the spin-off, Ensign will effect an internal reorganization, pursuant to which, among other things: (i) the assets and liabilities associated with Ensigns home health and hospice agencies and substantially all of its senior living businesses will be transferred to Pennant; and (ii) all other assets and liabilities of Ensign will be retained by Ensign.
Distribution of Shares of Our Common Stock
Under the master separation agreement, the distribution will be effective as of October 1, 2019, the distribution date. As a result of the spin-off, on the distribution date, each holder of Ensign common stock will receive one share of our common stock for every two shares of Ensign common stock that he, she or it owns as of the close of business on September 20, 2019, the record date. The actual number of shares to be distributed will be determined based on the number of shares of Ensign common stock expected to be outstanding as of the record date and will be reduced to the extent that cash payments are to be made in lieu of the issuance of fractional shares of Pennant common stock. The shares of Pennant common stock to be distributed by The Ensign Group, Inc. will constitute substantially all of the issued and outstanding shares of Pennant common stock immediately prior to the distribution. Pennant is also anticipating that Cornerstone equity awards will be exchanged for Pennant equity awards in connection with the distribution. See Results of the Spin-Off.
On the distribution date, The Ensign Group, Inc. will release the shares of our common stock to our distribution agent to distribute to Ensign stockholders. Our distribution agent will credit the shares of our common stock to the book-entry accounts of Ensign stockholders established to hold their shares of our common stock. Our distribution agent will send these stockholders a statement reflecting their ownership of our common stock. Book-entry refers to a method of recording stock ownership in our records in which no physical certificates are issued. For stockholders who own Ensign common stock through a broker or other nominee, their shares of our common stock will be credited to these stockholders accounts by the broker or other nominee. It may take the distribution agent up to two weeks to distribute shares of our common stock to Ensign stockholders or to their bank or brokerage firm electronically by way of direct registration in book-entry form. Trading of our stock will not be affected by this delay in distribution by the distribution agent.
Ensign stockholders will not be required to make any payment or surrender or exchange their shares of Ensign common stock or take any other action to receive their shares of our common stock. No vote of Ensign stockholders is required or sought in connection with the spin-off, including the internal reorganization, and Ensign stockholders have no appraisal rights in connection with the spin-off.
Treatment of Fractional Shares
The distribution agent will not distribute any fractional shares of Pennant common stock to Ensign stockholders. Instead, as soon as practicable on or after the distribution date, the distribution agent will aggregate
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fractional shares of Pennant common stock to which Ensign stockholders of record would otherwise be entitled into whole shares, sell them in the open market at the prevailing market prices and then distribute the aggregate net sale proceeds ratably to Ensign stockholders who would otherwise have been entitled to receive fractional shares of Pennant common stock. The amount of this payment will depend on the prices at which the distribution agent sells the aggregated fractional shares of Pennant common stock in the open market shortly after the distribution date and will be reduced by any amount required to be withheld for tax purposes and any brokerage fees and other expenses incurred in connection with these sales of fractional shares. Receipt of the proceeds from these sales generally will result in a taxable gain or loss to those Ensign stockholders. In addition, each Cornerstone stockholder who exchanges Cornerstone equity for interests in Pennant will generally recognize taxable income to the extent of cash received in lieu of fractional shares. Each stockholder entitled to receive cash proceeds from these shares should consult his, her or its own tax advisor as to the stockholders particular circumstances. The tax consequences of the distribution are described in more detail under Material U.S. Federal Income Tax Consequences of the Spin-Off.
Transaction and Separation Costs
One-time separation costs related to the spin-off are expected to be approximately $14.0 million, consisting of estimated transaction costs, including debt issuance costs, legal, accounting, capital markets fees and expenses, investment banking, transaction bonuses, modifications to incentive equity awards, and other costs relating to the internal reorganization. Pursuant to the master separation agreement, these separation costs and expenses are to be borne by Pennant.
Material U.S. Federal Income Tax Consequences of the Spin-Off
The following is a summary of the material U.S. federal income tax consequences to the holders of shares of Ensign common stock in connection with the distribution and certain related transactions. This summary is based on the Code, the Treasury regulations promulgated thereunder, and judicial and administrative interpretations thereof, all as in effect as of the date of this information statement, and all of which are subject to differing interpretations and may change at any time, possibly with retroactive effect. Any such change could affect the tax consequences described below. This summary assumes that the spin- off will be consummated in accordance with the master separation agreement and as described in this information statement.
This summary is limited to holders of shares of Ensign common stock that are U.S. Holders, as defined immediately below. For purposes of this summary, a U.S. Holder is a beneficial owner of Ensign common stock that is, for U.S. federal income tax purposes:
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an individual who is a citizen or a resident of the United States; |
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a corporation, or other entity taxable as a corporation for U.S. federal income tax purposes, created or organized under the laws of the United States or any state thereof or the District of Columbia; |
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an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or |
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a trust (i) with respect to which a court within the United States is able to exercise primary jurisdiction over its administration and one or more U.S. persons have the authority to control all of its substantial decisions, or (ii) that has a valid election in place under applicable Treasury regulations to be treated as a U.S. person. |
This summary does not discuss all tax considerations that may be relevant to Ensign stockholders in light of their particular circumstances, nor does it address the consequences to Ensign stockholders subject to special treatment under the U.S. federal income tax laws, such as:
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persons acting as nominees or otherwise not as beneficial owners; |
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dealers or traders in securities or currencies; |
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broker-dealers; |
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traders in securities that elect to use the mark-to-market method of accounting; |
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tax-exempt entities; |
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cooperatives; |
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banks, trusts, financial institutions or insurance companies; |
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persons who acquired shares of Ensign common stock pursuant to the exercise of employee stock options or otherwise as compensation; |
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stockholders who own, or are deemed to own, at least 10% or more, by voting power or value, of The Ensign Group, Inc. equity; |
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holders owning Ensign common stock as part of a position in a straddle or as part of a hedging, conversion, constructive sale, synthetic security, integrated investment, or other risk reduction transaction for U.S. federal income tax purposes; |
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regulated investment companies; |
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real estate investment trusts; |
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former citizens or former long-term residents of the United States or entities subject to Section 7874 of the Code; |
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holders who are subject to the alternative minimum tax; |
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pass-through entities (such as entities treated as partnerships for U.S. federal income tax purposes); or |
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persons that own Ensign common stock through partnerships or other pass-through entities, including any persons subject to Section 1061 of the Code. |
This summary does not address the U.S. federal income tax consequences to Ensign stockholders who do not hold shares of Ensign common stock as a capital asset. Moreover, this summary does not address any state, local or non-U.S. tax consequences, or any federal tax other than U.S. federal income tax consequences (such as estate or gift tax consequences or the Medicare tax on certain investment income).
If a partnership (or any other entity or arrangement treated as a partnership for U.S. federal income tax purposes) holds shares of Ensign common stock, the tax treatment of a partner in that partnership generally will depend on the status of the partner and the activities of the partner and the partnership. Such a partner or partnership is urged to consult its tax advisor as to the tax consequences of the spin-off.
WE URGE YOU TO CONSULT WITH YOUR TAX ADVISOR AS TO THE SPECIFIC U.S. FEDERAL, STATE AND LOCAL, AND NON-U.S. TAX CONSEQUENCES OF THE SPIN-OFF IN LIGHT OF YOUR PARTICULAR CIRCUMSTANCES.
Treatment of the Spin-Off
The distribution is conditioned upon Ensigns receipt of the opinion of Kirkland & Ellis LLP to the effect that, subject to the assumptions and limitations described therein, the distribution of our common stock and certain related transactions will qualify as a reorganization under Sections 368(a)(1)(D) and 355 of the Code in which no gain or loss is recognized by The Ensign Group, Inc. and its stockholders, except, in the case of Ensign stockholders, for cash received in lieu of fractional shares. Assuming the distribution of our common stock qualifies for such treatment, for U.S. federal income tax purposes:
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no gain or loss will be recognized by Ensign as a result of the spin-off (except possible gain or loss arising out of certain internal reorganization transactions undertaken in connection with the spin-off); |
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no gain or loss will be recognized by, or be includible in the income of, a U.S. Holder solely as a result of the receipt of our common stock in the spin-off; |
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the aggregate tax basis of the shares of Ensign common stock and shares of our common stock, including any fractional share deemed received, in the hands of each U.S. Holder immediately after the distribution will be the same as the aggregate tax basis of the shares of Ensign common stock held by such holder immediately before the distribution, allocated between the shares of Ensign common stock and shares of our common stock, including any fractional share deemed received, in proportion to their relative fair market values immediately following the distribution; and |
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the holding period with respect to shares of our common stock received by U.S. Holders will include the holding period of their shares of Ensign common stock, provided that such shares of Ensign common stock are held as capital assets immediately following the spin-off. |
U.S. Holders that have acquired different blocks of Ensign common stock at different times or at different prices are urged to consult their tax advisors regarding the allocation of their aggregate adjusted basis among, and their holding period of, our common stock and Ensign common stock.
If a U.S. Holder receives cash in lieu of a fractional share of our common stock as part of the distribution (or in the case of a former Cornerstone stockholder, if a U.S. holder receives cash in lieu of a fractional share of our common stock as part of the exchange of Cornerstone equity for interests in Pennant), the U.S. Holder will be treated as though it first received a distribution of the fractional share in the distribution and then sold it for the amount of cash actually received. Such U.S. Holder will generally recognize capital gain or loss measured by the difference between the cash received for such fractional share and the U.S. Holders tax basis in that fractional share, as determined above. Such capital gain or loss will be long-term capital gain or loss if the U.S. Holders holding period for the Ensign common stock exceeds one year on the date of the distribution. The deductibility of capital losses is subject to significant limitations.
The opinion of Kirkland & Ellis LLP will not address any U.S. state or local or non-U.S. consequences of the spin-off. The opinion will assume that the distribution and certain related transactions will be completed according to the terms of the master separation agreement, and will rely on the facts as stated in the master separation agreement, the tax matters agreement, the other ancillary agreements, this information statement and a number of other documents. The opinion will also be based on, among other things, current law and certain assumptions and representations as to factual matters made by Ensign and us. Any change in currently applicable law, which may or may not be retroactive, or the failure of any factual representation or assumption to be true, correct and complete in all material respects, could adversely affect the conclusions reached by Kirkland & Ellis LLP in the opinion. The opinion will be expressed as of the date issued and does not cover subsequent periods. The opinion will represent Kirkland & Ellis LLPs best legal judgment based on current law. The opinion of Kirkland & Ellis LLP will not be binding on the IRS or the courts, and the IRS or the courts may not agree with the conclusions expressed in the opinion. We cannot assure you that the IRS will agree with the conclusions set forth in the opinion, and it is possible that the IRS or another tax authority could adopt a position contrary to one or all of those conclusions and that a court could sustain that contrary position. If any of the facts, representations, assumptions or undertakings described or made in connection with the opinion are not correct, are incomplete or have been violated, our ability to rely on the opinion could be jeopardized. We are not aware of any facts or circumstances, however, that would cause these facts, representations or assumptions to be untrue or incomplete, or that would cause any of these undertakings to fail to be complied with, in any material respect.
If, notwithstanding the conclusions included in the opinion, it is ultimately determined that the spin-off of our common stock or certain related transactions do not qualify for tax-free treatment for U.S. federal income tax purposes, then Ensign would recognize taxable gain or loss in an amount equal to the difference, if any, of the fair market value of the shares of our common stock over its tax basis in such shares, or other amounts including such that are recognized by certain subsidiaries of Ensign. In addition, if the distribution of our common stock does not qualify as tax-free under Section 355 of the Code, each Ensign stockholder that receives shares of our
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common stock in the spin-off would be treated as receiving a distribution in an amount equal to the fair market value of our common stock that was distributed to the stockholder, which would generally be taxed as a dividend to the extent of the stockholders pro rata share of The Ensign Group, Inc.s current and accumulated earnings and profits, including The Ensign Group, Inc.s taxable gain, if any, on the spin-off, then treated as a non-taxable return of capital to the extent of the stockholders basis in the Ensign stock and thereafter treated as capital gain from the sale or exchange of Ensign common stock.
Under current U.S. federal income tax law, certain non-corporation citizens or residents of the United States (including individuals) currently are subject to U.S. federal income tax on dividends (assuming certain holding period requirements are met) and long-term capital gains (i.e., capital gains on assets held for more than one year) at reduced rates.
Even if the distribution otherwise qualifies for tax-free treatment under Section 355 of the Code, the spin-off may result in corporate level taxable gain to Ensign under Section 355(e) of the Code if 50% or more, by vote or value, of the Ensign stock or our stock is treated as directly or indirectly acquired or issued as part of a plan or series of related transactions that includes the distribution (including as a result of transactions occurring before the spin-off). The process for determining whether an acquisition or issuance triggering these provisions has occurred is complex, inherently factual and subject to interpretation of the facts and circumstances of a particular case, and any such acquisitions may not be within our or Ensigns control. For this purpose, any acquisitions or issuances of Ensign stock within two years before the day of the distribution, and any acquisitions or issuances of our stock or Ensign stock within two years after the day of the distribution generally are presumed to be part of such a plan (subject to certain exceptions and safe harbors), although we or Ensign, as applicable, may be able to rebut that presumption. If an acquisition or issuance of our stock or Ensign stock triggers the application Section 355(e) of the Code, Ensign or we could incur significant U.S. federal income tax liabilities attributable to the distribution and certain related transactions, but the distribution would generally be tax-free to each of Ensign stockholders, as described above.
Treasury regulations require each U.S. Holder that owns immediately before the distribution at least 5% of the total outstanding Ensign common stock to attach to their U.S. federal income tax returns for the year in which the spin-off occurs a statement setting forth certain information with respect to the transaction. U.S. Holders are urged to consult their tax advisors to determine whether they are required to provide the foregoing statement and the contents thereof.
Results of the Spin-Off
After the spin-off, we will be an independent, publicly-traded company. Immediately following the spin-off, we expect to have approximately 300 record holders of shares of our common stock and approximately 28.0 million shares of our common stock outstanding, based on the number of stockholders and shares of Ensign common stock that we expect will be outstanding as of the record date, the distribution ratio and the anticipated exchange of Cornerstone equity awards for Pennant equity awards in connection with the distribution. The actual number of shares to be distributed will be determined as of the record date and will reflect any repurchases of shares of Ensign common stock and issuances of shares of Ensign common stock in respect of awards under The Ensign Group, Inc. equity-based incentive plans between the date the Ensign board of directors declares the dividend for the distribution and the record date for the distribution.
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The following table provides additional information regarding each type of Ensign equity award held by employees who will remain as an employee of a subsidiary of Ensign or Pennant following the distribution date:
Type of Award |
Treatment in Connection with the Spin-Off | |
Restricted Stock Awards |
Awards of restricted stock held by employees of subsidiaries of Ensign or Pennant will be treated in the same manner as other shares of Ensign common stock regardless of the employer following the spin-off and remain subject to the same vesting schedule, if any. |
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Stock Options |
Employees of Ensign subsidiaries shall continue to hold Ensign stock options, but the number of options covered by such awards and exercise prices associated with such awards will be adjusted to maintain economic value.
Ensign stock options held by employees of Pennant subsidiaries will be converted into Pennant stock options but the number of options covered by such awards and exercise prices associated with such awards will be adjusted to maintain economic value. |
The following table provides additional information regarding each type of Cornerstone equity award:
Type of Award |
Treatment in Connection with the Spin-Off | |
Restricted Stock Awards |
Cornerstone restricted stock will be converted into restricted stock of Pennant pursuant to the Subsidiary Equity Plan, with the number of shares covered by such awards adjusted to maintain economic value. |
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Stock Options |
Cornerstone stock options will be converted into Pennant stock options pursuant to the Subsidiary Equity Plan, with the number of shares covered by such awards and exercise prices associated with such awards adjusted to maintain economic value. |
For information regarding the treatment of equity awards of directors and executive officers of The Pennant Group, Inc. after the distribution, see Certain Relationships and Related Party TransactionsAgreements with Ensign Related to the Spin-OffEmployee Matters Agreement and Management.
Based on the best information available to date, it is expected that all cash bonuses in respect of the 2019 performance year will continue to accrue through the distribution date, based on actual levels of performance, and will be paid by Pennant at a later date, and that no payment will become immediately due at the time of the spin-off. Subsequent bonuses and other incentive compensation structures, related to any program established in respect of the 2020 performance year, shall be determined and established by the compensation committee.
Before the spin-off, we will enter into several agreements with Ensign to effect the spin-off and provide a framework for our relationship with Ensign after the spin-off. These agreements will govern the relationship between us and Ensign after completion of the spin-off and provide for the allocation between us and Ensign of the assets, liabilities, rights and obligations of Ensign. See Certain Relationships and Related Party TransactionsAgreements with Ensign Related to the Spin-Off.
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Trading Prior to the Distribution Date
Beginning shortly before the record date and continuing up to and including the distribution date, we expect that a limited market, commonly known as a when-issued trading market, will develop in our common stock. When-issued trading refers to a sale or purchase made conditionally because the security has been authorized but not yet issued. The when-issued trading market will be a market for shares of our common stock that will be distributed to Ensign stockholders on the distribution date. If you own shares of Ensign common stock at the close of business on September 20, 2019, you will be entitled to shares of Pennant common stock distributed pursuant to the spin-off. You may trade this entitlement to shares of Pennant common stock, without trading the shares of Ensign common stock you own, on the when-issued market. On the first trading day following the distribution date, when-issued trading with respect to our common stock will end and regular-way trading will begin. See Trading Market.
Following the distribution date, we expect shares of our common stock to be listed on NASDAQ, under the ticker symbol PNTG. We will announce the when-issued ticker symbol if and when it becomes available.
It is also anticipated that, beginning shortly before the record date and continuing up to and including the distribution date, we expect that there will be two markets in Ensign common stock: a regular-way market and an ex-distribution market. Shares of Ensign common stock that trade on the regular-way market will trade with an entitlement to shares of Pennant common stock distributed pursuant to the spin-off. Shares that trade on the ex-distribution market will trade without an entitlement to shares of our common stock distributed pursuant to the spin-off. Therefore, if you own shares of Ensign common stock at the close of business on the record date and sell those shares on the regular-way market before the distribution date, you will be selling your right to receive shares of our common stock in connection with the spin-off. If you own shares of Ensign common stock at the close of business on the record date and sell those shares on the ex-distribution market before the distribution date, you will still receive the shares of our common stock that you would be entitled to receive pursuant to your ownership of the shares of Ensign common stock on the record date. However, if Ensign stockholders own shares of Ensign common stock as of the close of business on September 20, 2019, and sell those shares on the ex-distribution market up to and including the distribution date, the selling stockholders will still receive the shares of our common stock that they would otherwise receive pursuant to the distribution. See Trading Market.
Financing Transactions
We expect to put in place a capital structure that provides us with the flexibility to grow and a cost of debt capital that allows us to compete for investment opportunities. Subject to market conditions, we expect to enter into the Revolving Credit Facility with a syndicate of banks with a borrowing capacity of $75.0 million. We anticipate the interest rates applicable to loans under the Revolving Credit Facility to be, at the Companys election, either LIBOR plus a margin ranging from 2.5% to 3.5% per annum or Base Rate plus a margin ranging from 1.5% to 2.5% per annum, in each case based on the ratio of Consolidated Total Net Debt to Consolidated EBITDA (each, as defined in the Credit Agreement). In addition, we expect that we will pay a commitment fee on the undrawn portion of the commitments under the Revolving Credit Facility that is estimated to be 0.6% per annum.
We anticipate that the Revolving Credit Facility will not be subject to interim amortization. We expect that the Company will not be required to repay any loans under the Revolving Credit Facility prior to maturity. We expect that the Company will be permitted to prepay all or any portion of the loans under the Revolving Credit Facility prior to maturity without premium or penalty, subject to reimbursement of any LIBOR breakage costs of the lenders. This information is based on our current negotiations with the lead banks in an anticipated syndicate.
As a result of the financing transaction, we expect to have outstanding indebtedness of approximately $30.0 million. The amount reflects proceeds from issuance of indebtedness under the Revolving Credit Facility,
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including approximately $1.2 million in estimated financing cost. The foregoing summarizes some of the currently expected terms of the Revolving Credit Facility. However, the foregoing summary does not purport to be complete, and the terms of the Revolving Credit Facility have not yet been finalized. There may be changes to the expected size and other terms of the Revolving Credit Facility, some of which may be material.
We expect that we will use approximately $25.0 million of the proceeds from the financing transaction to pay transaction fees and to pay a dividend to Ensign in connection with the contribution of assets to us by Ensign prior to the spin-off. We expect to retain approximately $5.0 million in cash for working capital, acquisitions and other general purposes. We expect that Ensign would use the funds received from us to repay certain outstanding third-party bank debt and other indebtedness and/or pay dividends to Ensigns stockholders. After the spin-off, we expect that we will use borrowings under the Revolving Credit Facility for working capital purposes, to fund acquisitions and for other general purposes.
Conditions to the Distribution
We expect that the distribution will be effective as of on October 1, 2019, the distribution date. The distribution is subject to the satisfaction, or waiver by The Ensign Group, Inc., of the following conditions:
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the final approval of the distribution by the Ensign board of directors, which approval may be given or withheld in its absolute and sole discretion; |
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our Registration Statement on Form 10, of which this information statement forms a part, shall have been declared effective by the SEC, with no stop order in effect with respect thereto, and a notice of internet availability of this information statement shall have been mailed to Ensign stockholders; |
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the mailing by Ensign of this information statement (or notice of internet availability thereof) to record holders of Ensign common stock as of the record date; |
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Pennant common stock shall have been approved for listing on NASDAQ, subject to official notice of distribution; |
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Ensign shall have obtained an opinion from Kirkland & Ellis LLP, in form and substance satisfactory to Ensign, to the effect that, subject to the assumptions and limitations described therein, the distribution of Pennant common stock and certain related transactions will qualify as a reorganization under Sections 368(a)(1)(D) and 355 of the Code, in which no gain or loss is recognized by The Ensign Group, Inc. or its stockholders, except, in the case of Ensign stockholders, for cash received in lieu of fractional shares; |
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any required material governmental approvals and other consents necessary to consummate the distribution or any portion thereof shall have been obtained and be in full force and effect; |
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the absence of any events or developments having occurred prior to the spin-off that, in the judgment of the Ensign board of directors, would result in the spin-off having a material adverse effect on Ensign or its stockholders; |
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the adoption by Pennant of its amended and restated certificate of incorporation and amended and restated bylaws filed by Pennant with the SEC as exhibits to the Registration Statement on Form 10, of which this information statement forms a part; |
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no order, injunction or decree issued by any governmental entity of competent jurisdiction or other legal restraint or prohibition preventing the consummation of all or any portion of the distribution shall be in effect, and no other event shall have occurred or failed to occur that prevents the consummation of all or any portion of the distribution; |
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the internal reorganization shall have been completed, except for such steps as Ensign in its sole discretion shall have determined may be completed after the distribution date; |
80
|
each of the master separation agreement, the tax matters agreement, the employee matters agreement, the transition services agreement, the Ensign Leases and the other ancillary agreements shall have been executed and delivered by each party thereto and be in full force and effect; |
|
Ensign shall have completed its own financing transactions, including amending and restating its existing credit facility, to be effective on or prior to the distribution date; and |
|
the financing transactions described herein shall have been completed on or prior to the distribution date. |
We are not aware of any material federal, foreign or state regulatory requirements that must be complied with or any material approvals that must be obtained, other than compliance with SEC and OIG rules and regulations, approval for listing on NASDAQ and the declaration of effectiveness of the Registration Statement on Form 10, of which this information statement forms a part, by the SEC, in connection with the distribution. Some of these conditions may not be met and The Ensign Group, Inc. may waive any of the conditions to the distribution. In addition, until the distribution has occurred, the Ensign board of directors has the right to not proceed with the distribution, even if all of the conditions are satisfied. In the event the Ensign board of directors determines to waive a material condition to the distribution, to modify a material term of the distribution or not to proceed with the distribution, Ensign intends to promptly issue a press release or other public announcement and file a Current Report on Form 8-K to report such event.
Reasons for Furnishing this Information Statement
This information statement is being furnished solely to provide information to Ensign stockholders that are entitled to receive shares of Pennant common stock in the spin-off. This information statement is not, and is not to be construed as, an inducement or encouragement to buy, hold or sell any of our securities or any securities of Ensign. We believe that the information in this information statement is accurate as of the date set forth on the cover. Changes may occur after that date and neither Ensign nor we undertake any obligation to update the information.
81
Market for Our Common Stock
There is currently no public market for our common stock and an active trading market may not develop or may not be sustained. Beginning shortly before the record date and continuing up to and including the distribution date, we expect that a limited market, commonly known as a when-issued trading market, will develop in our common stock. When-issued trading refers to a sale or purchase made conditionally because the security has been authorized but not yet issued. The when-issued trading market will be a market for shares of our common stock that will be distributed to Ensign stockholders on the distribution date. If you own shares of Ensign common stock at the close of business on September 20, 2019, you will be entitled to shares of Pennant common stock distributed pursuant to the spin-off. You may trade this entitlement to shares of Pennant common stock, without trading the shares of Ensign common stock you own, on the when-issued market. On the first trading day following the distribution date, when-issued trading with respect to our common stock will end and regular-way trading will begin. We intend to list our common stock on NASDAQ under the ticker symbol PNTG. We will announce our when-issued trading symbol when and if it becomes available.
It is also anticipated that, beginning shortly before the record date and continuing up to and including the distribution date, there will be two markets in Ensign common stock: a regular-way market and an ex-distribution market. Shares of Ensign common stock that trade on the regular-way market will trade with an entitlement to shares of Pennant common stock distributed pursuant to the spin-off. Shares that trade on the ex-distribution market will trade without an entitlement to shares of our common stock distributed pursuant to the spin-off. Therefore, if you own shares of Ensign common stock at the close of business on the record date and sell those shares on the regular-way market before the distribution date, you will be selling your right to receive shares of our common stock in connection with the spin-off. If you own shares of Ensign common stock at the close of business on the record date and sell those shares on the ex-distribution market before the distribution date, you will still receive the shares of our common stock that you would be entitled to receive pursuant to your ownership of the shares of Ensign common stock on the record date. However, if Ensign stockholders own shares of Ensign common stock at the close of business on September 20, 2019 and sell those shares on the ex-distribution market up to and including the distribution date, the selling stockholders will still receive the shares of our common stock that they would otherwise receive pursuant to the distribution.
We cannot predict the prices at which our common stock may trade before the spin-off on a when-issued basis or after the spin-off. Those prices will be determined by the marketplace. Prices at which trading in our common stock occurs may fluctuate significantly. Those prices may be influenced by many factors, including anticipated or actual fluctuations in our operating results or those of other companies in our industry, investor perception of Pennant and the home health, hospice and senior living industry, market fluctuations and general economic conditions. In addition, the stock market in general has experienced extreme price and volume fluctuations that have affected the performance of many stocks and that have often been unrelated or disproportionate to the operating performance of these companies. These are just some factors that may adversely affect the market price of our common stock. See Risk FactorsRisks Related to Ownership of Our Common Stock for further discussion of risks relating to the trading prices of our common stock.
Transferability of Shares of Our Common Stock
Based on information available as of the date of this information statement, we estimate that approximately 28.0 million shares of our common stock will be outstanding immediately after the spin-off, based on the number of shares of Ensign common stock that we expect will be outstanding as of the record date, the distribution ratio, and the anticipated exchange of Cornerstone equity awards for Pennant equity awards in connection with the distribution. The shares of our common stock that you will receive in the distribution will be freely transferable, unless you are considered an affiliate of ours under Rule 144 under the Securities Act. Persons who can be
82
considered our affiliates after the spin-off generally include individuals or entities that directly, or indirectly through one or more intermediaries, control, are controlled by, or are under common control with, us, and may include certain of our officers and directors. As of the distribution date, we estimate that our directors and officers will beneficially own in the aggregate less than seven percent of our shares. In addition, individuals who are affiliates of Ensign on the distribution date may be deemed to be affiliates of ours. Our affiliates may sell shares of our common stock received in the distribution only:
|
under a registration statement that the SEC has declared effective under the Securities Act; or |
|
under an exemption from registration under the Securities Act, such as the exemption afforded by Rule 144. |
In general, under Rule 144 as currently in effect, an affiliate will be entitled to sell, within any three-month period commencing 90 days after the date that the registration statement of which this information statement is a part is declared effective, a number of shares of our common stock that does not exceed the greater of:
|
1% of our common stock then outstanding; or |
|
the average weekly trading volume of our common stock on NASDAQ during the four calendar weeks preceding the filing of a notice on Form 144 with respect to the sale. Sales under Rule 144 are also subject to restrictions relating to manner of sale and the availability of current public information about us. |
We expect to adopt new equity-based compensation plans and issue stock-based awards. We currently expect to file a registration statement under the Securities Act to register shares to be issued under these equity plans. Shares issued pursuant to awards after the effective date of that registration statement, other than shares issued to affiliates, generally will be freely tradable without further registration under the Securities Act.
Except for our common stock distributed in the distribution and employee-based equity awards, we will have no equity securities outstanding immediately after the spin-off.
83
We do not intend to pay dividends on our common stock for the foreseeable future. Instead, we anticipate that all of our future earnings will be retained to support our operations and to finance the growth and development of our business. As a result, you will need to sell your shares of common stock to receive any income or realize a return on your investment. You may not be able to sell your shares at or above the price you paid for them. Any decision to declare and pay dividends will be made at the sole discretion of our board of directors and will depend on a number of factors, including:
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our historic and projected financial condition, liquidity and results of operations; |
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our capital levels and needs; |
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tax considerations; |
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any acquisitions or potential acquisitions that we may consider; |
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statutory and regulatory prohibitions and other limitations; |
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the terms of any credit agreements or other borrowing arrangements that restrict our ability to pay cash dividends; |
|
general economic conditions; and |
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other factors deemed relevant by our board of directors. |
As a Delaware corporation, we will be subject to certain restrictions on dividends under DGCL. Generally, a Delaware corporation may only pay dividends either out of surplus or out of the current or the immediately preceding years net profits. Surplus is defined as the excess, if any, at any given time, of the total assets of a corporation over its total liabilities and statutory capital. The value of a corporations assets can be measured in a number of ways and may not necessarily equal their book value.
84
The following table presents our unaudited cash and capitalization as of June 30, 2019 on a historical basis, and on a pro forma basis to give effect to the spin-off as if it occurred on June 30, 2019. You can find an explanation of the pro forma adjustments, including our financing transaction, made to the historical combined financial statements under Unaudited Pro Forma Combined Financial Statements. The capitalization table below should be read together with Selected Historical Combined Financial Data, Unaudited Pro Forma Combined Financial Statements, Managements Discussion and Analysis of Financial Condition and Results of Operations and the Audited Combined Financial Statements and Interim Financial Statements and accompanying notes included in the Index to Financial Statements section of this information statement.
We are providing the capitalization table below for informational purposes only. The capitalization table below may not reflect the capitalization or financial condition that would have resulted had we been operated as a stand-alone public company at that date and is not necessarily indicative of our future capitalization or financial condition.
As of June 30, 2019 | ||||||||
(In thousands, except per
share data) |
||||||||
Actual | Pro Forma(2) | |||||||
Cash |
$ | 43 | $ | 5,043 | ||||
|
|
|
|
|||||
Debt: |
||||||||
Revolving credit facility |
| 30,000 | ||||||
|
|
|
|
|||||
Total debt |
| 30,000 | ||||||
|
|
|
|
|||||
Equity: |
||||||||
Common stock, $0.001 par value |
| 28 | (1) | |||||
Additional paid-in capital |
| 66,183 | (1) | |||||
Net parent investment |
73,315 | | ||||||
Non-controlling interest |
13,173 | | ||||||
|
|
|
|
|||||
Total equity |
86,488 | 66,211 | ||||||
|
|
|
|
|||||
Total capitalization |
$ | 86,488 | $ | 96,211 | ||||
|
|
|
|
(1) |
Represents adjustments to reflect the pro forma recapitalization of our equity. |
(2) |
The assumptions used, and pro forma adjustments derived from such assumptions, are based on currently available information, and we believe such assumptions are reasonable under the circumstances. |
We currently expect to incur indebtedness in the amount of approximately $30.0 million, of which approximately $5.0 million will be included in cash on hand at the time of the spin-off. The amount of indebtedness reflects proceeds from issuance, including approximately $1.2 million in estimated financing cost.
85
SELECTED HISTORICAL COMBINED FINANCIAL DATA
The following selected historical combined statement of income data for the years ended December 31, 2018, 2017 and 2016 and the historical balance sheet data as of December 31, 2018 and 2017 are derived from the Audited Combined Financial Statements of New Ventures included elsewhere in this information statement. The unaudited interim combined statement of income data for the six months ended June 30, 2019 and 2018 and the historical balance sheet data as of June 30, 2019 are derived from the Interim Financial Statements of New Ventures included elsewhere in this information statement.
This selected historical financial data is not necessarily indicative of our future performance and does not necessarily reflect what our financial position and results of operations would have been had we been operating as an independent, publicly-traded company during the periods presented, including changes that will occur in our operations and capitalization as a result of the spin-off from Ensign. For example, the historical combined financial statements of New Ventures include allocations of expenses for certain functions and services provided by Ensign subsidiaries, including executive management, accounting, human resources, information technology, legal, payroll, insurance, tax, treasury, and other general and administrative items. These costs may not be representative of the future costs we will incur as an independent, public company.
The selected historical combined financial data below should be read together with the Audited Combined Financial Statements and the Interim Financial Statements of New Ventures, including the notes thereto, and the sections titled Capitalization, Unaudited Pro Forma Combined Financial Statements, Managements Discussion and Analysis of Financial Condition and Results of Operations and Description of Certain Indebtedness appearing elsewhere in this information statement.
Six Months Ended June 30, | Year Ended December 31, | |||||||||||||||||||
2019 | 2018 | 2018 | 2017 | 2016 | ||||||||||||||||
(In thousands) | ||||||||||||||||||||
Summary Statement of Income Data |
||||||||||||||||||||
Total revenue |
$ | 160,641 | $ | 137,768 | $ | 286,058 | $ | 250,991 | $ | 217,225 | ||||||||||
Total expenses |
155,502 | 127,656 | 265,427 | 235,589 | 204,243 | |||||||||||||||
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|
|
|
|
|
|
|
|
|
|||||||||||
Income from operations |
5,139 | 10,112 | 20,631 | 15,402 | 12,982 | |||||||||||||||
Provision for income taxes |
(32 | ) | 2,200 | 4,352 | 5,375 | 5,065 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net income |
5,171 | 7,912 | 16,279 | 10,027 | 7,917 | |||||||||||||||
Less: net income attributable to noncontrolling interest |
350 | 370 | 595 | 160 | 26 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net income attributable to New Ventures |
$ | 4,821 | $ | 7,542 | $ | 15,684 | $ | 9,867 | $ | 7,891 | ||||||||||
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|
|
|
|
|
|
|
|
|
June 30, | December 31, | |||||||||||
2019 | 2018 | 2017 | ||||||||||
(In thousands) | ||||||||||||
Balance Sheet Data |
||||||||||||
Total assets |
$ | 356,665 | $ | 98,151 | $ | 88,289 | ||||||
Total liabilities |
270,177 | 32,863 | 28,373 | |||||||||
Total equity |
86,488 | 65,288 | 59,916 |
86
UNAUDITED PRO FORMA COMBINED FINANCIAL STATEMENTS
The following unaudited pro forma combined financial statements are derived from the Audited Combined Financial Statements of New Ventures and Interim Financial Statements of New Ventures, which are included elsewhere in this information statement.
The following unaudited pro forma combined financial statements give effect to the spin-off and the related transactions, including: the distribution of Pennant common stock by Ensign to Ensign stockholders and the financing transaction, resulting in expected total indebtedness of approximately $30.0 million. The unaudited pro forma combined statement of income presented for the six months ended June 30, 2019 and for the year ended December 31, 2018 assume the spin-off and the related transactions occurred on January 1, 2018. The unaudited pro forma combined balance sheet assumes the spin-off and the related transactions occurred on June 30, 2019. The pro forma adjustments are based on currently available information and assumptions we believe are reasonable, factually supportable, directly attributable to our separation from Ensign, and for purposes of the statement of income, are expected to have a continuing impact on us.
The historical financial data has been adjusted to give pro forma effect to events that are directly attributable to the transactions described above, have an ongoing effect on our statement of income and are factually supportable. Our unaudited pro forma combined financial statements and explanatory notes present how our financial statements may have appeared had our capital structure reflected the above transactions as of the dates noted above.
Our unaudited pro forma combined financial statements were prepared in accordance with Article 11 of Regulation S-X, using the assumptions set forth in the notes to our unaudited pro forma combined financial statements. The following unaudited pro forma combined financial statements are presented for illustrative purposes only and do not purport to reflect the results we may achieve in future periods or the historical results that would have been obtained had the above transactions been completed on January 1, 2018 or as of June 30, 2019, as the case may be. Our unaudited pro forma combined financial statements also do not give effect to the potential impact of current financial conditions, any anticipated synergies, operating efficiencies or cost savings that may result from the transactions described above.
The unaudited pro forma combined financial statements of New Ventures are derived from and should be read in conjunction with the Audited Combined Financial Statements and Interim Financial Statements of New Ventures and with the accompanying notes included elsewhere in this information statement. To the extent that facts and circumstances change between now and the distribution date, amounts included in the unaudited pro forma combined financial statements may change.
87
NEW VENTURES
UNAUDITED PRO FORMA
CONDENSED COMBINED BALANCE SHEET
June 30, 2019 | ||||||||||||||
Historical |
Pro Forma
Adjustments |
Pro
Forma Combined |
||||||||||||
(In thousands, except per share data) | ||||||||||||||
Assets |
||||||||||||||
Current assets: |
||||||||||||||
Cash |
$ | 43 | $ | 5,000 | (1) | $ | 5,043 | |||||||
Accounts receivableless allowance for doubtful accounts of $935 |
27,704 | | 27,704 | |||||||||||
Prepaid expenses and other current assets |
4,461 | | 4,461 | |||||||||||
|
|
|
|
|
|
|||||||||
Total current assets |
32,208 | 5,000 | 37,208 | |||||||||||
Property and equipment, net |
13,158 | | 13,158 | |||||||||||
Right of use asset |
237,948 | 40,347 | (9) | 278,295 | ||||||||||
Restricted and other assets |
2,611 | 1,156 | (7) | 3,767 | ||||||||||
Intangible assets, net |
62 | | 62 | |||||||||||
Goodwill |
42,392 | | 42,392 | |||||||||||
Other indefinite-lived intangibles |
28,286 | | 28,286 | |||||||||||
|
|
|
|
|
|
|||||||||
Total assets |
$ | 356,665 | $ | 46,503 | $ | 403,168 | ||||||||
|
|
|
|
|
|
|||||||||
Liabilities and equity |
||||||||||||||
Current liabilities: |
||||||||||||||
Accounts payable |
$ | 4,902 | $ | (3,567) | (6) | $ | 1,335 | |||||||
Accrued wages and related liabilities |
12,458 | | 12,458 | |||||||||||
Lease liabilitycurrent |
13,152 | 3,665 | (9) | 16,817 | ||||||||||
Other accrued liabilities |
12,521 | | 12,521 | |||||||||||
|
|
|
|
|
|
|||||||||
Total current liabilities |
43,033 | 98 | 43,131 | |||||||||||
Long-term lease liabilityless current portion |
226,453 | 36,682 | (9) | 263,135 | ||||||||||
Other long-term liabilities |
691 | | 691 | |||||||||||
Long-term debt |
| 30,000 | (1) | 30,000 | ||||||||||
|
|
|
|
|
|
|||||||||
Total liabilities |
270,177 | 66,780 | 336,957 | |||||||||||
|
|
|
|
|
|
|||||||||
Commitments and contingencies |
||||||||||||||
Equity: |
||||||||||||||
Common stock, $0.001 par value |
| 28 | (2)(3)(4) | 28 | ||||||||||
Additional paid-in capital |
| 66,183 | (2)(3)(4) | 66,183 | ||||||||||
Net parent investment |
73,315 | (48,315 | ) | (2) | | |||||||||
(14,000 | ) | (12) | ||||||||||||
(11,000 | ) | (12) | ||||||||||||
Non-controlling interest |
13,173 | (13,173 | ) | (3) | | |||||||||
|
|
|
|
|
|
|||||||||
Total equity |
86,488 | (20,277 | ) | 66,211 | ||||||||||
|
|
|
|
|
|
|||||||||
Total liabilities and equity |
$ | 356,665 | $ | 46,503 | $ | 403,168 | ||||||||
|
|
|
|
|
|
See accompanying notes to unaudited pro forma condensed combined financial statements.
88
NEW VENTURES
UNAUDITED PRO FORMA
CONDENSED COMBINED STATEMENT OF INCOME
Six Months Ended June 30, | ||||||||||||||
Historical |
Pro Forma
Adjustments |
Pro Forma
Combined |
||||||||||||
(In thousands, except per share amounts) | ||||||||||||||
Revenue |
$ | 160,641 | $ | | $ | 160,641 | ||||||||
Expense |
||||||||||||||
Cost of services |
121,767 | | 121,767 | |||||||||||
Rentcost of services |
16,830 | 1,796 | (5) | 18,626 | ||||||||||
General and administrative expense |
15,133 | (4,648 | ) | (6) | 10,485 | |||||||||
Depreciation and amortization |
1,772 | | 1,772 | |||||||||||
|
|
|
|
|
|
|||||||||
Total expenses |
155,502 | (2,852 | ) | 152,650 | ||||||||||
Income from operations |
5,139 | 2,852 | 7,991 | |||||||||||
Interest expense |
| 1,039 | (7) | 1,039 | ||||||||||
|
|
|
|
|
|
|||||||||
Income before provision for income taxes |
5,139 | 1,813 | 6,952 | |||||||||||
Provision for income taxes |
(32 | ) | 453 | (8) | 421 | |||||||||
|
|
|
|
|
|
|||||||||
Net income |
5,171 | 1,360 | 6,531 | |||||||||||
Less: net income attributable to noncontrolling interest |
350 | (350 | ) | (3) | | |||||||||
|
|
|
|
|
|
|||||||||
Net income attributable to New Ventures |
$ | 4,821 | $ | 1,710 | $ | 6,531 | ||||||||
|
|
|
|
|
|
|||||||||
Earnings per share: |
||||||||||||||
Basic earnings per share |
(10) | $ | 0.24 | |||||||||||
Diluted earnings per share |
(11) | $ | 0.23 | |||||||||||
Weighted average number of shares outstanding: |
||||||||||||||
Basic |
(10) | 27,418 | ||||||||||||
Diluted |
(11) | 28,354 |
See accompanying notes to unaudited pro forma condensed combined financial statements.
89
NEW VENTURES
UNAUDITED PRO FORMA
COMBINED STATEMENTS OF INCOME
Year Ended December 31, 2018 | ||||||||||||||||
Historical |
Pro Forma
Adjustments |
Pro Forma
Combined |
||||||||||||||
(In thousands, except per share amounts) | ||||||||||||||||
Revenue |
||||||||||||||||
Service revenue |
$ | 169,037 | $ | | $ | 169,037 | ||||||||||
Senior living revenue |
117,021 | | 117,021 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Total revenue |
286,058 | | 286,058 | |||||||||||||
Expense |
||||||||||||||||
Cost of services |
212,421 | | 212,421 | |||||||||||||
Rentcost of services |
31,199 | 3,700 | (5) | 34,899 | ||||||||||||
General and administrative expense |
18,843 | (756 | ) | (6) | 18,087 | |||||||||||
Depreciation and amortization |
2,964 | | 2,964 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Total expenses |
265,427 | 2,944 | 268,371 | |||||||||||||
Income from operations |
20,631 | (2,944 | ) | 17,687 | ||||||||||||
Interest expense |
| 1,944 | (7) | 1,944 | ||||||||||||
|
|
|
|
|
|
|||||||||||
Income before provision for income taxes |
20,631 | (4,888 | ) | 15,743 | ||||||||||||
Provision for income taxes |
4,352 | (1,222 | ) | (8) | 3,130 | |||||||||||
|
|
|
|
|
|
|||||||||||
Net income |
16,279 | (3,666 | ) | 12,613 | ||||||||||||
Less: net income attributable to noncontrolling interest |
595 | (595 | ) | (3) | | |||||||||||
|
|
|
|
|
|
|||||||||||
Net income attributable to New Ventures |
$ | 15,684 | $ | (3,071 | ) | $ | 12,613 | |||||||||
|
|
|
|
|
|
|||||||||||
Earnings per share: |
||||||||||||||||
Basic earnings per share |
(10) | $ | 0.46 | |||||||||||||
Diluted earnings per share |
(11) | $ | 0.44 | |||||||||||||
Weighted average number of shares outstanding: |
||||||||||||||||
Basic |
(10) | 27,418 | ||||||||||||||
Diluted |
(11) | 28,354 |
See accompanying notes to unaudited pro forma combined financial statements.
90
NOTES TO UNAUDITED PRO FORMA COMBINED FINANCIAL STATEMENTS
Pro Forma Adjustments
(1) |
We expect to enter into the Revolving Credit Facility with a syndicate of banks with a borrowing capacity of $75.0 million. We anticipate the interest rates applicable to loans under the Revolving Credit Facility to be, at the Companys election, either LIBOR plus a margin ranging from 2.5% to 3.5% per annum or Base Rate plus a margin ranging from 1.5% to 2.5% per annum, in each case based on the ratio of Consolidated Total Net Debt to Consolidated EBITDA (each, as defined in the Credit Agreement). In addition, we expect that we will pay a commitment fee on the undrawn portion of the commitments under the Revolving Credit Facility that is estimated to be 0.6% per annum. We currently expect the foregoing summary of terms to be an accurate description of the Revolving Credit Facility based on preliminary negotiations with the lead banks of our anticipated syndication. There may be changes to the expected size and other terms of the Revolving Credit Facility as the Credit Agreement is finalized, some of which may be material. |
The target outstanding balance of borrowings at the time of the separation arrangement was determined by management based on a review of a number of factors including credit rating considerations, forecasted liquidity and capital requirements, expected operating results and general economic conditions. Cash on hand following the separation is expected to be used for working capital and other general corporate purposes.
June 30, 2019
Pro Forma Adjustments |
||||
Draw on the Revolving Credit Facility |
$ | 30,000 | ||
Less: Uses |
||||
Payment of transaction fees |
14,000 | |||
Dividend to The Ensign Group, Inc. |
11,000 | |||
|
|
|||
Total Uses |
25,000 | |||
|
|
|||
Net cash proceeds |
$ | 5,000 | ||
|
|
(2) |
On the separation and distribution date, Ensigns net investment in Pennant will be redesignated as Pennant shareholders equity and will be allocated between common stock and additional paid-in capital based on the number of shares of Pennant common stock outstanding at the distribution date. The cash distribution back to parent will impact Ensigns net investment in Pennant prior to the redesignation of the investment as Pennant shareholders equity. The assumptions used, and pro forma adjustments derived from such assumptions, are based on currently available information, and we believe such assumptions are reasonable under the circumstances. |
(3) |
Represents an adjustment to reflect the pro forma recapitalization of our equity. The Company is anticipating that the equity awards granted under the Subsidiary Equity Plan will be exchanged for shares of common stock of Pennant as part of the recapitalization of its equity. As of the distribution date, non-controlling shareholders net investment in subsidiaries of Pennant will be eliminated. These shareholders will receive a distribution of shares of Pennants common stock based on a conversion ratio established by a third-party valuation. |
(4) |
Represents the issuance of approximately 28.0 million common shares at a par value of $0.001 per share. The number of common shares is based on the number of Ensign common shares outstanding at the end of the period and a distribution ratio of one share of Pennant common stock for every two shares of Ensign common stock. The number of shares also includes the capital structure conversion of non-controlling interest shareholders into Pennant common stock based on third party valuation. The assumptions used, and pro forma adjustments derived from such assumptions, are based on currently available information, and we believe such assumptions are reasonable under the circumstances. |
(5) |
Reflects changes in rent resulting from the removal of intercompany rental charges and replacement of such in accordance with the Ensign Leases, and new third-party master lease agreements based on negotiations |
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with landlords that will replace the existing lease agreements between our subsidiaries and such landlords. We anticipate that the Ensign Leases and new third-party master lease agreements will have initial terms ranging between 14 and 16 years, with extension options and annual rent escalators based on changes in the Consumer Price Index. |
(6) |
Represents the removal of non-recurring transaction and pre-separation costs and related unpaid payables or accrued expenses incurred in the historical periods that are directly related to the separation of Pennant from Ensign. |
(7) |
Represents the adjustments to deferred financing fee of $1.2 million and interest expense related to approximately $30.0 million of debt that we expect to incur as described in note (1). Interest expense was calculated assuming constant debt levels throughout the periods. The estimated variable interest rate of 5.2% for the six months ended June 30, 2019 and 4.8% for the twelve months ended December 31, 2018 is an estimate and may be higher or lower if there are changes in market conditions or the banking environment, or if our leverage ratio or the actual LIBOR rate following the spin-off are different than the estimate we used. This estimate is based on an average of the LIBOR daily rate for the past five quarters plus a percentage spread we expect to incur based on current negotiations with the lead banks in our anticipated syndication. Each 1.0% change to the annual interest rate would change interest expense by approximately $0.3 million on an annual basis. |
June 30, 2019
Pro Forma Adjustments |
December 31, 2018
Pro Forma Adjustments |
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Net increase to amortization of deferred financing costs |
$ | 116 | $ | 231 | ||||
Interest related to revolving debt expected to be issued by Pennant and unusued revolving credit facility fee |
923 | 1,713 | ||||||
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Net increase to interest expense |
$ | 1,039 | $ | 1,944 | ||||
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(8) |
Reflects the tax effects of the tax deductible pro forma adjustments at the applicable jurisdictional statutory income tax rates of 25.0%. |
(9) |
Represents the adjustments to the right-of-use (ROU) assets and lease liability as a result of the removal of intercompany rental charges and replacement with new or amended master lease agreements see note (5). In accordance with Topic 842, Leases, these new and amended master lease agreements are considered to be modified and subjected to lease modification guidance. The ROU asset and lease liability related to these agreements were remeasured based on the change in the lease terms and conditions such as rent payment and lease terms. The incremental borrowing rate has also been adjusted to mirror the revised lease terms which become effective at the date of the modification. As the unaudited pro forma combined balance sheet assumes the spin-off and the related transactions occurred on the most recent reporting date. |
(10) |
The pro forma basic weighted average shares outstanding were based on the weighted average number of Ensigns common shares outstanding for the period adjusted for an assumed distribution ratio of one share of Pennant common stock for every two Ensign common shares, including the conversion of non controlling interest shareholders into Pennant common stock. Earnings per share is computed by dividing net income less earnings allocable to participating securities by the estimate of weighted average number of shares outstanding. The assumptions used, and pro forma adjustments derived from such assumptions, are based on currently available information, and we believe such assumptions are reasonable under the circumstances. |
(11) |
The pro forma weighted-average number of Pennant shares used to compute pro forma diluted net income per share is based on the weighted-average number of basic shares of Pennant common stock as described in note (10) above, plus incremental shares assuming exercise of dilutive outstanding options and restricted stock awards granted to our employees assuming no fractional shares under Ensigns stock based compensation programs converted into the Pennant awards based on the assumed distribution ratio. The incremental shares also assumed exercise of diluted outstanding options and restricted stock awards granted under the Subsidiary Equity Plan converted into the Pennant awards based on the most recent third-party |
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valuation. The actual effect of the dilution on a go-forward basis will depend on various factors, including the employment of our personnel in one company or the other, the value of the equity awards at the time of distribution and the fractional share. We estimated the dilutive effects at this time based on applying the distribution ratio as described in note (10) above to the Ensign weighted-average shares outstanding for identified Pennant employees and the conversion of the non controlling interest shareholders into Pennant common stock provides a reasonable approximation of the potential dilutive effect of the equity awards based on the currently available information. |
(12) |
Represents reduction in net parent investment related to the payment of transaction fees and dividend to The Ensign Group, Inc. as disclosed in note (1). |
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Our Company
We are a leading provider of high quality healthcare services to the growing senior population in the United States. We strive to be the provider of choice in the communities we serve through our innovative operating model. We operate in multiple lines of business including home health, hospice and senior living across Arizona, California, Colorado, Idaho, Iowa, Nevada, Oklahoma, Oregon, Texas, Utah, Washington, Wisconsin and Wyoming.
We believe our key differentiators are (i) our innovative operating model focused on empowering and developing strong local leaders, (ii) our disciplined growth strategy, and (iii) our ability to achieve quality care outcomes in lower cost settings. In our experience, healthcare is a local endeavor, largely dependent upon personal and professional relationships, community reputation and an ability to adapt to the changing needs of patients, partners and communities. As our operational leaders build strong relationships with key partners in their local healthcare communities, they are empowered to make informed and critical operational decisions that produce quality care outcomes and more effectively meet the needs of our patients.
In our home health and hospice business, we believe we are able to achieve quality outcomesas measured by many industry and value-based metrics such as hospital readmission ratesin a lower cost setting. In our senior living business, we believe we are able to offer our residents a better quality of life experience at an affordable cost, thus appealing to a broader population. With our platform of diversified service offerings, we believe that we are well-positioned to take advantage of favorable demographic shifts as well as industry trends that reward providers offering quality care in lower cost settings.
As of June 30, 2019, we provided home health and hospice services through 62 agencies. Our home health services generally consist of providing some combination of clinical services including nursing, speech, occupational and physical therapy, medical social work and home health aide services. Home health is often a cost-effective solution for patients and can also increase their quality of life by allowing them to receive excellent clinical services in the comfort and convenience of a familiar setting. Using CMSs star rating criteria, our home health agencies achieved an average of 4 out of 5 stars across all agencies compared to the industry average of 3.5. Our hospice services focus on the physical, spiritual and psychosocial needs of terminally ill patients and their families and consist primarily of clinical care, education and counseling. During the six months ended June 30, 2019 and the year ended December 31, 2018, we generated approximately 67.9% and 68.6%, respectively, of our home health and hospice revenue from Medicare.
As of June 30, 2019, we provided senior living services at 51 communities with 3,872 total units in our assisted living, independent living and memory care business. Our senior living operations provide a variety of services based on residents needs including residential accommodations, activities, meals, housekeeping and assistance in the activities of daily living to seniors who are independent or who require some support, but not the level of clinical care provided in a skilled nursing facility. We generate revenue at these communities primarily from private pay and other sources, with a portion earned from Medicaid. During the six months ended June 30, 2019 and the year ended December 31, 2018, approximately 78.7% and 79.8%, respectively, of our senior living revenue was derived from private pay sources.
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Payor Mix for the Six Months Ended June 30, 2019
Combined | Home Health and Hospice | Senior Living | ||
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Our Innovative Operating Model
Our innovative operating model is the foundation of our superior performance and success. Our operating model is founded on two core principles: (1) healthcare is a local business where providers are most successful when key operational decision-making meets local community needs and occurs close to patients and employees, and (2) peer accountability from operational and resource partners is more effective at driving excellent clinical and financial results than traditional hierarchical or top-down accountability structures.
Our model is innovative because each operation has been and will continue to be an independent operating subsidiary that functions under the direction of local clinical and operational leaders, each of whom are empowered to make decisions based on the unique needs of the patients, partners and communities they serve. This is in contrast to typical models where control and key decision-making is centralized at the corporate level. Moreover, we utilize a cluster model, where every operation is part of a defined, cluster, which is a group of geographically proximate operations working together to allow leaders to communicate and provide support and accountability to each other. This creates incentives for leaders to share best practices and real-time data and benchmark clinical and financial performance against their cluster partners. We believe this locally-driven data-sharing and peer accountability model is unique amongst healthcare providers and has proven effective in improving clinical care, enhancing patient satisfaction and promoting operational efficiencies. This cluster operating model is the same model used by local leaders prior to the spin-off and will be key to the success of our future operations.
This organizational structure empowers our highly dedicated leaders and staff at the local level to make key decisions and creates a sense of ownership over operational and clinical results and the employee experience. Each leader and his or her staff are encouraged to make their operations the provider of choice in the community they serve. To accomplish this goal, leaders work closely with clinical staff and our expert resources to identify unique patient needs and priorities in a given community and create superior service offerings tailored to those needs. We believe that our localized approach to program development and patient care leads prospective patients and referral sources to choose or recommend our operations to others. Similarly, our emphasis on empowering local decision-makers encourages leaders to strive to become the employer of choice in the community they serve. One of our core values is the principle that the best patient care is provided by employees that experience significant work satisfaction because they are valued as individuals. Our leaders work hard to embody this core value and to attract, train and retain outstanding clinical staff by creating a work environment that fosters critical thinking, measurement, and relevance. Our local teams are motivated and empowered to quickly and proactively meet the needs of those they serve, without waiting for permission to act or being bound to a one-size-fits-all corporate strategy. In many markets, we attribute census growth and excellent clinical and financial outcomes to a healthy organizational culture built on these principles. With strong employee satisfaction across the organization, we believe we can continue to attract and retain the best talent in our industries.
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Lastly, while our teams are local, they are also supported by cutting-edge systems and a Service Center staffed with teams of subject matter expert resources that advise on their respective fields of information technology, compliance, human resources, accounting, payroll, legal, risk management, education and other services. The partnership and peer accountability that exists between our local leaders and Service Center resources allows each operation to improve while benefiting from the technical expertise, systems and accountability of the Service Center.
Partner of Choice in Local Healthcare Communities
We view healthcare services primarily as a local business driven by personal relationships, reputation and the ability to identify and address unmet community needs. We believe our success is largely a result of our ability to build strong relationships within local healthcare communities based on a solid foundation of reliably superior care.
We believe we are a partner of choice to payors, providers, patients and employees in the healthcare communities we serve. As a partner, we focus on improving care outcomes and the quality of life of our patients in home or home-like settings. Our local leadership approach facilitates the development of strong professional relationships, allowing us to better understand and meet the needs of our partners. We believe our emphasis on working closely with other providers, payors and patients yields unique, customized solutions and programs that meet local market needs and improve clinical outcomes, which in turn accelerates revenue growth and profitability.
We are a trusted partner to, and work closely with, payors and other acute and post-acute providers to deliver innovative healthcare solutions in lower cost settings. In the markets we serve, we have developed formal and informal preferred provider relationships with key referral sources and transitional care programs that result in better coordination within the care continuum. These partnerships have resulted in significant benefits to payors, patients and other providers including reduced hospital readmission rates, appropriate transitions within the care continuum, overall cost savings, increased patient satisfaction and improved quality outcomes. Positive, repeated interactions and data-sharing result in strong local relationships and encourage referrals from our acute and post-acute care partners. As we continue to strengthen these formal and informal relationships and expand our referral base, we believe we will continue to drive revenue growth and operational results.
Company History
The Pennant Group, Inc. was incorporated as a Delaware corporation on January 24, 2019, for the purpose of holding the home health and hospice agencies and substantially all of the senior living businesses of The Ensign Group, Inc. (NASDAQ: ENSG), which was formed in 1999 with the goal of establishing a new level of quality care within the skilled nursing industry. The name Ensign is synonymous with a flag or a standard, and refers to Ensigns goal of setting the standard by which all others in its industry are measured. The name Pennant draws on similar imagery and themes to represent our mission of becoming the Ensign to the home health, hospice and senior living industries. We believe that through our innovative operating model, we can foster a new level of patient care and professional competence at our independent operating subsidiaries and set a new industry standard for quality home health and hospice and senior living services.
On May 6, 2019, Ensign announced its intention to implement the spin-off of Pennant from Ensign, following which The Pennant Group, Inc. will be an independent, publicly-traded company, and Ensign will have no continuing stock ownership interest in Pennant. As part of the spin-off, Ensign will effect an internal reorganization to properly align the appropriate businesses within each of Pennant and Ensign whereby, among other things: (i) the assets and liabilities associated with Ensigns home health and hospice agencies and substantially all of its senior living businesses will be transferred to Pennant; and (ii) all other assets and liabilities of Ensign will be retained by Ensign.
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Our independent operating subsidiaries are organized into industry-specific portfolio companies, which we believe has enabled us to maintain a local, field-driven organizational structure, to attract qualified leaders and expert resources, and to effectively identify, acquire, and improve operations. Each of our portfolio companies has its own leader. These experienced and proven leaders are generally taken from the ranks of operational leaders to serve as resources to independent operating subsidiaries within their own portfolio companies and have the primary responsibility for recruiting qualified talent, finding potential acquisition targets, and identifying other strategic and organic growth opportunities. We believe this decentralized organizational structure will continue to improve the quality of our recruiting and facilitate successful acquisitions.
We have two reportable segments: (1) home health and hospice services, which includes our home health, hospice and home care businesses, and (2) senior living services, which includes our assisted living, independent living and memory care communities. We also report an all other category that includes general and administrative expense. Our reporting segments are business units that offer different services and that are managed separately to provide greater visibility into those operations. For more information about our operating segments, as well as financial information, see Managements Discussion and Analysis of Financial Condition and Results of Operations and Note 6, Business Segments, to the Audited Combined Financial Statements.
Our Segments
Home Health and Hospice
As of June 30, 2019, we provided home health and hospice services through 62 agencies. Our home health services generally consist of providing some combination of clinical care services including nursing, speech, occupational and physical therapy, medical social work and home health aide services. Home health is often a cost-effective solution for patients and can also increase their quality of life by allowing them to receive quality clinical services in the comfort and convenience of a familiar setting. Using CMSs star rating criteria, our home health agencies achieved an average of 4 out of 5 stars across all agencies compared to the industry average of 3.5. Our hospice services focus on the physical, spiritual and psychosocial needs of terminally ill individuals and their families and consist primarily of palliative care, education and counseling. During the six months ended June 30, 2019, we generated 67.9% of our home health and hospice revenue from Medicare.
Senior Living
As of June 30, 2019, we provided assisted living, independent living and memory care services at 51 communities with 3,872 total units located across Arizona, California, Nevada, Texas, Washington and Wisconsin. Our senior living operations provide a variety of services based on residents needs, including residential accommodations, activities, meals, housekeeping and assistance in the activities of daily living to seniors who are independent or who require some support, but not the level of clinical care provided in a skilled nursing operation. We generate revenue at these units primarily from private pay sources, with a portion earned from Medicaid or other state-specific programs. During the six months ended June 30, 2019, 78.7% of our senior living revenue was derived from private pay sources.
Our Competitive Strengths
We believe that we are well-positioned to benefit from the ongoing changes within the home health, hospice and senior living industries. We believe that we will achieve clinical, financial and cultural success as a direct result of the following key competitive strengths:
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Innovative Operating Model. We believe healthcare services is primarily a local business. Our local leadership-centered operating model encourages our leaders to make key operational decisions that meet the individualized needs of their patients and community partners. Recognizing the local nature of our business, our leaders develop each operations reputation at the local level, rather than being bound by a traditional organization-wide branding strategy. In addition, our local leaders work closely with their cluster partners to share data and improve clinical and financial outcomes. Moreover, we do not |
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maintain a traditional corporate headquarters, rather we operate a Service Center that accelerates operational results by developing world-class systems and by providing expertise in fields such as information technology, compliance, human resources, accounting, legal and education. This enables individual operations to function with the strength, synergies and economies of scale found in larger organizations without the disadvantages of a top-down management structure or corporate hierarchy. We believe this approach is unique within our industries and allows us to preserve the one-operation-at-a-time focus and culture that has contributed to our success. |
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Proven Track Record of Successful Acquisitions. We adhere to a disciplined acquisition strategy focused on sourcing and selectively acquiring operations within our target markets. Local leaders are heavily involved in the acquisition process and are recognized and rewarded as these acquired operations become the provider of choice in the communities they serve. Through our innovative operating model and disciplined approach to strategic growth, we have completed and successfully transitioned dozens of value-add operations. Our expertise in acquiring and transforming strategic and underperforming operations allows us to consider a broad range of potential acquisition targets and will be a key element of our future success. |
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Superior Clinical Outcomes and Quality Care. We will continue to achieve success by delivering high quality home health, hospice and senior living services. Our locally-driven, patient-centered approach to clinical care allows us to meet the unique needs of our patients, resulting in improved clinical outcomes, including reduced hospital readmission rates. These improved outcomes are driven by both our talented local clinicians and our data-driven analytical approach to patient care and risk stratification. We believe that our achievement of high quality clinical outcomes positions us as a solution for patients and referral sources, leading to census growth and improved profitability. |
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Diversified Portfolio by Payor and Services. As of June 30, 2019, we operated 62 home health and hospice agencies and 51 senior living communities across 13 states. Because of this diversified portfolio, our blended payor mix was 40.7% Medicare, 13.4% Medicaid, 8.6% managed care and 37.3% private pay for the six months ended June 30, 2019. Our balanced payor mix provides greater business stability through economic cycles and mitigates volatility arising from government-driven reimbursement changes. For the six months ended June 30, 2019, we generated 60.0% of our revenue from home health and hospice services and 40.0% of our revenue from senior living services. This diversified service portfolio allows us to opportunistically execute on our acquisition strategy as valuations fluctuate over industry cycles. |
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Proven Track Record of Talent Recruitment, Development and Retention. We have been successful in attracting, developing and retaining outstanding business and clinical leaders to lead our operating subsidiaries. Our unique operating model, which emphasizes local decision-making and team building, supported by our platform of expert resources and best-in-class systems, attracts a highly talented and entrepreneurial group of leaders. Our operational leaders are committed to ongoing training and participate in regular leadership development and educational programs. We believe that our commitment to professional development strengthens the quality of our operational leaders and staff and will continue to differentiate us from our competitors. |
Our Strategy
We believe that the following strategies are primarily responsible for our growth to date and will continue to drive the growth of our business:
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Grow Talent Base and Develop Future Leaders. Our growth strategy is focused on expanding our talent base and developing future leaders. A key component of our organizational culture is our belief that strong local leadership is a primary ingredient to operational success. We use a multi-faceted strategy to identify and recruit proven business leaders from various industries and backgrounds. To develop these leaders, we have a rigorous CEO-in-Training Program that includes significant |
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in-person instruction on leadership, clinical and operational topics as well as extensive on-the-ground training and active learning with key leaders from across the organization. After placement in a local operation, our leaders continue to receive training and regular feedback and support from operational and resource peers as they seek to achieve great results. We believe our model of empowering local leaders and providing them a platform of support from expert resources and systems will continue to attract and retain highly talented and entrepreneurial leaders. |
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Focus on Organic Growth. We believe that we have a significant opportunity to drive organic growth within our current portfolio and recently acquired operations. As we improve clinical outcomes, quality of care and operational results at each of our existing and newly acquired operations, we become a provider of choice in the communities we serve, which leads to census growth. Through this census growth, and as we continue to expand our service offerings, we believe we will continue to translate revenue growth into bottom line success with rigorous adherence to our core operating principles. By effectively using data systems and analytics and embracing a culture of transparency and accountability, our local leaders have a track record of steadily improving operational results. We believe our unique operating model will continue to cultivate steady and consistent organic growth in the future. |
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Pursue Disciplined Acquisition Strategy. The disciplined acquisition and integration of strategic and underperforming operations is a key element of our past success and future growth. We have proven the ability to successfully transition both turnaround and stable acquisitions, transforming them into top-quality operations preferred by referral sources, thus creating a strong return on investment. We plan to continue to take advantage of the fragmented home health, hospice and senior living industries by acquiring strategic and underperforming operations within both our existing and new geographic markets. With experienced leaders in place at the local level and demonstrated success in significantly improving operating conditions at acquired businesses, we believe we are well positioned to continue successfully expanding our footprint. |
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Leverage Our Operational Capabilities to Expand Partnerships. We have a unique and proven operating model with a track record of becoming the provider of choice through deep local payor and provider relationships. Our local leadership approach enables us to adapt to and efficiently meet the needs of our partners in the communities we serve. Our clinical and data analytics capabilities foster solutions and allow us to optimize clinical outcomes. We use this data to communicate with key partners in an effort to reduce overall cost of care and drive improved clinical outcomes. We will continue to expand formal and informal partnerships throughout the healthcare continuum by strategically investing in programs and data analytics that help us and our partners improve care transitions, achieve better outcomes and reduce costs. |
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Strategically Invest In and Integrate Other Post-Acute Healthcare Businesses. Another important element to our growth strategy includes in-house development and acquisition of other post-acute care businesses that are adjacent to our existing service offerings. These businesses either directly or indirectly benefit our patients, help us collaborate more effectively with our partners, and allow us to compete more effectively in the rapidly-changing healthcare environment. Our leadership development programs facilitate these investments, and we have supported local leaders in exploring new business opportunities. We expect to continue to selectively incubate ancillary solutions in a disciplined manner that incentivizes our local leaders and bolsters the depth and breadth of services we offer within the post-acute care continuum. |
Growth and Acquisition History
Much of our historical growth can be attributed to our expertise in acquiring strategic and underperforming operations and transforming them into market leaders in clinical quality, staff competency and financial performance. Our local leaders are trained to identify these opportunities for long-term organic growth as we strive to become the provider of choice in our local communities. Accordingly, we plan to continue to drive organic growth and acquire additional operations in existing and new markets in a disciplined manner.
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From 2013 to 2018, we grew our home health and hospice services and senior living services revenue by 330.2%.
Revenue Growth Since 2013 (Dollars in Millions)
(1) |
Reflects the adoption of ASC 606, which includes a reduction to revenue of $1.8 million and $1.4 million for the year ended December 31, 2018 and the six months ended June 30, 2019, respectively. |
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From 2013 to June 30, 2019, we grew the number of our home health and hospice agencies and senior living units by 287.5% and 208.3%, respectively.
Agency and Unit Growth Since 2013
Home Health and Hospice Agencies | Senior Living Units | |
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We aim to continue to grow our revenue and earnings by acquiring additional operations in existing and new markets and expanding and renovating our existing operations.
December 31, | June 30, | |||||||||||||||||||||||||||||||||||
2011 | 2012 | 2013 | 2014 | 2015 | 2016 | 2017 | 2018 | 2019 | ||||||||||||||||||||||||||||
Cumulative number of home health and hospice agencies |
7 | 10 | 16 | 25 | 32 | 39 | 46 | 54 | 62 | |||||||||||||||||||||||||||
Cumulative number of senior living communities |
8 | 10 | 12 | 15 | 36 | 36 | 43 | 50 | 51 | |||||||||||||||||||||||||||
Cumulative number of senior living units |
887 | 1,034 | 1,256 | 1,587 | 3,184 | 3,184 | 3,434 | 3,820 | 3,872 | |||||||||||||||||||||||||||
Total number of home health, hospice, and senior living operations |
15 | 20 | 28 | 40 | 68 | 75 | 89 | 104 | 113 |
Industry Trends
The healthcare sector is one of the largest and fastest-growing sectors of the U.S. economy. According to the Centers for Medicare and Medicaid Services, national healthcare spending increased from 8.9% of U.S. GDP, or $255 billion, in 1980 to an estimated 18% of GDP, or $3.6 trillion, in 2018. CMS projects national healthcare spending will grow by an average of 5.6% annually from 2018 through 2026, accounting for approximately 20% of U.S. GDP in 2026.
The home health, hospice and senior living segments are growing within the overall healthcare landscape in the United States. The home health market is estimated at approximately $90 billion and is growing at an estimated CAGR of 7%. The hospice industry is estimated at approximately $35 billion and is growing at an estimated CAGR of 5%. The senior living market is estimated at approximately $53 billion and growing at an
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estimated CAGR of 5%. We believe that the industries in which we operate will continue to benefit from several macroeconomic and regulatory trends highlighted below:
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Increased Demand Driven by Aging Populations. As seniors account for an increasing percentage of the total U.S. population, we believe the demand for home health and hospice and senior living services will continue to increase. According to the census projection released by the U.S. Census Bureau in early 2018, between 2010 and 2030, the number of individuals over 65 years old is projected to be one of the fastest growing segments of the United States population, growing from 13% to 21%. The Bureau expects this segment to increase nearly 90% to 73 million, as compared to the total U.S. population which is projected to increase by 17% over that time period. Furthermore, the generation currently retiring has accumulated less savings than in the past, creating demand for more affordable senior housing and in-home care options. As a high quality provider in lower cost settings, we believe we are well-positioned to benefit from this trend. |
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Shift of Patient Care to Lower Cost Alternatives. The growth of the senior population in the U.S. continues to increase healthcare costs, often faster than the available funding from government-sponsored healthcare programs. In response, government payors have adopted measures that encourage the treatment of patients in their homes and other cost-effective settings where the staffing requirements and associated costs are often significantly lower than the alternatives. With our emphasis on the home health, hospice and senior living industries, which are among the lowest cost settings within the post-acute care continuum, we expect this shift to continue to drive our growth. |
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Transition to Value-Based Payment Models. In response to rising healthcare spending, commercial, government and other payors are generally shifting away from fee-for-service payment models toward value-based models, including risk-based payment models that tie financial incentives to quality, efficiency and coordination of care. We believe that payors will continue to emphasize reimbursement models driven by value and that our clinical outcomes combined with our services in lower cost settings will be increasingly rewarded. Many of our home health agencies already receive value-based payments, and we are well-positioned to capitalize on this growth. |
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Significant Acquisition and Consolidation Opportunities. The home health, hospice and senior living industries are highly fragmented markets with thousands of small and regional providers and only a handful of large national players. There are over 12,300 Medicare-certified home health agencies, with the top ten largest operators accounting for about 21% of the market. There are approximately 4,200 hospice agencies in the U.S. with the top five largest operators accounting for about 14% of the total market share. As with the home health and hospice industries, there is significant fragmentation in the senior housing industry, with approximately 17,000 providers in the U.S. We believe that our strategy of acquiring strategic and underperforming operations in these highly fragmented markets will be an instrumental piece of our future growth. |
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Changing Regulatory Framework. Regulations and reimbursement change frequently in our industries. Our model is designed to successfully navigate these regulatory and reimbursement changes. For example, in January 2017, CMS announced its intent to significantly modify the home health conditions of participation. Prior to the effective date in January 2018, our resources and operators worked together with local teams to formulate systems, policies and procedures to meet the new regulatory requirements at each operation, resulting in strong outcomes at our home health operations that have been surveyed. Similarly, CMS has proposed changes to the home health prospective payment system with the proposed implementation of the PDGM. This new reimbursement structure involves case mix calculation methodology refinements, changes to LUPA thresholds, the elimination of therapy thresholds, a change to the unit of payment from a 60-day episode to a 30-day episode, and phase out in 2020 and full elimination in 2021 of RAPs. Just as we have navigated other major reimbursement and regulatory changes, we believe that our unique operating model will mitigate the negative impacts of PDGM as local operations and clinical leaders, supported by our expert resources, effectively adapt to the new reimbursement environment. |
Effects of Changing Prices
Medicare reimbursement rates and procedures are subject to change from time to time, which could materially impact our revenue. Our Medicare reimbursement rates and procedures for our home health and
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hospice operations are based on the severity of the patients condition, his or her service needs and other factors relating to the cost of providing services and supplies.
Various healthcare reform provisions became law upon enactment of the ACA. The reforms contained in the ACA have affected our operating subsidiaries in some manner and are directed in large part at increased quality and cost reductions. Several of the reforms are very significant and could ultimately change the nature of our services, the methods of payment for our services and the underlying regulatory environment. These reforms include modifications to the conditions of qualification for payment, bundling of payments to cover both acute and post-acute care and the imposition of enrollment limitations on new providers. Elections in the United States could result in significant changes in, and uncertainty with respect to, legislation, regulation, implementation of Medicare and/or Medicaid, and government policy that could significantly impact our business and the healthcare industry. We continually monitor these developments in an effort to respond to the changing regulatory environment impacting our business.
Home Health
On July 11, 2019, CMS issued a proposed rule updating the Medicare HH PPS rates and wage index for calendar year 2020. The rule proposes a 1.3% increase in home health payments, resulting from a 1.5% payment percentage update and a 0.2% decrease in aggregate payments because of changes to the rural add-on policy. The proposed rule implements the Patient Driven Groupings Model (PDGM), a revised case mix adjustment methodology, for home health services beginning on or after January 1, 2020, and proposes to adjust reimbursement under PDGM for assumed provider behavioral changes. The proposed rule also changes the unit of payment from 60-day episodes of care to 30-day periods of care, modifies payment regulations related to the content of the home health plan of care; allows therapist assistants to furnish maintenance therapy under the supervision of a licensed therapist; and proposes to change and eventually eliminate the split percentage payment approach under the HH PPS. Finally, this rule will include proposals related to the implementation of the permanent home infusion therapy benefit in 2021. These include proposed payment categories, amounts, and required and optional adjustments.
On November 13, 2018, CMS published a final rule which updates the Medicare HH PPS rates, including the conversion factor and case-mix weights for calendar years 2019 and 2020. This rule finalizes the definition of remote patient monitoring which will be allowed as an administrative expense on the home health agencys cost report. Further, effective January 1, 2020, CMS will implement PDGM, as mandated by the Bipartisan Budget Act of 2018. Under PDGM, the initial certification of patient eligibility, plan of care, and comprehensive assessment will remain valid for 60-day episodes of care, but payments for home health services will be made based upon 30-day payment periods. PDGM refines case mix calculation methodology by removing therapy thresholds and calculating reimbursement based on clinical characteristics including clinical group coding, comorbidity coding, and achievement of LUPA thresholds. While the proposed changes are to be implemented in a budget neutral manner to the industry, CMSs current proposal includes a negative 6.42% adjustment to account for assumed provider behavioral changes. The ultimate impact of these changes will vary by provider based on factors including patient mix and admission source. The finalization of these assumptions could negatively impact our future rate of reimbursement and could have a material adverse effect on our business and consolidated financial condition, results of operations and cash flows. This rule also finalizes changes to the HHVBP model. These changes focus on providing value over volume of services to patients. Once the changes are implemented, health payments will no longer be based on the number of visits provided, but rather the patients medical condition and care needs. In calendar year 2019, there was an increase of 2.2% in reimbursement to home health agencies based on the agencys finalized policies.
On November 1, 2017, CMS issued a final rule that became effective on January 1, 2018 and updated the calendar year 2018 Medicare payment rates and the wage index for home health agencies serving Medicare beneficiaries. The rule also finalized proposals for the HHVBP model and the HHQRP. Under the final rule, Medicare payments will be reduced by 0.4%. This decrease reflects the effects of a 1% home health payment update, a 0.9% adjustment to the national, standardized 60-day episode payment rate to account for nominal case-mix growth, and a 0.5% adjustment in payments due to the sunset of the rural add-on provision.
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On January 13, 2017, CMS issued a final rule that modernized CoPs. This rule is a continuation of CMSs effort to improve quality of care while streamlining provider requirements to reduce unnecessary procedural requirements. The rule makes significant revisions to the conditions currently in place, including (1) adding new CoPs related to quality assurance and performance improvement programs and infection control; and (2) expanding or revising requirements related to patient rights, comprehensive evaluations, coordination and care planning, home health aide training and supervision, and discharge and transfer summary and time frames. The new CoPs became effective on January 13, 2018.
On October 31, 2016, CMS issued final payment changes to HH PPS for calendar year 2017. Under this rule, Medicare payments were reduced by 0.7%. This decrease reflects a negative 0.97% adjustment to the national, standardized 60-day episode payment rate to account for nominal case-mix growth from 2012 through 2014; a 2.3% reduction in payments due to the final year of the four-year phase-in of the rebasing adjustments to the national, standardized 60-day episode payment rate, the national per-visit payment rates and the non-routine medical supplies (NRS) conversion factor; and the effects of the revised fixed-dollar loss ratio used in determining outlier payments; partially offset by the home health payment update percentage of 2.5%.
On November 5, 2015, CMS issued final payment changes to HH PPS for calendar year 2016. Under this rule, Medicare payments were reduced by 1.4%. This decrease reflects a 1.9% home health payment update percentage; a 0.9% decrease in payments due to the 0.97% payment reduction to the national, standardized 60-day episode payment rate to account for nominal case-mix growth from 2012 through 2014; and a 2.4% decrease in payments due to the third year of the four-year phase-in of the rebasing adjustments to the national, standardized 60-day episode payment rate, the national per-visit payment rates, and the NRS conversion factor. Along with the payment update, CMS revised the International Classification of Diseases 10 (ICD-10) CM translation list and adding certain initial encounter codes to the HH PPS Grouper based upon revised ICD-10-CM coding guidance.
Pursuant to the rule, CMS also implemented a HHVBP model effective for calendar year 2016, in which all Medicare-certified home health agencies in selected states are required to participate. The model applied a reduction or increase to Medicare payments depending on quality performance, for all agencies delivering services within nine randomly-selected states. Payment adjustments are applied on an annual basis, beginning at 3% in the first payment adjustment year, 5% in the second payment adjustment year, 6% in the third payment adjustment year and 8% in the final two payment adjustment years.
Lastly, CMS implemented a standardized cross-setting measure for calendar year 2016. The CoPs require home health agencies to submit OASIS assessments within 30 days of completing the assessment of the beneficiary, as a condition of payment and also for quality measurement purposes. Commencing on April 3, 2017, if the OASIS assessment is not found in the quality system upon receipt of a final claim for a home health episode and the receipt date of the claim is more than 30 days after the assessment completion date, Medicare systems will deny the claim. Home health agencies that do not submit quality measure data to CMS incur a 2% reduction in their annual home health payment update percentage. Under the rule, all home health agencies are required to timely submit both Start of Care (initial assessment) or Resumption of Care OASIS assessment and a Transfer or Discharge OASIS assessment for a minimum of 70% of all patients with episodes of care occurring during the annual reporting period starting July 1, 2015 and ending June 30, 2016, 80% of all patients with episodes occurring during the reporting period starting July 1, 2016 and ending June 30, 2017, and 90% for all episodes beginning on or after July 1, 2017.
Hospice
On July 31, 2019, CMS issued a final rule that updated the fiscal year 2020 hospice payment rates, wage index and cap amount. The final rule calls for a 2.6% increase in hospice payment rates for fiscal year 2020. This increase is based on the proposed fiscal year 2020 hospital market basket increase of 3.0% reduced by the multifactor productivity adjustment of 0.4%. The rule establishes a rebasing of the continuous home care, general
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inpatient care, and the inpatient respite care per diem payment rates in a budget-neutral manner to more accurately align Medicare payments with the costs of providing care. Specifically, the rule proposes to increase these rates by 36.6%, 161.2%, and 31.0% respectively to account for the disparity between reimbursement and cost. In order to maintain budget neutrality, CMS also proposes to correspondingly reduce the RHC rate by 2.7%. Hospices that fail to meet quality reporting requirements receive a 2.0% reduction to the annual market basket update for the year. Further, the rule establishes the hospice cap amount for the fiscal year 2020 cap year at $29,964.78, which is equal to the fiscal year 2019 cap amount of $29,205.44 updated by the final rule for fiscal year 2020 hospice payment update percentage of 2.6%. In addition to payment updates, the final rule contains new regulations to modify the election statement requirements and require hospices to prepare an addendum to the election entitled Patient Notification of Hospice Non-Covered Items, Services, and Drugs, which will provide the patient with information related to any diagnoses, treatment, or medications that are considered by the hospice to be unrelated to the terminal diagnoses. In addition to its preparation, the hospice is required to provide the addendum upon request by the patient or the patients representative within five days, if requested at the time of election, or within 72 hours if requested thereafter.
On August 1, 2018, CMS issued its final rule outlining the fiscal year 2019 Medicare payment rates, wage index, and cap amount for hospices serving Medicare beneficiaries. Under the final rule, the hospice payment update is 1.8%, which reflects a market basket update of 2.9%, a 0.8% reduction for the MFP adjustment and an additional 0.3% reduction as mandated under the ACA. For hospices that do not submit required quality data, the hospice payment update percentage will be reduced by an additional 2%, for a net negative 0.2%. The final rule also specified that the hospice cap was updated using the hospice payment update rather than the consumer price index. Accordingly, there was be a 1.8% increase in aggregate cap payments made to hospices annually. The final rule also includes language that reflected the change in the Bipartisan Budget Act of 2018 which recognizes physician assistants as attending physicians for Medicare hospice beneficiaries effective January 1, 2019. Physician assistants are reimbursed for their services at 85% of the fee schedule amount for designated attending physicians. Additionally, the rule finalized changes to HQRP, also effective January 1, 2019, including changes to the data review and correction timeline for data submitted using the Hospice Item Set.
On August 1, 2017, CMS issued its final rule outlining the fiscal year 2018 Medicare payment rates, wage index and cap amount for hospices serving Medicare beneficiaries. The final rule used a net market basket percentage increase of 1% to update the federal rates, as mandated by section 411(d) of the MACRA. Although, if a hospice fails to comply with quality reporting program requirements, there will be a 2% reduction to the market basket update for the fiscal year involved. The hospice cap amount for fiscal year 2018 was increased by 1%, which is equal to the 2017 cap amount updated by the fiscal year 2018 hospice payment update percentage of 1%. In addition, this rule discusses changes to the HQRP, including changes to CAHPS hospice survey measures and plans for sharing HQRP data in fiscal year 2017.
On July 29, 2016, CMS issued its final rule outlining fiscal year 2017 Medicare payment rates, wage index and cap amount for hospices serving Medicare beneficiaries. Under the final rule, there was a net 2.1% increase in hospice payments effective October 1, 2016. The hospice payment increase was the net result of 2.7% inpatient hospital market basket update, reduced by a 0.3% productivity adjustment and by a 0.3% adjustment set by the ACA. The hospice cap amount for fiscal year 2017 increased by 2.1%, which is equal to the 2016 cap amount updated by the fiscal year 2017 hospice payment update percentage of 2.1%. In addition, this rule changes the HQRP requirements, including care surveys and two new quality measures that assess hospice staff visits to patients and caregivers in the last three and seven days of life and the percentage of hospice patients who received care processes consistent with guidelines.
On July 31, 2015, CMS issued its final rule outlining fiscal year 2016 Medicare payment rates and the wage index for hospices serving Medicare beneficiaries. Under the final rule, there was a net 1.1% increase in payments effective October 1, 2015. The hospice payment increase was the net result of a hospice payment update to the hospice per diem rates of 2.1% (a hospital market basket increase of 2.4% minus 0.3% for reductions required by law) and 1.2% decrease in payments to hospices due to updated wage data and the
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phase-out of its wage index budget neutrality adjustment factor, offset by the newly announced Core Based Statistical Areas delineation impact of 0.2%. The rule also created two different payment rates for RHC that resulted in a higher base payment rate for the first 60 days of hospice care and a reduced base payment rate for 61 or more days of hospice care and a Service Intensity Add-On (SIA) Payment for fiscal year 2016 and beyond in conjunction with the proposed RHC rates.
Medicare Coverage Settlement Agreement. A proposed federal class action settlement was filed in federal district court on October 16, 2012 that would end the Medicare coverage standard for skilled nursing, home health and outpatient therapy services that a beneficiarys condition must be expected to improve. The settlement was approved on January 24, 2013, which tasked CMS with revising its Medicare Benefit Manual and numerous other policies, guidelines and instructions to ensure that Medicare coverage is available for skilled maintenance services in the home health, skilled nursing and outpatient settings. CMS was also required to develop and implement a nationwide education campaign for all who make Medicare determinations to ensure that beneficiaries with chronic conditions are not denied coverage for critical services because their underlying conditions will not improve, after which the members of the class were given the opportunity for re-review of their claims. The major provisions of this settlement agreement have been implemented by CMS, which could favorably impact Medicare coverage reimbursement for our services. However, healthcare providers may be subject to liability in the event they fail to appropriately adapt to the newly clarified reimbursement rules and consequently overbill state Medicaid programs in connection with services rendered to dual-eligible Medicare patients (i.e., by not maximizing Medicare coverage before billing Medicaid).
Historically, adjustments to reimbursement under Medicare have had a significant effect on our revenue. For a discussion of historic adjustments and recent changes to the Medicare program and related reimbursement rates, see Risk Factors under the headings Risks Related to Our Business and IndustryOur revenue could be impacted by federal and state changes to reimbursement and other aspects of Medicaid and Medicare, Our future revenue, financial condition and results of operations could be impacted by continued cost containment pressures on Medicaid spending, and Reforms to the U.S. healthcare system could impose new requirements upon us and may lower our reimbursements. The federal government and state governments continue to focus on efforts to curb spending on healthcare programs such as Medicare and Medicaid. We are not able to predict the outcome of the legislative process. We also cannot predict the extent to which proposals will be adopted or, if adopted and implemented, what effect, if any, such proposals and existing new legislation will have on us. Efforts to impose reduced allowances, greater discounts and more stringent cost controls by government and other payors are expected to continue and could adversely affect our business, financial condition and results of operations.
Payor Sources
We derive revenue primarily from the Medicare and Medicaid programs, private pay patients and residents and managed care payors.
Medicare. Medicare is a federal program that provides healthcare benefits to individuals who are 65 years of age or older or are disabled. The Medicare home health benefit is available both for patients who need care following discharge from a hospital and patients who suffer from chronic conditions that require ongoing but intermittent care. As a condition of participation under Medicare, beneficiaries must be homebound (meaning that the beneficiary is unable to leave his/her home without a considerable and taxing effort), require intermittent skilled nursing, physical therapy or speech therapy services, and receive treatment under a plan of care established and periodically reviewed by a physician. Medicare rates are based on the severity of the patients condition, his or her service needs and other factors relating to the cost of providing services and supplies, bundled into 60-day episodes of care. There is no limit to the number of episodes a patient may receive as long as he or she remains Medicare eligible.
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The Medicare hospice benefit is also available to Medicare-eligible patients with terminal illnesses, certified by a physician, where life expectancy is six months or less. Medicare rates are based on standard prospective rates for delivering care over a base 90-day or 60-day period (90-day episodes of care for the first two episodes and 60-day episodes of care for any subsequent episodes). Payments are based on daily rates for each day a beneficiary is enrolled in the hospice benefit. Rates are set based on specific levels of care, are adjusted by a wage index to reflect healthcare labor costs across the country and are established annually through Federal legislation. Medicare payments are subject to two fixed annual caps, which are assessed on a provider number basis. The annual caps per patient, known as hospice caps, are calculated and published by the Medicare fiscal intermediary on an annual basis and cover the twelve month period from November 1 through October 31. The caps can be subject to annual and retroactive adjustments, which can cause providers to owe money back to Medicare if such caps are exceeded.
Medicaid. Medicaid is a state-administered program financed by state funds and matching federal funds. Medicaid programs are administered by the states and their political subdivisions, and often go by state-specific names, such as Medi-Cal in California and the Arizona Healthcare Cost Containment System in Arizona. Medicaid programs generally provide health benefits for qualifying individuals, and may supplement Medicare benefits for financially needy persons aged 65 and older. Medicaid reimbursement formulas are established by each state with the approval of the federal government in accordance with federal guidelines.
Medicaid reimburses home health and hospice providers, senior living communities, physicians, and certain other healthcare providers for care provided to certain low income patients. Reimbursement varies from state to state and is based upon a number of different systems, including cost-based, prospective payment and negotiated rate systems. Rates are subject to statutory and regulatory changes and interpretations and rulings by individual state agencies.
Managed Care and Private Insurance. Managed care patients consist of individuals who are insured by certain third-party entities, or who are Medicare beneficiaries who have assigned their Medicare benefits to a senior managed care organization plan. Another type of insurance, long-term care insurance, is also becoming more widely available to consumers, but is not expected to contribute significantly to industry revenues in the near term.
Private and Other Payors. Private and other payors consist primarily of individuals, family members or other third parties who directly pay for the services we provide.
Billing and Reimbursement. Our revenue from government payors, including Medicare and state Medicaid agencies, is subject to retroactive adjustments in the form of claimed overpayments and underpayments based on rate adjustments, audits or asserted billing and reimbursement errors. We believe billing and reimbursement errors, disagreements, overpayments and underpayments are common in our industries and, when necessary, we engage government payors and their contractors in reviews, audits and appeals of our claims for reimbursement due to the subjectivity inherent in the processes related to patient diagnosis and care, recordkeeping, claims processing and other aspects of the patient service and reimbursement processes, and the errors or disagreements those subjectivities can produce.
We take seriously our responsibility to act appropriately under applicable laws and regulations, including Medicare and Medicaid billing and reimbursement laws and regulations. Accordingly, our subsidiaries employ accounting, reimbursement and compliance specialists who train, mentor and assist our clerical and clinical staffs in the preparation of claims and supporting documentation, regularly monitor billing and reimbursement practices within our operating subsidiaries, and assist with the appeal of overpayment and recoupment claims generated by Medicare contractors and other auditors and reviewers. In addition, due to the potentially serious consequences that could arise from any impropriety in our billing and reimbursement processes, we investigate allegations of impropriety or irregularity relative thereto, and sometimes do so with the aid of outside auditors (other than our independent registered public accounting firm), attorneys and other professionals.
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Whether information about our billing and reimbursement processes is obtained from external sources or activities such as Medicare and Medicaid audits or probe reviews, internal investigations, or our regular day-to-day monitoring and training activities, we collect and utilize such information to improve our billing and reimbursement functions and the various processes related thereto. While, like other operators in our industry, we experience billing and reimbursement errors, disagreements and other effects of the inherent subjectivities in reimbursement processes on a regular basis, we believe that we are in substantial compliance with applicable Medicare and Medicaid reimbursement requirements. We continually strive to improve the efficiency and accuracy of all of our operational and business functions, including our billing and reimbursement processes.
The following table sets forth our total revenue by payor source generated by each of our reportable segments and as a percentage of total revenue for the periods indicated (dollars in thousands):
Six Months Ended June 30, 2019 | ||||||||||||||||||||
Home Health and Hospice Services | ||||||||||||||||||||
Home Health
Services |
Hospice Services |
Senior Living
Services |
Total Revenue | Revenue % | ||||||||||||||||
Medicare |
$ | 23,360 | $ | 42,039 | $ | | $ | 65,399 | 40.7 | % | ||||||||||
Medicaid |
2,953 | 4,887 | 13,697 | 21,537 | 13.4 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Subtotal |
26,313 | 46,926 | 13,697 | 86,936 | 54.1 | |||||||||||||||
Managed care |
13,185 | 690 | | 13,875 | 8.6 | |||||||||||||||
Private and other (1) |
9,149 | 62 | 50,619 | 59,830 | 37.3 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total revenue |
$ | 48,647 | $ | 47,678 | $ | 64,316 | $ | 160,641 | 100.0 | % | ||||||||||
|
|
|
|
|
|
|
|
|
|
(1) |
Private and other payors in our home health and hospice services segment includes revenue from all payors generated in our home care operations. |
Six Months Ended June 30, 2018 | ||||||||||||||||||||
Home Health and Hospice Services | ||||||||||||||||||||
Home Health
Services |
Hospice Services |
Senior Living
Services |
Total Revenue | Revenue % | ||||||||||||||||
Medicare |
$ | 20,353 | $ | 35,584 | $ | | $ | 55,937 | 40.6 | % | ||||||||||
Medicaid |
2,215 | 3,543 | 10,933 | 16,691 | 12.1 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Subtotal |
22,568 | 39,127 | 10,933 | 72,628 | 52.7 | |||||||||||||||
Managed care |
11,590 | 308 | | 11,898 | 8.6 | |||||||||||||||
Private and other (1) |
7,347 | 67 | 45,828 | 53,242 | 38.7 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total revenue |
$ | 41,505 | $ | 39,502 | $ | 56,761 | $ | 137,768 | 100.0 | % | ||||||||||
|
|
|
|
|
|
|
|
|
|
(1) |
Private and other payors in our home health and hospice services segment includes revenue from all payors generated in our home care operations. |
Year Ended December 31, 2018 | ||||||||||||||||||||
Home Health and Hospice Services | ||||||||||||||||||||
Home Health
Services |
Hospice Services |
Senior Living
Services |
Total Revenue | Revenue % | ||||||||||||||||
Medicare |
$ | 42,091 | $ | 73,906 | $ | | $ | 115,997 | 40.5 | % | ||||||||||
Medicaid |
4,680 | 7,729 | 23,624 | 36,033 | 12.6 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Subtotal |
46,771 | 81,635 | 23,624 | 152,030 | 53.1 | |||||||||||||||
Managed care |
23,541 | 918 | | 24,459 | 8.6 | |||||||||||||||
Private and other (1) |
16,067 | 105 | 93,397 | 109,569 | 38.3 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total revenue |
$ | 86,379 | $ | 82,658 | $ | 117,021 | $ | 286,058 | 100.0 | % | ||||||||||
|
|
|
|
|
|
|
|
|
|
(1) |
Private and other payors in our home health and hospice services segment includes revenue from all payors generated in our home care operations. |
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The following table demonstrates the impact of adopting ASC 606 on the Companys segment revenues by major payor source for the year ended December 31, 2018, by showing revenue amounts as if the previous accounting guidance was still in effect.
Year Ended December 31, 2018
(Adjusted to reflect prior revenue guidance) |
||||||||||||||||||||
Home Health and Hospice Services | ||||||||||||||||||||
Home Health
Services |
Hospice Services |
Senior Living
Services |
Total Revenue | Revenue % | ||||||||||||||||
Medicare |
$ | 42,405 | $ | 74,321 | $ | | $ | 116,726 | 40.5 | % | ||||||||||
Medicaid |
5,042 | 7,760 | 23,624 | 36,426 | 12.7 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Subtotal |
47,447 | 82,081 | 23,624 | 153,152 | 53.2 | |||||||||||||||
Managed care |
24,103 | 946 | | 25,049 | 8.7 | |||||||||||||||
Private and other (1) |
16,178 | 116 | 93,397 | 109,691 | 38.1 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total revenue |
$ | 87,728 | $ | 83,143 | $ | 117,021 | $ | 287,892 | 100.0 | % | ||||||||||
|
|
|
|
|
|
|
|
|
|
(1) |
Private and other payors in our home health and hospice services segment includes revenue from all payors generated in our home care operations. |
Year Ended December 31, 2017 | ||||||||||||||||||||
Home Health and Hospice Services | ||||||||||||||||||||
Home Health
Services |
Hospice Services |
Senior Living
Services |
Total Revenue | Revenue % | ||||||||||||||||
Medicare |
$ | 36,592 | $ | 61,422 | $ | | $ | 98,014 | 39.0 | % | ||||||||||
Medicaid |
4,398 | 6,832 | 19,813 | 31,043 | 12.4 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Subtotal |
40,990 | 68,254 | 19,813 | 129,057 | 51.4 | |||||||||||||||
Managed care |
21,058 | 765 | | 21,823 | 8.7 | |||||||||||||||
Private and other (1) |
10,997 | 339 | 88,775 | 100,111 | 39.9 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total revenue |
$ | 73,045 | $ | 69,358 | $ | 108,588 | $ | 250,991 | 100.0 | % | ||||||||||
|
|
|
|
|
|
|
|
|
|
(1) |
Private and other payors in our home health and hospice services segment includes revenue from all payors generated in our home care operations. |
Year Ended December 31, 2016 | ||||||||||||||||||||
Home Health and Hospice Services | ||||||||||||||||||||
Home Health
Services |
Hospice Services |
Senior Living
Services |
Total Revenue | Revenue % | ||||||||||||||||
Medicare |
$ | 32,376 | $ | 48,124 | $ | | $ | 80,500 | 37.1 | % | ||||||||||
Medicaid |
4,131 | 6,367 | 16,708 | 27,206 | 12.5 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Subtotal |
36,507 | 54,491 | 16,708 | 107,706 | 49.6 | |||||||||||||||
Managed care |
16,913 | 751 | | 17,664 | 8.1 | |||||||||||||||
Private and other (1) |
6,906 | 245 | 84,704 | 91,855 | 42.3 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total revenue |
$ | 60,326 | $ | 55,487 | $ | 101,412 | $ | 217,225 | 100.0 | % | ||||||||||
|
|
|
|
|
|
|
|
|
|
(1) |
Private and other payors in our home health and hospice services segment includes revenue from all payors generated in our home care operations. |
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Reimbursement for Specific Services
Reimbursement for Home Health Services. Our home health business derives substantially all of its revenue from Medicare and managed care sources. Our home health services generally consist of providing some combination of the services of registered nurses, speech, occupational and physical therapists, medical social workers and certified home health aides. Home health is often a cost-effective solution for patients, and can also increase their quality of life and allow them to receive quality medical care in the comfort and convenience of a familiar setting.
Under the current rate, we receive a standard prospective Medicare payment for delivering care over a 60-day episode. There is no limit to the number of episodes a beneficiary may receive as long as he or she remains eligible. The base episode payment is a flat rate that is adjusted upward or downward based upon differences in the expected resource needs of individual patients as indicated by clinical severity, functional severity and service utilization. The magnitude of the adjustment is determined by each patients categorization into one of 153 payment groups, known as Home Health Resource Groups and the costliness of care for patients in each group relative to the average patient. Payment is further adjusted for differences in local labor costs using the hospital wage index. We bill and are reimbursed for services in two stages: an initial request for advance payment when the episode commences and a final claim when the episode is completed. We submit all Medicare claims through the Medicare Administrative Contractors for the federal government. We receive 60% of the estimated payment for a patients initial episode up-front (after the initial assessment is completed and upon initial billing) and the remaining 40% upon completion of the episode and after all final treatment orders are signed by the physician. In the event of subsequent episodes, reimbursement timing is 50% up-front and 50% upon completion of the episode. Final payments may reflect base payment adjustments for case-mix and geographic wage differences and a 2.0% sequestration reduction. In addition, final adjustments may reflect retroactive adjustments to ensure the adequacy and effectiveness of the total reimbursement, including (a) an outlier payment if the patients care was unusually costly; (b) a low utilization adjustment if the number of visits was fewer than five; (c) a partial payment if the patient transferred to another provider or transferred from another provider before completing the episode; (d) a payment adjustment based upon the level of covered therapy services; (e) the number of episodes of care provided to a patient, regardless of whether the same home health provider provided care for the entire series of episodes; (f) changes in the base episode payments established by the Medicare program; (g) adjustments to the base episode payments for case mix and geographic wages; and (h) recoveries of overpayments. Because such adjustments are determined upon the completion date of the episode, retroactive adjustments could impact our financial results.
Effective January 1, 2020, CMS intends to implement the PDGM prospective payment system, as mandated by the Bipartisan Budget Act of 2018. Under PDGM, the initial certification of patient eligibility, plan of care, and comprehensive assessment will remain valid for 60-day episodes of care, but payments for home health services will be made based upon 30-day payment periods and the upfront payment will be phased out in 2020 and eliminated by 2021. PDGM refines case mix calculation methodology by removing therapy thresholds and calculating reimbursement based on clinical characteristics including clinical group coding, admission source, comorbidity coding, and achievement of LUPA thresholds. CMS proposes to implement PDGM in a budget neutral manner, but that neutrality assumes that providers will make certain coding and behavioral changes. Therefore, the rules ultimate impact will vary by provider based on factors including patient mix, admission source, and providers ability to adapt to the new reimbursement model.
We verify a patients eligibility for home health benefits at the time of admission. Through the verification process we are able to determine the payor source and eligibility for reimbursement of each patient. Accordingly, we do not have material amounts of reimbursements pending approval based on the eligibility of a patient to receive reimbursement from the applicable payor program. Further, we provide only limited services to patients who are ineligible for reimbursement from a third-party payor. Therefore, we do not have any material amounts of reimbursements due from patients who are self-pay.
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Home health payment rates are updated annually by the home health market basket percentage as adjusted by Congress. CMS establishes the home health market basket index, which measures inflation in the prices of an appropriate mix of goods and services included in home health services.
Reimbursement for Hospice Services. Hospice revenues are primarily derived from Medicare. We receive one of four predetermined rate categories based on four different levels of care provided: RHC, continuous home care, inpatient respite care and general inpatient care. This payment structure is designed to include all of the services needed to manage a beneficiarys care. These rates are subject to annual adjustments based on inflation and geographic wage considerations. CMS has established a two-tiered payment system for RHC. Effective January 1, 2016, hospices are reimbursed at a higher rate for RHC services provided from days of service 1 through 60 and a lower rate for all subsequent days of service. CMS also provided for a Service Intensity Add-On, which increases payments for certain RHC services provided by registered nurses and social workers to hospice patients during the final seven days of life.
We are subject to two limitations on Medicare payments for hospice services. First, we are subject to an inpatient cap. This cap limits the number of days that can be reimbursed at an inpatient care rate (both respite and general) to 20% of the total number of days of hospice care (both inpatient and in the home) that we provide to Medicare beneficiaries. Payments for days in excess of this limit are paid at the RHC rate, and we must reimburse the government for any amounts received in excess of that rate.
Second, hospices are subject to an aggregate payment cap. This cap amount is calculated annually by multiplying the number of beneficiaries electing hospice care during the year by a statutory amount that is indexed for inflation. For cap years ended on or after October 31, 2012, and all subsequent cap years, the hospice aggregate cap is calculated using the proportional method. Under the proportional method, the hospice shall include in its number of Medicare beneficiaries only that fraction which represents the portion of a patients total days of care in all hospices and all years that were spent in that hospice in that cap year, using the best data available at the time of the calculation. The whole and fractional shares of Medicare beneficiaries time in a given cap year are then summed to compute the total number of Medicare beneficiaries served by that hospice in that cap year. The hospices total Medicare beneficiaries in a given cap year is multiplied by the Medicare per beneficiary cap amount, resulting in that hospices aggregate cap, which is the allowable amount of total Medicare payments that hospice can receive for that cap year. If a hospice exceeds its aggregate cap, then the hospice must repay the excess back to Medicare. The Medicare cap amount is reduced proportionately for patients who transferred in and out of our hospice services.
Traditionally, the hospice inpatient and aggregate caps covered revenue received and services provided from November 1 to October 31. The 2017 cap year was an 11 month transition year with cap amounts calculated for the 11 month period from November 1, 2016 to September 30, 2017. Beginning October 1, 2017, CMS has changed the hospice inpatient and aggregate cap year to coincide with the federal fiscal year (October 1 to September 30).
Reimbursement for Senior Living Services. Assisted living, independent living and memory care community revenue is primarily derived from private pay residents at rates we establish based upon the services we provide and market conditions in the area of operation. In addition, Medicaid or other state-specific programs in some states where we operate supplement payments for board and care services provided in assisted living and memory care communities.
Competition
The post-acute care industry is highly competitive, and we expect that the industry will become increasingly competitive in the future. The industry is highly fragmented and characterized by numerous local and regional providers, in addition to large national providers that have achieved geographic diversity and economies of scale. Some of our operating subsidiaries also compete with skilled nursing facilities, inpatient rehabilitation facilities
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and long-term acute care hospitals. Competitiveness may vary significantly from location to location, depending upon factors such as the number of competing operations, availability of services, expertise of staff, and the physical appearance and amenities of senior living communities. We believe that the primary competitive factors in the post-acute care industry are:
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ability to attract and to retain qualified management and caregivers; |
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reputation and achievements of quality healthcare outcomes and patient and resident satisfaction; |
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attractiveness and location of senior living communities and other physical assets; |
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the expertise and commitment of operational management teams and employees; and |
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community value, including amenities and ancillary services. |
We seek to compete effectively in each market by establishing a reputation within the local community as the operation of choice. This means that the operation leaders are generally free to discern and address the unique needs and priorities of healthcare professionals, customers and other stakeholders in the local community or market, and then create superior service offerings for that particular community or market that are calculated to encourage prospective customers and referral sources to choose or recommend the operation.
Increased competition could limit our ability to attract and retain patients and residents, maintain or increase rates or to expand our business. Some of our competitors have greater financial and other resources than we have, may have greater brand recognition and may be more established in their respective communities than we are. Competing companies may also offer newer communities or different programs or services than we offer, and may therefore attract individuals who are currently patients of our communities, potential patients of our facilities, or who are otherwise receiving our healthcare services. Other competitors may have lower expenses or other competitive advantages than us and, therefore, provide services at lower prices than we offer.
There are few barriers to entry in the home health and hospice business in jurisdictions that do not require certificates of need or permits of approval. Our primary competition in these jurisdictions comes from local privately and publicly-owned and hospital-owned healthcare providers. We compete based on the availability of personnel, the quality of services, expertise of visiting staff, and, in certain instances, on the price of our services. In addition, we compete with a number of non-profit organizations that finance acquisitions and capital expenditures on a tax-exempt basis and charity-funded programs that may have strong ties to their local medical communities and receive charitable contributions that are unavailable to us.
Our senior living services also compete with local, regional and national companies. The primary competitive factors in these businesses include reputation, cost of services, quality of clinical services, responsiveness to patient/resident needs, location and the ability to provide support in other areas such as third-party reimbursement, information management and patient recordkeeping. The market for acquiring and/or operating senior living communities is highly competitive, and some of our present and potential senior living competitors have, or may obtain, greater financial resources than us and may have a lower cost of capital. In addition, several publicly-traded and non-traded real estate investment trusts, or REITs, and private equity firms have similar asset acquisition objectives as we do, along with greater financial resources and/or lower costs of capital than we are able to obtain.
Labor
The operation of our home health and hospice operations and senior living communities requires a large number of highly skilled healthcare professionals and support staff. As of June 30, 2019, we had approximately 4,672 employees who were employed by our operating subsidiaries and Service Center. For the six months ended June 30, 2019, 52.7% of our total expenses were payroll related for our operations. Periodically, market forces, which vary by region, require that we increase wages in excess of general inflation or in excess of increases in
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reimbursement rates we receive. We believe that we staff appropriately, focusing primarily on the acuity level and day-to-day needs of our patients and residents. We seek to manage our labor costs by improving staff retention, improving operating efficiencies, maintaining competitive wage rates and benefits and reducing reliance on overtime compensation and temporary nursing agency services.
The healthcare industry as a whole has been experiencing shortages of qualified professional clinical staff. We believe that our ability to attract and retain qualified professional clinical staff stems from our ability to offer attractive wage and benefits packages, a high level of employee training, a culture that provides incentives for individual efforts and a quality work environment.
Relationship with Ensign
Following the spin-off, we will continue to benefit from the existing relationship with Ensign, which provides, and expects to continue to provide, healthcare services across the post-acute care continuum, including its skilled nursing, senior living and other ancillary services. Under a transition services agreement, Ensign and Pennant will provide transition services to each other for, among other things, finance, information technology, human resources, payroll, tax and other services for a limited time to help ensure an orderly transition following the distribution. Certain subsidiaries of each of Ensign and Pennant will also enter into the Ensign Leases, which are long term, triple-net lease agreements for the lease of certain senior living properties. In addition, subsidiaries of Ensign and Pennant may opt into a voluntary joint post-acute care preferred provider network called the Ensign Pennant Care Continuum, which will allow participants to collaborate together to enhance voluntary transitions between clinical care settings.
For a more detailed description, see Certain Relationships and Related Party Transactions.
Properties
Our headquarters is located in a leased office at 1675 East Riverside Drive, Suite 150, Eagle, Idaho 83616, which lease expires March 31, 2026. We have two options to extend our lease term at this location for an additional 5-year term for each option.
Service Center.
We believe our operating model is best supported with an innovative Service Center, where highly trained resources provide centralized accounting, payroll, human resources, information technology, legal, risk management and other centralized services to home health and hospice or senior living subsidiaries through contractual relationships with such subsidiaries.
In order to accommodate our Service Center resources, we currently lease two offices. We lease approximately 8,065 square feet of office space located at 1675 East Riverside Drive, Suite 200, Eagle, Idaho 83616, pursuant to a lease that expires March 31, 2024. We have two options to extend our lease term at this location for an additional 5-year term for each option. In addition, we currently lease 6,101 rentable square feet of office space located at 1600 West Broadway Road, Tempe, Arizona 85282, pursuant to a lease that expires September 30, 2021. We have one option to extend our lease term at this location for an additional 5-year term.
Home Health and Hospice Agencies and Senior Living Communities.
As of June 30, 2019, we had 62 home health, hospice and home care agencies in Arizona, California, Colorado, Idaho, Iowa, Nevada, Oklahoma, Oregon, Texas, Utah, Washington, Wisconsin and Wyoming.
As of June 30, 2019, we had 51 affiliated senior living communities in Arizona, California, Nevada, Texas, Washington and Wisconsin, with 3,872 operating units. As of June 30, 2019, all of our communities were leased through long-term lease arrangements. We currently do not manage any communities for third parties, except on a short-term basis pending receipt of new operating licenses by our operating subsidiaries.
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The following table provides summary information regarding the locations of our home health and hospice agencies and our senior living communities and operational units as of June 30, 2019:
State |
Home Health
Agencies |
Hospice
Agencies |
Senior Living
Communities |
Senior Living
Units |
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Arizona |
2 | 4 | 7 | 1,249 | ||||||||||||
California |
5 | 3 | 8 | 670 | ||||||||||||
Colorado |
2 | 1 | | | ||||||||||||
Idaho |
3 | 3 | | | ||||||||||||
Iowa |
1 | 1 | | | ||||||||||||
Nevada |
| 1 | 4 | 385 | ||||||||||||
Oklahoma |
2 | 1 | | | ||||||||||||
Oregon |
1 | 1 | | | ||||||||||||
Texas |
3 | 6 | 12 | 712 | ||||||||||||
Utah |
8 | 3 | | | ||||||||||||
Washington |
6 | 1 | 1 | 98 | ||||||||||||
Wisconsin |
1 | 1 | 19 | 758 | ||||||||||||
Wyoming |
1 | 1 | | | ||||||||||||
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Total |
35 | 27 | 51 | 3,872 | ||||||||||||
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Government Regulation
We are highly regulated by federal, state, and local authorities. In order to operate our businesses we must comply with federal, state and local laws relating to licensure, delivery and adequacy of medical care, distribution of pharmaceuticals, equipment, personnel, operating policies, fire prevention, rate-setting, billing and reimbursement, building codes and environmental protection. Additionally, we must also adhere to anti-kickback statutes, physician referral laws, and safety and health standards set by the Occupational Safety and Health Administration. Changes in the law or new interpretations of existing laws may have an adverse impact on our methods and costs of doing business.
Our operating subsidiaries are also subject to various regulations and licensing requirements promulgated by state and local health and social service agencies and other regulatory authorities. Requirements vary from state to state and these requirements can affect, among other things, personnel education and training, patient and personnel records, services, staffing levels, monitoring of patient wellness, patient furnishings, housekeeping services, dietary requirements, emergency plans and procedures, certification and licensing of staff prior to beginning employment, and patient rights. These laws and regulations could limit our ability to expand into new markets and to expand our services and operations in existing markets.
Federal Healthcare Reform. On January 13, 2017, CMS issued a Final Rule revising the CoPs for home health agencies serving Medicare beneficiaries. The rule makes significant revisions to the conditions currently in place, including (1) adding new CoPs related to quality assurance and performance improvement programs; and (2) expanding or revising requirements related to patient rights, comprehensive evaluations, coordination and care planning, home health aide training and supervision, and discharge and transfer summary and time frames. Without any contrary action by the new administration, the new CoPs became effective January 13, 2018.
On February 2, 2016, CMS issued its final rule concerning face-to-face requirements for Medicaid home health services. Under the rule, the Medicaid home health service definition was revised to be consistent with applicable sections of the ACA and MACRA. The rule also requires that for the initial ordering of home health services, the physician must document the occurrence of a face-to-face encounter related to the primary reason the beneficiary requires home health services occurred no more than 90 days before or 30 days after the start of services. The final rule also requires that for the initial ordering of certain medical equipment, the physician or
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authorized non-physician provider must document a face-to-face encounter that is related to the primary reason the beneficiary requires medical equipment which occur no more than six months prior to the start of services.
On October 30, 2015, CMS released a final rule addressing, among other things, implementation of certain provisions of MACRA, including the implementation of the new Merit-Based Incentive Payment System (MIPS) that streamlines multiple quality programs and Alternative Payment Models (APMs) that give bonus payments for participation in eligible APMs. The current Value-Based Payment Modifier program is set to expire in 2018, with the first MIPS adjustments to begin in 2019. The October 30, 2015 final rule added measures where gaps exist in the current Physician Quality Reporting System, which is used by CMS to track the quality of care provided to Medicare beneficiaries. The final rule could impact our revenue in the future.
On April 16, 2015, the President signed MACRA into law. This law included a number of provisions, including (1) providing for an increase of 3% of the payment amount otherwise made for home health services furnished in rural areas, and (2) payment updates for post-acute providers at 1% after other adjustments required by the ACA for 2018. In addition, it increased premiums for Part B and Part D of Medicare for beneficiaries with income above certain levels and made numerous other changes to Medicare and Medicaid.
The IMPACT Act, which was signed into law on October 6, 2014, requires the submission of standardized assessment data for quality improvement, payment and discharge planning purposes across the spectrum of PACs, including home health agencies. The IMPACT Act requires PACs to begin reporting: (1) standardized patient assessment data at admission and discharge as of October 1, 2018 for post-acute care providers, and as of January 1, 2019 for home health agencies; (2) new quality measures, including functional status, skin integrity, medication reconciliation, incidence of major falls, and patient preference regarding treatment and discharge at various intervals between October 1, 2016 and January 1, 2019; and (3) resource use measures, including Medicare spending per beneficiary, discharge to community, and hospitalization rates of potentially preventable readmissions as of October 1, 2016 for post-acute care providers, and as of January 1, 2017 for home health agencies. Failure to report such data when required would subject an agency to a 2% reduction in market basket prices then in effect.
The IMPACT Act further requires HHS and the Medicare Payment Advisory Commission, a commission chartered by Congress to advise it on Medicare payment issues, to study alternative PAC payment models, including payment based upon individual patient characteristics and not care setting, with corresponding Congressional reports required based on such analysis. The IMPACT Act also includes provisions impacting Medicare-certified hospices, including: (1) increasing survey frequency for Medicare-certified hospices to once every 36 months; (2) imposing a medical review process for hospice agencies with a high percentage of stays in excess of 180 days; and (3) updating the annual aggregate Medicare payment cap.
On April 1, 2014, the President signed into law the Protecting Access to Medicare Act of 2014, which averted a 24% cut in Medicare payments to physicians and other Part B providers until March 31, 2015. In addition, this law maintains the 0.5% update for such services through December 31, 2014 and provides no update to the 2015 Medicare Physician Fee Schedule through March 31, 2015.
On January 2, 2013, the President signed the American Taxpayer Relief Act of 2012 into law. This statute created a Commission on Long Term Care, the goal of which is to develop a plan for the establishment, implementation, and financing of a comprehensive, coordinated, and high-quality system that ensures the availability of long-term care services and support for individuals in need of such services and supports. Any implementation of recommendations from this commission may have an impact on coverage and payment for our services.
On August 2, 2011, the President signed into law the Budget Control Act of 2011 (Budget Control Act), which raised the debt ceiling and put into effect a series of actions for deficit reduction. The Budget Control Act created a Congressional Joint Select Committee on Deficit Reduction (the Committee) that was tasked with
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proposing additional deficit reduction of at least $1.5 trillion over ten years. As the Committee was unable to achieve its targeted savings, this regulation triggered automatic reductions in discretionary and mandatory spending, or budget sequestration, starting in 2013, including reductions of not more than 2% to payments to Medicare providers. The Budget Control Act also requires Congress to vote on an amendment to the Constitution that would require a balanced budget.
On March 23, 2010, President Obama signed the ACA into law, which contained several sweeping changes to Americas health insurance system. Among other reforms contained in ACA, many Medicare providers received reductions in their market basket updates. In addition, ACA enacted several reforms with respect to hospice organizations, including payment measures to realize significant savings of federal and state funds by deterring and prosecuting fraud and abuse in both the Medicare and Medicaid programs.
Some key provisions of ACA include (i) enhanced civil monetary penalties, (ii) face-to-face encounter requirements applicable to home health agencies and hospices, (iii) expanded authority to suspend payment if a provider is investigated for allegations or issues of fraud, (iv) a requirement that overpayments for services provided to Medicare and Medicaid beneficiaries be reported to the applicable payor within sixty days of identification of the overpayment or the date of the corresponding cost report, (v) implementation of a value-based purchasing program for home health services, (vi) implementation of a voluntary bundled payments pilot program (i.e., Bundled Payments for Care Improvement), and (vii) the creation of ACOs.
On June 28, 2012, the U.S. Supreme Court ruled that the enactment of ACA did not violate the Constitution of the United States. On June 25, 2015, the U.S. Supreme Court ruled that the tax credits described in Section 36B of ACA are available to individuals who purchase health insurance on an exchange created by the federal government. These rulings, taken together, permit the implementation of most of the provisions of ACA to proceed in substantially the same form contemplated after ACAs enactment. The provisions of ACA discussed above are only examples of federal health reform provisions that we believe may have a material impact on the long-term care industry and on our business. However, the foregoing discussion is not intended to constitute, nor does it constitute, an exhaustive review and discussion of ACA. It is possible that these and other provisions of ACA may be interpreted, clarified, or applied to our affiliated operations in a way that could have a material adverse impact on the results of operations.
Regulations Regarding Our Operations. Governmental agencies and other authorities periodically inspect our operations to assess our compliance with various standards, rules and regulations. The robust regulatory and enforcement environment continues to impact healthcare providers, especially in connection with responses to any alleged noncompliance identified in periodic surveys and other inspections by governmental authorities. Unannounced surveys or inspections occur periodically, and our operations may also follow a government agencys receipt of a complaint about an operation. We must pass these inspections to maintain our licensure under state law, to obtain or maintain certification under the Medicare and Medicaid programs, and to comply with our provider contracts with managed care clients at many operations. From time to time, we, like others in the healthcare industry, may receive notices from federal and state regulatory agencies alleging that we failed to substantially comply with applicable standards, rules or regulations. These notices may require us to take corrective action, may impose civil monetary penalties for noncompliance, and may threaten or impose other operating restrictions. If an operation fails to comply with these directives or otherwise fail to comply substantially with licensure and certification laws, rules and regulations, the operation could lose its certification as a Medicare or Medicaid provider, or lose its state license to operate.
Regulations Protecting Against Fraud. Various complex federal and state laws exist which govern a wide array of referrals, relationships and arrangements, and prohibit fraud by healthcare providers. Governmental agencies are devoting increasing attention and resources to such anti-fraud efforts. HIPAA, and the Balanced Budget Act of 1997 expanded the penalties for healthcare fraud. Additionally, in connection with our involvement with federal healthcare reimbursement programs, the government or those acting on its behalf may bring an action under the FCA, alleging that a healthcare provider has defrauded the government. These
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claimants may seek treble damages for false claims and payment of additional civil monetary penalties. The FCA allows a private individual with knowledge of fraud to bring a claim on behalf of the federal government and earn a percentage of the federal governments recovery. Due to these whistleblower incentives, suits have become more frequent. Many states also have a false claim prohibition that mirrors or tracks the federal FCA.
In May 2009, Congress passed FERA which made significant changes to the federal FCA, expanding the types of activities subject to prosecution and whistleblower liability. Following changes by FERA, healthcare providers face significant penalties for the knowing retention of government overpayments, even if no false claim was involved. Healthcare providers can now be liable for knowingly and improperly avoiding or decreasing an obligation to pay money or property to the government. This includes the retention of any government overpayment. The government can argue, therefore, that a FCA violation can occur without any affirmative fraudulent action or statement, as long as it is knowingly improper. In addition, FERA extended protections against retaliation for whistleblowers, including protections not only for employees, but also contractors and agents. Thus, there is no need for an employment relationship in order to qualify for protection against retaliation for whistleblowing.
On January 2, 2013 the President signed the American Taxpayer Relief Act of 2012 into law. This statute lengthened the retrospective time period for which CMS can recover overpayments from healthcare providers, from three to five years following the year in which payment was made.
Regulations Regarding Financial Arrangements. We are also subject to federal and state laws that regulate financial arrangement by healthcare providers, such as the federal and state anti-kickback laws, the Stark laws, and various state referral laws. The federal anti-kickback laws and similar state laws make it unlawful for any person to pay, receive, offer, or solicit any benefit, directly or indirectly, for the referral or recommendation for products or services which are eligible for payment under federal healthcare programs, including Medicare and Medicaid. For the purposes of the anti-kickback law, a federal healthcare program includes Medicare and Medicaid programs and any other plan or program that provides health benefits which are funded directly, in whole or in part, by the United States government.
The arrangements prohibited under these anti-kickback laws can involve nursing homes, hospitals, physicians and other healthcare providers, plans, suppliers and non-healthcare providers. These laws have been interpreted very broadly to include a number of practices and relationships between healthcare providers and sources of patient referral. The scope of prohibited payments is very broad, including anything of value, whether offered directly or indirectly, in cash or in kind. Federal safe harbor regulations describe certain arrangements that will not be deemed to constitute violations of the anti-kickback law. Arrangements that do not comply with all of the strict requirements of a safe harbor are not necessarily illegal, but, due to the broad language of the statute, failure to comply with a safe harbor may increase the potential that a government agency or whistleblower will seek to investigate or challenge the arrangement. The safe harbors are narrow and do not cover a wide range of economic relationships.
Violations of the federal anti-kickback laws can result in criminal penalties of up to $25,000 and five years imprisonment. Violations of the anti-kickback laws can also result in civil monetary penalties of up to $50,000 and an assessment of up to three times the total amount of remuneration offered, paid, solicited, or received. Violation of the anti-kickback laws may also result in an individuals or organizations exclusion from future participation in Medicare, Medicaid and other state and federal healthcare programs. Exclusion of us or any of our key employees from the Medicare or Medicaid program could have a material adverse impact on our operations and financial condition.
In addition to these regulations, we may face adverse consequences if we violate the federal Stark laws related to certain Medicare physician referrals. The Stark laws prohibit a physician from referring Medicare patients for certain designated health services where the physician has an ownership interest in or compensation arrangement with the provider of the services, with limited exceptions. Also, any services furnished pursuant to a
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prohibited referral are not eligible for payment by the Medicare programs, and the provider is prohibited from billing any third party for such services. The Stark laws provide for the imposition of a civil monetary penalty of $15,000 per prohibited claim, and up to $100,000 for knowingly entering into certain prohibited cross-referral schemes, and potential exclusion from Medicare for any person who presents or causes to be presented a bill or claim the person knows or should know is submitted in violation of the Stark laws. Such designated health services include physical therapy services; occupational therapy services; radiology services, including CT, MRI and ultrasound; durable medical equipment and services; radiation therapy services and supplies; parenteral and enteral nutrients, equipment and supplies; prosthetics, orthotics and prosthetic devices and supplies; home health services; outpatient prescription drugs; inpatient and outpatient hospital services; clinical laboratory services; and diagnostic and therapeutic nuclear medical services.
Regulations Regarding Patient Record Confidentiality. We are also subject to laws and regulations enacted to protect the confidentiality of patient health information. For example, HHS has issued rules pursuant to HIPAA, which relate to the privacy of certain patient information. These rules govern our use and disclosure of protected health information. We have established policies and procedures to comply with HIPAA privacy and security requirements at our affiliated operations. We maintain a company-wide HIPAA compliance plan, which we believe complies with the HIPAA privacy and security regulations. The HIPAA privacy regulations and security regulations have and will continue to impose significant costs on our operations in order to comply with these standards. There are numerous other laws and legislative and regulatory initiatives at the federal and state levels addressing privacy and security concerns. Our operations are also subject to any federal or state privacy-related laws that are more restrictive than the privacy regulations issued under HIPAA. These laws vary and could impose additional penalties for privacy and security breaches.
Antitrust Laws. We are also subject to federal and state antitrust laws. Enforcement of the antitrust laws against healthcare providers is common, and antitrust liability may arise in a wide variety of circumstances, including third party contracting, physician relations, joint venture, merger, affiliation and acquisition activities. In some respects, the application of federal and state antitrust laws to healthcare is still evolving, and enforcement activity by federal and state agencies appears to be increasing. At various times, healthcare providers and insurance and managed care organizations may be subject to an investigation by a governmental agency charged with the enforcement of antitrust laws, or may be subject to administrative or judicial action by a federal or state agency or a private party. Violators of the antitrust laws could be subject to criminal and civil enforcement by federal and state agencies, as well as by private litigants.
Environmental Matters
Our business is subject to a variety of federal, state and local environmental laws and regulations. As a healthcare provider, we face regulatory requirements in areas of air and water quality control, medical and low-level radioactive waste management and disposal, asbestos management, response to mold and lead-based paint in our senior living communities and employee safety.
As an operator of senior living communities, we also may be required to investigate and remediate hazardous substances that are located on and/or under the property, including any such substances that may have migrated off, or may have been discharged or transported from the property. Part of our operations involves the handling, use, storage, transportation, disposal and discharge of medical, biological, infectious, toxic, flammable and other hazardous materials, wastes, pollutants or contaminants. In addition, we are sometimes unable to determine with certainty whether prior uses of our senior living communities and properties or surrounding properties may have produced continuing environmental contamination or noncompliance, particularly where the timing or cost of making such determinations is not deemed cost-effective. These activities, as well as the possible presence of such materials in, on and under our properties, may result in damage to individuals, property or the environment; may interrupt operations or increase costs; may result in legal liability, damages, injunctions or fines; may result in investigations, administrative proceedings, penalties or other governmental agency actions; and may not be covered by insurance.
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We believe that we are in material compliance with applicable environmental and occupational health and safety requirements. However, we cannot assure you that we will not encounter liabilities with respect to these regulations in the future, and such liabilities may result in material adverse consequences to our operations or financial condition. In addition, because environmental laws vary from state to state, expansion of our operations to states where we do not currently operate may subject us to additional restrictions on the manner in which we operate our communities.
Legal Proceedings
We are involved in various claims and lawsuits arising in the ordinary course of business, none of which, in the opinion of management, is expected to have a material adverse effect on our results of operations or financial condition. However, the results of such matters cannot be predicted with certainty and we cannot assure you that the ultimate resolution of any legal or administrative proceeding or dispute will not have a material adverse effect on our business, financial condition, results of operations and cash flows. See Note 14, Commitments and Contingencies, to the Audited Combined Financial Statements and the Interim Combined Financial Statements for a description of claims and legal actions arising in the ordinary course of our business.
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MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of the financial condition and results of operations of New Ventures should be read in conjunction with SummarySummary Historical and Unaudited Pro Forma Combined Financial Data, Selected Historical Combined Financial Data and the Audited Combined Financial Statements and Interim Financial Statements and related notes that appear elsewhere in this information statement. In addition to historical combined financial information, the following discussion contains forward-looking statements that reflect our plans, estimates and beliefs. Our actual results could differ materially from those discussed in the forward-looking statements. See Special Note About Forward-Looking Statements. Factors that could cause or contribute to these differences include those discussed below and elsewhere in this information statement, particularly in Risk Factors.
Following the consummation of the spin-off, The Pennant Group, Inc. (Pennant or the Company) will hold, directly or through its subsidiaries, New Ventures and will be the financial reporting entity.
Overview
We are a leading provider of high quality healthcare services to the growing senior population in the United States. We strive to be the provider of choice in the communities we serve through our innovative operating model. We operate in multiple lines of businesses including home health, hospice and senior living services across Arizona, California, Colorado, Idaho, Iowa, Nevada, Oklahoma, Oregon, Texas, Utah, Washington, Wisconsin and Wyoming. As of June 30, 2019, our home health and hospice business provided home health, hospice and home care services from 62 agencies across twelve states, and our senior living business operated 51 senior living communities throughout six states.
The following table summarizes our affiliated home health and hospice agencies and senior living communities as of:
December 31, | June 30, | |||||||||||||||||||||||||||||||||||
2011 | 2012 | 2013 | 2014 | 2015 | 2016 | 2017 | 2018 | 2019 | ||||||||||||||||||||||||||||
Cumulative number of home health and hospice agencies |
7 | 10 | 16 | 25 | 32 | 39 | 46 | 54 | 62 | |||||||||||||||||||||||||||
Cumulative number of senior living communities |
8 | 10 | 12 | 15 | 36 | 36 | 43 | 50 | 51 | |||||||||||||||||||||||||||
Cumulative number of senior living units |
887 | 1,034 | 1,256 | 1,587 | 3,184 | 3,184 | 3,434 | 3,820 | 3,872 | |||||||||||||||||||||||||||
Total number of home health, hospice, and senior living operations |
15 | 20 | 28 | 40 | 68 | 75 | 89 | 104 | 113 |
The Spin-Off Transactions
On May 6, 2019, The Ensign Group, Inc. (Ensign or the Parent) announced its intention to implement the spin-off of Pennant from Ensign, following which Pennant will be an independent, publicly-traded company. The distribution is subject to the satisfaction or waiver of certain conditions. In addition, until the distribution has occurred, the Ensign board of directors has the right to not proceed with the distribution, even if all of the conditions are satisfied. See The Spin-OffConditions to the Distribution. Immediately following the distribution, Ensign will not own any shares of our outstanding common stock, and we will have entered into a master separation agreement and several other agreements with Ensign related to the spin-off. These agreements, including an employee matters agreement, a tax matters agreement, a transition services agreement and the Ensign Leases, will govern the relationship between us and Ensign after completion of the spin-off and provide for the allocation between us and Ensign of various assets, liabilities, rights and obligations. These arrangements
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include modifications to certain agreements for properties owned by subsidiaries of Ensign and leased by our operating subsidiaries that may result in, among other things, an overall increase in rent expense following the spin-off as a result of changes in leases. Additionally, general and administrative expense may increase due to the transition services agreement, share-based compensation expense, and debt related expenses. See Certain Relationships and Related Party TransactionsAgreements with Ensign Related to the Spin-Off.
We will benefit from a continuing relationship with Ensign, which will continue to be a holding company comprised of various post-acute businesses, including its skilled nursing, senior living and other ancillary operations in Arizona, California, Colorado, Idaho, Iowa, Kansas, Nebraska, Nevada, South Carolina, Texas, Utah, Washington and Wisconsin.
In connection with the spin-off, we anticipate entering into the Ensign Leases, which are long term, triple-net lease agreements that will amend and restate or replace existing lease agreements between subsidiaries of Ensign and subsidiaries of Pennant for the lease of senior living buildings. We also expect to enter into new third-party master lease agreements with landlords that will replace existing lease agreements between our subsidiaries and such landlords. We anticipate that the Ensign Leases and new third-party master lease agreements will have initial terms ranging between 14 and 16 years, with extension options and annual rent escalators based on changes in the Consumer Price Index.
Recent Activities
AcquisitionsFrom January 1, 2018 through June 30, 2019, we expanded our operations through the acquisition of eight stand-alone senior living operations, six home health agencies, six hospice agencies, and four home care agencies. We did not assume any liabilities. The addition of these operations added a total of 438 senior living units to be operated by our operating subsidiaries. We entered into a separate operations transfer agreement with the prior operator as part of each transaction. The aggregate purchase price for these acquisitions was $20.1 million which included $0.6 million in asset acquisitions.
Subsequent to June 30, 2019, we expanded our operations with the addition of one stand-alone senior living operation and one hospice agency. We did not acquire any material assets or assume any liabilities. The addition of these operations added a total of 91 senior living units to be operated by our operating subsidiaries. We entered into a separate operations transfer agreement with the prior operator as part of each transaction. The aggregate purchase price for these acquisitions was $4.0 million.
For further discussion of our acquisitions, see Note 7, Acquisitions, in the Notes to Audited Combined Financial Statements and Interim Financial Statements.
Adoption of Lease StandardOn January 1, 2019 we adopted Accounting Standards Codification Topic 842, Leases, using the modified retrospective transition method. Leases for reporting periods beginning after January 1, 2019 are presented under Topic 842, while prior period amounts are not adjusted and continue to be reported in accordance with our historic accounting under Topic 840. The new lease standard requires lessees to recognize leases with terms longer than 12 months on the balance sheet and disclose key information about leasing arrangements. Leases will be classified as either finance or operating, with classification affecting the pattern of expense recognition in the income statement.
The new accounting standard had the following effects on our presentation and disclosure:
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We made an accounting policy election to keep leases with an initial term of 12 months or less off of the balance sheet and recognize those lease payments in the condensed combined statement of income on a straight-line basis over the lease term. We also elected the practical expedient to not separate lease and non-lease components for all of our leases, as the non-lease components are not significant to the overall lease costs. |
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Prior period results reflect historical lease classification, under which all of our leases were classified as operating leases. |
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The adoption of this standard resulted in recognition of right-of-use assets and lease liabilities of $238.6 million and $241.5 million, respectively, on our condensed combined balance sheet as of January 1, 2019. See further discussion at Note 13, Leases of the Interim Financial Statements. |
Trends
When we acquire turnaround or start-up operations, we expect that our combined metrics may be impacted. We expect these metrics to vary from period to period based upon the maturity of the operations within our portfolio. We have generally experienced lower occupancy rates and census at recently acquired operations, and we generally anticipate lower overall occupancy rates and lower consolidated and segment margins during years of growth.
Segments
We have two reportable segments: (1) home health and hospice services, which includes our home health, hospice and home care businesses; and (2) senior living services, which includes the operation of assisted living, independent living and memory care communities. Our reporting segments are business units that offer different services and that are managed separately to provide greater visibility into those operations.
Key Performance Indicators
We manage the fiscal aspects of our business by monitoring key performance indicators that affect our financial performance. These indicators and their definitions include the following:
Home Health and Hospice
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Average Medicare revenue per completed 60-day home health episode. The average amount of revenue for each completed 60-day home health episode generated from patients who are receiving care under Medicare reimbursement programs. |
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Average daily census. The average number of patients who are receiving hospice care during any measurement period divided by the number of days during such measurement period. |
The following table summarizes our overall home health and hospice statistics for the periods indicated:
Six Months Ended
June 30, |
Year Ended December 31, | |||||||||||||||||||
2019 | 2018 | 2018 | 2017 | 2016 | ||||||||||||||||
Home health services: |
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Average Medicare Revenue per 60-day Completed Episode |
$ | 3,024 | $ | 2,951 | $ | 2,982 | $ | 3,028 | $ | 2,986 | ||||||||||
Hospice services: |
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Average Daily Census |
1,544 | 1,275 | 1,329 | 1,102 | 905 |
Senior Living Services
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Occupancy. The ratio of actual number of days our units are occupied during any measurement period to the number of units available for occupancy during such measurement period. |
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Average monthly revenue per occupied unit. The revenue for senior living services during any measurement period divided by actual occupied senior living units for such measurement period. |
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The following table summarizes our senior living statistics for the periods indicated:
Six Months Ended June 30, | Year Ended December 31, | |||||||||||||||||||
2019 | 2018 | 2018 | 2017 | 2016 | ||||||||||||||||
Occupancy |
80.1 | % | 78.7 | % | 79.5 | % | 79.9 | % | 79.2 | % | ||||||||||
Average monthly revenue per occupied unit |
$ | 3,109 | $ | 3,054 | $ | 3,044 | $ | 2,979 | $ | 2,916 |
Revenue Sources
Home Health and Hospice Services
Home Health. As of June 30, 2019, we provided home health services in Arizona, California, Colorado, Idaho, Iowa, Oklahoma, Oregon, Texas, Utah, Washington, Wisconsin and Wyoming. We derive the majority of our revenue from our home health business from Medicare and managed care. The home health prospective payment system provides home health agencies with payments for each 60-day episode of care for each beneficiary. Episodic payments are adjusted for differences between estimated and actual payment amounts, an inability to obtain appropriate billing documentation or authorizations acceptable to the payor and other reasons unrelated to credit risk. If a beneficiary is still eligible for care after the end of the first episode, a second episode can begin. There are no limits to the number of episodes a beneficiary who remains eligible for the home health benefit can receive. While payment for each episode is adjusted to reflect the beneficiarys health condition and needs, a special outlier provision exists to ensure appropriate payment for those beneficiaries that have the most expensive care needs. Episodic payments are also adjusted for certain variables including, but not limited to: (a) an outlier payment if the patients care was unusually costly; (b) a low utilization adjustment if the number of visits was fewer than five; (c) a partial payment if the patient transferred to another provider or transferred from another provider before completing the episode; (d) a payment adjustment based upon the level of covered therapy services; (e) the number of episodes of care provided to a patient, regardless of whether the same home health provider provided care for the entire series of episodes; (f) changes in the base episode payments established by the Medicare program; (g) adjustments to the base episode payments for case mix and geographic wages; and (h) recoveries of overpayments.
Hospice. As of June 30, 2019, we provided hospice care in Arizona, California, Colorado, Idaho, Iowa, Nevada, Oklahoma, Oregon, Texas, Utah, Washington, Wisconsin and Wyoming. We derive the majority of the revenue from our hospice business from Medicare reimbursement. The estimated payment rates are daily rates for each of the levels of care we deliver. The payment is adjusted for an inability to obtain appropriate billing documentation or authorizations acceptable to the payor and other reasons unrelated to credit risk. Additionally, as Medicare hospice revenue is subject to an inpatient cap and an overall payment cap, we monitor our provider numbers and estimate amounts due back to Medicare if we believe a cap has been exceeded.
Beginning January 1, 2016, CMS provided for two separate payment rates for routine care: payments for the first 60 days of care and care beyond 60 days. In addition to the two routine rates, Medicare is also reimbursing for a Service Intensity Add-on (SIA). The SIA is based on visits made in the last seven days of life by a registered nurse or medical social worker for patients in a routine level of care.
Senior Living Services
As of June 30, 2019, we provided assisted living, independent living and memory care services at 51 communities located across Arizona, California, Nevada, Texas, Washington and Wisconsin. Within our senior living operations, we generate revenue primarily from private pay sources, with a portion earned from Medicaid or other state-specific programs.
Primary Components of Expense
Cost of Services (exclusive of rent and depreciation and amortization shown separately). Our cost of services represents the costs of operating our businesses, which primarily consists of payroll and related benefits,
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supplies, purchased services, and ancillary expenses such as the cost of pharmacy and therapy services provided to patients. Cost of services also includes the cost of general and professional liability insurance and other general cost of services with respect to our operations.
RentCost of Services. Rentcost of services consists of base minimum rent amounts payable under lease agreements to the Parent and third-party owners of real estate that our operating subsidiaries lease and operate but do not own and does not include taxes, insurance, impounds, capital reserves or other charges payable under the applicable lease agreements, which are recorded in Cost of Services.
General and Administrative Expense. General and administrative expense consists primarily of payroll and related benefits and travel expenses for our Service Center personnel, including training and other operational support. General and administrative expense also includes professional fees (including accounting and legal fees), costs relating to our information systems, stock-based compensation and rent for our Service Center offices.
Depreciation and Amortization. Property and equipment are recorded at their original historical cost. Depreciation is computed using the straight-line method over the estimated useful lives of the depreciable assets. The following is a summary of the depreciable lives of our depreciable assets:
Leasehold improvements |
Shorter of the lease term or estimated useful life, generally 5 to 15 years |
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Furniture and equipment |
3 to 10 years |
Critical Accounting Policies
Our discussion and analysis of our financial condition and results of operations are based on our Audited Combined Financial Statements and Interim Financial Statements, which have been prepared in accordance with GAAP. The preparation of these financial statements and related disclosures requires us to make judgments, estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. On an ongoing basis we review our judgments and estimates, including but not limited to those related to revenue, income taxes, intangible assets, goodwill, impairment of long-lived assets and cost allocations. We base our estimates and judgments upon our historical experience, knowledge of current conditions and our belief of what could occur in the future considering available information, including assumptions that we believe to be reasonable under the circumstances. By their nature, these estimates and judgments are subject to an inherent degree of uncertainty, and actual results could differ materially from the amounts reported. The following summarizes our critical accounting policies, defined as those policies that we believe: (a) are the most important to the portrayal of our financial condition and results of operations; and (b) require managements most subjective or complex judgments, often as a result of the need to make estimates about the effects of matters that are inherently uncertain.
Cost Allocation
The Interim Financial Statements and the Audited Combined Financial Statements include allocations of costs for certain shared services provided to us by subsidiaries of Ensign, including services provided at the Service Center. Such allocations include, but are not limited to, executive management, accounting, human resources, information technology, legal, payroll, insurance, tax, treasury, and other general and administrative items. These costs were allocated based on the drivers most closely aligned to the cost, including on a basis of revenue, location, employee count, or other measures. These cost allocations are reflected within general and administrative expense in the combined statements of income, including the share-based compensation expenses disclosed in Note 12, Options and Awards of the Audited Combined Financial Statements and Interim Financial Statements. The amount of general and administrative costs allocated to us, including share-based compensation
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expense, for the six months ended June 30, 2019 and 2018 and the years ended December 31, 2018, 2017 and 2016 were $15.1 million, $9.0 million, $18.8 million, $14.5 million, and $12.4 million, respectively. For the six months ended June 30, 2019 and the year ended December 31, 2018, approximately $4.6 million and $0.8 million, respectively, of the total general and administrative cost relates to spin-off transaction costs. Management believes the basis on which the expenses have been allocated to us to be a reasonable reflection of the services provided to us during the periods presented.
The Parent is partially self-insured for healthcare, general and professional liability, and workers compensation, and historically has allocated premium expense to all subsidiaries of Ensign in its accounting records. To reflect all of the insurance costs, quarterly actuarially determined adjustments were allocated to us based on the proportional historical premium expense. No self-insurance reserves have been allocated to us as these reserves represent the obligations of the Parent.
The Parents external debt and related interest expense have not been allocated to us for any of the periods presented as no portion of the borrowings is being assumed by us as part of the separation.
Certain employees of our subsidiaries participate in The Ensign Group, Inc. equity-based incentive plans (the Ensign Plans) and the Cornerstone Subsidiary Equity plan (the Subsidiary Equity Plan). Share-based compensation includes the expense attributable to employees of our subsidiaries participating in the Ensign Plans, as well as the allocated cost related to Ensign subsidiaries employees that participate in the Ensign Plans. Share-based compensation related to Ensign subsidiaries employees that participate in the Ensign Plans were allocated on the basis of revenue. All share-based compensation related to the Subsidiary Equity Plan was recognized in the Audited Combined Financial Statements and Interim Financial Statements and, therefore, no cost allocation was necessary.
The share-based compensation costs associated with the Subsidiary Equity Plan awards is initially measured at fair value at the grant date and is expensed as non-cash compensation over the vesting term. Historically, these awards have been granted once a year and the fair value has been determined by an independent valuation of the subsidiary shares. The valuation determination incorporated a discounted cash flow analysis combined with a market-based approach to determine the fair value of the subsidiary equity.
Cash presented in the combined balance sheets represents cash held on site at our operations. We participate in the Parents cash management program. No cash was allocated to us in the financial statements because the net activity of cash due to (from) the Parent is reflected in the net parent investment.
Revenue Recognition
Revenue from the Medicare and Medicaid programs accounted for 54.1%, 52.7%, 53.1%, 51.4%, and 49.6% of our combined total revenue for the six months ended June 30, 2019 and 2018 and the years ended December 31, 2018, 2017 and 2016, respectively. Settlement with Medicare and Medicaid payors for retroactive adjustments due to audits and reviews are considered variable consideration and are included in the determination of the estimated transaction prices. These settlements are estimated based on the terms of the payment agreement with the payor, correspondence from the payor and our historical settlement activity. Consistent with healthcare industry accounting practices, any changes to these governmental revenue estimates are recorded in the period the change or adjustment becomes known based on final settlement.
Disaggregation of Revenue
We disaggregate revenue from contracts with our patients by reportable operating segments and payors. We determine that disaggregating revenue into these categories achieves the disclosure objectives to depict how the nature, amount, timing and uncertainty of revenue and cash flows are affected by economic factors. A reconciliation of disaggregated revenue to segment revenue as well as revenue by payor is provided in Note 6, Business Segments of the Audited Combined Financial Statements and Interim Financial Statements.
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Our service specific revenue recognition policies are as follows:
Home Health Revenue
Medicare Revenue
Net service revenue is recorded under the Medicare prospective payment system based on a 60-day episode payment rate that is subject to adjustment based on certain variables including, but not limited to: (a) an outlier payment if the patients care was unusually costly; (b) a low utilization adjustment if the number of visits was fewer than five; (c) a partial payment if the patient transferred to another provider or transferred from another provider before completing the episode; (d) a payment adjustment based upon the level of covered therapy services; (e) the number of episodes of care provided to a patient, regardless of whether the same home health provider provided care for the entire series of episodes; (f) changes in the base episode payments established by the Medicare program; (g) adjustments to the base episode payments for case mix and geographic wages; and (h) recoveries of overpayments.
We make adjustments to Medicare revenue on completed episodes to reflect differences between estimated and actual payment amounts, an inability to obtain appropriate billing documentation and other reasons unrelated to credit risk. Revenue is also adjusted for estimates for variable consideration. Therefore, we believe that our reported net service revenue and patient accounts receivable will be the net amounts to be realized from Medicare for services rendered.
In addition to revenue recognized on completed episodes, we also recognize a portion of revenue associated with episodes in progress. Episodes in progress are 60-day episodes of care that begin during the reporting period, and were not completed as of the end of the period. As such, we estimate revenue and recognize it on a daily basis. The primary factors underlying this estimate are the number of episodes in progress at the end of the reporting period, expected Medicare revenue per episode and our estimate of the average percentage complete based on visits performed.
Non-Medicare Revenue
Episodic Based RevenueWe recognize revenue in a similar manner as we recognize Medicare revenue for episodic-based rates that are paid by other insurance carriers, including Medicare Advantage programs; however, these rates can vary based upon the negotiated terms.
Non-episodic Based RevenueRevenue is recorded on an accrual basis based upon the date of service at amounts equal to its established or estimated per-visit rates, as applicable.
Hospice Revenue
Revenue is recorded on an accrual basis based upon the date of service at amounts equal to the estimated payment rates. The estimated payment rates are daily rates for each of the levels of care we deliver. We make adjustments to revenue for an inability to obtain appropriate billing documentation or authorizations acceptable to the payor and other reasons unrelated to credit risk. Additionally, as Medicare hospice revenue is subject to an inpatient cap limit and an overall payment cap, we monitor our provider numbers and estimate amounts due back to Medicare if a cap has been exceeded. We record these adjustments as a reduction to revenue and increases to other accrued liabilities.
Senior Living Revenue
Our revenue is recorded when services are rendered on the date services are provided at amounts billable to individual residents and consists of fees for basic housing and senior living care. Residency agreements are
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generally for a term of 30 days, with resident fees billed monthly in advance. For residents under reimbursement arrangements with Medicaid, revenue is recorded based on contractually agreed-upon amounts or rates on a per resident, daily basis or as services are provided. Revenue for certain ancillary charges is recognized as services are provided, and such fees are billed monthly in arrears.
Accounts Receivable and Allowance for Doubtful Accounts
Accounts receivable consist primarily of amounts due from Medicare and Medicaid programs, other government programs, managed care health plans and private payor sources. Estimated provisions for doubtful accounts are recorded to the extent it is probable that a portion or all of a particular account will not be collected.
Intangible Assets and Goodwill
Definite-lived intangible assets consist primarily of patient base and customer relationships. Patient base is amortized over a period of four to eight months, depending on the classification of the patients and the level of occupancy in a new acquisition when acquired. Customer relationships are amortized over a period of up to 20 years.
Our indefinite-lived intangible assets consist of trade names and licenses. We test indefinite-lived intangible assets for impairment on an annual basis or more frequently if events or changes in circumstances indicate that the carrying amount of the intangible asset may not be recoverable. Goodwill represents the excess of the purchase price over the fair value of identifiable net assets acquired in business combinations. Given the time it takes to obtain pertinent information, the initial fair value might not be finalized at the time of the reported period. Accordingly, it is not uncommon for the initial estimates to be subsequently revised. We recorded goodwill and other intangible assets at the operation level when acquired, and as such, these assets are identifiable specifically to the operations that are allocated to New Ventures. Goodwill is subject to annual testing for impairment. In addition, goodwill is tested for impairment if events occur or circumstances change that would reduce the fair value of a reporting unit below its carrying amount.
Leases and Leasehold Improvements
We lease senior living communities and commercial office space. On January 1, 2019, we adopted ASC Topic 842, Leases, using the modified retrospective transition method. Leases for reporting periods beginning after January 1, 2019 are presented under Topic 842, while prior period amounts are not adjusted and continue to be reported in accordance with our historic accounting under Topic 840. We determine if an arrangement is a lease at the inception of each lease. At the inception of each lease, we perform an evaluation to determine whether the lease should be classified as an operating or finance lease. Operating leases are included in right-of-use assets, current lease liabilities and long-term lease liabilities on our combined balance sheet. As our leases do not provide an implicit rate, we use its incremental borrowing rate based on the information available at lease commencement date in determining the present value of future lease payments. We estimate this rate based on prevailing financial market conditions, comparable company and credit analysis, and management judgment. We record rent expense for operating leases on a straight-line basis over the term of the lease. The lease term used for straight-line rent expense is calculated from the date we are given control of the leased premises through the end of the lease term. The lease term excludes lease renewals as the renewal rents are not at a bargain, there are no economic penalties for us to renew the lease, and it is not reasonably assured that we will exercise the extension options. The lease term used for this evaluation also provides the basis for establishing depreciable lives for buildings subject to lease and leasehold improvements.
We recognize lease expense for leases with an initial term of 12 months or less on a straight-line basis over the lease term. These leases are not recorded on the combined balance sheet. Certain of our lease agreements include rental payments that are adjusted periodically for inflation. The lease agreements do not contain any material residual value guarantees or material restrictive covenants. We do not have material subleases. See further discussion at Note 13, Leases in the Interim Financial Statements.
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Business Combinations
Our acquisition strategy is to purchase or lease operations that are complementary to our current platform, accretive to our business or otherwise advance our strategy. The results of all of our operating subsidiaries are included in the accompanying financial statements subsequent to the date of acquisition. Acquisitions are typically paid for in cash and are accounted for using the acquisition method of accounting. We account for business combinations using the purchase method of accounting and, accordingly, the assets and liabilities of the acquired entities are recorded at their estimated fair values at the acquisition date. Goodwill represents the excess of the purchase price over the fair value of net assets, including the amount assigned to identifiable intangible assets. Given the time it takes to obtain pertinent information, the initial fair value might not be finalized at the time of the reported period. Accordingly, it is not uncommon for the initial estimates to be subsequently revised.
In accounting for business combinations, we are required to record the assets and liabilities of the acquired business at fair value. In developing estimates of fair values for long-lived assets, we utilize a variety of factors including market data, cash flows, growth rates, and replacement costs. Determining the fair value for specifically identified intangible assets involves significant judgment, estimates and projections related to the valuation to be applied to intangible assets such as favorable leases, customer relationships, Medicare and Medicaid licenses, and trade names. The subjective nature of managements assumptions increases the risk associated with estimates surrounding the projected performance of the acquired entity. Additionally, as we amortize definite-lived acquired intangible assets over time, the purchase accounting allocation directly impacts the amortization expense recorded on the financial statements.
Income Taxes
Historically, our operations have been included in Ensigns U.S. federal and state income tax returns and all income taxes have been paid by Ensign. Income tax expense and other income tax related information contained in these Audited Combined Financial Statements and Interim Financial Statements are presented on a separate tax return approach. Under this approach, the provision for income taxes represents income tax paid or payable for the current year plus the change in deferred taxes during the year calculated as if we were a stand-alone taxpayer filing hypothetical income tax returns. Management believes that the assumptions and estimates used to determine these tax amounts are reasonable. However, our Audited Combined Financial Statements and Interim Financial Statements may not necessarily reflect our income tax expense or tax payments in the future, or what our tax amounts would have been if we had been a stand-alone company during the periods presented.
Deferred tax assets and liabilities are established for temporary differences between the financial reporting basis and the tax basis of our assets and liabilities at tax rates in effect when such temporary differences are expected to reverse. We generally expect to fully utilize our deferred tax assets; however, when necessary, we record a valuation allowance to reduce our net deferred tax assets to the amount that is more likely than not to be realized.
In determining the need for a valuation allowance or the need for and magnitude of liabilities for uncertain tax positions, we make certain estimates and assumptions. These estimates and assumptions are based on, among other things, knowledge of operations, markets, historical trends and likely future changes and, when appropriate, the opinions of advisors with knowledge and expertise in certain fields. Due to certain risks associated with our estimates and assumptions, actual results could differ.
Recent Accounting Pronouncements
Except for rules and interpretive releases of the SEC under authority of federal securities laws and a limited number of grandfathered standards, the Financial Accounting Standards Board (FASB) ASC is the sole source of authoritative GAAP literature recognized by the FASB and applicable to us. We have reviewed the FASB issued Accounting Standards Update (ASU) accounting pronouncements and interpretations thereof that have
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effectiveness dates during the periods reported and in future periods. For any new pronouncements announced, we consider whether the new pronouncements could alter previous generally accepted accounting principles and determine whether any new or modified principles will have a material impact on our reported financial position or operations in the near term. The applicability of any standard is subject to the formal review of our financial management and certain standards are under consideration.
Recent Accounting Standards Adopted by the Company
In February 2016, the FASB established Topic 842, Leases, by issuing ASU No. 2016-02, which requires lessees to recognize leases with terms longer than 12 months on the balance sheet and disclose key information about leasing arrangements. Leases will be classified as either finance or operating, with classification affecting the pattern of expense recognition in the income statement. The classification criteria for distinguishing between operating and finance (previously capital) leases are substantially similar to the previous lease guidance, but with no explicit bright lines.
We adopted the standard as of January 1, 2019, using the modified retrospective transition method that allows us to apply the standard as of the adoption date and record a cumulative adjustment in equity, if applicable. We have elected the package of practical expedients permitted under the transition guidance which allows us to not reassess (1) initial direct costs, (2) lease classification for existing or expired leases, and (3) lease definition for existing or expired contracts as of the effective date of January 1, 2019. The new standard also provides practical expedients for an entitys ongoing accounting. We have made an accounting policy election to keep leases with an initial term of 12 months or less off of the balance sheet and recognize those lease payments in the combined statements of income on a straight-line basis over the lease term. We have also elected the practical expedient to not separate lease and non-lease components for all of our leases as the non-lease components are not significant to the overall lease costs.
The adoption of this standard resulted in recognition of right-of-use assets and lease liabilities of $238.6 million and $241.5 million, respectively, on our combined balance sheet as of January 1, 2019. Equity was not impacted as a result of the adoption of this standard. The standard did not materially affect our combined net earnings or have a notable impact on liquidity or debt covenant compliance under the Parents current agreements. See further discussion at Note 13, Leases of the Interim Financial Statements.
Prior to the adoption of ASC 842, we recognized revenue related to our senior living residency agreements in accordance with the provisions of ASC 840. Subsequent to the adoption of ASU 2016-02, Leases, lessors are required to separately recognize and measure the lease component of a contract with a customer utilizing the provisions of ASC 842 and the non-lease components utilizing the provisions of ASC 606, Revenue from Contracts with Customers. To separately account for the components, the transaction price is allocated among the components based upon the estimated stand-alone selling prices of the components. Additionally, certain components of a contract which were previously included within the lease element recognized in accordance with ASC 840 prior to the adoption of ASU 2016-02 (such as common area maintenance services, other basic services, and executory costs) are recognized as non-lease components subject to the provisions of ASC 606 subsequent to the adoption of ASU 2016-02. Entities are required to recognize a cumulative effect adjustment to beginning retained earnings as of the initial application date of ASU 2016-02 for changes to amounts recognized for these certain components for the transition from ASC 840 to ASC 606. However, entities are permitted to elect the practical expedient under ASU 2018-11, Leases, allowing lessors to not separate non-lease components from the associated lease components when certain criteria are met. Entities that elect to utilize the lease/non-lease component combination practical expedient under ASU 2018-11 upon initial application of ASC 842 are required to apply the practical expedient to all new and existing transactions within a class of underlying assets that qualify for the expedient as of the initial application date with a cumulative effect adjustment to beginning retained earnings as of the initial application date for any changes recognized related to existing transactions.
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Upon adoption of ASU 2016-02 and ASU 2018-11, we elected the lessor practical expedient within ASU 2018-11. We recognize revenue under these resident agreements based upon the predominant component, either the lease or non-lease component, of the contracts rather than allocating the consideration and separately accounting for it under ASC Topic 842 and ASC Topic 606. We have concluded that the non-lease components of the agreements with respect to our senior living communities are the predominant component of the contract, therefore, we recognize revenue for these residents agreements under ASC Topic 606. The timing and pattern of revenue recognition is substantially the same as that prior to the adoption of these standards.
Accounting Standards Recently Issued but Not Yet Adopted by the Company
In August 2018, the FASB issued amended guidance to simplify fair value measurement disclosure requirements. The new provisions eliminate the requirements to disclose (1) transfers between Level 1 and Level 2 of the fair value hierarchy, (2) policies related to valuation processes and the timing of transfers between levels of the fair value hierarchy, and (3) net asset value disclosure of estimates of timing of future liquidity events. The FASB also modified disclosure requirements of Level 3 fair value measurements. This guidance is effective for annual periods beginning after December 15, 2019, which will be our fiscal year 2020, with early adoption permitted. The adoption of this standard is not expected to have a material impact on our combined financial statements.
In January 2017, the FASB issued amended authoritative guidance to simplify and reduce the cost and complexity of the goodwill impairment test. The new provisions eliminate step 2 from the goodwill impairment test and shift the concept of impairment from a measure of loss when comparing the implied fair value of goodwill to its carrying amount to comparing the fair value of a reporting unit with its carrying amount. The FASB also eliminated the requirements for any reporting unit with a zero or negative carrying amount to perform a qualitative assessment or step 2 of the goodwill impairment test. The new guidance does not amend the optional qualitative assessment of goodwill impairment. This guidance is effective for annual periods beginning after December 15, 2019, which will be our fiscal year 2020, with early adoption permitted. The adoption of this standard is not expected to have a material impact on our combined financial statements.
In June 2016, the FASB issued ASU 2016-13 Financial InstrumentsCredit Losses (Topic 326): Measurement of credit Losses on Financial Instruments, which replaces the existing incurred loss impairment model with an expected credit loss model and requires a financial asset measured at amortized cost to be presented at the net amount expected to be collected. The guidance will be effective for fiscal years beginning after December 15, 2019, which will be our fiscal year 2020, early adoption is permitted. We have not yet determined the effect of the ASU on our results of operations, financial condition or cash flows.
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Results of Operations
The following table sets forth details of our revenue, expenses and earnings as a percentage of total revenue for the periods indicated:
Pro Forma Six
Months Ended June 30,(a) |
Six Months Ended
June 30, |
Pro Forma
Year Ended December 31,(a) |
Year Ended December 31, | |||||||||||||||||||||||||||||
2019 | 2019 | 2018 | 2018 | 2018 |
2018
adjusted to reflect prior revenue guidance |
2017 | 2016 | |||||||||||||||||||||||||
Total revenue |
100.0 | % | 100.0 | % | 100.0 | % | 100.0 | % | 100.0 | % | 100.0 | % | 100.0 | % | 100.0 | % | ||||||||||||||||
Expense: |
||||||||||||||||||||||||||||||||
Cost of services |
75.8 | 75.8 | 74.0 | 74.3 | 74.3 | 74.5 | 74.6 | 73.7 | ||||||||||||||||||||||||
Rentcost of services |
11.6 | 10.5 | 11.1 | 12.2 | 10.9 | 10.8 | 12.5 | 13.3 | ||||||||||||||||||||||||
General and administrative expense |
6.5 | 9.4 | 6.5 | 6.3 | 6.6 | 6.5 | 5.8 | 5.7 | ||||||||||||||||||||||||
Depreciation and amortization |
1.1 | 1.1 | 1.1 | 1.0 | 1.0 | 1.0 | 1.0 | 1.3 | ||||||||||||||||||||||||
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Total expenses |
95.0 | 96.8 | 92.7 | 93.8 | 92.8 | 92.8 | 93.9 | 94.0 | ||||||||||||||||||||||||
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Income from operations |
5.0 | 3.2 | 7.3 | 6.2 | 7.2 | 7.2 | 6.1 | 6.0 | ||||||||||||||||||||||||
Interest expense |
0.7 | | | 0.7 | | | | | ||||||||||||||||||||||||
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Income before provision for income taxes |
4.3 | 3.2 | 7.3 | 5.5 | 7.2 | 7.2 | 6.1 | 6.0 | ||||||||||||||||||||||||
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Provision for income taxes |
0.2 | | 1.6 | 1.1 | 1.5 | 1.6 | 2.1 | 2.3 | ||||||||||||||||||||||||
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Net income |
4.1 | 3.2 | 5.7 | 4.4 | 5.7 | 5.6 | 4.0 | 3.7 | ||||||||||||||||||||||||
Less: net income attributable to noncontrolling interest |
| 0.2 | 0.2 | | 0.2 | 0.2 | 0.1 | | ||||||||||||||||||||||||
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Net income attributable to New Ventures |
4.1 | % | 3.0 | % | 5.5 | % | 4.4 | % | 5.5 | % | 5.4 | % | 3.9 | % | 3.7 | % | ||||||||||||||||
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Pro Forma Six
Months Ended June 30,(a) |
Six Months Ended
June 30, |
Pro Forma
Year Ended December 31,(a) |
Year Ended December 31, | |||||||||||||||||||||||||
2019 | 2019 | 2018 | 2018 | 2018 | 2017 | 2016 | ||||||||||||||||||||||
(In thousands) | ||||||||||||||||||||||||||||
Combined Non-GAAP Financial Measures: |
||||||||||||||||||||||||||||
Performance Metrics |
||||||||||||||||||||||||||||
EBITDA |
$ | 9,763 | $ | 6,561 | $ | 11,177 | $ | 20,651 | $ | 23,000 | $ | 17,786 | $ | 15,811 | ||||||||||||||
Adjusted EBITDA |
11,757 | 13,203 | 12,403 | 23,192 | 26,297 | 21,480 | 18,345 | |||||||||||||||||||||
Valuation Metric |
||||||||||||||||||||||||||||
Adjusted EBITDAR |
30,374 | 30,024 | 58,061 | 57,466 |
(a) |
See the section titled Unaudited Pro Forma Combined Financial Statements for a reconciliation of Audited Combined Financial Statements and Interim Financial Statements to Unaudited Pro Forma Combined Financial Statements. |
131
Pro Forma Six
Months Ended June 30,(b) |
Six Months Ended
June 30, |
Pro Forma
Year Ended December 31,(b) |
Year Ended December 31, | |||||||||||||||||||||||||
2019 | 2019 | 2018 | 2018 | 2018 | 2017 | 2016 | ||||||||||||||||||||||
(In thousands) | ||||||||||||||||||||||||||||
Segment Non-GAAP Measures: (a) |
||||||||||||||||||||||||||||
EBITDA |
||||||||||||||||||||||||||||
Home health and hospice services |
$ | 13,468 | $ | 13,118 | $ | 11,243 | $ | 24,420 | $ | 23,825 | $ | 17,617 | $ | 14,574 | ||||||||||||||
Senior living services |
6,780 | 8,576 | 8,925 | 14,318 | 18,018 | 14,632 | 13,685 | |||||||||||||||||||||
Adjusted EBITDA |
||||||||||||||||||||||||||||
Home health and hospice services |
14,319 | 13,969 | 11,387 | 24,771 | 24,176 | 19,220 | 15,020 | |||||||||||||||||||||
Senior living services |
6,917 | 8,713 | 9,075 | 14,612 | 18,312 | 14,903 | 13,889 |
(a) |
General and administrative expenses are not allocated to any segment for purposes of determining segment profit or loss. |
(b) |
See the section titled Unaudited Pro Forma Combined Financial Statements for a reconciliation of Audited Combined Financial Statements and Interim Financial Statements to Unaudited Pro Forma Combined Financial Statements. |
The following discussion includes references to certain performance and valuation measures, including EBITDA, Adjusted EBITDA, Adjusted EBITDAR and Pro Forma Segment Income Before Provision for Income Taxes, which are non-GAAP financial measures (collectively, Non-GAAP Financial Measures). Regulation S-K, Item 10(e), Use of non-GAAP financial measures in Commission filings, and other provisions of the Securities Act and the Exchange Act define and prescribe the use of certain non-GAAP financial information. These non-GAAP financial measures are used in addition to and in conjunction with results presented in accordance with GAAP. These non-GAAP financial measures should not be relied upon to the exclusion of GAAP financial measures. These non-GAAP financial measures reflect an additional way of viewing aspects of our operations and company that, when viewed with our GAAP results and the accompanying reconciliations to corresponding GAAP financial measures, provide a more complete understanding of factors and trends affecting our business.
We believe the presentation of Non-GAAP Financial Measures are useful to investors and other external users of our Audited Combined Financial Statements and Interim Financial Statements regarding our results of operations because:
|
they are widely used by investors and analysts in our industry as a supplemental measure to evaluate the overall performance of companies in our industry without regard to items such as interest expense, rent expense and depreciation and amortization, which can vary substantially from company to company depending on the book value of assets and the method by which assets were acquired; and |
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they help investors evaluate and compare the results of our operations from period to period by removing the impact of our asset base from our operating results. |
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in the case of Adjusted EBITDAR, the valuation metric is used by investors and analysts in our industry to value the companies in our industry without regard to capital structures. |
We use Non-GAAP Financial Measures:
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as measurements of our operating performance to assist us in comparing our operating performance on a consistent basis; |
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to allocate resources to enhance the financial performance of our business; |
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to assess the value of a potential acquisition; |
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to assess the value of a transformed operations performance; |
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to evaluate the effectiveness of our operational strategies; and |
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to compare our operating performance to that of our competitors. |
132
We typically use Non-GAAP Financial Measures to compare the operating performance of each operation. These measures are useful in this regard because they do not include such costs as interest expense, income taxes, depreciation and amortization expense, which may vary from period-to-period depending upon various factors, including the method used to finance operations, the date of acquisition of a community or business, and the tax law of the state in which a business unit operates.
We also establish compensation programs and bonuses for our leaders that are partially based upon the achievement of Adjusted EBITDAR targets.
Despite the importance of these measures in analyzing our underlying business, designing incentive compensation and for our goal setting, Non-GAAP Financial Measures have no standardized meaning defined by GAAP. Therefore, our Non-GAAP Financial Measures have limitations as analytical tools, and they should not be considered in isolation, or as a substitute for analysis of our results as reported in accordance with GAAP. Some of these limitations are:
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they do not reflect our current or future cash requirements for capital expenditures or contractual commitments; |
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they do not reflect changes in, or cash requirements for, our working capital needs; |
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they do not reflect the net interest expense, or the cash requirements necessary to service interest or principal payments, on our debt; |
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they do not reflect rent expenses, which are normal and recurring operating expenses that are necessary to operate our leased operations, in the case of Adjusted EBITDAR; |
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they do not reflect any income tax payments we may be required to make; |
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although depreciation and amortization are non-cash charges, the assets being depreciated and amortized will often have to be replaced in the future, and do not reflect any cash requirements for such replacements; and |
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other companies in our industry may calculate these measures differently than we do, which may limit their usefulness as comparative measures. |
We compensate for these limitations by using them only to supplement net income on a basis prepared in accordance with GAAP in order to provide a more complete understanding of the factors and trends affecting our business.
Management strongly encourages investors to review our Audited Combined Financial Statements and Interim Financial Statements in their entirety and to not rely on any single financial measure. Because these Non-GAAP Financial Measures are not standardized, it may not be possible to compare these financial measures with other companies Non-GAAP Financial Measures having the same or similar names. These Non-GAAP Financial Measures should not be considered a substitute for, nor superior to, financial results and measures determined or calculated in accordance with GAAP. We strongly urge you to review the reconciliation of income from operations to the Non-GAAP Financial Measures in the table below, along with our Audited Combined Financial Statements and Interim Financial Statements and related notes included elsewhere in this information statement.
133
We use the following Non-GAAP Financial Measures that we believe are useful to investors as key valuation and operating performance measures:
PERFORMANCE MEASURES
EBITDA
We believe EBITDA is useful to investors in evaluating our operating performance because it helps investors evaluate and compare the results of our operations from period to period by removing the impact of our asset base (depreciation and amortization expense) from our operating results.
We calculate EBITDA as net income from continuing operations, adjusted for net income attributable to noncontrolling interest, before (a) interest expense (b) provision for income taxes and (c) depreciation and amortization.
Adjusted EBITDA
We adjust EBITDA when evaluating our performance because we believe that the exclusion of certain additional items described below provides useful supplemental information to investors regarding our ongoing operating performance. We believe that the presentation of Adjusted EBITDA, when combined with EBITDA and GAAP net income attributable to us is beneficial to an investors complete understanding of our operating performance.
Adjusted EBITDA is EBITDA adjusted for non-core business items, which for the reported periods includes, to the extent applicable:
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costs at start-up operations; |
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results related to closed operations; |
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share-based compensation expense; |
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acquisition related costs; and |
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spin-off related transaction costs. |
VALUATION MEASURE:
Combined Adjusted EBITDAR
Combined Adjusted EBITDAR is a financial valuation measure that is not specified in GAAP. We use Combined Adjusted EBITDAR as one measure in determining the value of prospective acquisitions. It is also a commonly used measure by our management, research analysts and investors, to compare the enterprise value of different companies in the healthcare industry, without regard to differences in capital structures and leasing arrangements. This measure is not displayed as a performance measure as it excludes rent expense, which is a normal and recurring operating expense. This measure does not reflect our cash requirements for leasing commitments. As such, our presentation of Adjusted EBITDAR should not be construed as a financial performance measure.
The adjustments made and previously described in the computation of Adjusted EBITDA are also made when computing Adjusted EBITDAR. We calculate Adjusted EBITDAR by excluding rent-cost of services from Adjusted EBITDA.
We believe the use of Adjusted EBITDAR allows the investor to compare operational results of companies who have operating and capital leases. A significant portion of capital lease expenditures are recorded in interest, whereas operating lease expenditures are recorded in rent expense.
134
We present Combined Adjusted EBITDAR for the most recent interim and annual period, as our business and continuing operations are impacted by seasonal factors and trends. We have experienced and may in the future experience higher revenue in the first and fourth quarters, reflecting seasonal increases in census and patient acuity and the timing of changes in levels of reimbursement from governmental agencies and other third-party payors. Thus, the presentation of Combined Adjusted EBITDAR for the most recent interim and annual period provides the most accurate valuation metrics.
Pro Forma Selected Non GAAP Metrics
We adjust selected non GAAP metrics because we believe that the exclusion and inclusion of certain items given the effect to the spin-off and the related transactions occurred on January 1, 2018 through the most recent reporting period are useful supplemental information to investors regarding our ongoing operating performance as if the spin-off transaction occurred on the first day of the fiscal year. We believe that the presentation of selected non GAAP metrics, when combined with GAAP segment income before provision for income taxes is beneficial to an investors complete understanding of our current operating performance after giving effect to the spin-off.
The tables below reconcile net income to Adjusted EBITDA for the periods presented. In addition, we evaluate Adjusted EBITDAR, a financial valuation metric, for the six months ended June 30, 2019 and the year ended December 31, 2018 as calculated below.
(a) |
Represents results related to start-up operations. This amount excludes rent, depreciation and amortization expense. |
(b) |
Share-based compensation expense incurred. |
(c) |
Acquisition related costs that are not capitalizable. |
(d) |
Costs incurred related to the spin-off are included in general and administrative expense. As the pro forma net income excludes this amount, no additional adjustment is required. |
(e) |
See the section titled Unaudited Pro Forma Combined Financial Statements for a reconciliation of Interim Financial Statements to unaudited pro forma combined financial statements. |
135
Pro Forma Year Ended
December 31,(e) |
Year Ended December 31, | |||||||||||||||
2018 | 2018 | 2017 | 2016 | |||||||||||||
(In thousands) | ||||||||||||||||
Net income |
$ | 12,613 | $ | 16,279 | $ | 10,027 | $7,917 | |||||||||
Less: Net income attributable to noncontrolling interest |
| 595 | 160 | 26 | ||||||||||||
Add: Provision for income taxes |
3,130 | 4,352 | 5,375 | 5,065 | ||||||||||||
Depreciation and amortization |
2,964 | 2,964 | 2,544 | 2,855 | ||||||||||||
Interest expense |
1,944 | | | | ||||||||||||
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EBITDA |
20,651 | 23,000 | 17,786 | 15,811 | ||||||||||||
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Adjustments to EBITDA |
||||||||||||||||
Add: Costs at start-up operations (a) |
129 | 129 | 478 | 157 | ||||||||||||
Results related to closed operations (b) |
| | 728 | | ||||||||||||
Share-based compensation expense (c) |
2,382 | 2,382 | 2,298 | 2,341 | ||||||||||||
Spin-off related transaction costs (d) |
| 756 | | | ||||||||||||
Rent related to items (a) and (b) above |
30 | 30 | 190 | 36 | ||||||||||||
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Adjusted EBITDA |
23,192 | 26,297 | 21,480 | 18,345 | ||||||||||||
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Rentcost of services |
34,899 | 31,199 | 31,304 | 28,953 | ||||||||||||
Rent related to items (a) and (b) above |
(30 | ) | (30 | ) | (190 | ) | (36 | ) | ||||||||
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Adjusted rentcost of services |
34,869 | 31,169 | 31,114 | 28,917 | ||||||||||||
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Adjusted EBITDAR |
$ | 58,061 | $ | 57,466 | ||||||||||||
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(a) |
Represents results related to start-up operations. This amount excludes rent, depreciation and amortization expense. |
(b) |
Represents results at closed operations. This amount excludes rent, depreciation and amortization expense. |
(c) |
Share-based compensation expense incurred. |
(d) |
Costs incurred related to the spin-off are included in general and administrative expense. As the pro forma net income excludes this amount, no additional adjustment is required. |
(e) |
See the section titled Unaudited Pro Forma Combined Financial Statements for a reconciliation of Audited Combined Financial Statements to unaudited pro forma combined financial statements. |
The tables below reconcile segment income before provision for income taxes to segment EBITDA and Adjusted EBITDA for the periods presented:
Six Months Ended June 30, | ||||||||||||||||
Home Health
and Hospice |
Senior Living | |||||||||||||||
2019 | 2018 | 2019 | 2018 | |||||||||||||
(In thousands) | ||||||||||||||||
Segment income before provision for income taxes (a) |
$ | 12,888 | $ | 11,087 | $ | 7,434 | $ | 8,016 | ||||||||
Less: Net income attributable to noncontrolling interest |
350 | 370 | | | ||||||||||||
Add: Depreciation and amortization |
580 | 526 | 1,142 | 909 | ||||||||||||
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EBITDA |
13,118 | 11,243 | 8,576 | 8,925 | ||||||||||||
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Adjustments to EBITDA |
||||||||||||||||
Add: Costs at start-up operations (b) |
317 | 36 | | | ||||||||||||
Share-based compensation expense (c) |
87 | 95 | 137 | 150 | ||||||||||||
Acquisition related costs (d) |
438 | | | | ||||||||||||
Rent related to item (b) above |
9 | 13 | | | ||||||||||||
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Adjusted EBITDA |
$ | 13,969 | $ | 11,387 | $ | 8,713 | $ | 9,075 | ||||||||
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Rentcost of services |
$ | 1,414 | $ | 1,089 | $ | 15,416 | $ | 14,200 |
(a) |
General and administrative expenses are not allocated to any segment for purposes of determining segment profit or loss. |
136
(b) |
Costs incurred for start-up operations. This amount excludes rent, depreciation and amortization expense. |
(c) |
Share-based compensation expense incurred and included in cost of services. |
(d) |
Acquisition related costs that are not capitalizable. |
Year Ended December 31, | ||||||||||||||||||||||||
Home Health
and Hospice |
Senior Living | |||||||||||||||||||||||
2018 | 2017 | 2016 | 2018 | 2017 | 2016 | |||||||||||||||||||
(In thousands) | ||||||||||||||||||||||||
Segment income before provision for income taxes (a) |
$ | 23,375 | $ | 16,832 | $ | 13,676 | $ | 16,099 | $ | 13,033 | $ | 11,754 | ||||||||||||
Less: Net income attributable to noncontrolling interest |
595 | 160 | 26 | | | | ||||||||||||||||||
Add: Depreciation and amortization |
1,045 | 945 | 924 | 1,919 | 1,599 | 1,931 | ||||||||||||||||||
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EBITDA |
23,825 | 17,617 | 14,574 | 18,018 | 14,632 | 13,685 | ||||||||||||||||||
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Adjustments to EBITDA: |
||||||||||||||||||||||||
Add: Costs at start-up operations (b) |
129 | 478 | 157 | | | | ||||||||||||||||||
Results related to closed operations (c) |
| 728 | | | | | ||||||||||||||||||
Share-based compensation expense (d) |
192 | 207 | 253 | 294 | 271 | 204 | ||||||||||||||||||
Rent related to item (b) and (c) above |
30 | 190 | 36 | | | | ||||||||||||||||||
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Adjusted EBITDA |
$ | 24,176 | $ | 19,220 | $ | 15,020 | $ | 18,312 | $ | 14,903 | $ | 13,889 | ||||||||||||
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Rentcost of services |
$ | 2,281 | $ | 1,977 | $ | 1,564 | $ | 28,918 | $ | 29,327 | $ | 27,389 |
(a) |
General and administrative expenses are not allocated to any segment for purposes of determining segment profit or loss. |
(b) |
Costs incurred for start-up operations. This amount excludes rent, depreciation and amortization expense. |
(c) |
Represent results at closed operations. This amount excludes rent, depreciation and amortization expense. |
(d) |
Share-based compensation expense incurred and included in cost of services. |
The table below reconciles segment income before provision for income taxes to pro forma segment income before provision for income taxes for the six months ended June 30, 2019 and for the year ended December 31, 2018. The pro forma financial adjustments are derived from the unaudited pro forma combined financial statements, which are included elsewhere in this information statement:
Six Months Ended
June 30, 2019 |
Year Ended
December 31, 2018 |
|||||||||||||||
Home Health
and Hospice |
Senior Living |
Home Health
and Hospice |
Senior Living | |||||||||||||
(In thousands) | ||||||||||||||||
Segment income before provision for income taxes (a) |
$ | 12,888 | $ | 7,434 | $ | 23,375 | $ | 16,099 | ||||||||
Pro forma adjustments |
||||||||||||||||
Additional rent expense |
| (1,796 | ) | | (3,700 | ) | ||||||||||
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Pro forma segment income before provision for income taxes |
$ | 12,888 | $ | 5,638 | $ | 23,375 | $ | 12,399 | ||||||||
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(a) |
General and administrative expenses are not allocated to any segment for purposes of determining segment profit or loss. |
137
The table below reconciles pro forma segment income before provision for income taxes to pro forma segment EBITDA and Adjusted pro forma segment EBITDA for the six months ended June 30, 2019 and for the year ended December 31, 2018:
Pro Forma Six Months
Ended June 30, 2019 |
Pro Forma Year Ended
December 31, 2018 |
|||||||||||||||
Home Health
and Hospice |
Senior Living |
Home Health
and Hospice |
Senior Living | |||||||||||||
(In thousands) | ||||||||||||||||
Pro forma segment income before provision for income taxes (a) |
$ | 12,888 | $ | 5,638 | $ | 23,375 | $ | 12,399 | ||||||||
Add: Depreciation and amortization |
580 | 1,142 | 1,045 | 1,919 | ||||||||||||
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Pro forma segment EBITDA |
13,468 | 6,780 | 24,420 | 14,318 | ||||||||||||
|
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|
|
|||||||||
Adjustments to pro forma Segment EBITDA: |
||||||||||||||||
Add: Costs at start-up operations (b) |
317 | | 129 | | ||||||||||||
Share-based compensation expense (c) |
87 | 137 | 192 | 294 | ||||||||||||
Acquisition related costs (d) |
438 | | | | ||||||||||||
Rent related to item (b) above |
9 | | 30 | | ||||||||||||
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Adjusted pro forma Segment EBITDA |
$ | 14,319 | $ | 6,917 | $ | 24,771 | $ | 14,612 | ||||||||
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Rentcost of services |
$ | 1,414 | $ | 17,212 | $ | 2,281 | 32,618 |
(a) |
General and administrative expenses are not allocated to any segment for purposes of determining segment profit or loss. |
(b) |
Costs incurred for start-up operations. This amount excludes rent, depreciation and amortization expense. |
(c) |
Share-based compensation expense incurred and included in cost of services. |
(d) |
Acquisition related costs that are not capitalizable. |
Six Months Ended June 30, 2019 Compared to the Six Months Ended June 30, 2018
Revenue
Six Months Ended June 30, | ||||||||||||||||
2019 | 2018 | |||||||||||||||
Revenue
Dollars |
Revenue
Percentage |
Revenue
Dollars |
Revenue
Percentage |
|||||||||||||
(Dollars in thousands) | ||||||||||||||||
Home health and hospice services |
||||||||||||||||
Home health (a) |
$ | 40,224 | 25.0 | % | $ | 34,874 | 25.3 | % | ||||||||
Hospice |
47,678 | 29.7 | 39,502 | 28.7 | ||||||||||||
Home care and other (a) |
8,423 | 5.3 | 6,631 | 4.8 | ||||||||||||
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Total home health and hospice services |
96,325 | 60.0 | 81,007 | 58.8 | ||||||||||||
Senior living services |
64,316 | 40.0 | 56,761 | 41.2 | ||||||||||||
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Total revenue |
$ | 160,641 | 100.0 | % | $ | 137,768 | 100.0 | % | ||||||||
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(a) |
Home care and other revenue is included with home health revenue in other disclosures in this information statement. |
Our combined revenue increased $22.9 million, or 16.6%. Revenue from operations acquired on or subsequent to July 1, 2018 increased our combined revenue by $9.1 million during the six months ended June 30, 2019 when compared to the same period in 2018.
138
Home Health and Hospice Services
Six Months Ended June 30, | Change | % Change | ||||||||||||||
2019 | 2018 | |||||||||||||||
(Dollars in thousands) | ||||||||||||||||
Home health and hospice revenue |
||||||||||||||||
Home health services |
$ | 40,224 | $ | 34,874 | $ | 5,350 | 15.3 | % | ||||||||
Hospice services |
47,678 | 39,502 | 8,176 | 20.7 | % | |||||||||||
Home care and other |
8,423 | 6,631 | 1,792 | 27.0 | % | |||||||||||
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Total home health and hospice revenue |
$ | 96,325 | $ | 81,007 | $ | 15,318 | 18.9 | % | ||||||||
|
|
|
|
|
|
|||||||||||
Home health services |
||||||||||||||||
Average revenue per completed episode |
$ | 3,024 | $ | 2,951 | $ | 73 | 2.5 | % | ||||||||
Hospice services |
||||||||||||||||
Average daily census |
1,544 | 1,275 | 269 | 21.1 | % | |||||||||||
Number of agencies at period end |
62 | 46 | 16 | 34.8 | % |
Home health and hospice revenue increased $15.3 million, or 18.9%. Medicare and managed care revenue increased $11.4 million, or 16.9%. The increase in revenue is primarily due to the increase in average revenue per completed episode by 2.5%, increase in average daily census by 21.1%, and an increase of $3.6 million from the addition of 16 home health, hospice and home care operations between July 1, 2018 and June 30, 2019.
Senior Living Services
Six Months Ended June 30, | Change | % Change | ||||||||||||||
2019 | 2018 | |||||||||||||||
(Dollars in thousands) | ||||||||||||||||
Revenue |
$ | 64,316 | $ | 56,761 | $ | 7,555 | 13.3 | % | ||||||||
Number of communities at period end |
51 | 45 | 6 | 13.3 | % | |||||||||||
Occupancy percentage (units) |
80.1 | % | 78.7 | % | 1.4 | % | ||||||||||
Average monthly revenue per occupied unit |
$3,109 | $3,054 | $55 | 1.8 | % |
Senior living revenue increased $7.6 million, or 13.3% for the six months ended June 30, 2019 when compared to the same period in the prior year. We experienced an increase in occupancy of 1.4%, coupled with an increase of $5.5 million in revenue from the addition of six senior living operations acquired between July 1, 2018 and June 30, 2019.
Cost of Services
The following table sets forth total cost of services by each of our reportable segments for the periods indicated:
Cost of Services | ||||||||
Six Months Ended June 30, | ||||||||
2019 | 2018 | |||||||
(In thousands) | ||||||||
Home Health and Hospice |
$ | 81,442 | $ | 68,305 | ||||
Senior Living |
40,325 | 33,636 | ||||||
|
|
|
|
|||||
Total cost of services |
$ | 121,767 | $ | 101,941 | ||||
|
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|
|
Combined cost of services increased $19.8 million or 19.4%. Combined cost of services as a percentage of revenue increased by 1.8% to 75.8% compared to the six months ended June 30, 2018.
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Home Health and Hospice Services
Six Months Ended June 30, | Change | % Change | ||||||||||||||
2019 | 2018 | |||||||||||||||
(Dollars in thousands) | ||||||||||||||||
Cost of service |
$ | 81,442 | $ | 68,305 | $ | 13,137 | 19.2 | % | ||||||||
Cost of services as a percentage of revenue |
84.5 | % | 84.3 | % | 0.2 | % |
Cost of services related to our home health and hospice services segment increased $13.1 million, or 19.2%, primarily due to newly acquired operations and organic operational growth. Included in cost of services is one-time broker fee of $0.4 million related to new agencies acquired in the current period. Without this fee, cost of services would have been 84.1%, a decreased of 0.2%.
Senior Living Services
Six Months Ended June 30, | Change | % Change | ||||||||||||||
2019 | 2018 | |||||||||||||||
(Dollars in thousands) | ||||||||||||||||
Cost of service |
$ | 40,325 | $ | 33,636 | $ | 6,689 | 19.9 | % | ||||||||
Cost of services as a percentage of revenue |
62.7 | % | 59.3 | % | 3.4 | % |
Cost of services related to our senior living services segment increased $6.7 million, or 19.9%, primarily due to recently acquired operations and organic operational growth. Cost of services as a percentage of total revenue increased by 3.4% as a result of the increase in certain costs associated with newly acquired communities and additional field-based resources to support our growing infrastructure. Our acquisition focus is to strategically acquire underperforming operations with strong opportunities for return. Historically, we generally experienced higher cost of services at newly acquired operations; and therefore, we anticipate lower margins at these operations during years of growth.
RentCost of Services. While actual rent increased from $15.3 million in the six months ended June 30, 2018 to $16.8 million in the six months ended June 30, 2019, rent as a percentage of total revenue decreased by 0.6% to 10.5% in the six months ended June 30, 2019 compared to the six months ended June 30, 2018, as the growth in revenue outpaced the increase in rent expense.
General and Administrative Expense. Our general and administrative expense increased from 6.5% to 9.4%, or from $9.0 million to $15.1 million, primarily due to an increase in transaction related costs of $4.6 million. Without the transaction costs related to the spin-off, general and administrative expense as a percentage of revenue would have remained flat. The majority of general and administrative expenses relate to cost allocations for certain shared services provided to us by Ensign subsidiaries. Such allocations include, but are not limited to, executive management, accounting, human resources, information technology, compliance, legal, payroll, insurance, tax, treasury, and other general and administrative items. These costs were allocated to us on a basis of revenue, location, employee count, or other measures.
Depreciation and Amortization. Depreciation and amortization expense remained flat as a percentage of total revenue.
Provision for Income Taxes. Income tax benefit recorded for the six months ended June 30, 2019 reflects a significant tax benefit from share-based payment awards that vested, was partially offset by non-deductible items. Without the benefits from share-based payment awards, the effective tax rates would have been 25.2% for both six month periods. See Note 11, Income Taxes, to the Interim Financial Statements included elsewhere in this information statement for further discussion.
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Year Ended December 31, 2018 Compared to the Year Ended December 31, 2017
Revenue
Year Ended December 31, | ||||||||||||||||||||||||
2018 |
2018 adjusted to reflect
prior revenue guidance |
2017 | ||||||||||||||||||||||
Revenue
Dollars |
Revenue
Percentage |
Revenue
Dollars |
Revenue
Percentage |
Revenue
Dollars |
Revenue
Percentage |
|||||||||||||||||||
(Dollars in thousands) | ||||||||||||||||||||||||
Home health and hospice services: |
||||||||||||||||||||||||
Home health |
$71,669 | 25.1 | % | $73,018 | 25.4 | % | $62,772 | 25.0 | % | |||||||||||||||
Hospice |
82,658 | 28.9 | 83,143 | 28.9 | 69,358 | 27.6 | ||||||||||||||||||
Home care and other |
14,710 | 5.1 | 14,710 | 5.1 | 10,273 | 4.1 | ||||||||||||||||||
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|
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Total home health and hospice services |
169,037 | 59.1 | 170,871 | 59.4 | 142,403 | 56.7 | ||||||||||||||||||
Senior living services |
117,021 | 40.9 | 117,021 | 40.6 | 108,588 | 43.3 | ||||||||||||||||||
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|
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|
|
|
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|
|
|
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Total revenue |
$ | 286,058 | 100.0 | % | $ | 287,892 | 100.0 | % | $ | 250,991 | 100.0 | % | ||||||||||||
|
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Our combined revenue increased $35.1 million, or 14.0%, in fiscal year 2018. Revenue without the adoption of ASC 606 increased $36.9 million, or 14.7%. The following analysis incorporates the adoption of ASC 606.
Revenue from operations acquired on or subsequent to January 1, 2017 increased our combined revenue by $23.3 million in 2018 when comparing to 2017.
Home Health and Hospice Services
Year Ended December 31, | Change | % Change | ||||||||||||||
2018 | 2017 | |||||||||||||||
(Dollars in thousands) | ||||||||||||||||
Home health and hospice revenue |
||||||||||||||||
Home health services |
$ | 71,669 | $ | 62,772 | $ | 8,897 | 14.2 | % | ||||||||
Hospice services |
82,658 | 69,358 | 13,300 | 19.2 | % | |||||||||||
Home care and other |
14,710 | 10,273 | 4,437 | 43.2 | % | |||||||||||
|
|
|
|
|
|
|||||||||||
Total home health and hospice revenue |
$ | 169,037 | $ | 142,403 | $ | 26,634 | 18.7 | % | ||||||||
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|
|
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|
|||||||||||
Adjusted to reflect prior revenue guidance |
||||||||||||||||
Home health and hospice revenue |
||||||||||||||||
Home health services |
$ | 73,018 | $ | 62,772 | $ | 10,246 | 16.3 | % | ||||||||
Hospice services |
83,143 | 69,358 | 13,785 | 19.9 | % | |||||||||||
Home care and other |
14,710 | 10,273 | 4,437 | 43.2 | % | |||||||||||
|
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|
|
|
|
|||||||||||
Total home health and hospice revenue |
$ | 170,871 | $ | 142,403 | $ | 28,468 | 20.0 | % | ||||||||
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|
|
|||||||||||
Home health services |
||||||||||||||||
Average Revenue per Completed Episode |
$ | 2,982 | $ | 3,028 | $ | (46 | ) | (1.5 | )% | |||||||
Hospice services |
||||||||||||||||
Average Daily Census |
1,329 | 1,102 | 227 | 20.6 | % | |||||||||||
Number of agencies at period end |
54 | 46 | 8 | 17.4 | % |
Home health and hospice revenue increased $26.6 million, or 18.7%, or $28.5 million, or 20.0%, without the adoption of ASC 606. The increase in revenue is primarily due to the increase in volume and average daily census in existing agencies, coupled with an increase of $15.7 million in 2018 revenue when comparing to 2017 from the addition of fifteen home health, hospice and home care operations between January 1, 2017 and
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December 31, 2018. Of the $26.6 million increase, Medicare and managed care revenue increased $20.6 million, or 17.2%. The decline of 1.5% in our home health average revenue per completed episode is a result of our reimbursement rates related to our growth in states with lower average episodic reimbursement rates.
Senior Living Services
Year Ended December 31, | Change | % Change | ||||||||||||||
2018 | 2017 | |||||||||||||||
(Dollars in thousands) | ||||||||||||||||
Revenue |
$ | 117,021 | $ | 108,588 | $ | 8,433 | 7.8 | % | ||||||||
Number of communities at period end |
50 | 43 | 7 | 16.3 | % | |||||||||||
Occupancy percentage (units) |
79.5 | % | 79.9 | % | (0.4 | )% | ||||||||||
Average monthly revenue per occupied unit |
$ | 3,044 | $ | 2,979 | $ | 65 | 2.2 | % |
Senior living revenue increased $8.4 million, or 7.8%, on a comparable basis primarily due to an increase in average monthly revenue per occupied unit of 2.2%, coupled with an increase of $7.6 million in revenue from the addition of 14 senior living operations between January 1, 2017 and December 31, 2018, partially offset by a decrease in occupancy of 0.4%. The decline in occupancy percentage is related to lower occupancy in some of the newly acquired communities.
Cost of Services
The following table sets forth total cost of services by each of our reportable segments for the periods indicated:
Cost of Services | ||||||||||||
2018 |
2018 adjusted to
reflect prior revenue guidance |
2017 | ||||||||||
(In thousands) | ||||||||||||
Home Health and Hospice |
$ | 142,336 | $ | 144,170 | $ | 122,650 | ||||||
Senior Living |
70,085 | 70,085 | 64,628 | |||||||||
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|
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|
|||||||
Total cost of services |
$ | 212,421 | $ | 214,255 | $ | 187,278 | ||||||
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|
|
|
|
|
Combined cost of services increased $25.1 million, or 13.4%. Combined cost of services as a percentage of revenue decreased by 0.3% to 74.3% compared to fiscal 2017.
Home Health and Hospice Services
Year Ended December 31, | Change | % Change | ||||||||||||||
2018 | 2017 | |||||||||||||||
(Dollars in thousands) | ||||||||||||||||
Cost of services |
$ | 142,336 | $ | 122,650 | $ | 19,686 | 16.1 | % | ||||||||
Cost of services (adjusted to reflect prior revenue guidance) |
144,170 | 122,650 | 21,520 | 17.5 | % | |||||||||||
Cost of services as a percentage of revenue |
84.2 | % | 86.1 | % | (1.9 | )% | ||||||||||
Cost of services as a percentage of revenue (adjusted to reflect prior revenue guidance) |
84.4 | % | 86.1 | % | (1.7 | )% |
Cost of services related to our home health and hospice services segment increased $19.7 million, or 16.1%, due to newly acquired operations and organic operational growth. Cost of services from operations acquired on or subsequent to January 1, 2017 increased cost of services by $13.2 million in 2018 when comparing to 2017. Without the adoption of ASC 606, cost of services as a percentage of total revenue decreased by 1.7% primarily due to stronger collections and operational improvements.
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Senior Living Services
Year Ended December 31, | Change | % Change | ||||||||||||||
2018 | 2017 | |||||||||||||||
(Dollars in thousands) | ||||||||||||||||
Cost of services |
$ | 70,085 | $ | 64,628 | $ | 5,457 | 8.4 | % | ||||||||
Cost of services as a percentage of revenue |
59.9 | % | 59.5 | % | 0.4 | % |
Cost of services related to our senior living services segment increased $5.5 million, or 8.4%, primarily due to recently acquired operations and organic operational growth. Cost of services from operations acquired on or subsequent to January 1, 2017 increased cost of services by $4.8 million in 2018 when comparing to 2017. Cost of services as a percentage of total revenue increased by 0.4% as a result of the increase in certain costs associated with newly acquired communities.
RentCost of Services. Our rentcost of services as a percentage of total revenue decreased by 1.6% to 10.9% in fiscal 2018 primarily due to a lower lease rate on most of our Wisconsin communities, partially offset by an increase in rent for newly acquired operations.
General and Administrative Expense. Our general and administrative expense as a percentage of total revenue increased by 0.8% to 6.6% in fiscal 2018 primarily due to an increase in incentive expense driven by enhanced performance and spin-off transaction related costs. The majority of general and administrative expenses relate to cost allocations for certain shared services provided to us by Ensign subsidiaries. Such allocations include, but are not limited to, executive management, accounting, human resources, information technology, compliance, legal, payroll, insurance, tax, treasury, and other general and administrative items. These costs were allocated to us on a basis of revenue, location, employee count, or other measures.
Depreciation and Amortization. Depreciation and amortization expense remained flat at 1.0% of total revenue.
Provision for Income Taxes. Our effective tax rate was 21.1% for the year ended December 31, 2018 compared to 34.9% in fiscal 2017. The lower effective tax rate reflects the lower corporate tax rate of the Tax Act and an additional tax benefit from share-based payment awards. The lower effective tax rate was partially offset by non-deductible items. See Note 11, Income Taxes, to the Audited Combined Financial Statements included elsewhere in this information statement for further discussion.
Year Ended December 31, 2017 Compared to the Year Ended December 31, 2016
Revenue
Year Ended December 31, | ||||||||||||||||
2017 | 2016 | |||||||||||||||
Revenue
Dollars |
Revenue
Percentage |
Revenue
Dollars |
Revenue
Percentage |
|||||||||||||
(In thousands) | ||||||||||||||||
Home health and hospice services: |
||||||||||||||||
Home health |
$62,772 | 25.0 | % | $54,378 | 25.0 | % | ||||||||||
Hospice |
69,358 | 27.6 | 55,487 | 25.6 | ||||||||||||
Home care and other |
10,273 | 4.1 | 5,948 | 2.7 | ||||||||||||
|
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|
|||||||||
Total home health and hospice services |
142,403 | 56.7 | 115,813 | 53.3 | ||||||||||||
Senior living services |
108,588 | 43.3 | 101,412 | 46.7 | ||||||||||||
|
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|
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|
|
|
|
|||||||||
Total revenue |
$ | 250,991 | 100.0 | % | $ | 217,225 | 100.0 | % | ||||||||
|
|
|
|
|
|
|
|
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Our combined revenue increased $33.8 million, or 15.5%, in fiscal year 2017. Revenue from operations acquired on or subsequent to January 1, 2016 increased our combined revenue by $17.7 million in 2017 when comparing to 2016.
Home Health and Hospice Services
Year Ended December 31, | Change | % Change | ||||||||||||||
2017 | 2016 | |||||||||||||||
(Dollars in thousands) | ||||||||||||||||
Home health and hospice revenue |
||||||||||||||||
Home health services |
$ | 62,772 | $ | 54,378 | $ | 8,394 | 15.4 | % | ||||||||
Hospice services |
69,358 | 55,487 | 13,871 | 25.0 | ||||||||||||
Home care and other |
10,273 | 5,948 | 4,325 | 72.7 | ||||||||||||
|
|
|
|
|
|
|||||||||||
Total home health and hospice revenue |
$ | 142,403 | $ | 115,813 | $ | 26,590 | 23.0 | % | ||||||||
|
|
|
|
|
|
|||||||||||
Home health services |
||||||||||||||||
Average Revenue per Completed Episode |
$ | 3,028 | $ | 2,986 | $ | 42 | 1.4 | % | ||||||||
Hospice services |
||||||||||||||||
Average Daily Census |
1,102 | 905 | 197 | 21.8 | % | |||||||||||
Number of agencies at period end |
46 | 39 | 7 | 17.9 | % |
Home health and hospice revenue increased $26.6 million, or 23.0%. Of the $26.6 million increase, Medicare and managed care revenue increased $21.7 million, or 22.1%. The increase in revenue is primarily due to the increase in census in existing agencies, coupled with an increase of $13.2 million in 2017 revenue when comparing to 2016 from the addition of fourteen home health, hospice and home care operations in nine states between January 1, 2016 and December 31, 2017.
Senior Living Services
Year Ended December 31, | Change | % Change | ||||||||||||||
2017 | 2016 | |||||||||||||||
(Dollars in thousands) | ||||||||||||||||
Revenue |
$ | 108,588 | $ | 101,412 | $ | 7,176 | 7.1 | % | ||||||||
Number of communities at period end |
43 | 36 | 7 | 19.4 | % | |||||||||||
Occupancy percentage (units) |
79.9 | % | 79.2 | % | 0.7 | % | ||||||||||
Average monthly revenue per occupied unit |
$ | 2,979 | $ | 2,916 | $ | 63 | 2.2 | % |
Senior living revenue of $108.6 million increased $7.2 million, or 7.1%, on a comparable basis primarily due to an increase in occupancy of 0.7% and average monthly revenue per occupied unit of 2.2%, coupled with an increase of $4.5 million in revenue from the addition of seven senior living operations in three states between January 1, 2016 and December 31, 2017.
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Cost of Services
The following table sets forth total cost of services by each of our reportable segments for the periods indicated:
Cost of Services | ||||||||
2017 | 2016 | |||||||
(In thousands) | ||||||||
Home Health and Hospice |
$ | 122,650 | $ | 99,649 | ||||
Senior Living |
64,628 | 60,338 | ||||||
|
|
|
|
|||||
Total cost of services |
$ | 187,278 | $ | 159,987 | ||||
|
|
|
|
Combined cost of services increased $27.3 million, or 17.1%, compared to fiscal year 2016.
Home Health and Hospice Services
Year Ended December 31, | Change | % Change | ||||||||||||||
2017 | 2016 | |||||||||||||||
(Dollars in thousands) | ||||||||||||||||
Cost of services |
$ | 122,650 | $ | 99,649 | $ | 23,001 | 23.1 | % | ||||||||
Cost of services as a percentage of revenue |
86.1 | % | 86.0 | % | 0.1 | % |
Cost of services related to our home health and hospice services segment increased $23.0 million, or 23.1%, due to newly acquired operations and organic operational growth. Cost of services from operations acquired on or subsequent to January 1, 2016 increased cost of services by $11.2 million in 2017 when comparing to 2016. Cost of services as a percentage of total revenue remained flat with revenue growth.
Senior Living Services
Year Ended December 31, | Change | % Change | ||||||||||||||
2017 | 2016 | |||||||||||||||
(Dollars in thousands) | ||||||||||||||||
Cost of services |
$ | 64,628 | $ | 60,338 | $ | 4,290 | 7.1 | % | ||||||||
Cost of services as a percentage of revenue |
59.5 | % | 59.5 | % | | % |
Cost of services related to our senior living services segment increased $4.3 million, or 7.1%, primarily due to recently acquired operations and organic operational growth. Cost of services from operations acquired on or subsequent to January 1, 2016 increased cost of services by $3.0 million in 2017 when comparing to 2016. Cost of services as a percentage of total revenue remained flat with revenue growth.
RentCost of Services. While actual rent increased from $29.0 million in 2016 to $31.3 million in 2017, rent as a percentage of total revenue decreased by 0.8% to 12.5% in fiscal 2017, as the increase in revenue surpassed the increase in rent expense.
General and Administrative Expense. Our general and administrative expense as a percentage of total revenue increased slightly to 5.8%. The majority of general and administrative expenses relate to cost allocations for certain shared services provided to us by Ensign subsidiaries. Such allocations include, but are not limited to, executive management, accounting, human resources, information technology, compliance, legal, payroll, insurance, tax, treasury, and other general and administrative items. These costs were allocated to us on a basis of revenue, location, employee count, or other measures.
Depreciation and Amortization. Depreciation and amortization expense decreased $0.3 million, or 10.9%, to $2.5 million. This decrease was primarily related to amortization expense on an intangible asset of $0.6 million
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in 2016 that did not recur in 2017, partially offset by the additional depreciation incurred as a result of our newly acquired operations. Depreciation and amortization expense as a percentage of total revenue decreased by 0.3% to 1.0%.
Provision for Income Taxes. Our effective tax rate was 34.9% for the year ended December 31, 2017 compared to 39.0% for the same period in 2016. The lower effective tax rate for fiscal year 2017 reflects the favorable impact of the Tax Act from our revaluation of our net deferred tax liabilities of $0.3 million, decreases in certain non-deductible items, and decreases from a tax benefit from share-based payment awards recorded in income tax expense resulting from our adoption of ASU 2016-09, Improvements to Employee Share-Based Payment Accounting: Topic 710, effective January 1, 2017. See Note 2, Basis of Presentation and Summary of Significant Accounting Policies, and Note 11, Income Taxes, to the Audited Combined Financial Statements included elsewhere in this information statement for further discussion.
Liquidity and Capital Resources
The cash presented in the combined balance sheets represents cash located at our operations. No cash was allocated to us in the Audited Combined Financial Statements and Interim Financial Statements because the net activity of cash due to (from) the Parent is reflected in the net parent investment. Following the spin-off, we will no longer participate in a cash management arrangement with Ensign. Our principal sources of liquidity following the spin-off will be our cash on hand, our ability to generate cash through operations, as well as any available funding arrangements and financing facilities we enter into.
We expect to put in place a capital structure that provides us with the flexibility to grow and a cost of debt capital that allows us to compete for investment opportunities. Subject to market conditions, we expect to enter into the Revolving Credit Facility with a syndicate of banks with a borrowing capacity of $75.0 million. We anticipate the interest rates applicable to loans under the Revolving Credit Facility to be, at the Companys election, either LIBOR plus a margin ranging from 2.5% to 3.5% per annum or Base Rate plus a margin ranging from 1.5% to 2.5% per annum, in each case based on the ratio of Consolidated Total Net Debt to Consolidated EBITDA (as defined in the Credit Agreement). In addition, we expect that we will pay a commitment fee on the undrawn portion of the commitments under the Revolving Credit Facility that is estimated to be 0.6% per annum.
We anticipate that the Revolving Credit Facility will not be subject to interim amortization. We expect that the Company will not be required to repay any loans under the Revolving Credit Facility prior to maturity. We expect that the Company will be permitted to prepay all or any portion of the loans under the Revolving Credit Facility prior to maturity without premium or penalty, subject to reimbursement of any LIBOR breakage costs of the lenders. This information is based on our current negotiations with the lead banks in an anticipated syndicate.
As a result of the financing transaction, we expect to have outstanding indebtedness of approximately $30.0 million. The amount reflects proceeds from issuance of indebtedness under the Revolving Credit Facility, including approximately $1.2 million in estimated financing cost. The foregoing summarizes some of the currently expected terms of the Revolving Credit Facility. However, the foregoing summary does not purport to be complete, and the terms of the Revolving Credit Facility have not yet been finalized. There may be changes to the expected size and other terms of the Revolving Credit Facility, some of which may be material.
We may, in the future, seek to raise additional capital to fund growth, capital renovations, operations and other business activities, but such additional capital may not be available on acceptable terms, on a timely basis, or at all.
We believe that our existing cash, cash equivalents, cash generated through operations and our expected access to financing facilities, together with funding through third-party sources such as commercial banks, will be sufficient to fund our operating activities, anticipated capital expenditures and growth needs.
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The following table presents selected data from our combined statement of cash flows for the periods presented:
Six Months Ended June 30, | Year Ended December 31, | |||||||||||||||||||
2019 | 2018 | 2018 | 2017 | 2016 | ||||||||||||||||
(In thousands) | ||||||||||||||||||||
Net cash provided by operating activities |
$ | 4,003 | $9,251 | $23,275 | $17,250 | $16,407 | ||||||||||||||
Net cash used in investing activities |
(18,567 | ) | (2,559 | ) | (9,477 | ) | (16,083 | ) | (5,189 | ) | ||||||||||
Net cash provided by/(used in) financing activities |
14,566 | (6,689 | ) | (13,793 | ) | (1,161 | ) | (11,215 | ) | |||||||||||
|
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|
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Net increase in cash |
2 | 3 | 5 | 6 | 3 | |||||||||||||||
Cash at beginning of year |
41 | 36 | 36 | 30 | 27 | |||||||||||||||
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Cash at end of year |
$ | 43 | $ | 39 | $ | 41 | $ | 36 | $ | 30 | ||||||||||
|
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|
|
|
|
|
|
|
|
Six Months Ended June 30, 2019 Compared to Six Months Ended June 30, 2018
Our net cash provided by operating activities for the six months ended June 30, 2019 decreased by $5.2 million. The decrease was primarily due to a decrease in net income as a result of spin-off related transaction costs and the timing of collections of accounts receivable.
Our net cash used in investing activities for the six months ended June 30, 2019 increased by $16.0 million. Our spending on business and asset acquisitions increased by $14.7 million, coupled with an increase in capital expenditure spending by $1.6 million.
Our net cash provided by/(used in) financing activities in all periods presented reflect net transactions with Parent resulting from operating and investing activities discussed above.
Year Ended December 31, 2018 Compared to Year Ended December 31, 2017
Our net cash provided by operating activities for the year ended December 31, 2018 increased by $6.0 million. The increase was primarily due to the increase in net income as a result of operational improvements, acquisition activity, combined with the timing of payments and changes in operating assets and liabilities.
Our net cash used in investing activities for the year ended December 31, 2018 decreased by $6.6 million. Our spending on business and asset acquisitions decreased by $6.7 million; this was partially offset by an increase in capital expenditure spending by $0.5 million.
Our net cash provided by/(used in) financing activities in all periods presented reflect net transactions with Parent resulting from operating and investing activities discussed above.
Year Ended December 31, 2017 Compared to Year Ended December 31, 2016
Our net cash provided by operating activities for the year ended December 31, 2017 increased by $0.8 million. The increase was primarily due to the increase in net income as a result of operational improvements, combined with the timing of payments and changes in operating assets and liabilities.
Our net cash used in investing activities for the year ended December 31, 2017 increased by $10.9 million. Our spending in capital expenditures remained relatively flat; however, our business acquisitions increased by $8.7 million.
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Our net cash used in financing activities in all periods presented reflect net transactions with Parent resulting from operating and investing activities discussed above.
Contractual Obligations, Commitments and Contingencies
The following table sets forth our lease obligations as of December 31, 2018, including the future periods in which payments are expected:
2019 | 2020 | 2021 | 2022 | 2023 | Thereafter | Total | ||||||||||||||||||||||
(In thousands) | ||||||||||||||||||||||||||||
Operating lease obligations |
$ | 33,055 | $ | 32,181 | $ | 31,625 | $ | 31,241 | $ | 30,896 | $ | 243,333 | $ | 402,331 |
Inflation
We have historically derived a portion of our revenue from the Medicare program. We also derive revenue from state Medicaid and similar reimbursement programs. Payments under these programs generally provide for reimbursement levels that are adjusted for inflation annually based upon the states fiscal year for the Medicaid programs and in October for the Medicare program. These adjustments may not continue in the future, and even if received, such adjustments may not reflect the actual increase in our costs for providing healthcare services.
Labor and supply expenses make up a substantial portion of our cost of services. Those expenses can be subject to increase in periods of rising inflation and when labor shortages occur in the marketplace. To date, we have generally been able to implement cost control measures or obtain increases in reimbursement sufficient to offset increases in these expenses. We may not be successful in offsetting future cost increases.
Seasonality
Our operations are impacted by seasonal factors and trends driven by changes in census and patient acuity during the flu season and the timing of changes in levels of reimbursement from governmental agencies and other third party payors.
Off-Balance Sheet Arrangements
We do not have any material off-balance sheet arrangements.
Quantitative and Qualitative Disclosures About Market Risk
In connection with the transaction, we expect to enter into a debt agreement which will expose us to market risk. We manage our exposure to these risks by monitoring available financing alternatives, through pricing policies and potentially entering into derivative arrangements. We will evaluate our exposure to fluctuations in interest rates and how to manage such exposure in the future following the spin-off from Ensign.
The above only incorporates those exposures that exist as of June 30, 2019, and does not consider those exposures or positions which could arise after that date. We may face increased risk and exposures as a result of interest risk and the securities markets in general.
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Directors and Executive Officers
Directors
The following table sets forth biographical information and ages, as of September 3, 2019, regarding individuals who are expected to serve as our directors following the spin-off.
Name |
Age |
Position |
||
Daniel H Walker |
42 |
Chairman, Chief Executive Officer and President |
||
Christopher R. Christensen |
51 |
Director |
||
John G. Nackel, Ph.D |
67 |
Director |
||
Stephen M. R. Covey |
57 |
Director |
||
JoAnne Stringfield |
60 |
Director |
||
Scott E. Lamb |
57 |
Director |
||
Roderic W. Lewis |
64 |
Director |
Daniel H Walker was appointed Chairman, Chief Executive Officer and President of The Pennant Group, Inc. upon its formation. Prior to joining Pennant, Mr. Walker served as the President and Chief Executive Officer at Cornerstone Healthcare, Inc. (Cornerstone) since May 2010. As the leader of Cornerstone and the first participant in Ensigns new business venture program, Mr. Walker led the acquisition and operational efforts of all home health and hospice operations at Ensign, which under his leadership grew from one operation in Boise, Idaho in 2010 to 54 operations across 12 states in 2018. In addition to his role as President of Cornerstone, since 2013, Mr. Walker played key leadership and advisory roles within Ensign, including within its new business ventures group. In this role, Mr. Walker supported the development and maturation of other new business ventures including senior living, mobile diagnostic, clinical laboratory and urgent care. In addition, between 2007 and 2010, Mr. Walker also played a critical role in Ensigns IPO as well as its skilled nursing and senior housing acquisitions, real estate strategy and financing, corporate governance and related initiatives. Prior to joining Ensign, Mr. Walker was with the law firm of Lewis and Roca, LLP in Phoenix, Arizona, where he advised public and private companies on securities issues, mergers and acquisitions, and real estate and corporate transactions. Mr. Walker is a graduate of the J. Rueben Clark Law School at Brigham Young University. Mr. Walker was selected to serve on our board of directors because of his extensive knowledge of our operations and industry and his leadership skills. Mr. Walkers service as Chairman, Chief Executive Officer and President creates a critical link between management and the board. Mr. Walker is the brother-in-law of Mr. Gochnour, who serves as our Chief Operating Officer.
Christopher R. Christensen currently serves as Ensigns Executive Chairman. Mr. Christensen served as Ensigns President from 1999 and its Chief Executive Officer from April 2006, both until May 2019. Mr. Christensen has served as a member of Ensigns Board of Directors since forming Ensign in 1999. Prior to forming Ensign, Mr. Christensen served as acting Chief Operating Officer of Covenant Care, Inc., a California-based provider of long-term care. Mr. Christensen has overseen Ensign and its growth since its inception in 1999. Mr. Christensen served on the Board of Directors of CareTrust REIT from June 2014 to April 2015. We believe that Mr. Christensens important role in the history and management of Ensign and our company and his leadership and business skills support the conclusion that he should serve as one of our directors.
John G. Nackel, Ph.D. has served as a member of Ensigns Board of Directors since his election to its Board in June 2008. He is currently the Chairman and Chief Executive Officer of Three-Sixty Advisory Group, LLC (Three-Sixty) and Founder and General Partner of Wavemaker Three-Sixty Health, LP (Wavemaker 360) venture fund. Founded in 2007 by Dr. Nackel, Three-Sixty consults with leading health systems, payers, physicians, medical technology companies, and other providers. Founded in 2018, Wavemaker 360 invests in early-stage health care companies in the value-based payment space. Dr. Nackel is a 25-year veteran of Ernst &
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Young where he advised health care companies in his role as a Global Managing Director of Health Care. Dr. Nackel also served as CEO of Ingenix Consulting (now Optum), a division of United Healthcare. Dr. Nackel served as a director of Mercury General Corporation (NYSE:MCY) from 2016 until 2018. During his career, Dr. Nackel has also served as a board member or chairman of several privately held start-ups and emerging companies, including Visual Health Solutions, Vitalacy, HealthTask, ConnectedHealth, NetStrike, and Sertan, Inc. He earned his bachelors degree at Tufts University, masters degrees in public health and industrial engineering at the University of Missouri, and a Ph.D. in industrial engineering (health systems design) at the University of Missouri. He is a fellow of the American College of Healthcare Executives and the Healthcare Information and Management Systems Society. He is a senior member of the Institute of Industrial Engineers. We believe that Dr. Nackels extensive experience as a consultant and an advisor to healthcare companies, his extensive board and management experience and his valuable leadership and management insights support the conclusion that he should serve as one of our directors.
Stephen M. R. Covey has been Chief Executive Officer of CoveyLink since 2004, and is co-founder of FranklinCoveys Speed of Trust Practice, where he has taught trust and leadership in 52 countries to business, government, and nonprofit organizations. Mr. Covey is the former President and Chief Executive Officer of the Covey Leadership Center, where he grew the company to become one of the largest leadership development firms in the world. He is the former Executive Vice President of the Franklin Covey Co., where he also served as President of the Education & Training business unit. Mr. Covey is The New York Times and #1 Wall Street Journal bestselling author of The Speed of Trust and is co-author of the #1 Amazon bestseller Smart Trust. Mr. Covey received his MBA from Harvard Business School. Mr. Covey serves on the Government Leadership Advisory Council, and he has been recognized with the lifetime Achievement Award for Top Thought Leaders in Trust from the advocacy group, Trust Across America/Trust Around the World. We believe that Mr. Coveys extensive expertise in leadership development and proven track record of educating and helping business leaders achieve their organizational goals supports the conclusion he should serve as one of our directors.
JoAnne Stringfield previously served as Chair of the Board of Directors for Blue Cross of Idaho, a not-for-profit mutual heath insurance company and Idahos largest private heath insurer with over 500,000 members. Ms. Stringfield served on the Blue Cross of Idaho board from 2002 to 2019. From 2008 until 2016, Ms. Stringfield was an operations executive with Marlin Equity Partners, a global investment firm. From 2001 until 2007, Ms. Stringfield was Vice President of Human Resources of Micron Technology, Inc. a global leader in memory and storage solutions. From 1996 until 2001, Ms. Stringfield served as Vice President of Administration and Corporate Secretary of Micron Electronics, Inc. (MicronPC), a publicly traded subsidiary of Micron Technology. Ms. Stringfield joined Micron in 1984 and held various finance and administrative positions. Ms. Stringfield worked for Boise Cascade as an internal auditor prior to joining Micron. Ms. Stringfield received a Bachelor of Science degree in Accounting from the University of Idaho.
Ms. Stringfield serves on the Board of the University of Idaho Foundation and has served on the University of Idaho College of Business and Economics Advisory Board, the Board of Directors of the North Nampa Urban Renewal Agency and the Idaho Association of Commerce and Industry. We believe that Ms. Stringfields broad experience in human resources, risk management, insurance, accounting and finance, as well as her experience in healthcare and serving on various boards, support the conclusion that she should serve as one of our directors.
Scott E. Lamb has served as the Treasurer and Chief Financial Officer of ICU Medical, Inc.-a company that develops, manufactures, and sells medical technologies used in vascular therapy, oncology, and critical care applications-since February 2008. From 2003 to February 2008, Mr. Lamb served as ICU Medicals Controller. From 2000 to 2003, Mr. Lamb served as Senior Director of Finance for Vitalcom, Inc. Prior to that, Mr. Lamb held various finance and accounting roles at other start-up and manufacturing companies. Mr. Lambs experience as a Chief Financial Officer of a public company for over a decade supports the conclusion that he should serve as one of our directors.
Roderic W. Lewis served as Vice President of Legal Affairs, General Counsel and Corporate Secretary of Micron Technology, Inc., a semiconductor memory manufacturer, from July 1996 to December 2013. Prior to
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joining Micron, Mr. Lewis was an attorney with the New York law firm of LeBoeuf, Lamb, Leiby and MacRae. Mr. Lewis has previously served as the Chairman of the Business Law Section of the Utah State Bar from 1988 until 1989 and the Vice-Chair of the Utah Bar Corporation Act Revision Committee from 1990 until 1991. Mr. Lewis has also served as a member of the Idaho State Board of Education in various leadership capacities, including as its chairman from 2004 until 2006, governing Idahos colleges, universities and K-12 education. Mr. Lewis holds B.A. degrees in Economics and Asian Studies from Brigham Young University and a J.D. degree from Columbia University School of Law. Mr. Lewis will bring extensive experience in the legal sector, broad insight into corporate governance and risk management, and valuable expertise with respect to investor relations and board matters.
Executive Officers
Unless otherwise indicated, the following table shows the names and ages as of September 3, 2019 for executive officers who are not expected to serve as directors and the positions they will hold following the completion of the spin-off. A description of the business experience of each for at least the past five years follows the table.
Name |
Age |
Position |
||
Jennifer L. Freeman |
51 |
Chief Financial Officer |
||
John J. Gochnour |
36 |
Chief Operating Officer |
||
Derek J. Bunker |
31 |
Chief Investment Officer, Executive Vice President & Secretary |
Jennifer L. Freeman joins The Pennant Group, Inc., as our Chief Financial Officer with more than 15 years in the healthcare industry and more than 25 years of experience leading financial teams and departments. From 2017 until she joined Pennant, Ms. Freeman was Chief Financial Officer of Northpoint Recovery Holdings, LLC, a regional provider of drug and alcohol addiction treatment services, overseeing all accounting, finance, payor contracting, compliance and revenue cycle management functions. From 2014 to 2017, Ms. Freeman was the Vice President of Finance of MCG Health, LLC, part of the Hearst Health Network, a developer of evidence-based healthcare guidelines and related tools. Prior to 2014, Ms. Freeman held various leadership roles within the healthcare industry, including the Chief Financial Officer of Molina Healthcare of Washington, a large regional payor in the Pacific Northwest, the Vice President of Finance of Coordinated Care Corporation, a subsidiary of Centene Corporation, and the Chief Financial Officer of Qualis Health, a healthcare consulting organization that assists providers and payors in improved care delivery and patient outcomes. A Certified Public Accountant, Ms. Freeman began her career with PricewaterhouseCoopers in 1990 and has extensive public accounting experience. Ms. Freeman received her B.A. degree from the University of Texas and her Master of Business Administration from the University of Washington.
John J. Gochnour was appointed Chief Operating Officer of The Pennant Group, Inc. upon its formation. Prior to joining Pennant, Mr. Gochnour served as Executive Vice President and General Counsel of Cornerstone since January 2013. Mr. Gochnour has played a critical role in the acquisition and integration efforts for Cornerstone and Ensigns other new business ventures, sourcing, negotiating and helping to integrate acquisitions across 12 states and multiple industries. Mr. Gochnour also led the recruiting and development of Cornerstones professional resource team and founded the Cornerstone Service Center, which provides consulting and management services in the areas of finance, legal, human resources, and information technology to operations across the platform. Prior to joining Cornerstone, Mr. Gochnour was an attorney at the law firm Paul Hastings LLP in Costa Mesa, California, where he litigated complex civil disputes and advised clients related to risk management, general liability, and employment issues. Mr. Gochnour received his law degree from the Duke University School of Law. Mr. Gochnour is the brother-in-law of Mr. Walker, who serves as our Chairman of the Board, Chief Executive Officer and President.
Derek J. Bunker was appointed Chief Investment Officer, Executive Vice President and Secretary of The Pennant Group, Inc. upon its formation. Mr. Bunker is responsible for overseeing strategic growth, investments,
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real estate matters, investor relations and various public company matters, as well as assisting the Board in corporate governance matters in his role as corporate secretary. Prior to joining Pennant, Mr. Bunker served as Vice President, Acquisitions and Business Legal Affairs of Ensign Services, Inc. since 2015, playing a critical role in Ensigns skilled nursing and senior housing acquisitions, real estate strategy and financing, corporate governance and related initiatives. Mr. Bunker received his law degree from the University of Virginia and worked was an attorney at Latham & Watkins LLP since 2014, focusing on various corporate governance, finance, securities and transactional matters.
Our Corporate Governance
Our corporate governance will be structured in a manner that we believe will align our interests with those of our stockholders. Following the spin-off, we anticipate that our corporate governance will include the following notable features:
|
our board of directors will be classified; and |
|
our independent directors will meet regularly in executive sessions. |
Composition of the Board of Directors Following the Spin-Off
Upon completion of the spin-off, our amended and restated certificate of incorporation and amended and restated bylaws will provide that our board of directors may consist of no less than four and no more than eleven directors. The number of directors on our board of directors will be fixed exclusively by our board of directors, subject to the minimum and maximum number permitted by our amended and restated certificate of incorporation and bylaws. Following the spin-off our board will be initially fixed at seven members. We expect our board of directors to have seven members, five of whom we expect will qualify as independent under the Nasdaq Stock Market Rules (the Marketplace Rules). We anticipate that, at the completion of the spin-off, two of our directors, Christopher R. Christensen and John G. Nackel, will continue to serve as directors on the Ensign board of directors.
Upon the completion of the spin-off, we expect that our board of directors will be divided into three classes, with the classes as nearly equal in number as possible. The directors designated as Class I directors will have terms expiring at the first annual meeting of stockholders following the completion of the spin-off, which we expect to hold in 2020. The directors designated as Class II directors will have terms expiring at the following years annual meeting of stockholders, which we expect to hold in 2021, and the directors designated as Class III directors will have terms expiring at the following years annual meeting of stockholders, which we expect to hold in 2022. Commencing with the first annual meeting of stockholders following the distribution, directors elected to succeed those directors whose terms then expire shall be elected for a term of office to expire at the third annual meeting of stockholders following their election. There will be no cumulative voting in the election of directors, and a director will be elected by a plurality of the votes cast in the election of directors.
Furthermore, our amended and restated certificate of incorporation will provide that our stockholders may remove directors only for cause, by an affirmative vote of holders of at least sixty-six and two-thirds percent (66-2⁄3%) of the shares then entitled to vote at the election of directors outstanding common stock. Accordingly, while the classified board of directors is in effect, these provisions could discourage a third party from initiating a proxy contest, making a tender offer or otherwise attempting to gain control of Pennant.
Committees of the Board of Directors
Following the spin-off, our board of directors will have an audit committee, a compensation committee, a nominating and corporate governance committee and a quality assurance and compliance committee, each of which will have the composition and responsibilities described below and whose members will satisfy the applicable independence standards of the SEC and the transition periods provided under the rules and regulations of the Marketplace Rules. The charter of each such standing committee will be posted on our website in
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connection with the spin-off. Our board of directors may also establish from time to time any other committees that it deems necessary or desirable. The members of our committees may change subject to the discretion of our board of directors.
Audit Committee
Upon completion of the spin-off, we expect our audit committee will consist of Scott E. Lamb, JoAnne Stringfield and John G. Nackel, with Scott E. Lamb serving as chair, and will function pursuant to a written charter adopted by the board of directors. The audit committees responsibilities will include, among other things:
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overseeing our financial reporting process and the integrity of our financial statements and other financial information provided by us to the public or any governmental or regulatory body; |
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overseeing the functioning of our internal controls; |
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maintaining the procedures for the receipt, retention and treatment of complaints regarding accounting, internal accounting controls or auditing matters, and for the confidential, anonymous submission by our employees of concerns regarding questionable accounting or auditing matters; |
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approving of our transactions with related persons; |
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pre-approving audit and permissible non-audit services to be performed by our independent accountants, if any, and the fees to be paid in connection therewith; |
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engaging, replacing and compensating our independent auditors and overseeing our independent auditors qualifications, independence and performance of the annual independent audit of our financial statements; |
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maintaining legal compliance programs and addressing any legal or regulatory matters that may have a material impact on our financial statements; and |
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overseeing, updating and implementing the portions of our code of ethics and business conduct that relate to the integrity of our financial reports. |
The responsibilities of our audit committee will be more fully described in our audit committee charter. Our board of directors is expected to determine that Scott E. Lamb, JoAnne Stringfield and John G. Nackel satisfy the applicable independence and other requirements of the Marketplace Rules and the SEC for audit committees and that Scott E. Lamb qualifies as an audit committee financial expert as defined under applicable SEC rules and regulations.
Compensation Committee
Upon completion of the spin-off, we expect our compensation committee will consist of John G. Nackel, Roderic W. Lewis and Stephen M. R. Covey, with John G. Nackel serving as chair, and will function pursuant to a written charter adopted by the board of directors. The compensation committees responsibilities will include, among other things:
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developing and reviewing policies relating to compensation and benefits; |
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determining or recommending to our board of directors the cash and non-cash compensation of our executive officers; |
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evaluating the performance of our executive officers and overseeing management succession planning; and |
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administering or making recommendations to our board of directors with respect to the administration of our equity-based and other incentive compensation plans. |
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The responsibilities of our compensation committee, which are anticipated to be substantially the same as the responsibilities of Ensigns compensation committee, and its procedures for the consideration and determination of executive and director compensation will be more fully described in our compensation committee charter. Our board of directors is expected to determine that John G. Nackel, Roderic W. Lewis and Stephen M. R. Covey satisfy the applicable independence and other requirements of the Marketplace Rules, the SEC and the IRS for compensation committee members.
Nominating and Corporate Governance Committee
Upon completion of the spin-off, we expect our nominating and corporate governance committee will consist of Roderic W. Lewis, Scott E. Lamb and Stephen M. R. Covey, with Roderic W. Lewis serving as chair, and will function pursuant to a written charter adopted by the board of directors. The nominating and corporate governance committees responsibilities will include, among other things:
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assisting the board of directors in establishing the minimum qualifications for a director nominee, including the qualities and skills that members of our board are expected to possess; |
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management succession planning; |
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selecting, or recommending that our board of directors selects, the director nominees for election at the next annual meeting of stockholders, or to fill vacancies on our board of directors occurring between annual meetings of stockholders; |
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identifying and evaluating individuals qualified to become members of our board of directors, consistent with criteria approved by our board of directors and our nominating and corporate governance committee; and |
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developing, recommending to our board of directors, and assessing corporate governance policies for us. |
The responsibilities of our nominating and corporate governance committee and the process for identifying and evaluating director nominees (including nominees recommended by stockholders) will be more fully described in our nominating and corporate governance committee charter. Our board of directors is expected to determine that Roderic W. Lewis, Scott E. Lamb and Stephen M. R. Covey satisfy the applicable independence and other requirements of the Marketplace Rules and the SEC for nominating and corporate governance committee members.
Quality Assurance and Compliance Committee
Upon completion of the spin-off, we expect our quality assurance and compliance committee will consist of Christopher R. Christensen, Daniel H Walker, JoAnne Stringfield and John G. Nackel, with JoAnne Stringfield serving as chair, and will function pursuant to a written charter adopted by the board of directors. The quality assurance and compliance committees responsibilities will include, among other things:
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overseeing the promulgation, and the updating from time to time as appropriate, of a written corporate compliance program that includes written policies, procedures and standards of conduct, as well as disciplinary guidelines to assist officers and employees charged with direct enforcement responsibility; |
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designating a corporate compliance officer, and functioning as the compliance committee to which such compliance officer reports; |
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ensuring that means exist for the delivery of appropriate compliance training and education to the officers and employees of our several subsidiaries; |
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establishing lines of communication for escalating compliance and quality control issues to our quality assurance and compliance committee and our Board; |
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establishing a system for internal monitoring and auditing of compliance and quality control issues; and |
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causing our officers to respond, as appropriate, to compliance and quality control issues and to take effective corrective action. |
The responsibilities of our quality assurance and compliance committee will be more fully described in our quality assurance and compliance committee charter.
Director Independence
We expect that our board of directors, upon recommendation of our nominating and corporate governance committee, will formally determine the independence of our directors following the spin-off and we expect that a majority of the members of our board of directors will be independent. We expect that our board of directors will determine that the following directors, who are anticipated to be elected to our board of directors, are independent: JoAnne Stringfield, Roderic W. Lewis, Scott E. Lamb, John G. Nackel and Stephen M. R. Covey. We expect that our board of directors will determine the independence of directors annually based on a review by the directors and the nominating and corporate governance committee. In determining whether a director is independent, we expect that our board of directors will determine whether each director meets the objective standards for independence set forth in the Marketplace Rules.
Meetings of Independent Directors
We expect that our independent directors will meet frequently in executive session.
Attendance at Annual Meeting of Stockholders
Although we do not expect to have a formal policy regarding attendance by members of our board of directors at our annual meeting of stockholders, we intend to encourage our directors to attend and expect that at least a majority of our board of directors will attend the annual meeting.
Stockholder Communication
We expect that our board of directors will adopt a policy that will permit stockholders to communicate directly with the board of directors, any committee of our board of directors or any individual director.
Risk Oversight
We expect that our board of directors will rely on each of its committees to help oversee the risk management responsibilities relating to the functions performed by such committees. Our audit committee will periodically discuss with management our major financial risk exposures and the steps management has taken to monitor and control such exposures, including our risk assessment and risk management policies. Our compensation committee will help the board of directors to identify our exposure to any risks potentially created by our compensation programs and practices. Our nominating and corporate governance and quality assurance and compliance committees will oversee risks relating to our policies and assist the board of directors and management in promoting an organizational culture that encourages commitment to ethical conduct and a commitment to compliance with the law. Each of these committees will be required to make regular reports of its actions and any recommendations to the board of directors, including recommendations to assist the board of directors with its overall risk oversight function.
Compensation Committee Interlocks and Insider Participation
We expect that none of the members of our compensation committee will have at any time been one of our officers or employees or have any relationships with us of the type that is required to be disclosed under Item 404
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of Regulation S-K. We expect that none of our executive officers will have served at any time as a member of the board of directors, compensation committee or other board committee performing equivalent functions of any entity that has one or more executive officers serving as one of our directors or on our compensation committee.
Code of Conduct and Ethics
Prior to the completion of the spin-off, our board of directors will adopt a code of conduct and ethics (the Code of Ethics), that will apply to all of our directors, officers and employees, including our principal executive officer, principal financial officer, principal accounting officer and persons performing similar functions. The Code of Ethics will be available upon written request to our corporate secretary or on our website, which we currently intend to make available on our website following the completion of spin-off. If we amend or grant any waiver from a provision of our Code of Ethics that applies to our executive officers, we will publicly disclose such amendment or waiver on our website and as required by applicable law. The information contained on, or accessible from, our website is not part of this prospectus by reference or otherwise.
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EXECUTIVE AND DIRECTOR COMPENSATION
The following section provides compensation information pursuant to the scaled disclosure rules applicable to emerging growth companies under the rules of the SEC, including reduced narrative and tabular disclosure obligations regarding executive compensation.
Furthermore, Pennant comprises the home health and hospice agencies and substantially all of the senior living businesses of Ensign, which have not operated as a single line of business or division of Ensign. In connection with the spin-off, these business units will be reorganized as a newly formed subsidiary of Ensign, known as Pennant. As a result, Pennant has not historically had executive officers. While the individuals we expect will be our executive officers going forward were employed by Ensign, they did not serve in an executive officer capacity with respect to the multiple business units of Ensign that will be combined to form Pennant. Accordingly, we believe the compensation of these individuals is not indicative of the compensation they will receive as executive officers of Pennant and we have not included information regarding compensation and other benefits paid to these executives by Ensign during fiscal year 2018 or prior years.
Executive compensation decisions following the spin-off will be made by our compensation committee, consistent with the compensation and benefit plans, programs and policies that will be adopted by Pennant. With respect to base salaries, annual incentive compensation and any long-term incentive awards, it is expected that our compensation committee will develop programs reflecting appropriate measures, goals, targets and business objectives based on Pennants competitive marketplace. The amount and timing of any equity-based compensation to be paid to Pennants named executive officers (Named Executive Officers) at or following the spin-off will be determined by our compensation committee and will generally be granted pursuant to a new equity incentive plan to be adopted by Pennant in connection with becoming an independent, publicly-traded company. A description of any known incentive equity to be granted in connection with the spin-off has been included herein based on the latest information known to date.
2019 Omnibus Incentive Plan
In connection with the spin-off, we expect that the board of directors will adopt The Pennant Group, Inc. 2019 Omnibus Incentive Plan (the Incentive Plan) for the grant of awards to employees of Pennant affiliates following the consummation of the spin-off. We expect the material terms of the Incentive Plan to include the following:
Share Reserve
We expect that the maximum number of shares of Pennant common stock for issuance under the Incentive Plan will be approximately 5.0 million. In addition, we expect the following shares of Pennant common stock will again be available for grant or issuance under the Incentive Plan:
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shares subject to awards granted under the Incentive Plan that expire unexercised, are cancelled, forfeited, terminated or are not distributed; and |
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shares subject to awards granted under the Incentive Plan that otherwise terminate without shares being issued. |
Eligibility
Our employees, officers, consultants, independent contractors, or directors providing services to Pennant or our affiliates, who the committee determines is an eligible person, will be eligible to receive awards under the Incentive Plan. In determining which eligible person will receive an award, the committee may take into account the nature of the services rendered the respective eligible persons, their present and potential contributions to the success of Pennant or such other factors as the committee, in its discretion deem relevant.
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Term
The Incentive Plan will terminate ten years from the date our board of directors approves the plan, unless it is terminated earlier by our board of directors.
Award Forms and Limitations
The Incentive Plan authorizes the award of stock options, stock appreciation rights, restricted stock, restricted stock units, performance awards, dividend equivalents, other stock grants and other stock-based awards. For stock options that are intended to qualify as incentive stock options (ISOs), under Section 422 of the Code, the maximum number of shares subject to ISO awards shall be 5.0 million.
Administration
The Incentive Plan will be administered by our compensation committee. The compensation committee will have the authority to construe and interpret the Incentive Plan, grant awards and make all other determinations necessary or advisable for the administration of the plan. Awards under the Incentive Plan may be made subject to performance conditions and other terms.
Stock Options
The Incentive Plan provides for the grant of stock options to officers and other employees intended to qualify as incentive stock options, as defined in Section 422 of the Code, as well as the grant of options to employees, consultants, independent contractors and directors that do not qualify as incentive stock options (that is, nonqualified stock options). The holder of an option will be entitled to purchase a number of shares of Pennant common stock at a specified exercise price during a specified time period, all as determined by the compensation committee. The exercise price of an option generally will not be less than 100.0% of the fair market value of Pennant common stock on the date of grant, or in the case of incentive stock options, 110.0% of the fair market value of Pennant common stock with respect to holders of more than 10% of Pennant common stock. The compensation committee may, however, set the exercise price of non-qualified stock options at less than 100% of the fair market value on the date of grant if the committee acknowledges in its granting resolutions that such option has been structured to be exempt from or compliant with the requirements of Section 409A. The fair market value of Pennant common stock will be the closing sale price as quoted on NASDAQ on the date of grant. The Incentive Plan is expected to permit payment of the exercise price to be made by cash, shares of Pennant common stock, other securities, other awards or other property. The shares subject to each option will generally vest in one or more installments over a specified period of service measured from the grant date. The term of an option and incentive stock option will be fixed by the committee at the time of grant, not to exceed 10 years from the date of grant, or in the case of a grant of an incentive stock option to a participant who, at the time such incentive stock option is granted, owns (within the meaning of Section 422 of the Code) stock possessing more than 10.0% of the total combined voting power of all classes of stock of Pennant or its affiliates, then such incentive stock options will expire and no longer be exercisable no later than 5 years from the date of grant.
Stock Appreciation Rights
Stock appreciation rights provide for a payment, or payments, in cash or shares of Pennant common stock, to the holder based upon the difference between the fair market value of Pennant common stock on the date of exercise and the stated exercise price of the stock appreciation right. The exercise price must be at least equal to the fair market value of Pennant common stock on the date the stock appreciation right is granted. Stock appreciation rights may vest based on time or achievement of performance conditions, as determined by the compensation committee in its discretion.
Restricted Stock and RSUs
The compensation committee will be able to grant awards consisting of shares of Pennant common stock subject to restrictions on sale and transfer. The price (if any) paid by a participant for a restricted stock award
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will be determined by the compensation committee. Unless otherwise determined by the compensation committee at the time of award, vesting will cease on the date the participant no longer provides services to us and unvested shares will be forfeited to or repurchased by us. The compensation committee may condition the grant or vesting of shares of restricted stock on the achievement of performance conditions and/or the satisfaction of a time-based vesting schedule. The holder of restricted stock units will have the right, subject to any restrictions imposed by the committee, to receive shares of Pennant common stock at some future date determined by the committee. Dividends (that are paid by us to holders of shares of Pennant common stock) may be paid with respect to unvested restricted stock awards issued under the Incentive Plan that are subject to time vesting requirements only.
Performance Awards
A performance award is an award that becomes payable upon the attainment of specific performance goals. A performance award may become payable in cash or in shares of Pennant common stock. These awards are subject to forfeiture prior to settlement due to termination of a participants employment or failure to achieve the performance conditions. The performance goals to be achieved, the length of the performance period, the amount of the award, the amount of payment or transfer to be made pursuant to the performance award, and any other terms and conditions of any performance award shall be determined by the committee.
Dividend Equivalents
The compensation committee will be able to grant dividend equivalents under which the participant is entitled to receive payments (in cash, shares of common stock, other securities, other awards or other property as determined in the discretion of the committee) equivalent to the amount of cash dividends paid by Pennant to holders of shares of Pennant common stock with respect to a number of shares of Pennant common stock determined by the committee. Dividend equivalents have terms and conditions as the committee shall determine except that all dividend equivalents are subject to the same vesting conditions as to the underlying award to which they are attached.
Automatic Stock Grant Program
Under the terms of the Incentive Plan, each non-employee director will receive a quarterly restricted stock grant of 750 shares on the 15th day of the month subsequent to quarter end and such shares shall vest over a three-year period, beginning with the first anniversary of the grant date (the Automatic Stock Grant Program). All unvested restricted stock grants will become fully vested on the date any such non-employee director ceases serving on the Board unless such director is removed for cause. Pursuant to the Automatic Stock Grant Program, Board members receiving stock grants must maintain ownership of a minimum of thirty-three percent (33.0%) of the cumulative shares granted to him or her.
Other Stock Grants
The committee may to grant awards of shares without restriction as deemed by the committee to be consistent with the purpose of the Incentive Plan.
Other Stock-Based Awards
The compensation committee may grant awards that are denominated or payable in, valued in whole or in party by reference to, or otherwise based on or related to, shares, as are deemed by the compensation committee to be consistent with the purpose of the Incentive Plan. Pennant common stock or other securities delivered pursuant to a purchase right may be paid by such method or methods as the committee determines. The value of such consideration, as established by the committee, must not be less than 100% of the fair market value of such Pennant common stock or other securities as of the date such purchase right is granted unless the committee expressly provides otherwise.
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Additional Provisions
Awards granted under the Incentive Plan may not be transferred in any manner other than by will or by the laws of descent and distribution, or as determined by our compensation committee. Unless otherwise restricted by our compensation committee, awards that are non-ISOs or SARs may be exercised during the lifetime of the optionee only by the optionee, the optionees guardian or legal representative or a family member of the optionee who has acquired the non-ISOs or SARs by a permitted transfer. Awards that are ISOs may be exercised during the lifetime of the optionee only by the optionee or the optionees guardian or legal representative.
In the event of a change of control (as defined in the plan), the compensation committee may, in its discretion, provide for any or all of the following actions: (i) awards may be continued, assumed, or substituted with new rights, (ii) awards may be purchased for cash equal to the excess (if any) of the highest price per share of common stock paid in the change in control transaction over the aggregate exercise price of such awards, (iii) outstanding and unexercised stock options and stock appreciation rights may be terminated, prior to the change in control (in which case holders of such unvested awards would be given notice and the opportunity to exercise such awards), or (iv) vesting or lapse of restrictions may be accelerated. All awards will be equitably adjusted in the case of stock splits, recapitalizations and similar transactions.
2019 Long Term Incentive Plan
In connection with the spin-off, we expect that the board of directors will adopt The Pennant Group, Inc. 2019 Long Term Incentive Plan (the LTIP) for the grant of awards to employees and directors of Ensign immediately prior to the consummation of the spin-off in recognition of their performance in assisting with the spin-off transaction. Following the spin-off, no additional awards will be issued. Awards to be issued under the new plan are approximately 500,000 shares. We expect the material terms of the LTIP to include the following:
Share Reserve
We expect that the maximum number of shares of Pennant common stock for issuance under the LTIP will be approximately 500,000.
Eligibility
It is currently expected that approximately 60 employees and directors will be eligible to receive an award of restricted stock under the LTIP.
Term
The LTIP will terminate ten years from the date our board of directors approves the plan, unless it is terminated earlier by our board of directors, provided that no additional grants will be made beyond the date of the spin-off.
Award Forms and Limitations
The LTIP authorizes the award of restricted stock.
Restricted Stock Awards
The compensation committee will be able to grant awards consisting of shares of Pennant common stock subject to restrictions on sale and transfer. The price (if any) paid by a participant for a restricted stock award will be determined by the compensation committee. Unless otherwise determined by the compensation committee at the time of award, vesting will cease on the date the participant no longer provides services to his or her employer and unvested shares will be forfeited to or repurchased by us.
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Additional Provisions
Awards granted under the LTIP may not be transferred in any manner other than by will or by the laws of descent and distribution, or as determined by our compensation committee.
In the event of a change of control (as defined in the plan), the compensation committee may, in its discretion, provide for any or all of the following actions: (i) awards may be continued, assumed, or substituted with new rights, (ii) awards may be purchased for cash equal to the excess (if any) of the highest price per share of common stock paid in the change in control transaction over the aggregate exercise price of such awards, or (iii) vesting or lapse of restrictions may be accelerated. All awards will be equitably adjusted in the case of stock splits, recapitalizations and similar transactions.
Certain U.S. Federal Income Tax Consequences
The following is a brief discussion of certain U.S. federal income tax consequences for awards granted under the Incentive Plan. The Incentive Plan is not subject to the requirements of the Employee Retirement Income Security Act of 1974, as amended, and it is not, nor is it intended to be, qualified under Section 401(a) of the Code. This discussion is based on current law, is not intended to constitute tax advice, and does not address all aspects of U.S. federal income taxation that may be relevant to a particular participant in light of his or her personal circumstances and does not describe foreign, state, or local tax consequences, which may be substantially different. Holders of awards under the Incentive Plan are encouraged to consult with their own tax advisors.
Non-Qualified Stock Options and Stock Appreciation Rights. With respect to non-qualified stock options and stock appreciation rights, (i) no income is realized by a participant at the time the award is granted; (ii) generally, at exercise, ordinary income is realized by the participant in an amount equal to the difference between the exercise or base price paid for the shares and the fair market value of the shares on the date of exercise (or, in the case of a cash-settled stock appreciation right, the cash received), and the participants employer is generally entitled to a tax deduction in the same amount subject to applicable tax withholding requirements; and (iii) upon a subsequent sale of the stock received on exercise, appreciation (or depreciation) after the date of exercise is treated as either short-term or long-term capital gain (or loss) depending on how long the shares have been held, and no deduction will be allowed to such participants employer.
Incentive Stock Options. No income is realized by a participant upon the grant or exercise of an incentive stock option, however, such participant will generally be required to include the excess of the fair market value of the shares at exercise over the exercise price in his or her alternative minimum taxable income. If shares are issued to a participant pursuant to the exercise of an incentive stock option, and if no disqualifying disposition of such shares is made by such participant within two years after the date of grant or within one year after the transfer of such shares to such participant, then (i) upon sale of such shares, any amount realized in excess of the exercise price will be taxed to such participant as a long-term capital gain, and any loss sustained will be a long-term capital loss, and (ii) no deduction will be allowed to the participants employer for federal income tax purposes. If shares acquired upon the exercise of an incentive stock option are disposed of prior to the expiration of either holding period described above, generally (i) the participant will realize ordinary income in the year of disposition in an amount equal to the excess (if any) of the fair market value of such shares at exercise (or, if less, the amount realized on the disposition of such shares) over the exercise price paid for such shares and (ii) the participants employer will generally be entitled to deduct such amount for federal income tax purposes. Any further gain (or loss) realized by the participant will be taxed as short-term or long-term capital gain (or loss), as the case may be, and will not result in any deduction by the employer. Subject to certain exceptions for disability or death, if an incentive stock option is exercised more than three months following termination of employment, the exercise of the stock option will generally be taxed as the exercise of a non-qualified stock option.
Other Stock-Based Awards. The tax effects related to other stock-based awards under the Incentive Plan are dependent upon the structure of the particular award.
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Withholding. At the time a participant is required to recognize ordinary compensation income resulting from an award, such income will be subject to federal (including, except as described below, Social Security and Medicare tax) and applicable state and local income tax and applicable tax withholding requirements. If such participants year-to-date compensation on the date of exercise exceeds the Social Security wage base limit for such year ($132,900 in 2019), such participant will not have to pay Social Security taxes on such amounts. Pennant is required to report to the appropriate taxing authorities the ordinary income received by the participant, together with the amount of taxes withheld to the Internal Revenue Service and the appropriate state and local taxing authorities.
Section 409A. Certain awards under the Incentive Plan or the LTIP may be subject to Section 409A of the Code, which regulates nonqualified deferred compensation (as defined in Section 409A of the Code). If an award under the Incentive Plan or the LTIP (or any other Pennant plan) that is subject to Section 409A of the Code is not administered in compliance with Section 409A of the Code, then all compensation under the Incentive Plan or the LTIP that is considered nonqualified deferred compensation (and awards under any other Pennant plan that are required pursuant to Section 409A of the Code to be aggregated with the award under the Incentive Plan or the LTIP) will be taxable to the participant as ordinary income in the year of the violation, or if later, the year in which the compensation subject to the award is no longer subject to a substantial risk of forfeiture. In addition, the participant will be subject to an additional tax equal to 20% of the compensation that is required to be included in income as a result of the violation, plus interest from the date that the compensation subject to the award was required to be included in taxable income.
Certain Rules Applicable to Insiders. As a result of the rules under Section 16(b) of the Exchange Act, depending upon the particular exemption from the provisions of Section 16(b) utilized, insiders (as defined in Section 16(b)) may not receive the same tax treatment as set forth above with respect to the grant and/or exercise or settlement of awards. Generally, insiders will not be subject to taxation until the expiration of any period during which they are subject to the liability provisions of Section 16(b) with respect to any particular award. Insiders should check with their own tax advisors to ascertain the appropriate tax treatment for any particular award.
Awards to be Issued Under the Incentive Plan
In connection with the spin-off, we anticipate that approximately 70 employees and directors of Pennant, including its executive officers and directors, will receive awards of either restricted stock units (the RSUs) or stock options (the Options) of Pennant, based on form award agreements attached hereto as exhibits. It is anticipated that approximately 1.0 million RSUs and 0.5 million Options be granted at the time of the spin-off. In addition to the RSUs and Options, we may grant awards of restricted stock (RS) to certain employees of Pennant in the future, though it is not currently expected that any awards of RS will be granted in connection with the spin-off. The RS will only be subject to time-based vesting conditions (i.e., no performance-based vesting conditions will apply).
Awards to be Issued Under the LTIP
In connection with the spin-off, we anticipate that approximately 60 employees and directors of Ensign will receive awards of restricted stock (LTIP RS) based on the form award agreement attached hereto as an exhibit. It is anticipated that approximately 500,000 shares of LTIP RS will be granted at the time of the spin-off.
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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Existing Arrangements with Ensign
We have a number of existing arrangements whereby affiliates of Ensign and affiliates of Pennant have provided various services to each other. See Note 3, Related Party Transactions and Net Parent Investment, to the Audited Combined Financial Statements included herein for a discussion of such existing arrangements. In connection with the spin-off, Pennant will enter into agreements with Ensign that have either not existed historically or that may be on different terms than the terms of the existing arrangement or agreements.
Ensign Pennant Care Continuum
Subsidiaries of Ensign and Pennant may opt in to a voluntary joint post-acute care preferred provider network called the Ensign Pennant Care Continuum (the EPCC). The EPCC will allow participants to collaborate together to enhance voluntary transitions between clinical care settings, establish methodologies and protections for operational data sharing and formalize guiding principles for the mutually beneficial collaboration on acquisitions and ancillary business opportunities.
Agreements with Ensign Related to the Spin-Off
This section of the information statement summarizes material agreements between us and Ensign that will govern the ongoing relationships between the two companies after the spin-off and are intended to provide for an orderly transition to our status as an independent, publicly-traded company. Additional or modified agreements, arrangements and transactions, each of which would be negotiated at arms length, may be entered into between us and Ensign after the spin-off.
Following the spin-off, we and Ensign will operate independently, and neither company will have any ownership interest in the other. Before the spin-off, we will enter into a master separation agreement and several other agreements with Ensign related to the spin-off. These agreements will govern the relationship between us and Ensign after completion of the spin-off and provide for the allocation between us and Ensign of various assets, liabilities, rights and obligations. The following is a summary of the terms of the material agreements we expect to enter into with Ensign. These summaries are qualified in their entirety by reference to the full text of the applicable agreements, which will be filed as exhibits to the registration statement which this information statement forms a part.
Master Separation Agreement
We intend to enter into a master separation agreement with Ensign prior to the distribution of shares of our common stock to Ensign stockholders. The master separation agreement will provide for the allocation of assets and liabilities between us and Ensign and will establish certain rights and obligations between the parties following the distribution as further described below.
Transfer of Assets and Assumption of Liabilities. The master separation agreement will provide for certain transfers of assets and assumptions of liabilities that are necessary in connection with our spin-off from Ensign so that each of Ensign and Pennant is allocated the assets necessary to operate its respective businesses and retains or assumes the liabilities allocated to it in accordance with the separation plan. The master separation agreement will also provide for the settlement or extinguishment of certain liabilities and other obligations among Ensign and Pennant. See Unaudited Pro Forma Combined Financial Statements.
Further Assurances. To the extent that any transfers of assets or assumptions of liabilities contemplated by the master separation agreement have not been consummated on or prior to the date of the distribution, the parties will agree to reasonably cooperate with each other and use commercially reasonable efforts to effect such
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transfers or assumptions as promptly as reasonably practicable following the date of the distribution. In addition, each of the parties will agree to reasonably cooperate with the other and use commercially reasonable efforts to take or to cause to be taken all actions, and to do, or to cause to be done, all things reasonably necessary under applicable law or contractual obligations to consummate and make effective the transactions contemplated by the master separation agreement and the ancillary agreements.
Representations and Warranties. In general, neither we nor Ensign will make any representations or warranties regarding any assets or liabilities transferred or assumed, any consents or approvals that may be required in connection with such transfers or assumptions, the value or freedom from any lien or other security interest of any assets transferred, the absence of any defenses relating to any claim of either party or the legal sufficiency of any conveyance documents, or any other matters.
Except as expressly set forth in the master separation agreement or in any ancillary agreement, all assets will be transferred on an as is, where is basis.
The Distribution. The master separation agreement will govern certain rights and obligations of the parties regarding the proposed distribution and certain actions that must occur prior to the proposed distribution, such as the election of officers and directors and the adoption of our amended and restated certificate of incorporation and amended and restated bylaws. Prior to the distribution, we will deliver all the issued and outstanding shares of our common stock to the distribution agent. Following the distribution date, the distribution agent will electronically deliver the shares of our common stock to Ensign stockholders based on each holder of Ensign common stock receiving one share of Pennant common stock for every two shares of Ensign common stock held by such stockholder. The Ensign board of directors will have the sole and absolute discretion to determine (and change) the terms of, and whether to proceed with, the distribution and, to the extent it determines to so proceed, to determine the date of the distribution.
Conditions. The master separation agreement will provide that the distribution is subject to the satisfaction or waiver of certain conditions. For further information regarding these conditions, see The Spin-OffConditions to the Distribution. The Ensign board of directors may, in its sole discretion, determine the distribution date and the terms of the distribution and, until the distribution has occurred, the Ensign board of directors has the right to elect not to proceed with the distribution in its sole discretion, even if all of the conditions are satisfied.
Termination. The master separation agreement will provide that it may be terminated by Ensign at any time in its sole discretion prior to the distribution.
Intercompany Accounts and Agreements. The master separation agreement will provide that, subject to certain exceptions described in provisions in the master separation agreement or any ancillary agreement to the contrary, prior to the distribution, intercompany accounts will be settled and intercompany agreements will be terminated, in each case as will be set forth in the master separation agreement.
Release of Claims and Indemnification. We and Ensign will agree to broad mutual general releases pursuant to which we will each release the other and certain related persons specified in the master separation agreement from any claims against any of them that arise out of or relate to events, circumstances or actions occurring or failing to occur or alleged to occur or to have failed to occur or any conditions existing or alleged to exist at or prior to the time of the distribution. These mutual general releases will be subject to certain exceptions set forth in the master separation agreement and the ancillary agreements.
The master separation agreement will provide for cross-indemnities that, except as otherwise provided in the master separation agreement, are principally designed to place financial responsibility for the obligations and liabilities of our business with us, and financial responsibility for the obligations and liabilities of Ensigns business with Ensign.
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The amount of each partys indemnification obligations will be subject to reduction by any insurance proceeds actually received by the party being indemnified. The master separation agreement will also specify procedures with respect to claims subject to indemnification and related matters. Indemnification with respect to taxes will be governed solely by the tax matters agreement.
Insurance. The master separation agreement will provide for the allocation among the parties of benefits under existing insurance policies for occurrences prior to the distribution and sets forth procedures for the administration of insured claims. The master separation agreement will allocate among the parties the right to proceeds and the obligation to incur deductibles under certain insurance policies.
Other Matters Governed by the Master Separation Agreement. Other matters governed by the master separation agreement will include access to financial and other information, confidentiality, access to and provision of records and treatment of outstanding guarantees, similar credit support and procedures for resolution of any dispute that may arise thereunder.
Transition Services Agreement
We intend to enter into a transition services agreement with Ensign under which Ensign will provide us with certain services, and we will provide Ensign with certain services, for a prescribed period of time, subject to extension upon the agreement of the parties, following the distribution to help ensure an orderly transition following the distribution.
We anticipate that the services that Ensign will agree to provide us under the transition services agreement and that we will agree to provide Ensign may include certain finance, information technology, human resources, employee benefits and other services. The recipient of any such services used will pay the provider for such services at agreed amounts as set forth in the transition services agreement. In addition, from time to time during the term of the agreement, we and Ensign may mutually agree on additional services to be provided pursuant to the transition services agreement or to cease provision of any services that are no longer required. We and Ensign will agree to use commercially reasonable efforts to provide each other such services in a manner, scope, nature, timeliness and quality consistent with the manner, scope, nature, timeliness and quality consistent with such services as was provided prior to the spin-off. No member of the service-providing partys group, any director, officer, manager, employee or agent will be liable to the service-receiving party and the service-providing partys total liability to the service-receiving party for any claim will not exceed, in the aggregate, an amount equal to the total amount paid by the service-receiving party for such service.
Tax Matters Agreement
We intend to enter into a tax matters agreement with Ensign that will govern the respective rights, responsibilities and obligations of Ensign and us after the spin-off with respect to tax liabilities and benefits, tax attributes, tax returns, tax contests and other tax sharing regarding U.S. federal, state, local and foreign income taxes, other tax matters and related tax returns. As a subsidiary of Ensign, we have (and will continue to have following the spin-off) joint and several liability with Ensign to the IRS for the combined U.S. federal income taxes of the Ensign consolidated group relating to the taxable periods in which we were part of that group. However, the tax matters agreement will specify the portion of this tax liability for which we will bear responsibility, and we and Ensign will each agree to indemnify each other against any amounts for which such indemnified party is not responsible. The tax matters agreement will also provide special rules for allocating tax liabilities in the event that the spin-off or any other related transaction is not completely tax-free. The tax matters agreement will provide for certain covenants that may restrict our ability to pursue strategic or other transactions that otherwise could optimize or maximize the value of our business. Although valid as between the parties, the tax matters agreement will not be binding on the IRS.
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Employee Matters Agreement
We intend to enter into an employee matters agreement with Ensign that will govern the respective rights, responsibilities and obligations of Ensign and us after the spin-off. The employee matters agreement will address the allocation of employees between Ensign and us, qualified defined contribution plans, employee health and welfare benefit plans, incentive plans, equity-based awards and other employment, compensation and benefits-related matters. The employee matters agreement will provide for, among other things, the allocation and treatment of assets and liabilities related to incentive plans, retirement plans and employee health and welfare benefit plans in which transferred employees participated prior to the spin-off. The employee matters agreement will also provide for the treatment of outstanding Ensign equity awards in connection with the spin-off. After the spin-off, employees of our subsidiaries will continue to participate in Ensigns health and welfare benefit plans through the end of 2019, and we will establish plans or programs for our employees as described in the employee matters agreement. From the time of the spin-off through December 31, 2020, employees of our subsidiaries will continue to participate in the Ensign 401(k) Plan.
Real Estate Agreements
Owned real property and leased space will be allocated to Ensign or us, as the case may be, in a manner that is consistent with the different business uses and needs of Ensign and us. To the extent that (a) the desired allocation is not legally possible, (b) owned property or leased space needs to be shared by Ensign and us or (c) services will be provided by one of the companies to the other in respect of any owned property or leased space, we will enter into agreements with Ensign governing the respective parties rights and obligations with respect to any such shared space or services provided.
Compensatory Arrangements for Certain Executive Officers
With respect to base salaries, annual incentive compensation and any long-term incentive awards, it is expected that our compensation committee will develop programs reflecting appropriate measures, goals, targets and business objectives based on Pennants competitive marketplace. The amount and timing of any equity-based compensation to be paid to Pennants executive officers at or following the distribution will be determined by our compensation committee and will generally be granted pursuant to a new equity incentive plan to be adopted by Pennant in connection with becoming an independent, publicly-traded company. See Executive and Director Compensation2019 Omnibus Incentive Plan.
For each holder of outstanding Ensign equity awards as of immediately prior to the spin-off, Ensigns intent is that the economic value and substantive terms and conditions associated with such awards shall effectively be maintained and continued as of immediately following the spin-off. Employees holding stock options who will remain employees of subsidiaries of Ensign following the distribution date will continue to hold Ensign stock options, but the number of shares covered by such award and exercise prices associated with such awards will be adjusted to maintain economic value. Employees holding stock options who will become employees of subsidiaries of Pennant following the distribution date will have their Ensign stock options converted into an adjusted option to purchase Pennant common stock pursuant to the Incentive Plan, and the number of shares covered by such award and exercise prices will be adjusted to maintain economic value. Employees of subsidiaries of Ensign and Pennant who hold Ensign restricted stock will continue to hold Ensign restricted stock and will also receive the right to receive one share of Pennant restricted stock for every two shares of Ensign restricted stock held. The Pennant restricted stock will be subject to the same terms and conditions as the Ensign restricted stock to which it relates. Cornerstone restricted stock will be converted into restricted stock of Pennant pursuant to the Subsidiary Equity Plan, with the number of shares covered by such awards adjusted to maintain economic value. Cornerstone stock options will be converted into Pennant stock options pursuant to the Subsidiary Equity Plan, with the number of shares covered by such awards and exercise prices associated with such awards adjusted to maintain economic value.
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Indemnification Agreements
We intend to enter into customary indemnification agreements with our directors and executive officers that will be effective upon completion of the spin-off. These agreements will require us to indemnify these individuals to the fullest extent permitted by Delaware law against liabilities that may arise by reason of their service to us, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified.
There is currently no pending material litigation or proceeding involving any of our directors, officers or employees for which indemnification is sought.
The Pennant Group, Inc. 2019 Omnibus Incentive Plan
We intend to adopt the Incentive Plan effective prior to and in connection with the spin-off. The Incentive Plan will provide for grants of incentive equity. The purpose of the Incentive Plan is to provide certain individuals with incentives to maximize stockholder value and otherwise contribute to our success and to enable us to attract, retain and reward the best available persons for positions of responsibility. We expect approximately 5.0 million shares of our common stock will be authorized for issuance under the Incentive Plan, subject to adjustment in the event of a reorganization, stock split, merger or similar change in our corporate structure or the outstanding shares of common stock. Approximately 1.5 million of the estimated 5.0 million relate to awards granted in connection with the spin-off. The number of shares that will remain available for issuance or use is expected to be reduced by the number of incentive equity grants to be made in connection with the spin-off. Our compensation committee will administer the Incentive Plan. Our board of directors also has the authority to administer the Incentive Plan and to take all actions that our compensation committee is otherwise authorized to take under the Incentive Plan. The terms and conditions of each award made under the Incentive Plan, including vesting requirements, will be set forth consistent with the Incentive Plan in a written agreement with the grantee.
The Pennant Group, Inc. 2019 Long Term Incentive Plan
We intend to adopt the LTIP effective prior to and in connection with the spin-off. The LTIP will provide for grants of incentive equity. The purpose of the LTIP is to provide recognition to certain employees and directors of Ensign of their performance in assisting with the spin-off. We expect approximately 500,000 shares of our common stock will be authorized for issuance under the LTIP, subject to adjustment in the event of a reorganization, stock split, merger or similar change in our corporate structure or the outstanding shares of common stock. The terms and conditions of each award made under the LTIP, including vesting requirements, will be set forth consistent with the LTIP in a written agreement with the grantee. We do not expect to make any additional grants beyond the date of the spin-off.
Issuance and Grant of Pennant Common Stock to Certain Related Persons
With respect to any long-term incentive equity awards, it is expected that our compensation committee will develop programs reflecting appropriate measures, goals, targets and business objectives based on Pennants competitive marketplace. The amount and timing of any equity-based compensation to be paid to certain related persons at or following the distribution will be determined by our compensation committee and will generally be granted pursuant to a new equity incentive plan to be adopted by Pennant in connection with becoming an independent, publicly-traded company.
In connection with the internal reorganization, we expect our Named Executive Officers and certain other individuals will receive equity awards of The Pennant Group, Inc., in exchange for existing Cornerstone equity awards.
Policies and Procedures Regarding Related Party Transactions
In connection with the spin-off, we expect that our board will adopt a written policy and procedures with respect to related person transactions, which will include specific provisions for the approval of related person
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transactions. Pursuant to this policy, related person transactions would include a transaction, arrangement or relationship or series of similar transactions, arrangements or relationships, in which we and certain enumerated related persons participate, the amount involved exceeds $120,000 and the related person has a direct or indirect material interest. We expect our audit committee will review: (i) potential conflict of interest situations on an ongoing basis, (ii) any future proposed transaction, or series of transactions, with related persons, and (iii) either approve or disapprove each reviewed transaction or series of related transactions with related persons.
In the event that a related person transaction is identified, such transaction will be reviewed and approved or ratified by our audit committee. If it is impracticable for our audit committee to review such transaction, pursuant to the policy, the transaction will be reviewed by the chair of our audit committee, whereupon the chair of our audit committee will report to the audit committee the approval or disapproval of such transaction.
In reviewing and approving related person transactions, pursuant to the policy, the audit committee, or its chair, shall consider all information that the audit committee, or its chair, believes to be relevant and important to a review of the transaction and shall approve only those related person transactions that are determined to be in, or not inconsistent with, our best interests and that of our stockholders, taking into account all available relevant facts and circumstances available to the audit committee or its chair. Pursuant to the policy, these facts and circumstances will typically include, but not be limited to, the benefits of the transaction to us; the impact on a directors independence in the event the related person is a director, an immediate family member of a director or an entity in which a director is a partner, stockholder or executive officer; the availability of other sources for comparable products or services; the terms of the transaction; and the terms of comparable transactions that would be available to unrelated third parties or to employees generally. Pursuant to the policy, we expect that no member of the audit committee shall participate in any review, consideration or approval of any related person transaction with respect to which the member or any of his or her immediate family members is the related person.
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DESCRIPTION OF CERTAIN INDEBTEDNESS
From and after the spin-off, Ensign and Pennant will, in general, each be responsible for the debts, liabilities, rights and obligations related to the business or businesses that it owns and operates following consummation of the spin-off. See Certain Relationships and Related Party TransactionsAgreements with Ensign Related to the Spin-Off.
Financing Transactions in Connection with the Spin-Off
We expect to put in place a capital structure that provides us with the flexibility to grow and a cost of debt capital that allows us to compete for investment opportunities. Subject to market conditions, we expect to enter into the Revolving Credit Facility with a syndicate of banks with a borrowing capacity of $75.0 million. We anticipate the interest rates applicable to loans under the Revolving Credit Facility to be, at the Companys election, either LIBOR plus a margin ranging from 2.5% to 3.5% per annum or Base Rate plus a margin ranging from 1.5% to 2.5% per annum, in each case based on the ratio of Consolidated Total Net Debt to Consolidated EBITDA (as defined in the Credit Agreement). In addition, we expect that we will pay a commitment fee on the undrawn portion of the commitments under the Revolving Credit Facility that is estimated to be 0.6% per annum.
We anticipate that the Revolving Credit Facility will not be subject to interim amortization. We expect that the Company will not be required to repay any loans under the Revolving Credit Facility prior to maturity. We expect that the Company will be permitted to prepay all or any portion of the loans under the Revolving Credit Facility prior to maturity without premium or penalty, subject to reimbursement of any LIBOR breakage costs of the lenders. This information is based on our current negotiations with the lead banks in an anticipated syndicate.
As a result of the financing transaction, we expect to have outstanding indebtedness of approximately $30.0 million. The amount reflects proceeds from issuance of indebtedness under the Revolving Credit Facility, including approximately $1.2 million in estimated financing cost. The foregoing summarizes some of the currently expected terms of the Revolving Credit Facility. However, the foregoing summary does not purport to be complete, and the terms of the Revolving Credit Facility have not yet been finalized. There may be changes to the expected size and other terms of the Revolving Credit Facility, some of which may be material.
We expect that we will use approximately $25.0 million of the proceeds from the financing transaction to pay transaction fees and to pay a dividend to Ensign in connection with the contribution of assets to us by Ensign prior to the spin-off. We expect to retain approximately $5.0 million in cash for working capital, acquisitions and other general purposes. We expect that Ensign would use the funds received from us to repay certain outstanding third-party bank debt and other indebtedness and/or pay dividends to Ensigns stockholders. After the spin-off, we expect that we will use borrowings under the Revolving Credit Facility for working capital purposes, to fund acquisitions and for other general purposes. See The Spin-OffFinancing Transactions and Description of Certain Indebtedness.
We describe the material terms of the Revolving Credit Facility below. These summaries are qualified in their entirety by the finalization of specific terms and provisions of the applicable documentation evidencing these arrangements.
Revolving Credit Facility
After the spin-off, the Revolving Credit Facility will provide support for working capital purposes, to fund acquisitions and for other general purposes. We anticipate that the Revolving Credit Facility will be secured by certain of our assets and will have a multi-year term.
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We expect the Credit Agreement will contain covenants that restrict our operations, including our ability to incur additional indebtedness for borrowed money and guarantees of indebtedness or allow other liens securing indebtedness for borrowed money to be placed on our assets. We expect that any indebtedness outstanding under the Revolving Credit Facility will become due and payable, and any remaining commitment under the Revolving Credit Facility will be canceled, if an event of default occurs, including a failure to pay interest and principal or commitment fees when due; an insolvency event, including a filing for protection under bankruptcy laws; a failure to comply with the covenants noted above or the occurrence of an event of default under other loan agreements to which we may be a party. We also expect that the lenders may require us to repay any indebtedness under the Revolving Credit Facility upon a change in control of our company.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
As of the date of this information statement, all of the outstanding shares of our common stock are beneficially owned by Ensign. After the spin-off, Ensign will not own any shares of our common stock. The percentage values outlined in the table below are based on approximately 28.0 million shares of common stock that we estimate will be outstanding immediately after the spin-off, based on the number of stockholders and shares of Ensign common stock that we expect will be outstanding on the record date, the distribution ratio and the anticipated exchange of Cornerstone equity awards for Pennant equity awards in connection with the distribution.
The following tables provide information with respect to the anticipated beneficial ownership of our common stock by:
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each of our stockholders who we believe (based on the assumptions described below) will beneficially own more than 5% of our outstanding common stock; |
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each of our directors and nominees; |
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each of the individuals we expect to be our named executive officers; and |
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all of our directors and executive officers following the spin-off as a group. |
To the extent our directors and executive officers own Ensign common stock at the record date of the spin-off, they will participate in the distribution on the same terms as other holders of Ensign common stock.
Except as otherwise noted in the footnotes below, each person or entity identified in the tables below has sole voting and investment power with respect to the securities owned by such person or entity. Beneficial ownership is determined in accordance with the rules of the SEC. Unless otherwise indicated, the address of each director and executive officer is c/o The Pennant Group, Inc., 1675 East Riverside Drive, Suite 150, Eagle, Idaho 83616.
Directors and Named Executive Officers |
Number of
Shares Beneficially Owned (1) |
Percentage
of Class |
||||||
Daniel H. Walker (2) |
737,239 | 2.6 | % | |||||
John J. Gochnour (3) |
105,662 | * | ||||||
Derek J. Bunker (4) |
48,929 | * | ||||||
Jennifer L. Freeman |
7,326 | * | ||||||
Christopher R. Christensen (5) |
740,160 | 2.7 | % | |||||
John G. Nackel (6) |
98,985 | * | ||||||
Stephen M.R. Covey |
| * | ||||||
Joanne Stringfield |
| * | ||||||
Scott E. Lamb |
| * | ||||||
Roderic W. Lewis |
| * | ||||||
|
|
|||||||
All Executives Officers and Directors as a Group (10 persons) (7) |
1,738,301 | 6.2 | % | |||||
|
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Five Percent Stockholders: |
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T. Rowe Price Associates, Inc. (8) |
1,389,862 | 5.0 | % | |||||
Wasatch Advisors, Inc. (9) |
1,933,277 | 6.9 | % | |||||
The Vanguard Group (10) |
2,908,847 | 10.4 | % | |||||
BlackRock, Inc. (11) |
3,813,375 | 13.7 | % |
* |
Means less than 1% |
(1) |
Unless otherwise indicated, the address of each person named in the table is care of The Pennant Group, Inc., 1675 East Riverside Drive, Suite 150, Eagle, ID 83616. |
(2) |
Represents 711,508 shares of common stock held by Amoeba Investments, LLC, of which Mr. Walker is the sole member, 298 shares of common stock held by Mr. Walker directly and stock options to purchase 24,713 shares of common stock that are currently exercisable or exercisable within 60 days of June 30, 2019. Included in the number of shares beneficially owned, there are 720 unvested restricted |
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stock awards. It is anticipated that Mr. Walker will receive a grant of approximately 1,000,000 restricted stock units in connection with the spin-off that will fully vest on the third anniversary of the grant. |
(3) |
Represents 32,775 shares of common stock and options to purchase 72,127 shares of common stock that are currently exercisable or exercisable within 60 days of June 30, 2019. Included in the shares beneficially owned, there are 760 unvested restricted stock awards. |
(4) |
Represents 31,546 shares of common stock and options to purchase 16,063 shares of common stock that are currently exercisable or exercisable within 60 days of June 30, 2019. Included in the shares beneficially owned, there are 1,320 unvested restricted stock awards. |
(5) |
Represents 618,162 shares of common stock held by Hobble Creek Investments, LLC, of which Mr. Christensen is the sole member, 92,991 shares of common stock held by Mr. Christensen directly. Included in the number of shares beneficially owned there are 24,836 unvested restricted stocks awards, 2,171 shares held by Mr. Christensens spouse, and 2,000 shares held by Mr. Christensens former spouse as custodian for their minor children under the California Uniform Transfers to Minors Act. Mr. Christensens former spouse holds voting and investment power over the shares held for their children. |
(6) |
Includes 2,700 shares held by the Nackel Family Trust dated June 30, 1997, and 34,660 shares of common stock held by Dr. Nackel directly. Dr. Nackel and his spouse share voting and investment power over the trust. Also includes options to purchase 56,625 shares of common stock that are currently exercisable or exercisable within 60 days of June 30, 2019. Included in the shares beneficially owned, there are 5,000 unvested restricted stock awards. |
(7) |
Includes stock options to purchase an aggregate of 169,527 shares of common stock that are currently exercisable or exercisable within 60 days after June 30, 2019. In addition, there are an aggregate of 32,636 unvested restricted stock awards included in the number of shares beneficially owned. |
(8) |
Information regarding T. Rowe Price Associates, Inc. (T. Rowe) is based solely on a Schedule 13G filed with the SEC on February 14, 2019 by T. Rowe. T. Rowe reported that it has sole voting power with respect to 453,509 shares of common stock and sole dispositive power with respect to 1,389,862 shares of common stock. The address of the principal business office of T. Rowe is 100 E. Pratt Street, Baltimore, MD 21202. |
(9) |
Information regarding Wasatch Advisors, Inc. (Wasatch) is based solely on a Schedule 13G/A filed with the SEC on February 14, 2019 by Wasatch. Wasatch reported that it has sole voting power and sole dispositive power with respect to 1,933,277 shares of common stock. The address of the principal business office of Wasatch is 505 Wakara Way, Salt Lake City, UT 84108. |
(10) |
Information regarding The Vanguard Group, Inc. (Vanguard) is based solely on a Schedule 13G/A filed with the SEC on February 11, 2019 by Vanguard. Vanguard reported that it has sole voting power with respect to 51,058 shares of common stock, shared voting power with respect to 3,727 shares of common stock, sole dispositive power with respect to 2,856,193 shares of common stock and shared dispositive power with respect to 52,654 shares of common stock. The address of the principal business office of Vanguard is 100 Vanguard Blvd. Malvern, PA 19355. |
(11) |
Information regarding Blackrock Inc. (Blackrock) is based solely on a Schedule 13G/A filed with the SEC on January 28, 2019 by Blackrock. Blackrock reported that it has sole voting power with respect to 3,723,644 shares of common stock and sole dispositive power with respect to 3,813,375 shares of common stock. The address of the principal business office of Blackrock is 40 East 52nd Street, New York, NY 10022. |
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Our certificate of incorporation and bylaws will be amended and restated prior to the consummation of the spin-off. The following description of certain terms of our common stock as it will be in effect upon completion of the spin-off is a summary and is qualified in its entirety by reference to our amended and restated certificate of incorporation and our amended and restated bylaws. The certificate of incorporation and bylaws, each in a form expected to be in effect at the time of the distribution, will be included as exhibits to the registration statement on Form 10, of which this information statement forms a part. See Where You Can Find More Information.
Under Description of Capital Stock, we, us, our and our company refer to The Pennant Group, Inc. and not to any of its subsidiaries.
Authorized Capital Stock
Prior to the distribution date, our board of directors and Ensign, as our sole stockholder, will approve and adopt amended and restated versions of our certificate of incorporation and bylaws. Under our amended and restated certificate of incorporation, authorized capital stock will consist of 100.0 million shares of our common stock, par value $0.001 per share, and 1.0 million shares of our preferred stock, par value $0.001 per share.
Common Stock
Based on information available as of the date of this information statement, we estimate that approximately 28.0 million shares of our common stock will be outstanding immediately after the spin-off, based on the number of shares of Ensign common stock that we expect will be outstanding as of the record date, the distribution ratio and the anticipated exchange of Cornerstone equity awards for Pennant equity awards in connection with the distribution.
Dividends. Subject to prior dividend rights of the holders of any preferred shares, holders of shares of our common stock are entitled to receive dividends when, as and if declared by our board of directors out of funds legally available for that purpose. We are incorporated in Delaware and are governed by Delaware law. Delaware law allows a corporation to pay dividends only out of surplus, as determined under Delaware law, or, if no such surplus exists, out of the corporations net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year (provided that such payment will not reduce capital below the amount of capital represented by all classes of shares having a preference upon the distribution of assets).
Voting Rights. Each share of common stock is entitled to one vote on all matters submitted to a vote of stockholders. Holders of shares of our common stock do not have cumulative voting rights. In other words, a holder of a single share of common stock cannot cast more than one vote for each position to be filled on our board of directors. A consequence of not having cumulative voting rights is that the holders of a majority of the shares of common stock entitled to vote in the election of directors can elect all directors standing for election, which means that the holders of the remaining shares will not be able to elect any directors.
Liquidation Rights. In the event of any liquidation, dissolution or winding up of our company, after the satisfaction in full of the liquidation preferences of holders of any preferred shares, holders of shares of our common stock are entitled to ratable distribution of the remaining assets available for distribution to stockholders. The shares of our common stock are not subject to redemption by operation of a sinking fund or otherwise. Holders of shares of our common stock are not currently entitled to pre-emptive rights.
Fully Paid. All of our outstanding shares of common stock are fully paid and nonassessable, and the shares of common stock we will issue in connection with the spin-off will also be fully paid and nonassessable. The holders of our common stock have no preemptive rights and no rights to convert their common stock into any other securities, and our common stock will not be subject to any redemption or sinking fund provisions.
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Preferred Stock
We are authorized to issue up to 1.0 million shares of preferred stock, par value $0.001 per share. No shares of our preferred stock were issued and outstanding as of the date of this information statement, and we expect that no shares of preferred stock will be issued or outstanding at the time of the completion of the spin-off.
Our board of directors, without further action by the holders of our common stock, may issue shares of our preferred stock. Our board of directors is vested with the authority to fix by resolution the designations, preferences and relative, participating, optional or other special rights, and such qualifications, limitations or restrictions thereof, including, without limitation, redemption rights, dividend rights, liquidation preference and conversion or exchange rights of any class or series of preferred stock, and to fix the number of classes or series of preferred stock, the number of shares constituting any such class or series and the voting powers for each class or series.
The authority possessed by our board of directors to issue preferred stock could potentially be used to discourage attempts by third-parties to obtain control of our company through a merger, tender offer, proxy contest or otherwise by making such attempts more difficult or more costly. Our board of directors may issue preferred stock with voting rights or conversion rights that, if exercised, could adversely affect the voting power of the holders of common stock. There are no current agreements or understandings with respect to the issuance of preferred stock and our board of directors has no present intention to issue any shares of preferred stock.
Anti-Takeover Effects of Our Amended and Restated Certificate of Incorporation, Amended and Restated Bylaws and Delaware Law
Our amended and restated certificate of incorporation, our amended and restated bylaws and Delaware statutory law contain provisions that may impact the prospect of an acquisition of our company by means of a tender offer or a proxy contest. These provisions may discourage coercive takeover practices and inadequate takeover bids. Although we have not yet finalized such terms in our amended and restated certificate of incorporation and amended and restated bylaws, we believe that the benefits of such increased protection would give us the potential ability to negotiate with the proponent of an unsolicited proposal to acquire or restructure us and outweigh the disadvantages of discouraging those proposals because negotiation of the proposals could result in an improvement of their terms.
Election and Removal of Directors
Upon completion of the spin-off, our board of directors will initially be divided into three classes, with the classes as nearly equal in number as possible. The directors designated as Class I directors will have terms expiring at the first annual meeting of stockholders following the distribution, which we expect to hold in 2020. The directors designated as Class II directors will have terms expiring at the following years annual meeting of stockholders, which we expect to hold in 2021, and the directors designated as Class III directors will have terms expiring at the following years annual meeting of stockholders, which we expect to hold in 2022. Commencing with the first annual meeting of stockholders following the distribution, directors elected to succeed those directors whose terms then expire shall be elected for a term of office to expire at the third annual meeting of stockholders. As a result, approximately one-third of our board of directors will be elected each year. Additionally, directors will be elected by a plurality of the votes cast in the election of directors. The classification of directors and the plurality voting standard will have the effect of making it more difficult for stockholders to change the composition of our board of directors.
Any director or the entire board of directors may be removed at any time by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the shares then entitled to vote at an election of directors, but only for cause.
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Size of Board and Vacancies
Our amended and restated certificate of incorporation and amended and restated bylaws will provide that our board of directors may consist of no less than four and no more than eleven directors. The number of directors on our board of directors will be fixed exclusively by our board of directors, subject to the minimum and maximum number permitted by certificate of incorporation and bylaws. Newly created directorships resulting from any increase in our authorized number of directors and any vacancies in our board of directors resulting from death, resignation, retirement, disqualification, removal from office or other cause will be filled generally by the majority vote of our remaining directors in office, even if less than a quorum is present.
Stockholder Action by Written Consent
Our amended and restated certificate of incorporation and amended and restated bylaws prohibit stockholder action by written consent except when approved by our board of directors.
Stockholder Meetings
Under our amended and restated certificate of incorporation and amended and restated bylaws, only the chairman of our board of directors, our chief executive officer or our board of directors acting pursuant to a resolution adopted by a majority of the board of directors will be able to call special meetings of our stockholders.
Requirements for Advance Notification of Stockholder Nominations and Proposals
Our amended and restated bylaws will establish advance notice procedures with respect to stockholder proposals and nomination of candidates for election as directors other than nominations made by or at the direction of our board of directors or a committee of our board of directors.
Delaware Anti-Takeover Law
We are subject to Section 203 of the DGCL, an anti-takeover law. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a business combination with an interested stockholder for a period of three years following the date such person becomes an interested stockholder, unless the business combination or the transaction in which such person becomes an interested stockholder is approved in a prescribed manner. Generally, a business combination includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. Generally, an interested stockholder is a person that, together with affiliates and associates, owns, or within three years prior to the determination of interested stockholder status did own, 15.0% or more of a corporations voting stock. The existence of this provision may have an anti-takeover effect with respect to transactions not approved in advance by our board of directors and the anti-takeover effect includes discouraging attempts that might result in a premium over the market price for the shares of our common stock.
No Cumulative Voting
Our amended and restated certificate of incorporation and amended and restated bylaws do not provide for cumulative voting in the election of directors.
Undesignated Preferred Stock
The authorization in our amended and restated certificate of incorporation of undesignated preferred stock will make it possible for our board of directors to issue our preferred stock with voting or other rights or preferences that could impede the success of any attempt to change control of us. The provision in our amended and restated certificate of incorporation authorizing such preferred stock may have the effect of deferring hostile takeovers or delaying changes of control of our management.
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Exclusive Jurisdiction of Certain Actions
Our amended and restated certificate of incorporation will provide that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for any (1) derivative action or proceeding brought on behalf of our company, (2) action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or agent of our company to our company or our stockholders, or any claim for aiding and abetting any such alleged breach, (3) action asserting a claim against our company or any director or officer of our company arising pursuant to any provision of the DGCL or our amended and restated certificate of incorporation or our amended and restated bylaws, or (4) action asserting a claim against us or any director or officer of our company governed by the internal affairs doctrine except for, as to each of (1) through (4) above, any claim (A) as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination), (B) which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or (C) arising under the federal securities laws, including the Securities Act as to which the Court of Chancery and the federal district court for the District of Delaware shall concurrently be the sole and exclusive forums. Notwithstanding the foregoing, the provisions of this paragraph will not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal district courts of the United States of America shall be the sole and exclusive forum. Although we believe this provision benefits Pennant by providing increased consistency in the application of Delaware law in the types of lawsuits to which it applies, the provision may have the effect of discouraging lawsuits against our directors and officers. Furthermore, the enforceability of choice of forum provisions in other companies certificates of incorporation has been challenged in legal proceedings, and it is possible that a court could find these types of provisions to be inapplicable or unenforceable.
Limitations on Liability of Directors and Indemnification of Directors and Officers
Section 145 of the DGCL provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys fees), judgments, fines and amounts paid in settlement in connection with any threatened, pending or completed actions, suit or proceeding, whether civil, criminal, administrative or investigative, in which such person is made a party by reason of the fact that the person is or was a director, officer, employee or agent of the corporation (other than an action by or in the right of the corporationa derivative action), if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe such persons conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification extends only to expenses (including attorneys fees) incurred in connection with the defense or settlement of such action, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporations bylaws, disinterested director vote, stockholder vote, agreement or otherwise.
Our amended and restated certificate of incorporation will provide that no director shall be liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation on liability is not permitted under the DGCL, as now in effect or as amended. Currently, Section 102(b)(7) of the DGCL requires that liability be imposed for the following:
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any breach of the directors duty of loyalty to our company or our stockholders; |
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any act or omission not in good faith or which involved intentional misconduct or a knowing violation of law; |
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unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; and |
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any transaction from which the director derived an improper personal benefit. |
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Our amended and restated certificate of incorporation and amended and restated bylaws will provide that, to the fullest extent authorized or permitted by the DGCL, as now in effect or as amended, we will indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding by reason of the fact that such person is or was our director or officer, or by reason of the fact that our director or officer is or was serving, at our request, as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by us. We will indemnify such persons against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding if such person acted in good faith and in a manner reasonably believed to be in or not opposed to our best interests and, with respect to any criminal proceeding, had no reason to believe such persons conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification extends only to expenses (including attorneys fees) incurred in connection with the defense or settlement of such actions, and court approval is required before there can be any indemnification where the person seeking indemnification has been found liable to us. Any amendment of this provision will not reduce our indemnification obligations relating to actions taken before an amendment.
We are in the process of drafting policies meant to insure our directors and officers and those of our subsidiaries against certain liabilities they may incur in their capacities as directors and officers. Under these policies, the insurer, on our behalf, may also pay amounts for which we have granted indemnification to the directors or officers.
Listing and Trading
We intend to have our shares of common stock listed on NASDAQ. We expect our shares to trade under the ticker symbol PNTG.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Broadridge.
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WHERE YOU CAN FIND MORE INFORMATION
We have filed a Registration Statement on Form 10 with the SEC with respect to the shares of common stock that Ensign stockholders will receive in the distribution. This information statement does not contain all of the information contained in the Registration Statement on Form 10 and the exhibits and schedules to the Registration Statement on Form 10. Some items are omitted in accordance with the rules and regulations of the SEC. For additional information relating to us and the spin-off, reference is made to the Registration Statement on Form 10 and the exhibits to the Registration Statement on Form 10, which are on file at the offices of the SEC. Statements contained in this information statement as to the contents of any contract or other document referred to are not necessarily complete and in each instance, if the contract or document is filed as an exhibit, reference is made to the copy of the contract or other documents filed as an exhibit to the Registration Statement on Form 10. Each statement is qualified in all respects by the relevant reference.
The SEC maintains an Internet site at www.sec.gov, from which you can electronically access the Registration Statement on Form 10, including the exhibits and schedules to the Registration Statement on Form 10.
We maintain an Internet site at www.pennantgroup.com. Our Internet site and the information contained on that site, or connected to that site, are not incorporated into the information statement or the Registration Statement on Form 10.
As a result of the distribution, we will be required to comply with the full informational requirements of the Exchange Act. We will fulfill our obligations with respect to these requirements by filing periodic reports and other information with the SEC. We plan to make available, free of charge, on our Internet site our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, reports filed pursuant to Section 16 of the Exchange Act and amendments to those reports as soon as reasonably practicable after we electronically file or furnish such materials to the SEC.
You should rely only on the information contained in this information statement or to which we have referred you. We have not authorized any person to provide you with different information or to make any representation not contained in this information statement.
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F-1
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
The Ensign Group, Inc.
Opinion on the Financial Statements
We have audited the accompanying combined balance sheets of New Ventures business of The Ensign Group, Inc. (the Company) as of December 31, 2018 and 2017, the related combined statements of income, changes in equity, and cash flows for each of the three years in the period ended December 31, 2018, the related notes and the financial schedule listed in the Index (collectively referred to as the combined financial statements). In our opinion, the combined financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2018 and 2017 and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2018, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These combined financial statements are the responsibility of the Companys management. Our responsibility is to express an opinion on the Companys combined financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB and in accordance with auditing standards generally accepted in United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the combined financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Companys internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the combined financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the combined financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the combined financial statements. We believe that our audits provide a reasonable basis for our opinion.
Emphasis of Matter
As discussed in Note 2, the accompanying combined financial statements have been prepared on a stand-alone basis and are derived from the consolidated financial statements and accounting records of The Ensign Group, Inc. The combined financial statements include allocations from The Ensign Group, Inc. The allocations may not be reflective of the actual level of assets, liabilities, or costs which would have been incurred had the Company operated as a separate, stand-alone entity apart from The Ensign Group, Inc.
/s/ DELOITTE & TOUCHE LLP
Costa Mesa, California
July 3, 2019
We have served as the Companys auditor since 2019.
F-2
COMBINED BALANCE SHEETS
December 31, | ||||||||
2018 | 2017 | |||||||
(In thousands) | ||||||||
Assets |
||||||||
Current assets: |
||||||||
Cash |
$ | 41 | $ | 36 | ||||
Accounts receivableless allowance for doubtful accounts of $616 and $5,058, respectively (Note 4) |
24,469 | 22,245 | ||||||
Prepaid expenses and other current assets |
4,613 | 4,416 | ||||||
|
|
|
|
|||||
Total current assets |
29,123 | 26,697 | ||||||
Property and equipment, net |
10,458 | 8,793 | ||||||
Restricted and other assets |
2,464 | 1,951 | ||||||
Intangible assets, net |
78 | 101 | ||||||
Goodwill |
30,892 | 27,964 | ||||||
Other indefinite-lived intangibles |
25,136 | 22,783 | ||||||
|
|
|
|
|||||
Total assets |
$ | 98,151 | $ | 88,289 | ||||
|
|
|
|
|||||
Liabilities and equity |
||||||||
Current liabilities: |
||||||||
Accounts payable |
$ | 4,390 | $ | 3,077 | ||||
Accrued wages and related liabilities |
12,786 | 11,203 | ||||||
Other accrued liabilities |
12,371 | 11,973 | ||||||
|
|
|
|
|||||
Total current liabilities |
29,547 | 26,253 | ||||||
Other long-term liabilities |
3,316 | 2,120 | ||||||
|
|
|
|
|||||
Total liabilities |
32,863 | 28,373 | ||||||
|
|
|
|
|||||
Commitments and contingencies |
||||||||
Equity: |
||||||||
Net parent investment |
55,856 | 54,996 | ||||||
Non-controlling interest |
9,432 | 4,920 | ||||||
|
|
|
|
|||||
Total equity |
65,288 | 59,916 | ||||||
|
|
|
|
|||||
Total liabilities and equity |
$ | 98,151 | $ | 88,289 | ||||
|
|
|
|
The accompanying notes are an integral part of these combined financial statements.
F-3
COMBINED STATEMENTS OF INCOME
Year Ended December 31, | ||||||||||||
2018 | 2017 | 2016 | ||||||||||
(In thousands) | ||||||||||||
Revenue |
||||||||||||
Service revenue |
$ | 169,037 | $ | 142,403 | $ | 115,813 | ||||||
Senior living revenue |
117,021 | 108,588 | 101,412 | |||||||||
|
|
|
|
|
|
|||||||
Total revenue |
286,058 | 250,991 | 217,225 | |||||||||
Expense |
||||||||||||
Cost of services |
212,421 | 187,278 | 159,987 | |||||||||
Rentcost of services |
31,199 | 31,304 | 28,953 | |||||||||
General and administrative expense |
18,843 | 14,463 | 12,448 | |||||||||
Depreciation and amortization |
2,964 | 2,544 | 2,855 | |||||||||
|
|
|
|
|
|
|||||||
Total expenses |
265,427 | 235,589 | 204,243 | |||||||||
Income from operations |
20,631 | 15,402 | 12,982 | |||||||||
Provision for income taxes |
4,352 | 5,375 | 5,065 | |||||||||
|
|
|
|
|
|
|||||||
Net income |
16,279 | 10,027 | 7,917 | |||||||||
Less: net income attributable to noncontrolling interest |
595 | 160 | 26 | |||||||||
|
|
|
|
|
|
|||||||
Net income attributable to New Ventures |
$ | 15,684 | $ | 9,867 | $ | 7,891 | ||||||
|
|
|
|
|
|
The accompanying notes are an integral part of these combined financial statements.
F-4
COMBINED STATEMENTS OF CHANGES IN EQUITY
Net Parent
Investment |
Non-Controlling
Interest |
Total | ||||||||||
(In thousands) | ||||||||||||
Total equity as of January 1, 2016 |
$ | 56,525 | $ | | $ | 56,525 | ||||||
Noncontrolling interest attributable to subsidiary equity plan |
(107 | ) | 1,432 | 1,325 | ||||||||
Net income attributable to noncontrolling interest |
| 26 | 26 | |||||||||
Net transfer to parent |
(17,407 | ) | | (17,407 | ) | |||||||
Net income attributable to New Ventures |
7,891 | | 7,891 | |||||||||
|
|
|
|
|
|
|||||||
Total equity as of December 31, 2016 |
46,902 | 1,458 | 48,360 | |||||||||
Noncontrolling interest attributable to subsidiary equity plan |
(1,938 | ) | 3,302 | 1,364 | ||||||||
Net income attributable to noncontrolling interest |
| 160 | 160 | |||||||||
Net transfer from parent |
165 | | 165 | |||||||||
Net income attributable to New Ventures |
9,867 | | 9,867 | |||||||||
|
|
|
|
|
|
|||||||
Total equity as of December 31, 2017 |
54,996 | 4,920 | 59,916 | |||||||||
Noncontrolling interest attributable to subsidiary equity plan |
(2,539 | ) | 3,917 | 1,378 | ||||||||
Net income attributable to noncontrolling interest |
| 595 | 595 | |||||||||
Net transfer to parent |
(12,285 | ) | | (12,285 | ) | |||||||
Net income attributable to New Ventures |
15,684 | | 15,684 | |||||||||
|
|
|
|
|
|
|||||||
Total equity as of December 31, 2018 |
$ | 55,856 | $ | 9,432 | $ | 65,288 | ||||||
|
|
|
|
|
|
The accompanying notes are an integral part of these combined financial statements.
F-5
COMBINED STATEMENTS OF CASH FLOWS
Year Ended December 31, | ||||||||||||
2018 | 2017 | 2016 | ||||||||||
(In thousands) | ||||||||||||
Cash flows from operating activities: |
||||||||||||
Net income |
$ | 16,279 | $ | 10,027 | $ | 7,917 | ||||||
Adjustments to reconcile net income to net cash provided by operating activities: |
||||||||||||
Depreciation and amortization |
2,964 | 2,544 | 2,855 | |||||||||
Provision for doubtful accounts (Note 4) |
346 | 3,374 | 2,435 | |||||||||
Share-based compensation |
2,382 | 2,298 | 2,341 | |||||||||
Change in operating assets and liabilities |
||||||||||||
Accounts receivable |
(2,569 | ) | (5,707 | ) | (897 | ) | ||||||
Prepaid expenses and other assets |
(210 | ) | 113 | (370 | ) | |||||||
Accounts payable |
1,373 | 432 | (431 | ) | ||||||||
Accrued wages and related liabilities |
1,583 | 2,708 | 479 | |||||||||
Other accrued liabilities |
398 | 199 | 1,740 | |||||||||
Other long-term liabilities |
729 | 1,262 | 338 | |||||||||
|
|
|
|
|
|
|||||||
Net cash provided by operating activities |
23,275 | 17,250 | 16,407 | |||||||||
|
|
|
|
|
|
|||||||
Cash flows from investing activities: |
||||||||||||
Purchase of property and equipment |
(3,603 | ) | (3,133 | ) | (3,473 | ) | ||||||
Cash payments for business acquisitions, net of cash received |
(4,725 | ) | (12,059 | ) | (3,320 | ) | ||||||
Cash payments for asset acquisitions |
(593 | ) | | | ||||||||
Cash proceeds received on sale of intangibles |
| 500 | | |||||||||
Cash proceeds from the sale of assets |
| 121 | | |||||||||
Restricted and other assets |
(556 | ) | (1,512 | ) | 1,604 | |||||||
|
|
|
|
|
|
|||||||
Net cash used in investing activities |
(9,477 | ) | (16,083 | ) | (5,189 | ) | ||||||
|
|
|
|
|
|
|||||||
Cash flows from financing activities: |
||||||||||||
Proceeds from sale of subsidiary shares |
1,972 | | | |||||||||
Repurchase of subsidiary shares |
(1,972 | ) | | | ||||||||
Net investment to parent |
(13,793 | ) | (1,161 | ) | (11,215 | ) | ||||||
|
|
|
|
|
|
|||||||
Net cash used in financing activities |
(13,793 | ) | (1,161 | ) | (11,215 | ) | ||||||
|
|
|
|
|
|
|||||||
Net increase in cash |
5 | 6 | 3 | |||||||||
Cash beginning of year |
36 | 30 | 27 | |||||||||
|
|
|
|
|
|
|||||||
Cash end of year |
$ | 41 | $ | 36 | $ | 30 | ||||||
|
|
|
|
|
|
|||||||
Supplemental disclosures of cash flow information: |
||||||||||||
Non-cash financing and investing activity: |
||||||||||||
Capital expenditures |
717 | 309 | 294 | |||||||||
|
|
|
|
|
|
The accompanying notes are an integral part of these combined financial statements.
F-6
NOTES TO COMBINED FINANCIAL STATEMENTS
(Dollars and shares in thousands, except per share data)
1. DESCRIPTION OF BUSINESS
New Ventures (the Company, it, or its) is comprised of the home health and hospice agencies and substantially all of the senior living businesses of The Ensign Group, Inc. (NASDAQ: ENSG) (Ensign or the Parent), which was formed in 1999 with the goal of establishing a new level of quality care within the skilled nursing industry. As of December 31, 2018, the Companys subsidiaries operated 54 home health, hospice and home care agencies, and 50 senior living communities located in Arizona, California, Colorado, Idaho, Iowa, Nevada, Oklahoma, Oregon, Texas, Utah, Washington, Wisconsin, and Wyoming.
Certain of the Companys subsidiaries, collectively referred to as the Service Center, provide certain accounting, payroll, human resources, information technology, legal, risk management, and other services to the operations through contractual relationships.
Each of the Companys affiliated operations are operated by separate, independent subsidiaries that have their own management, employees and assets. Each of the Parents affiliated operations are operated by separate, independent subsidiaries that have their own management, employees, and assets. References herein to the consolidated Company, Parent and its assets and activities is not meant to imply, nor should it be construed as meaning, that New Ventures or The Ensign Group, Inc. has direct operating assets, employees or revenue, or that any of the subsidiaries, are operated by New Ventures or The Ensign Group, Inc.
2. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of PresentationOn May 6, 2019, Ensign announced a proposed plan to separate its home health and hospice operations and substantially all of its senior living businesses into a publicly traded company, The Pennant Group, Inc. (Pennant). To accomplish the separation, Ensign will contribute the Companys assets and liabilities into Pennant and distribute to Ensigns stockholders substantially all of the outstanding shares of Pennant common stock. The distribution is expected to qualify as a tax-free transaction, except to the extent of cash received in lieu of fractional shares, after which Ensign stockholders will own shares in both Ensign and Pennant.
The accompanying combined financial statements of the Company (the Combined Financial Statements) have been prepared on a stand-alone basis and are derived from the consolidated financial statements and accounting records of Ensign. The Combined Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States (GAAP) and pursuant to the regulations of the U.S. Securities and Exchange Commission (the SEC). All intercompany transactions and balances between the various legal entities comprising the Company have been eliminated in the Combined Financial Statements. The combined statements of income reflect income that is attributable to the Company and the noncontrolling interest.
The Company consists of various limited liability companies and corporations established to operate home health, hospice, home care, and senior living operations. The combined balance sheets of the Company includes assets and liabilities of the Parent that are specifically identifiable or otherwise attributable to the Company. Revenue was derived from transactional information specific to the Companys services provided. The costs in the combined statements of income reflect direct and allocated costs.
The financial information included herein may not reflect the combined financial position, results of operations, changes in equity, and cash flows of the Company in the future, and does not reflect what they would have been had the Company been operated as a separate, stand-alone entity during the years presented.
F-7
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
The Company engages in various transactions with subsidiaries of Ensign, including a cash management process and other shared services. Intercompany transactions with Ensigns businesses are not settled on a routine basis, all amounts due to (from) subsidiaries of Ensign, are classified as Net Parent Investment in the combined balance sheets. Changes in the Parents equity investment arising from cash transactions are presented as financing activities in the accompanying combined statements of cash flows.
Cost AllocationThe Combined Financial Statements include allocations of costs for certain shared services provided to the Company by Ensign subsidiaries. Such allocations include, but are not limited to, executive management, accounting, human resources, information technology, compliance, legal, payroll, insurance, tax, treasury, and other general and administrative items. These costs were allocated to the Company on a basis of revenue, location, employee count, or other measures. These cost allocations are reflected within general and administrative expense in the combined statements of income, including for share-based compensation expenses disclosed in Note 12, Options and Awards. The amount of general and administrative costs allocated for the years ended December 31, 2018, 2017 and 2016, inclusive of share-based compensation expense were $18,843, $14,463 and $12,448, respectively. Management believes the basis on which the expenses have been allocated to be a reasonable reflection of the services provided to us during the years presented.
The Parent is partially self-insured for healthcare, general and professional liability, and workers compensation, and historically allocate premium expense to all subsidiaries of Ensign in its accounting records. To reflect all of the insurance costs, quarterly actuary determined adjustments were allocated to the Company based on the proportional historical premium expense. No self-insurance accruals have been allocated to the Company as these accruals represent the obligations of the Parent.
The Parents external debt and related interest expense have not been allocated to the Company for any of the years presented as no portion of the borrowings is being assumed by the Company as part of the separation.
Employees of the Companys subsidiaries participate in Ensigns equity-based incentive plans (the Ensign Plans) and the Cornerstone Subsidiary Equity plan (the Subsidiary Equity Plan). Share-based compensation includes the expense attributable to employees of the Companys subsidiaries participating in the Ensign Plans, as well as the allocated cost related to Ensign subsidiaries employees that participate in the Ensign Plans. Share-based compensation related to Ensign subsidiaries employees that participate in the Ensign Plans were allocated on the basis of revenue. All share-based compensation related to the Subsidiary Equity Plan was recognized in the Combined Financial Statements and, therefore, no cost allocation was necessary.
The share-based compensation costs associated with the Subsidiary Equity Plan awards is initially measured at fair value at the grant date and is expensed as non-cash compensation over the vesting term. Historically, these awards have been granted once a year and the fair value has been determined by an independent valuation of the subsidiary shares. The valuation determination incorporated a discounted cash flow analysis combined with a market-based approach to determine the fair value of the subsidiary equity.
Cash presented in the combined balance sheets represents cash located at our operations. The Company participates in the Parents cash management program. Accordingly, no cash for this business was allocated to the Company in the Combined Financial Statements. The net activity of cash due to (from) the Parent is reflected in the net investment from the Parent.
Estimates and AssumptionsThe preparation of the Combined Financial Statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the Combined Financial Statements and the reported amounts of revenue and expenses during the reporting periods. The most significant estimates in the
F-8
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
Combined Financial Statements relate to revenue, cost allocations, allowance for doubtful accounts, intangible assets and goodwill, impairment of long-lived assets and income taxes. Actual results could differ from those estimates.
Fair Value of Financial InstrumentsThe Companys financial instruments consist of cash, accounts receivable, accounts payable and accrued liabilities. The Company believes all of the financial instruments recorded values approximate fair values because of their nature or respective short durations. Fair value measurements are based on a three-tier hierarchy that prioritizes the inputs used to measure fair value. These tiers include: Level 1, defined as observable inputs such as quoted market prices in active markets; Level 2, defined as inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly; and Level 3, defined as unobservable inputs for which little or no market data exists, therefore requiring an entity to develop its own assumptions.
Revenue RecognitionOn January 1, 2018, the Company adopted Accounting Standards Codification Topic 606, Revenue from Contracts with Customers (ASC 606) applying the modified retrospective method. Results for reporting periods beginning January 1, 2018 are presented under ASC 606, while prior period amounts are not adjusted and continue to be reported under the accounting standards in effect for the prior period. The adoption of ASC 606 did not have a material impact on the measurement nor on the recognition of revenue of contracts, for which all revenue had not been recognized, as of January 1, 2018, therefore no cumulative adjustment has been made to the opening balance of equity at the beginning of 2018. See Note 4, Revenue and Accounts Receivable.
Accounts Receivable and Allowance for Doubtful AccountsAccounts receivable consist primarily of amounts due from Medicare and Medicaid programs, other government programs, managed care health plans and private payor sources, net of estimates for variable consideration. The allowance for doubtful accounts reflects the Companys best estimate of probable losses inherent in the accounts receivable balance.
Property and EquipmentProperty and equipment are initially recorded at their historical cost. Repairs and maintenance are expensed as incurred. Depreciation is computed using the straight-line method over the estimated useful lives of the depreciable assets (ranging from three to 15 years). Leasehold improvements are amortized on a straight-line basis over the shorter of their estimated useful lives or the remaining lease term.
Impairment of Long-Lived AssetsThe Company reviews the carrying value of long-lived assets that are held and used in the operating subsidiaries for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of these assets is determined based upon expected undiscounted future net cash flows from the operating subsidiary to which the assets relate, utilizing managements best estimate, appropriate assumptions, and projections at the time. If the carrying value is determined to be unrecoverable from future operating cash flows, the asset is deemed impaired and an impairment loss would be recognized to the extent the carrying value exceeded the estimated fair value of the asset. The Company estimates the fair value of assets based on the estimated future discounted cash flows of the asset. Management has evaluated its long-lived assets and the Company did not identify any asset impairment during the years ended December 31, 2018, 2017 and 2016.
Leases and Leasehold ImprovementsAt the inception of each lease, the Company performs an evaluation to determine whether the lease should be classified as an operating or capital lease. The Company records rent expense for operating leases that contain scheduled rent increases on a straight-line basis over the term of the lease. The lease term used for straight-line rent expense is calculated from the date the Company is given control of the leased premises through the end of the lease term. The lease term excludes lease renewals as the renewal rents are not at a bargain, there are no economic penalties for the Company not to renew the lease, and it is not
F-9
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
reasonably assured that the Company will exercise the extension options. The lease term used for this evaluation also provides the basis for establishing depreciable lives for buildings subject to lease and leasehold improvements, as well as the period over which the Company records straight-line rent expense.
Intangible Assets and GoodwillDefinite-lived intangible assets consist primarily of patient base and customer relationships. Patient base is amortized over a period of four to eight months, depending on the classification of the patients and the level of occupancy in a new acquisition when acquired. Customer relationships are amortized over a period of up to 20 years.
The Companys indefinite-lived intangible assets consist of trade names and Medicare and Medicaid licenses. The Company tests indefinite-lived intangible assets for impairment on an annual basis or more frequently if events or changes in circumstances indicate that the carrying amount of the intangible asset may not be recoverable. The Company did not identify any asset impairment during the years ended December 31, 2018, 2017 and 2016.
Goodwill represents the excess of the purchase price over the fair value of identifiable net assets acquired in business combinations. Given the time it takes to obtain pertinent information, the initial fair value might not be finalized at the time of the reported period. Accordingly, it is not uncommon for the initial estimates to be subsequently revised. The Company recorded goodwill and other intangible assets at the operation level when acquired, and as such, these assets are identifiable specifically to the operations of New Ventures. Goodwill is subject to annual testing for impairment. In addition, goodwill is tested for impairment if events occur or circumstances change that would reduce the fair value of a reporting unit below its carrying amount. The Company performs its annual test for impairment during the fourth quarter of each year and did not identify any impairment charge during the years ended December 31, 2018, 2017 and 2016. See further discussion at Note 9, Goodwill and Intangible Assets, Net.
Income TaxesHistorically, the Companys operations have been included in the Parents U.S. federal and state income tax returns and all income taxes have been paid by subsidiaries of Ensign. Income tax expense and other income tax related information contained in these combined financial statements are presented on a separate tax return approach. Under this approach, the provision for income taxes represents income tax paid or payable for the current year plus the change in deferred taxes during the year calculated as if the Company was a stand-alone taxpayer filing hypothetical income tax returns. Management believes that the assumptions and estimates used to determine these tax amounts are reasonable. However, the Companys combined financial statements may not necessarily reflect its income tax expense or tax payments in the future, or what tax amounts would have been if the Company had been a stand-alone company during the years presented.
Deferred tax assets and liabilities are established for temporary differences between the financial reporting basis and the tax basis of the Companys assets and liabilities at tax rates in effect when such temporary differences are expected to reverse. The Company generally expects to fully utilize its deferred tax assets; however, when necessary, the Company records a valuation allowance to reduce its net deferred tax assets to the amount that is more likely than not to be realized.
In determining the need for a valuation allowance or the need for and magnitude of liabilities for uncertain tax positions, the Company makes certain estimates and assumptions. These estimates and assumptions are based on, among other things, knowledge of operations, markets, historical trends and likely future changes and, when appropriate, the opinions of advisors with knowledge and expertise in certain fields. Due to certain risks associated with the Companys estimates and assumptions, actual results could differ.
The Tax Cuts and Jobs Act (the Tax Act), which was enacted in December 2017 decreased the corporate income tax rate from 35.0% to 21.0% beginning on January 1, 2018. The Companys actual effective tax rate for
F-10
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
fiscal 2018 may differ from managements estimate due to changes in interpretations and assumptions and the excess tax benefits impact of share-based payment awards. See Note 11, Income Taxes for further detail.
Noncontrolling InterestAs grants related to the Subsidiary Equity Plan are vested and exercised, the Companys membership interest in its home health and hospice subsidiary is reduced based on the number of shares vested and exercised. The Company presents the noncontrolling interest and the amount of combined net income attributable to the Company in its combined statements of income. The carrying amount of the noncontrolling interest is adjusted based on an allocation of subsidiary earnings based on ownership interest.
Share-Based CompensationThe Company measures and recognizes compensation expense for all share-based payment awards, including employee stock options, made to employees and Parents directors based on estimated fair values, ratably over the requisite service period of the award. Net income has been reduced as a result of the recognition of the fair value of all stock options and restricted stock awards issued, the amount of which is contingent upon the number of future grants and other variables. The total amount of share-based compensation was $2,382, $2,298 and $2,341 for the years ended December 31, 2018, 2017 and 2016, respectively, of which $1,900, $1,823 and $1,884 was recorded in general and administrative expense for the years ended December 31, 2018, 2017 and 2016, respectively.
Invested CapitalThe net parent investment on the combined balance sheets represents Ensigns historical investment in the Company, the net effect of transactions with, and allocations from, the Parent and the Companys accumulated earnings.
Recent Accounting PronouncementsExcept for rules and interpretive releases of the SEC under authority of federal securities laws and a limited number of grandfathered standards, the Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) is the sole source of authoritative GAAP literature recognized by the FASB and applicable to the Company. For any new pronouncements announced, the Company considers whether the new pronouncements could alter previous generally accepted accounting principles and determines whether any new or modified principles will have a material impact on the Companys reported financial position or operations in the near term. The applicability of any standard is subject to the formal review of the Companys financial management and certain standards are under consideration.
Recent Accounting Standards Adopted by the Company
In 2014, the FASB and International Accounting Standards Board issued their final standard on revenue from contracts with customers that outlines a single comprehensive model for entities to use in accounting for revenue arising from contracts with customers. Under this new standard and subsequently issued amendments, revenue is recognized at the time a good or service is transferred to a customer for the amount of consideration received. Entities may apply the new standard either retrospectively to each period presented (full retrospective method) or retrospectively with the cumulative effect recognized in beginning retained earnings as of the date of adoption (modified retrospective method). The Company adopted the new revenue standard as of January 1, 2018 using the modified retrospective transition method. The adoption of ASC 606 did not have a material impact on the measurement, nor on the recognition of revenue of contracts, for which all revenue had not been recognized as of January 1, 2018. Therefore, no cumulative adjustment has been made to the opening balance of equity at the beginning of 2018. The comparative information has not been adjusted and continues to be reported under the accounting standards in effect for the period presented. See further discussion at Note 4, Revenue and Accounts Receivable.
In May 2017, the FASB issued amended authoritative guidance to provide guidance on types of changes to the terms or conditions of share-based payments awards to which an entity would be required to apply
F-11
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
modification accounting under ASC 718. The new guidance was effective for the Company in the first quarter of fiscal year 2018. The adoption of this standard did not have a material impact on the Combined Financial Statements.
In January 2017, the FASB issued amended authoritative guidance to clarify the definition of a business and reduce diversity in practice related to the evaluation of whether transactions should be accounted for as acquisitions (or disposals) of assets or businesses. The new provisions provide the requirements needed for an integrated set of assets and activities (the set) to be a business and also establish a practical way to determine when a set is not a business. The Accounting Standards Update (ASU) provides a screen to determine when an integrated set of assets and activities is not a business. The more robust framework helps entities to narrow the definition of outputs created by the set and align it with how outputs are described in the new revenue standard. The new guidance was effective for the Company in the first quarter of fiscal year 2018. The fair value of assets for nine of the Companys acquisitions during the year ended December 31, 2018 was concentrated in property and equipment and as such, these transactions were classified as asset acquisitions in accordance with ASC 805. The fair value of assets for the remaining six acquisitions during the year ended December 31, 2018 was concentrated in goodwill and as such, these transactions were classified as business acquisitions in accordance with ASC 805. The majority of these acquisitions would have been classified as business combinations prior to the adoption of the ASU. The Company anticipates that future acquisitions will be classified as a mixture of business and asset acquisitions under the new guidance.
In March 2018, the Company adopted ASU 2018-05, Income Taxes (Topic 740): Amendments to the SEC Paragraphs Pursuant to SEC Staff Accounting Bulletin No. 118, which updates the income tax accounting in U.S. GAAP to reflect the SEC interpretive guidance released in December 2017, when the Tax Act was signed into law. Additional information regarding the adoption of this standard is contained in Note 11, Income Taxes.
In October 2016, the FASB issued amended authoritative guidance to require companies to recognize the income tax consequences of an intra-entity transfer of an asset, other than inventory, when the transfer occurs. The new guidance is required to be applied on a modified retrospective basis through a cumulative-effect adjustment directly to retained earnings as of the beginning of the period of adoption. The new guidance was effective for the Company in the first quarter of fiscal year 2018. The adoption of this standard did not have a material impact on the Combined Financial Statements.
Accounting Standards Recently Issued but Not Yet Adopted by the Company
In August 2018, the FASB issued amended guidance to simplify fair value measurement disclosure requirements. The new provisions eliminate the requirements to disclose (1) transfers between Level 1 and Level 2 of the fair value hierarchy, (2) policies related to valuation processes and the timing of transfers between levels of the fair value hierarchy, and (3) net asset value disclosure of estimates of timing of future liquidity events. The FASB also modified disclosure requirements of Level 3 fair value measurements. This guidance is effective for annual periods beginning after December 15, 2019, which will be the Companys fiscal year 2020, with early adoption permitted. The adoption of this standard is not expected to have a material impact on the Combined Financial Statements.
In January 2017, the FASB issued amended authoritative guidance to simplify and reduce the cost and complexity of the goodwill impairment test. The new provisions eliminate step 2 from the goodwill impairment test and shift the concept of impairment from a measure of loss when comparing the implied fair value of goodwill to its carrying amount to comparing the fair value of a reporting unit with its carrying amount. The FASB also eliminated the requirements for any reporting unit with a zero or negative carrying amount to perform a qualitative assessment or step 2 of the goodwill impairment test. The new guidance does not amend the
F-12
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
optional qualitative assessment of goodwill impairment. This guidance is effective for annual periods beginning after December 15, 2019, which will be the Companys fiscal year 2020, with early adoption permitted. The adoption of this standard is not expected to have a material impact on the Combined Financial Statements.
In February 2016, the FASB established Topic 842, Leases, by issuing ASU No. 2016-02, which requires lessees to recognize leases with terms longer than 12 months on the balance sheets and disclose key information about leasing arrangements. Leases will be classified as either finance or operating, with classification affecting the pattern of expense recognition in the income statement. The classification criteria for distinguishing between operating and finance (previously capital) leases are substantially similar to the previous lease guidance, but with no explicit bright lines.
The Company adopted the standard as of January 1, 2019, using the modified retrospective transition method that allows it to apply the standard as of the adoption date and record a cumulative adjustment in equity, if applicable. The Company has elected the package of practical expedients permitted under the transition guidance which allows it to not reassess (1) initial direct costs, (2) lease classification for existing or expired leases, and (3) lease definition for existing or expired contracts as of the effective date of January 1, 2019. The new standard also provides practical expedients for an entitys ongoing accounting. The Company has made an accounting policy election to keep leases with an initial term of 12 months or less off of the balance sheets and recognize those lease payments in the combined statements of income on a straight-line basis over the lease term. The Company has also elected the practical expedient to not separate lease and non-lease components for all of its leases as the non-lease components are not significant to the overall lease costs.
The adoption of this standard resulted in recognition of right-of-use assets and lease liabilities of $238,573 and $241,453, respectively, on its combined balance sheet as of January 1, 2019. Equity will not be impacted as a result of the adoption of this standard. The Company does not believe the standard will materially affect its combined net earnings or have a notable impact on liquidity or debt covenant compliance under the Parents current agreements.
3. RELATED PARTY TRANSACTIONS AND NET PARENT INVESTMENT
The Combined Financial Statements include a combination of stand-alone and combined business functions between Ensign and the Companys subsidiaries. The Company leases 27 of its senior living communities from subsidiaries of the Parent. These leases are all based on a term of 15 years from the lease commencement date. The total amount of rent expense included in rentcost of services paid to related parties was $10,363, $11,364 and $10,506 for the years ended December 31, 2018, 2017 and 2016, respectively. These leases will be modified in connection with the spin-off resulting in an overall increase in rent expense. See Note 13, Leases for further discussion.
Certain related party activity occurs as the Companys subsidiaries receive services from the Parents subsidiaries. Services included in cost of services were $2,996, $3,023 and $2,929 for the years ended December 31, 2018, 2017 and 2016, respectively.
In June 2017, a subsidiary of the Company entered into an agreement to provide a loan to a member of its management for $750 at a 6.0% interest rate. The outstanding balance was included as a current receivable on the December 31, 2017 combined balance sheet. This loan amount was paid off in September 2018.
The combined balance sheets of the Company includes Parent assets and liabilities that are specifically identifiable or otherwise attributable to the Company and will be transferred to the Company in connection with the spin-off. Transactions that have occurred between subsidiaries of the Company and subsidiaries of the Parent
F-13
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
are considered to be effectively settled at the time the transaction is recorded. The net effect of these transactions, including the cash management, is included in the combined statements of cash flows as Net Investment to Parent.
4. REVENUE AND ACCOUNTS RECEIVABLE
Revenues are recognized when services are provided to the patients at the amount that reflects the consideration to which the Company expects to be entitled from patients and third-party payors, including Medicaid, Medicare and insurers (private and Medicare replacement plans), in exchange for providing patient care. The healthcare services in home health and hospice patient contracts include routine services in exchange for a contractual agreed-upon amount or rate. Routine services are treated as a single performance obligation satisfied over time as services are rendered. As such, patient care services represent a bundle of services that are not capable of being distinct. Additionally, there may be ancillary services which are not included in the rates for routine services, but instead are treated as separate performance obligations satisfied at a point in time, if and when those services are rendered.
Revenue recognized from healthcare services are adjusted for estimates of variable consideration to arrive at the transaction price. The Company determines the transaction price based on contractually agreed-upon amounts or rate, adjusted for estimates of variable consideration. The Company uses the expected value method in determining the variable component that should be used to arrive at the transaction price, using contractual agreements and historical reimbursement experience within each payor type. The amount of variable consideration which is included in the transaction price may be constrained, and is included in the net revenue only to the extent that it is probable that a significant reversal in the amount of the cumulative revenue recognized will not occur in a future period. If actual amounts of consideration ultimately received differ from the Companys estimates, the Company adjusts these estimates, which would affect net service revenue in the period such variances become known.
Revenue from the Medicare and Medicaid programs accounted for 53.1%, 51.4% and 49.6% of the Companys revenue for the years ended December 31, 2018, 2017 and 2016, respectively. The Company records revenue from these governmental and managed care programs as services are performed at their expected net realizable amounts under these programs. The Companys revenue from governmental and managed care programs is subject to audit and retroactive adjustment by governmental and third-party agencies. Consistent with healthcare industry accounting practices, any changes to these governmental revenue estimates are recorded in the period the change or adjustment becomes known based on final settlement.
Disaggregation of Revenue
The Company disaggregates revenue from contracts with its patients by reportable operating segments and payors. The Company determines that disaggregating revenue into these categories achieves the disclosure objectives to depict how the nature, amount, timing and uncertainty of revenue and cash flows are affected by economic factors. A reconciliation of disaggregated revenue to segment revenue as well as revenue by payor is provided in Note 6, Business Segments.
The Companys service specific revenue recognition policies are as follows:
Home Health Revenue
Medicare Revenue
Net service revenue is recorded under the Medicare prospective payment system based on a 60-day episode payment rate that is subject to adjustment based on certain variables including, but not limited to: (a) an outlier
F-14
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
payment if the patients care was unusually costly; (b) a low utilization adjustment if the number of visits was fewer than five; (c) a partial payment if the patient transferred to another provider or transferred from another provider before completing the episode; (d) a payment adjustment based upon the level of therapy services; (e) the number of episodes of care provided to a patient, regardless of whether the same home health provider provided care for the entire series of episodes; (f) changes in the base episode payments established by the Medicare program; (g) adjustments to the base episode payments for case mix and geographic wages; and (h) recoveries of overpayments.
The Company makes adjustments to Medicare revenue on completed episodes to reflect differences between estimated and actual payment amounts, an inability to obtain appropriate billing documentation and other reasons unrelated to credit risk. Therefore, the Company believes that its reported net service revenue and patient accounts receivable will be the net amounts to be realized from Medicare for services rendered.
In addition to revenue recognized on completed episodes, the Company also recognizes a portion of revenue associated with episodes in progress. Episodes in progress are 60-day episodes of care that begin during the reporting period, but were not completed as of the end of the period. As such, the Company estimates revenue and recognizes it on a daily basis. The primary factors underlying this estimate are the number of episodes in progress at the end of the reporting period, expected Medicare revenue per episode and the Companys estimate of the average percentage complete based on visits performed.
Non-Medicare Revenue
Episodic Based RevenueThe Company recognizes revenue in a similar manner as it recognizes Medicare revenue for episodic-based rates that are paid by other insurance carriers, including Medicare Advantage programs; however, these rates can vary based upon the negotiated terms.
Non-episodic Based RevenueRevenue is recorded on an accrual basis based upon the date of service at amounts equal to its established or estimated per visit rates, as applicable.
Hospice Revenue
Revenue is recorded on an accrual basis based upon the date of service at amounts equal to the estimated payment rates. The estimated payment rates are daily rates for each of the levels of care the Company delivers. Revenue is adjusted for an inability to obtain appropriate billing documentation or authorizations acceptable to the payor and other reasons unrelated to credit risk. Additionally, as Medicare hospice revenue is subject to an inpatient cap and an overall payment cap, the Company monitors its provider numbers and estimates amounts due back to Medicare if a cap has been exceeded. The Company records these adjustments as a reduction to revenue and increases to other accrued liabilities.
Senior Living Revenue
The Companys revenue is recognized when services are rendered on the date services are provided at amounts billable to individual residents and consists of fees for basic housing and senior living care. Residency agreements are generally for a term of 30 days, with resident fees billed monthly in advance. For residents under reimbursement arrangements with Medicaid, revenue is recorded based on contractually agreed-upon amounts or rates on a per resident, daily basis or as services rendered. Revenue for certain ancillary charges is recognized as services are provided, and such fees are billed monthly in arrears.
F-15
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
Impact of New Revenue Guidance on Financial Statement Line Items
The following tables summarize the impact of adopting ASC 606 on the Companys combined statements of income for the years ended December 31, 2018, 2017 and 2016. Because there was no impact to the combined balance sheet as of December 31, 2018 or combined statement of cash flows for the year ended December 31, 2018, no impact information was provided.
Year Ended December 31, | ||||||||||||
2018 | 2017 | 2016 | ||||||||||
Total Revenue: |
||||||||||||
As Reported |
$ | 286,058 | $ | 250,991 | $ | 217,225 | ||||||
Impact of ASC 606 |
1,834 | | | |||||||||
|
|
|
|
|
|
|||||||
Balances as if the previous accounting guidance was in effect |
$ | 287,892 | $ | 250,991 | $ | 217,225 | ||||||
Cost of Services: |
||||||||||||
As Reported |
$ | 212,421 | $ | 187,278 | $ | 159,987 | ||||||
Impact of ASC 606 |
1,834 | | | |||||||||
|
|
|
|
|
|
|||||||
Balances as if the previous accounting guidance was in effect |
$ | 214,255 | $ | 187,278 | $ | 159,987 | ||||||
Total Expense: |
||||||||||||
As Reported |
$ | 265,427 | $ | 235,589 | $ | 204,243 | ||||||
Impact of ASC 606 |
1,834 | | | |||||||||
|
|
|
|
|
|
|||||||
Balances as if the previous accounting guidance was in effect |
$ | 267,261 | $ | 235,589 | $ | 204,243 |
The majority of what was previously presented as bad debt expense under operating expenses has been incorporated as an implicit price concession factored into the calculation of net revenues, as shown in the Impact of ASC 606 line in the table above. Subsequent material events that alter the payors ability to pay are recorded as bad debt expense. The Companys bad debt expense and bad debt as a percent of total revenue was $346 and 0.1%, $3,374 and 1.3%, and $2,435 and 1.1% for the years ended December 31, 2018, 2017 and 2016, respectively.
Prior period results reflect reclassifications, for comparative purposes, related to the adoption of ASC 606, for the presentation of the Companys senior living revenue. Historically, the Company only presented total revenue for all revenue services. This reclassification had no effect on the reported results of operations.
Revenue for the years ended December 31, 2018, 2017 and 2016, is summarized in the following tables:
Year Ended December 31, | ||||||||||||||||||||||||||||||||
2018 |
2018 adjusted to
reflect prior revenue guidance |
2017 | 2016 | |||||||||||||||||||||||||||||
Revenue |
% of Revenue |
Revenue |
% of
Revenue |
Revenue |
% of Revenue |
Revenue |
% of Revenue |
|||||||||||||||||||||||||
Medicare |
$ | 115,997 | 40.5 | % | $ | 116,726 | 40.5 | % | $ | 98,014 | 39.0 | % | $ | 80,500 | 37.1 | % | ||||||||||||||||
Medicaid |
36,033 | 12.6 | 36,426 | 12.7 | 31,043 | 12.4 | 27,206 | 12.5 | ||||||||||||||||||||||||
|
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|
|
|
|
|
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|
|
|
|
|
|||||||||||||||||
Total Medicaid and Medicare |
152,030 | 53.1 | 153,152 | 53.2 | 129,057 | 51.4 | 107,706 | 49.6 | ||||||||||||||||||||||||
Managed care |
24,459 | 8.6 | 25,049 | 8.7 | 21,823 | 8.7 | 17,664 | 8.1 | ||||||||||||||||||||||||
Private and other (1) |
109,569 | 38.3 | 109,691 | 38.1 | 100,111 | 39.9 | 91,855 | 42.3 | ||||||||||||||||||||||||
|
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|
|
|
|
|
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|
|
|
|
|
|
|
|
|||||||||||||||||
Total revenue |
$ | 286,058 | 100.0 | % | $ | 287,892 | 100.0 | % | $ | 250,991 | 100.0 | % | $ | 217,225 | 100.0 | % | ||||||||||||||||
|
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|
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|
|
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|
|
|
|
|
|
(1) |
Private and other payors also includes revenue from all payors generated in home care operations for the years ended December 31, 2018, 2017 and 2016. |
F-16
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
Balance Sheet Impact
Included in the Companys combined balance sheets are contract assets, comprised of billed accounts receivable and unbilled receivables, which are the result of the timing of revenue recognition, billings and cash collections, as well as, contract liabilities, which primarily represent payments the Company receives in advance of services provided. The Company had no material contract liabilities, or activity as of and for the year ended December 31, 2018, related to its home health and hospice services segment.
Accounts receivable is summarized in the following table:
December 31, | ||||||||||||
2018 |
2018 adjusted to
reflect prior revenue guidance |
2017 | ||||||||||
Medicare |
$ | 11,457 | $ | 13,324 | $ | 13,243 | ||||||
Medicaid |
6,692 | 7,452 | 5,629 | |||||||||
Managed care |
3,079 | 4,540 | 4,387 | |||||||||
Private and other |
3,857 | 4,115 | 4,044 | |||||||||
|
|
|
|
|
|
|||||||
Accounts receivable, gross |
25,085 | 29,431 | 27,303 | |||||||||
Less: allowance for doubtful accounts |
(616 | ) | (4,962 | ) | (5,058 | ) | ||||||
|
|
|
|
|
|
|||||||
Accounts receivable, net |
$ | 24,469 | $ | 24,469 | $ | 22,245 | ||||||
|
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|
|
Practical Expedients and Exemptions
As the Companys contracts with its patients have an original duration of one year or less, the Company uses the practical expedient applicable to its contracts and does not consider the time value of money. Further, because of the short duration of these contracts, the Company has not disclosed the transaction price for the remaining performance obligations as of the end of each reporting period or when the Company expects to recognize this revenue. In addition, the Company has applied the practical expedient provided by ASC 340, Other Assets and Deferred Costs, and all incremental customer contract acquisition costs are expensed as they are incurred because the amortization period would have been one year or less.
5. FAIR VALUE MEASUREMENTS
Our non-financial assets, which include long-lived assets, including goodwill, intangible assets and property and equipment, are not required to be measured at fair value on a recurring basis. However, on a periodic basis, or whenever events or changes in circumstances indicate that their carrying value may not be recoverable, the Company assesses its long-lived assets for impairment. When impairment has occurred, such long-lived assets are written down to fair value. See Note 2, Summary of Significant Accounting Policies for further discussion of the Companys significant accounting policies.
6. BUSINESS SEGMENTS
The Company classifies its operations into the following reportable operating segments: (1) home health and hospice services, which includes the Companys home health, hospice and home care businesses; and (2) senior
F-17
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
living services, which includes the operation of assisted living, independent living and memory care communities. The reporting segments are business units that offer different services and are managed separately to provide greater visibility into those operations.
As of December 31, 2018, the Company provided services through 54 affiliated home health, hospice and home care agencies, and 50 wholly-owned affiliated senior living operations.
The Company evaluates performance and allocates capital resources to each segment based on an operating model that is designed to maximize the quality of care provided and profitability. General and administrative expenses are not allocated to any segment for purposes of determining segment profit or loss, and are included in the all other category in the selected segment financial data that follows. The Companys Service Center provides various services to all lines of business. The accounting policies of the reporting segments are the same as those described in Note 2, Summary of Significant Accounting Policies. The Company does not review assets by segment and therefore assets by segment are not disclosed below.
Segment revenues by major payor source were as follows:
Year Ended December 31, 2018 | ||||||||||||||||
Home Health and
Hospice Services |
Senior Living
Services |
Total Revenue | Revenue % | |||||||||||||
Medicare |
$ | 115,997 | $ | | $ | 115,997 | 40.5 | % | ||||||||
Medicaid |
12,409 | 23,624 | 36,033 | 12.6 | ||||||||||||
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|
|
|||||||||
Subtotal |
128,406 | 23,624 | 152,030 | 53.1 | ||||||||||||
Managed care |
24,459 | | 24,459 | 8.6 | ||||||||||||
Private and other |
16,172 | (1) | 93,397 | 109,569 | 38.3 | |||||||||||
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|
|
|
|
|
|
|||||||||
Total revenue |
$ | 169,037 | $ | 117,021 | $ | 286,058 | 100.0 | % | ||||||||
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|
|
|
|
|
(1) |
Private and other payors in our home health and hospice services segment includes revenue from all payors generated in home care operations. |
The following table demonstrates the impact of adopting ASC 606 on the Companys segment revenues by major payor source for the year ended December 31, 2018, by showing revenue amounts as if the previous accounting guidance was still in effect.
Year Ended December 31, 2018
(Adjusted to reflect prior revenue guidance) |
||||||||||||||||
Home Health and
Hospice Services |
Senior Living
Services |
Total Revenue | Revenue % | |||||||||||||
Medicare |
$ | 116,726 | $ | | $ | 116,726 | 40.5 | % | ||||||||
Medicaid |
12,802 | 23,624 | 36,426 | 12.7 | ||||||||||||
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|
|
|
|
|
|||||||||
Subtotal |
129,528 | 23,624 | 153,152 | 53.2 | ||||||||||||
Managed care |
25,049 | | 25,049 | 8.7 | ||||||||||||
Private and other |
16,294 | (1) | 93,397 | 109,691 | 38.1 | |||||||||||
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|
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|
|
|
|
|||||||||
Total revenue |
$ | 170,871 | $ | 117,021 | $ | 287,892 | 100.0 | % | ||||||||
|
|
|
|
|
|
|
|
(1) |
Private and other payors in our home health and hospice services segment includes revenue from all payors generated in home care operations. |
F-18
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
Year Ended December 31, 2017 | ||||||||||||||||
Home Health and
Hospice Services |
Senior Living
Services |
Total Revenue | Revenue % | |||||||||||||
Medicare |
$ | 98,014 | $ | | $ | 98,014 | 39.0 | % | ||||||||
Medicaid |
11,230 | 19,813 | 31,043 | 12.4 | ||||||||||||
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|
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|
|||||||||
Subtotal |
109,244 | 19,813 | 129,057 | 51.4 | ||||||||||||
Managed care |
21,823 | | 21,823 | 8.7 | ||||||||||||
Private and other |
11,336 | (1) | 88,775 | 100,111 | 39.9 | |||||||||||
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|
|||||||||
Total revenue |
$ | 142,403 | $ | 108,588 | $ | 250,991 | 100.0 | % | ||||||||
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|
|
|
|
(1) |
Private and other payors in our home health and hospice services segment includes revenue from all payors generated in home care operations. |
Year Ended December 31, 2016 | ||||||||||||||||
Home Health and
Hospice Services |
Senior Living
Services |
Total Revenue | Revenue % | |||||||||||||
Medicare |
$ | 80,500 | $ | | $ | 80,500 | 37.1 | % | ||||||||
Medicaid |
10,498 | 16,708 | 27,206 | 12.5 | ||||||||||||
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|
|
|
|
|
|||||||||
Subtotal |
90,998 | 16,708 | 107,706 | 49.6 | ||||||||||||
Managed care |
17,664 | | 17,664 | 8.1 | ||||||||||||
Private and other |
7,151 | (1) | 84,704 | 91,855 | 42.3 | |||||||||||
|
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|
|
|
|
|
|
|||||||||
Total revenue |
$ | 115,813 | $ | 101,412 | $ | 217,225 | 100.0 | % | ||||||||
|
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|
|
|
|
|
|
(1) |
Private and other payors in our home health and hospice services segment includes revenue from all payors generated in home care operations. |
The following table sets forth selected financial data combined by business segment:
Year Ended December 31, 2018 | ||||||||||||||||
Home Health and
Hospice Services |
Senior Living
Services |
All Other | Total | |||||||||||||
Revenue |
$ | 169,037 | $ | 117,021 | $ | | $ | 286,058 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Segment income (loss) before provision for income taxes (1) |
$ | 23,375 | $ | 16,099 | $ | (18,843 | ) | $ | 20,631 | |||||||
Depreciation and amortization |
$ | 1,045 | $ | 1,919 | $ | | $ | 2,964 |
(1) |
Segment income (loss) before provision for income taxes includes depreciation and amortization expense and excludes general and administrative expense for home health and hospice and senior living services businesses. General and administrative expense is included in the All Other category. |
F-19
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
The following table demonstrates the impact of adopting ASC 606 on the Companys selected financial data, consolidated by business segment for the year ended December 31, 2018, by showing revenue amounts as if the previous accounting guidance was still in effect.
Year Ended December 31, 2018
(Adjusted to reflect prior revenue guidance) |
||||||||||||||||
Home Health and
Hospice Services |
Senior Living
Services |
All Other | Total | |||||||||||||
Revenue |
$ | 170,871 | $ | 117,021 | $ | | $ | 287,892 | ||||||||
|
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|
|
|
|
|
|
|||||||||
Segment income (loss) before provision for income taxes (1) |
$ | 23,375 | $ | 16,099 | $ | (18,843 | ) | $ | 20,631 | |||||||
Depreciation and amortization |
$ | 1,045 | $ | 1,919 | $ | | $ | 2,964 |
(1) |
Segment income (loss) before provision for income taxes includes depreciation and amortization expense and excludes general and administrative expense for home health and hospice and senior living services businesses. General and administrative expense is included in the All Other category. |
Year Ended December 31, 2017 | ||||||||||||||||
Home Health and
Hospice Services |
Senior Living
Services |
All Other | Total | |||||||||||||
Revenue |
$ | 142,403 | $ | 108,588 | $ | | $ | 250,991 | ||||||||
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|
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Segment income (loss) before provision for income taxes (1) |
$ | 16,832 | $ | 13,033 | $ | (14,463 | ) | $ | 15,402 | |||||||
Depreciation and amortization |
$ | 945 | $ | 1,599 | $ | | $ | 2,544 |
(1) |
Segment income (loss) before provision for income taxes includes depreciation and amortization expense and excludes general and administrative expense for home health and hospice and senior living services businesses. General and administrative expense is included in the All Other category. |
Year Ended December 31, 2016 | ||||||||||||||||
Home Health and
Hospice Services |
Senior Living
Services |
All Other | Total | |||||||||||||
Revenue |
$ | 115,813 | $ | 101,412 | $ | | $ | 217,225 | ||||||||
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Segment income (loss) before provision for income taxes (1) |
$ | 13,676 | $ | 11,754 | $ | (12,448 | ) | $ | 12,982 | |||||||
Depreciation and amortization |
$ | 924 | $ | 1,931 | $ | | $ | 2,855 |
(1) |
Segment income (loss) before provision for income taxes includes depreciation and amortization expense and excludes general and administrative expense for home health and hospice and senior living services businesses. General and administrative expense is included in the All Other category. |
7. ACQUISITIONS
The Companys acquisition focus is to purchase or lease operations that are complementary to the Companys current businesses, accretive to the Companys business or otherwise advance the Companys strategy. The results of all the Companys operating subsidiaries are included in the Combined Financial Statements subsequent to the date of acquisition. Acquisitions are accounted for using the acquisition method of accounting.
F-20
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
2018 Acquisitions
During the year ended December 31, 2018, the Company expanded its operations with the addition of seven stand-alone senior living operations, four home health agencies, two hospice agencies and two home care agencies. The Company did not acquire any material assets or assume any liabilities other than the tenants post-assumption rights and obligations under the senior living long-term leases. The aggregate purchase price for these acquisitions during the year ended December 31, 2018 was $5,318. The addition of these operations added a total of 386 senior living units to be operated by the Companys operating subsidiaries. Typically, subsidiaries of the Company entered into a separate operations transfer agreement with the prior operator as part of each transaction.
The fair value of assets for nine of the acquisitions was concentrated in property and equipment and as such, these transactions were classified as asset acquisitions in accordance with ASC 805. The purchase price for the nine asset acquisitions was $593, mainly consisting of indefinite-lived intangible assets of $515. The fair value of assets for the remaining six acquisitions was concentrated in goodwill and as such, these transactions were classified as business combinations in accordance with ASC 805. The purchase price for the six business combinations was $4,725, mainly consisted of goodwill and indefinite-lived intangible assets of $4,710.
Subsequent Events
Subsequent to December 31, 2018, the Company acquired two home health agencies, four hospice agencies, and two home care agencies. The aggregate purchase price for these acquisitions was $14,760, the majority of which relates to goodwill and other indefinite-lived intangible assets. The allocation of purchase price for these acquisitions was completed as of the date of this report and these acquisitions are classified as business combinations under ASC 805.
Additionally, subsequent to December 31, 2018, the Company acquired the operations of one 52 unit senior living community. In connection with the acquisition of the senior living community, the Company entered into a new long-term triple-net lease with a subsidiary of the Parent. The aggregate purchase price for this acquisition was approximately $19. The allocation of purchase price for this acquisition was completed as of the date of this report and this acquisition is classified as an asset acquisitions under ASC 805.
2017 Acquisitions
The information for prior periods presented below reflects the previous accounting policy prior to the adoption of ASU 2017-01Business Combinations (ASC 805): Clarifying the Definition of a Business. As such, the majority of the acquisitions acquired during the years ended December 31, 2017 and 2016 were classified as business combinations.
During the year ended December 31, 2017, the Company expanded its operations with the addition of seven stand-alone senior living operations, three home health agencies, three hospice agencies and one home care agency. The Company did not acquire any material assets or assume any liabilities, other than the tenants post-assumption rights and obligations under the senior living long-term leases. The aggregate purchase price for these acquisitions for the year ended December 31, 2017 was $12,059. The addition of these operations added 250 senior living units operated by the Companys operating subsidiaries. Typically, subsidiaries of the Company entered into a separate operations transfer agreement with the prior operator as part of each transaction.
2016 Acquisitions
During the year ended December 31, 2016, the Company expanded its operations with the addition of three home health agencies and four hospice agencies. The aggregate purchase price for these acquisitions for the year
F-21
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
ended December 31, 2016 was $3,320. A subsidiary of the Company entered into a separate operations transfer agreement with the prior operator as part of each transaction.
The table below presents the allocation of the purchase price for the operations acquired in business combinations during the years ended December 31, 2018, 2017 and 2016:
December 31, | ||||||||||||
2018 | 2017 | 2016 | ||||||||||
Equipment, furniture, and fixtures |
$ | 15 | $ | 169 | $ | 31 | ||||||
Assembled occupancy |
| 113 | | |||||||||
Definite-lived intangible assets |
| | 100 | |||||||||
Goodwill |
2,872 | 6,841 | 1,799 | |||||||||
Other indefinite-lived intangible assets |
1,838 | 4,936 | 1,390 | |||||||||
|
|
|
|
|
|
|||||||
Total acquisitions |
$ | 4,725 | $ | 12,059 | $ | 3,320 | ||||||
|
|
|
|
|
|
The Companys acquisition strategy has been focused on identifying both opportunistic and strategic acquisitions within its target markets that offer strong opportunities for return. The operating subsidiaries acquired by the Company are frequently underperforming financially and can have regulatory and clinical challenges to overcome. Financial information, especially with underperforming operating subsidiaries, is often inadequate, inaccurate or unavailable. Consequently, the Company believes that prior operating results are not a meaningful representation of the Companys current operating results or indicative of the integration potential of its newly acquired operating subsidiaries. The businesses acquired during the years ended December 31, 2018, 2017 and 2016 were not material acquisitions to the Company individually or in the aggregate. Accordingly, no pro forma financial information has been presented. The financial activity for each acquisition has been included in the combined financial statements of the Company since the date the Company gained effective control.
8. PROPERTY AND EQUIPMENTNET
Property and equipment, net consist of the following:
December 31, | ||||||||
2018 | 2017 | |||||||
Leasehold improvements |
$ | 4,299 | $ | 2,938 | ||||
Equipment |
14,436 | 12,083 | ||||||
Furniture and fixtures |
583 | 437 | ||||||
|
|
|
|
|||||
19,318 | 15,458 | |||||||
Less: accumulated depreciation |
(8,860 | ) | (6,665 | ) | ||||
|
|
|
|
|||||
Property and equipment, net |
$ | 10,458 | $ | 8,793 | ||||
|
|
|
|
9. GOODWILL AND INTANGIBLE ASSETSNET
The Company tests goodwill during the fourth quarter of each year or more often if events or circumstances indicate there may be impairment. The Company performs its analysis for each reporting unit that constitutes a business for which discrete financial information is produced and reviewed by operating segment management and provides services that are distinct from the other components of the operating segment, in accordance with the provisions of ASC Topic 350, Intangibles-Goodwill and Other (ASC 350). This guidance provides the option to first assess qualitative factors to determine whether it is more likely than not that the fair value of a reporting
F-22
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
unit is less than its carrying value, a Step 0 analysis. If, based on a review of qualitative factors, it is more likely than not that the fair value of a reporting unit is less than its carrying value, the Company performs Step 1 of the traditional two-step goodwill impairment test by comparing the net assets of each reporting unit to their respective fair values. The Company determines the estimated fair value of each reporting unit using a discounted cash flow analysis. In the event a units net assets exceed its fair value, an implied fair value of goodwill must be determined by assigning the units fair value to each asset and liability of the unit. The excess of the fair value of the reporting unit over the amounts assigned to its assets and liabilities is the implied fair value of goodwill. An impairment loss is measured by the difference between the goodwill carrying value and the implied fair value.
The Company performs the annual impairment testing of goodwill using October 1 as the measurement date. The Company completed its annual goodwill impairment test and no impairments were identified for the years ended December 31, 2018, 2017 and 2016.
The following table represents activity in goodwill by segment as of and for the years ended December 31, 2018 and 2017:
Home Health and
Hospice Services |
Senior Living
Services |
Total | ||||||||||
January 1, 2017 |
$ | 17,901 | $ | 3,222 | $ | 21,123 | ||||||
Additions |
6,421 | 420 | 6,841 | |||||||||
|
|
|
|
|
|
|||||||
December 31, 2017 |
24,322 | 3,642 | 27,964 | |||||||||
Additions |
2,872 | | 2,872 | |||||||||
Purchase price adjustment |
56 | | 56 | |||||||||
|
|
|
|
|
|
|||||||
December 31, 2018 |
$ | 27,250 | $ | 3,642 | $ | 30,892 | ||||||
|
|
|
|
|
|
The Company anticipates that the majority of total goodwill recognized will be fully deductible for tax purposes as of December 31, 2018. See further discussion of goodwill acquired at Note 7, Acquisitions.
During the year ended December 31, 2018, the Company recorded $2,317 in Medicare and Medicaid licenses and $36 in trade name indefinite-lived intangible assets as part of its acquisitions. During the year ended December 31, 2017, the Company recorded $4,901 in Medicare and Medicaid licenses and $35 in trade name indefinite-lived intangible assets as part of its acquisitions. In addition, the Company disposed of $500 in a Medicare license in fiscal year 2017.
Other indefinite-lived intangible assets consists of the following as of December 31, 2018 and 2017:
December 31, | ||||||||
2018 | 2017 | |||||||
Trade name |
$ | 328 | $ | 292 | ||||
Medicare and Medicaid licenses |
24,808 | 22,491 | ||||||
|
|
|
|
|||||
Total |
$ | 25,136 | $ | 22,783 | ||||
|
|
|
|
F-23
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
December 31, | ||||||||||||||||||||||||||||
2018 | 2017 | |||||||||||||||||||||||||||
Intangible Assets |
Weighted
Average Life (Years) |
Gross
Carrying |
Accumulated
Amortization |
Net |
Gross
Carrying |
Accumulated
Amortization |
Net | |||||||||||||||||||||
Patient base |
0.7 | $ | 591 | $ | (573 | ) | $ | 18 | $ | 654 | $ | (627 | ) | $ | 27 | |||||||||||||
Customer relationships |
2.6 | 470 | (410 | ) | 60 | 470 | (396 | ) | 74 | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Total |
$ | 1,061 | $ | (983 | ) | $ | 78 | $ | 1,124 | $ | (1,023 | ) | $ | 101 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Amortization expense was $101, $100 and $897 for the years ended December 31, 2018, 2017 and 2016, respectively. Of the $897 in amortization expense incurred during the year ended December 31, 2016, approximately $648 related to the amortization of favorable leases that did not reoccur in the year ended December 31, 2017 or 2018.
Estimated amortization expense for each of the periods ending December 31 is as follows:
Year |
Amount | |||
2019 |
$ | 33 | ||
2020 |
14 | |||
2021 |
14 | |||
2022 |
14 | |||
2023 |
3 | |||
|
|
|||
$ | 78 | |||
|
|
10. OTHER ACCRUED LIABILITIES
Other accrued liabilities consist of the following:
December 31, | ||||||||
2018 | 2017 | |||||||
Refunds payable |
$ | 1,905 | $ | 1,443 | ||||
Deferred revenue |
1,542 | 1,308 | ||||||
Resident deposits |
6,310 | 6,092 | ||||||
Property taxes |
932 | 1,854 | ||||||
Other |
1,682 | 1,276 | ||||||
|
|
|
|
|||||
Other accrued liabilities |
$ | 12,371 | $ | 11,973 | ||||
|
|
|
|
Refunds payable includes payables related to overpayments, duplicate payments and credit balances from various payor sources. Deferred revenue occurs when the Company receives payments in advance of services provided. Resident deposits include refundable deposits to residents. Property taxes include amounts owed on our various properties.
11. INCOME TAXES
Effective January 1, 2018, the Tax Act reduced the corporate rate from 35.0% to 21.0%. The Company has adopted ASU 2018-05, Income Taxes (Topic 740): Amendments to SEC Paragraph Pursuant to SEC Staff Accounting Bulletin No. 118, which allows the Company to record provisional amounts during the period of
F-24
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
enactment. Any changes to the provisional amounts are recorded as adjustments to the provision for income taxes in the period the amounts are determined. During the year ended December 31, 2017, the Company recognized a provisional reduction to income tax expense of $315 to reflect the revaluation of the Companys net deferred tax liabilities based on the U.S. federal tax rate of 21%. In accordance with SAB 118, the Tax Act related income tax effects that were initially reported as provisional estimates were refined as additional analysis was performed. As of December 31, 2018, the Company has completed its accounting for the tax effects of the enactment of the Tax Act.
The U.S. government may issue additional guidance on the final impact of U.S. tax reform that may differ from current law, possibly materially, due to factors such as changes in interpretations of the Tax Act, and any legislative action to address uncertainties that arise because of the Tax Act.
The rate impact of each years Tax Act adjustment is outlined in the rate reconciliation table below.
The provision for income taxes on continuing operations for the years ended December 31, 2018, 2017 and 2016 is summarized as follows:
Year Ended December 31, | ||||||||||||
2018 | 2017 | 2016 | ||||||||||
Current: |
||||||||||||
Federal |
$ | 3,223 | $ | 3,550 | $ | 4,329 | ||||||
State |
915 | 649 | 831 | |||||||||
|
|
|
|
|
|
|||||||
4,138 | 4,199 | 5,160 | ||||||||||
|
|
|
|
|
|
|||||||
Deferred: |
||||||||||||
Federal |
226 | 1,305 | (51 | ) | ||||||||
State |
(12 | ) | 186 | (44 | ) | |||||||
|
|
|
|
|
|
|||||||
214 | 1,491 | (95 | ) | |||||||||
|
|
|
|
|
|
|||||||
Adjustment to deferred taxes for tax rate change |
| (315 | ) | | ||||||||
|
|
|
|
|
|
|||||||
Total |
$ | 4,352 | $ | 5,375 | $ | 5,065 | ||||||
|
|
|
|
|
|
A reconciliation of the federal statutory rate to the effective tax rate for income from continuing operations for the years ended December 31, 2018, 2017 and 2016, respectively, is comprised as follows:
Year Ended December 31, | ||||||||||||
2018 | 2017 | 2016 | ||||||||||
Income tax expense at statutory rate |
21.0 | % | 35.0 | % | 35.0 | % | ||||||
State income taxesnet of federal benefit |
3.5 | 3.5 | 3.9 | |||||||||
Non-deductible expenses |
0.4 | 0.3 | 0.6 | |||||||||
Equity compensation |
(2.9 | ) | (1.4 | ) | | |||||||
Revaluation of deferred |
(0.2 | ) | (2.0 | ) | | |||||||
Other adjustments |
(0.7 | ) | (0.5 | ) | (0.5 | ) | ||||||
|
|
|
|
|
|
|||||||
Total income tax provision |
21.1 | % | 34.9 | % | 39.0 | % | ||||||
|
|
|
|
|
|
The Company adopted ASU 2016-09, Improvements to Employee Share-Based Payment Accounting, for the year ended December 31, 2017. Accordingly, the Companys 2018 and 2017 tax rates were favorably impacted by excess tax benefits on equity compensation.
F-25
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
The Companys deferred tax assets and liabilities as of December 31, 2018 and 2017 are summarized below. The deferred taxes in 2018 and 2017 reflect the federal tax rate of 21.0%.
December 31, | ||||||||
2018 | 2017 | |||||||
Deferred tax assets (liabilities): |
||||||||
Accrued expenses |
$ | 2,964 | $ | 1,862 | ||||
Allowance for doubtful accounts |
857 | 955 | ||||||
State taxes |
178 | 122 | ||||||
|
|
|
|
|||||
Total deferred tax assets |
3,999 | 2,939 | ||||||
|
|
|
|
|||||
Depreciation and amortization |
(4,357 | ) | (3,005 | ) | ||||
Prepaid expenses |
(240 | ) | (311 | ) | ||||
Other liabilities |
(14 | ) | (29 | ) | ||||
|
|
|
|
|||||
Total deferred tax liabilities |
(4,611 | ) | (3,345 | ) | ||||
|
|
|
|
|||||
Net deferred tax liabilities |
$ | (612 | ) | $ | (406 | ) | ||
|
|
|
|
The federal statutes of limitations on the Companys 2014, 2013, and 2012 income tax years lapsed during the third quarter of 2018, 2017, and 2016, respectively. During the fourth quarter of each year, various state statutes of limitations also lapsed. The lapses for the years ended December 31, 2018, 2017 and 2016 had no impact on the Companys unrecognized tax benefits.
As of December 31, 2018 and 2017 the Company did not have any unrecognized tax benefits, net of their state benefits, that would affect the Companys effective tax rate. The Company classifies interest and/or penalties on income tax liabilities or refunds as additional income tax expense or income. Such amounts are not material.
12. OPTIONS AND AWARDS
Stockholders have approved the Parent stock plans (2007 Omnibus Incentive Plan and 2017 Omnibus Incentive Plan or collectively the Parent Plans) and the Company has implemented the Subsidiary Equity Plan (together with the Parent Plans, the Plans), which provide for the granting of equity-based compensation. Under The Plans, stock-based payment awards, including employee stock options and restricted stock awards, are issued based on estimated fair value. The following disclosures represent share-based compensation expense relating to the Plans, including awards to employees of the Companys subsidiaries and an allocation of costs from employees in the Service Center. Total share-based compensation expense for all of the Plans for the years ended December 31, 2018, 2017 and 2016:
Year Ended December 31, | ||||||||||||
2018 | 2017 | 2016 | ||||||||||
Parent Plans direct expense |
$ | 482 | $ | 475 | $ | 457 | ||||||
Parent Plans allocated expense |
522 | 459 | 559 | |||||||||
Subsidiary Equity Plan |
1,378 | 1,364 | 1,325 | |||||||||
|
|
|
|
|
|
|||||||
Total share-based compensation |
$ | 2,382 | $ | 2,298 | $ | 2,341 | ||||||
|
|
|
|
|
|
As share-based compensation expense recognized in the Companys combined statements of income for the years ended December 31, 2018, 2017 and 2016 was based on awards ultimately expected to vest, it has been reduced for estimated forfeitures. The Company estimates forfeitures at the time of grant and, if necessary, revises the estimate in subsequent periods if actual forfeitures differ.
F-26
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
The Company uses the Black-Scholes option-pricing model to recognize the value of stock-based compensation expense for share-based payment awards under the Plans. Determining the appropriate fair-value model and calculating the fair value of stock-based awards at the grant date requires considerable judgment, including estimating stock price volatility, expected option life and forfeiture rates. The Company develops estimates based on historical data and market information, which can change significantly over time. The Black-Scholes model requires several key judgments, including:
|
The expected option term is calculated by the average of the contractual term of the options and the weighted average vesting period for all options. |
|
Estimated volatility reflects the volatility of the Parents share price. |
|
The dividend yield is based on the historical pattern of dividends as well as expected dividend patterns. |
|
The risk-free rate is based on the implied yield of U.S. Treasury notes as of the grant date with a remaining term approximately equal to the expected term. |
|
Estimated forfeiture rate is based on the Parents historical forfeiture activity of unvested stock options. |
The Parent Plans
Stock Options
Under the Parent Plans, options granted to employees of the subsidiaries of New Ventures employees generally vest over five years at 20% per year on the anniversary of the grant date. Options expire ten years after the date of grant. The fair value of each option is estimated on the grant date using a Black-Scholes option-pricing model with the following weighted average assumptions for stock options granted:
Grant Year |
Options
Granted |
Weighted Average
Risk-Free Rate |
Expected Life |
Weighted Average
Volatility |
Weighted Average
Dividend Yield |
|||||||||||||||
2018 |
11 | 2.8 | % | 6.2 years | 32.0 | % | 0.5 | % | ||||||||||||
2017 |
27 | 2.0 | % | 6.2 years | 35.2 | % | 0.8 | % | ||||||||||||
2016 |
52 | 1.4 | % | 6.3 years | 37.8 | % | 0.8 | % |
The expected volatility is based on the historical market volatility of the Parents stock price over the expected life of the stock options granted. The expected life represents the period of time that the awards are expected to be outstanding and is based on the contractual terms of each instrument, taking into account employees historical exercise and termination behavior.
For the years ended December 31, 2018, 2017 and 2016, the following represents the exercise price and fair value displayed at grant date for stock option grants:
Grant Year |
Granted |
Weighted
Average Exercise Price |
Weighted
Average Fair Value of Options |
|||||||||
2018 |
11 | $ | 36.61 | $ | 12.73 | |||||||
2017 |
27 | $ | 20.06 | $ | 6.97 | |||||||
2016 |
52 | $ | 19.41 | $ | 6.81 |
The weighted average exercise price equaled the weighted average fair value of common stock on the grant date for all options granted during the periods ended December 31, 2018, 2017 and 2016 and therefore, the intrinsic value was $0 at date of grant.
F-27
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
The following table represents the employee stock option activity during the years ended December 31, 2018, 2017 and 2016:
Number of
Options Outstanding |
Weighted
Average Exercise Price |
Number of
Options Vested |
Weighted
Average Exercise Price of Options Vested |
|||||||||||||
January 1, 2016 |
379 | $ | 11.99 | 152 | $ | 7.71 | ||||||||||
Granted |
52 | 19.41 | ||||||||||||||
Forfeited |
(4 | ) | 8.92 | |||||||||||||
Exercised |
(37 | ) | 5.18 | |||||||||||||
|
|
|||||||||||||||
December 31, 2016 |
390 | 11.03 | 151 | $ | 7.91 | |||||||||||
Granted |
27 | 20.06 | ||||||||||||||
Forfeited |
| | ||||||||||||||
Exercised |
(50 | ) | 10.27 | |||||||||||||
|
|
|||||||||||||||
December 31, 2017 |
367 | 14.69 | 191 | $ | 12.58 | |||||||||||
Granted |
11 | 36.61 | ||||||||||||||
Forfeited |
(13 | ) | 13.05 | |||||||||||||
Exercised |
(68 | ) | 13.81 | |||||||||||||
|
|
|||||||||||||||
December 31, 2018 |
297 | $ | 15.94 | 182 | $ | 13.28 | ||||||||||
|
|
The following summary information reflects stock options outstanding, vested and related details as of December 31, 2018:
Stock Options Outstanding |
Stock
Options |
|||||||||||||||||||||||||||
Year of Grant |
Exercise Price |
Number
Outstanding |
Black-
Scholes Fair Value |
Remaining
Contractual Life (Years) |
Vested and
Exercisable |
|||||||||||||||||||||||
2009 |
$ | 4.06 | - | 4.56 | 5 | $ | 11 | 1 | 5 | |||||||||||||||||||
2010 |
4.77 | - | 4.96 | 3 | 6 | 2 | 3 | |||||||||||||||||||||
2011 |
5.90 | - | 7.99 | 13 | 46 | 3 | 13 | |||||||||||||||||||||
2012 |
6.56 | - | 7.96 | 21 | 73 | 4 | 21 | |||||||||||||||||||||
2013 |
7.98 | - | 11.49 | 25 | 121 | 5 | 25 | |||||||||||||||||||||
2014 |
10.55 | - | 18.94 | 105 | 625 | 6 | 72 | |||||||||||||||||||||
2015 |
21.47 | - | 25.24 | 46 | 419 | 7 | 24 | |||||||||||||||||||||
2016 |
18.79 | - | 19.89 | 44 | 299 | 8 | 16 | |||||||||||||||||||||
2017 |
18.64 | - | 22.90 | 24 | 165 | 9 | 3 | |||||||||||||||||||||
2018 |
$ | 26.53 | 38.59 | 11 | 143 | 10 | | |||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||||
Total |
297 | $ | 1,908 | 182 | ||||||||||||||||||||||||
|
|
|
|
|
|
F-28
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
Restricted Stock Awards
All awards were granted at an issued price of $0 and generally vest over five years. A summary of the status of the Parents non-vested restricted stock awards as of December 31, 2018, 2017 and 2016, and changes during the years ended December 31, 2018, 2017 and 2016, is presented below:
Non-Vested
Restricted Awards |
Weighted Average
Grant Date Fair Value |
|||||||
Nonvested at January 1, 2016 |
35 | $ | 20.14 | |||||
Granted |
19 | 19.50 | ||||||
Vested |
(16 | ) | 18.81 | |||||
Forfeited |
(3 | ) | 19.01 | |||||
|
|
|||||||
Nonvested at December 31, 2016 |
35 | $ | 20.46 | |||||
Granted |
10 | 19.44 | ||||||
Vested |
(14 | ) | 19.59 | |||||
Forfeited |
(1 | ) | 19.18 | |||||
|
|
|||||||
Nonvested at December 31, 2017 |
30 | $ | 20.41 | |||||
Granted |
3 | 36.61 | ||||||
Vested |
(11 | ) | 20.10 | |||||
Forfeited |
(1 | ) | 22.56 | |||||
|
|
|||||||
Nonvested at December 31, 2018 |
21 | $ | 22.59 | |||||
|
|
In future periods, the Company expects to recognize approximately $696 and $490 in share-based compensation expense for unvested options and unvested restricted stock awards, respectively, which were outstanding as of December 31, 2018. Future share-based compensation expense will be recognized over 2.5 and 2.8 weighted average years for unvested options and restricted stock awards, respectively. There were 115 unvested and outstanding options at December 31, 2018, of which 108 are expected to vest. The weighted average contractual life for options outstanding, vested and expected to vest at December 31, 2018 was 5.8 years.
The aggregate intrinsic value of options outstanding, vested, expected to vest and exercised as of and for the years ended December 31, 2018, 2017 and 2016 is as follows:
December 31, | ||||||||||||
Options |
2018 | 2017 | 2016 | |||||||||
Outstanding |
$ | 6,545 | $ | 6,219 | $ | 6,064 | ||||||
Vested |
4,604 | 4,410 | 4,388 | |||||||||
Expected to vest |
1,941 | 1,810 | 1,676 | |||||||||
Exercisable |
2,263 | 2,177 | 2,167 |
The intrinsic value is calculated as the difference between the market value of the underlying common stock and the exercise price of the options.
Subsidiary Equity Plan
On May 26, 2016, the Parent implemented a management equity plan and granted stock options and restricted stock awards of a subsidiary of the Parent. These awards generally vest over a period of three to five years or upon the occurrence of certain prescribed events. The value of the stock options and restricted stock awards is tied to the value of the common stock of the subsidiary. The awards can be put to the Company at
F-29
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
various prescribed dates, which in no event is earlier than six months after vesting of the restricted stock or exercise of the stock options. The Company can also call the awards, at any time.
The grant date fair value of the awards is recognized as compensation expense over the relevant vesting periods, with a corresponding adjustment to non-controlling interest. The grant value was determined based on independent valuation of the subsidiary shares close to the grant date. The valuation incorporated a discounted cash flow analysis combined with a market-based approach to determine the fair value of the subsidiary equity. Share-based compensation expense related to stock options granted under the Subsidiary Equity Plan was $43, $28 and $8 for the years ended December 31, 2018, 2017 and 2016, respectively.
The Company granted awards of 3,323 shares of restricted stock awards during the year ended December 31, 2016. The fair value of these restricted awards was based on an independent valuation of the subsidiary shares close to the grant date. The Company did not grant any additional restricted awards subsequent to the year ended December 31, 2016. Share-based compensation expense related to restricted awards granted under the Subsidiary Equity Plan was $1,335, $1,336 and $1,317 for the years ended December 31, 2018, 2017 and 2016, respectively.
The following table represents stock options and restricted stock awards activity during the years ended December 31, 2018, 2017 and 2016:
Number of
Options Outstanding |
Weighted
Average Exercise Price |
Non-Vested
Restricted Awards |
Weighted
Average Grant Date Fair Value |
|||||||||||||
January 1, 2016 |
| $ | | | $ | | ||||||||||
Granted |
120 | 1.37 | 3,323 | 1.37 | ||||||||||||
Forfeited |
| | | | ||||||||||||
Vested |
| | (375 | ) | 1.37 | |||||||||||
|
|
|
|
|||||||||||||
December 31, 2016 |
120 | $ | 1.37 | 2,948 | $ | 1.37 | ||||||||||
Granted |
174 | 1.62 | | | ||||||||||||
Forfeited |
| | | | ||||||||||||
Options Exercised/Shares Vested |
(2 | ) | 1.37 | (976 | ) | 1.37 | ||||||||||
|
|
|
|
|||||||||||||
December 31, 2017 |
292 | $ | 1.52 | 1,972 | $ | 1.37 | ||||||||||
Granted |
221 | 2.20 | | | ||||||||||||
Forfeited |
(19 | ) | 1.49 | | | |||||||||||
Options Exercised/Shares Vested |
(11 | ) | 1.51 | (976 | ) | 1.37 | ||||||||||
|
|
|
|
|||||||||||||
December 31, 2018 |
483 | $ | 1.83 | 996 | $ | 1.37 | ||||||||||
|
|
|
|
In future periods, the Company expects to recognize approximately $162 and $563 in share-based compensation expense for unvested options and unvested restricted stock awards, respectively, which were outstanding as of December 31, 2018. Future share-based compensation expense will be recognized over 3.6 and 0.5 weighted average years for unvested options and restricted stock awards, respectively. There were 65 vested and exercisable options at December 31, 2018. There were 418 unvested and outstanding options at December 31, 2018, all of which are expected to vest. The weighted average contractual life for options outstanding, vested and expected to vest at December 31, 2018 was 8.6 years.
During 2018, the Company repurchased 865 shares under the Subsidiary Equity Plan for $1,972. The Company subsequently sold the shares and received net proceeds of $1,972. In addition, in June 2019, the
F-30
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
Company repurchased 469 shares under the Subsidiary Equity Plan for $2,293. The Company subsequently sold the shares and received net proceeds of $2,293.
13. LEASES
As of December 31, 2018, the Companys operating subsidiaries leased 50 senior living communities and its administrative offices under non-cancelable operating leases, most of which have initial lease terms ranging from five to 20 years. Most of these leases contain renewal options, most involve rent increases and none contain purchase options. The lease term excludes lease renewals as the renewal rents are not at a bargain, there are no economic penalties for the Company not to renew the lease, and it is not reasonably assured that the Company will exercise the extension options. As of December 31, 2018, the Companys operating subsidiaries leased 27 communities from subsidiaries of the Parent. The existing leases with subsidiaries of the Parent are for initial terms of 15 years. In addition to rent, each of the operating companies are required to pay the following: (1) all impositions and taxes levied on or with respect to the leased properties (other than taxes on the income of the lessor); (2) all utilities and other services necessary or appropriate for the leased properties and the business conducted on the leased properties; (3) all insurance required in connection with the leased properties and the business conducted on the leased properties; (4) all community maintenance and repair costs; and (5) all fees in connection with any licenses or authorizations necessary or appropriate for the leased properties and the business conducted on the leased properties.
Fifteen of the Companys affiliated senior living communities, excluding the communities that are operated under the Ensign Leases, are operated under two separate master lease arrangements. Under these master leases, a breach at a single community could subject one or more of the other communities covered by the same master lease to the same default risk. Failure to comply with Medicare and Medicaid provider requirements is a default under several of the Companys leases and master leases. In addition, other potential defaults related to an individual community may cause a default of an entire master lease portfolio and could trigger cross-default provisions in the Parents outstanding debt arrangements and other leases. With an indivisible lease, it is difficult to restructure the composition of the portfolio or economic terms of the master lease without the consent of the landlord.
Future minimum lease payments for all leases as of December 31, 2018:
Year |
Amount | |||
2019 |
$ | 33,055 | ||
2020 |
32,181 | |||
2021 |
31,625 | |||
2022 |
31,241 | |||
2023 |
30,896 | |||
Thereafter |
243,333 | |||
|
|
|||
$ | 402,331 | |||
|
|
14. COMMITMENTS AND CONTINGENCIES
Regulatory MattersThe Company provides services in complex and highly regulated industries. The Companys compliance with applicable Federal, State and Local laws and regulations governing these industries may be subject to governmental review and adverse findings may result in significant regulatory action, which could include sanctions, damages, fines, penalties (many of which may not be covered by insurance), and even exclusion from government programs. The Company is a party to various regulatory and other governmental
F-31
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
audits and investigations in the ordinary course of business and cannot predict the ultimate outcome of any Federal or State regulatory survey, audit or investigation. While governmental audits and investigations are the subject of administrative appeals, the appeals process, even if successful, may take several years to resolve. The Department of Justice, the Centers for Medicare and Medicaid Services (CMS), or other federal and state enforcement and regulatory agencies may conduct additional investigations related to the Companys businesses. The Company believes that it is presently in compliance in all material respects with all applicable laws and regulations.
Cost-Containment MeasuresGovernment and third party payors have instituted cost-containment measures designed to limit payments made to providers of healthcare services, and there can be no assurance that future measures designed to limit payments made to providers will not adversely affect the Company.
IndemnitiesFrom time to time, the Company enters into certain types of contracts that contingently require the Company to indemnify parties against third-party claims. These contracts primarily include (i) certain real estate leases, under which the Company may be required to indemnify property owners or prior operators for post-transfer environmental or other liabilities and other claims arising from the Companys use of the applicable premises, (ii) operations transfer agreements, in which the Company agrees to indemnify past operators of agencies and communities the Company acquires against certain liabilities arising from the transfer of the operation and/or the operation thereof after the transfer, (iii) certain Parent lending agreements, and (iv) certain agreements with the management, directors and employees, under which the subsidiaries of the Company may be required to indemnify such persons for liabilities arising out of their employment relationships. The terms of such obligations vary by contract and, in most instances, a specific or maximum dollar amount is not explicitly stated therein. Generally, amounts under these contracts cannot be reasonably estimated until a specific claim is asserted. Consequently, because no claims have been asserted, no liabilities have been recorded for these obligations on the Companys combined balance sheets for any of the years presented.
LitigationThe Companys businesses involve a significant risk of liability given the age and health of the patients and residents served by its operating subsidiaries. The Company, its operating companies, and others in the industry may be subject to a number of claims and lawsuits, including professional liability claims, alleging that services provided have resulted in personal injury, elder abuse, wrongful death or other related claims. Healthcare litigation (including class action litigation) is common and is filed based upon a wide variety of claims and theories, and the Company is routinely subjected to these claims in the ordinary course of business, including potential claims related to patient care and treatment, professional negligence and class actions, as well as employment related claims. If there were a significant increase in the number of these claims or an increase in amounts owing should plaintiffs be successful in their prosecution of these claims, this could materially adversely affect the Companys business, financial condition, results of operations and cash flows. In addition, the defense of these lawsuits may result in significant legal costs, regardless of the outcome, and can result in large settlement amounts or damage awards.
In addition to the potential lawsuits and claims described above, the Company is also subject to potential lawsuits under the False Claims Act (the FCA) and comparable state laws alleging submission of fraudulent claims for services to any healthcare program (such as Medicare) or payor. A violation may provide the basis for exclusion from federally-funded healthcare programs. Such exclusions could have a correlative negative impact on the Companys financial performance. Some states, including California, Arizona and Texas, have enacted similar whistleblower and false claims laws and regulations. In addition, the Deficit Reduction Act of 2005 created incentives for states to enact anti-fraud legislation modeled on the FCA. As such, the Company could face increased scrutiny, potential liability and legal expenses and costs based on claims under state false claims acts in markets in which it does business.
F-32
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
In May 2009, Congress passed the Fraud Enforcement and Recovery Act (FERA) which made significant changes to the FCA, expanding the types of activities subject to prosecution and whistleblower liability. Following changes by FERA, healthcare providers face significant penalties for the knowing retention of government overpayments, even if no false claim was involved. Providers can now be liable for knowingly and improperly avoiding or decreasing an obligation to pay money or property to the government; including the retention of any government overpayment. The Patient Protection and Affordable Care Act of 2010 (the ACA) supplemented FERA by imposing an affirmative obligation on healthcare providers to return an overpayment to CMS within 60-day of identification or the date any corresponding cost report is due, whichever is later. According to CMSs February 12, 2016, final rule with respect to Medicare Parts A and B, providers have an obligation to proactively exercise reasonable diligence to identify overpayments. The 60 day clock begins to run after the reasonable diligence period has concluded, which may take at most six months from the receipt of credible information. Retention of any overpayment beyond this period may create liability under the FCA. In addition, FERA extended protections against retaliation for whistleblowers, including protections not only for employees, but also contractors and agents. Thus, there is generally no need for an employment relationship in order to qualify for protection against retaliation for whistleblowing.
The Company cannot predict or provide any assurance as to the possible outcome of any litigation. If any litigation were to proceed, and the Company and its operating companies are subjected to, alleged to be liable for, or agree to a settlement of, claims or obligations under federal Medicare statutes, the FCA, or similar state and federal statutes and related regulations, the Companys business, financial condition and results of operations and cash flows could be materially and adversely affected. Among other things, any settlement or litigation could involve the payment of substantial sums to settle any alleged civil violations, and may also include the assumption of specific procedural and financial obligations by the Company or its operating companies going forward under a corporate integrity agreement and/or other arrangement with the government.
Medicare Revenue RecoupmentsThe Company is subject to reviews relating to Medicare services, billings and potential overpayments by Unified Program Integrity Contractors (UPIC), Recovery Audit Contractors (RAC), Zone Program Integrity Contractors (ZPIC), Program Safeguard Contractors (PSC) and Medicaid Integrity Contributors (MIC) programs, collectively referred to as Reviews. As of December 31, 2018, six of the Companys independent operating subsidiaries had Reviews scheduled, on appeal or in dispute resolution process, both pre- and post-payment. The Company anticipates that these probe reviews will increase in frequency in the future. If an operation fails a Review and/or subsequent Review, the operation could then be subject to extended Review, suspension of payment, or extrapolation of the identified error rate to all billing in the same time period. As of December 31, 2018, the Companys independent operating subsidiaries have responded to the requests and the related claims are currently under Review, on appeal or in the dispute resolution process.
Concentrations
Credit RiskThe Company has significant accounts receivable balances, the collectability of which is dependent on the availability of funds from certain governmental programs, primarily Medicare and Medicaid. These receivables represent the only significant concentration of credit risk for the Company. The Company does not believe there are significant credit risks associated with these governmental programs. The Company believes that an appropriate allowance has been recorded for the possibility of these receivables proving uncollectible, and continually monitors and adjusts these allowances as necessary. The Companys receivables from the Medicare and Medicaid programs accounted for approximately 72.4% and 69.1% of its gross accounts receivable as of December 31, 2018 and 2017, respectively. Revenue from reimbursement under the Medicare and Medicaid programs accounted for 53.1%, 51.4% and 49.6% of the Companys revenue for the years ended December 31, 2018, 2017 and 2016, respectively.
F-33
NEW VENTURES
NOTES TO COMBINED FINANCIAL STATEMENTS(Continued)
15. DEFINED CONTRIBUTION PLAN
The Companys employees have historically participated in the Parents 401(k) defined contribution plan (the 401(k) Plan). Under the 401(k) Plan, eligible employees of the Parents subsidiaries may contribute up to 15% of their annual basic earnings. Additionally, the 401(k) Plan provides for discretionary matching contributions (as defined in the 401(k) Plan) by the Parent. Beginning in 2007, the 401(k) Plan allowed eligible employees to contribute up to 90% of their eligible compensation, subject to applicable annual Internal Revenue Code limits. The Parent allocated costs and made contributions to the 401(k) Plan on our behalf in the amount of $185, $147 and $103 during the years ended December 31, 2018, 2017 and 2016 respectively.
F-34
Valuation and Qualifying Accounts
Balances at
Beginning of Year |
Impact of
ASC 606 Adoption (1) |
Additions
Charged to Costs and Expenses |
Deductions |
Balances at
End of Year |
||||||||||||||||
(In thousands) | ||||||||||||||||||||
Year Ended December 31, 2016 |
||||||||||||||||||||
Allowance for doubtful accounts |
$ | (2,734 | ) | $ | | $ | (2,435 | ) | $ | 1,494 | $ | (3,675 | ) | |||||||
Year Ended December 31, 2017 |
||||||||||||||||||||
Allowance for doubtful accounts |
$ | (3,675 | ) | $ | | $ | (3,374 | ) | $ | 1,991 | $ | (5,058 | ) | |||||||
Year Ended December 31, 2018 |
||||||||||||||||||||
Allowance for doubtful accounts |
$ | (5,058 | ) | $ | 4,590 | $ | (346 | ) | $ | 198 | $ | (616 | ) |
(1) |
Subsequent to the adoption of ASC 606, the majority of what was previously presented as allowance for doubtful accounts related to bad debt expense has been incorporated as an implicit price concession factored into net revenue and accounts receivable. Allowance for doubtful accounts as of December 31, 2018 represents the Companys best estimate of probable losses inherent in the accounts receivable balance based on known troubled accounts and other currently available evidence. |
All other schedules have been omitted because the information required to be set forth therein is not applicable or is shown in the combined financial statements or notes thereto.
F-35
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors of
The Pennant Group, Inc.
Opinion on the Financial Statement
We have audited the accompanying balance sheet of The Pennant Group, Inc. (the Company) as of January 24, 2019 and the related notes (collectively referred to as the financial statement). In our opinion, the financial statement presents fairly, in all material respects, the financial position of the Company as of January 24, 2019, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
The financial statement is the responsibility of the Companys management. Our responsibility is to express an opinion on the Companys financial statement based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB and in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statement is free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audit, we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Companys internal control over financial reporting. Accordingly, we express no such opinion.
Our audit included performing procedures to assess the risks of material misstatement of the financial statement, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statement. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statement. We believe that our audit provides a reasonable basis for our opinion.
/s/ DELOITTE & TOUCHE LLP
Costa Mesa, California
February 12, 2019
We have served as the Companys auditor since 2019.
F-36
BALANCE SHEET
January 24,
2019 |
||||
(In thousands) | ||||
Assets |
||||
Total assets |
$ | | ||
|
|
|||
Liabilities |
||||
Total liabilities |
| |||
|
|
|||
Stockholders Equity |
||||
Common Stock, par value $0.001 per share, 1,000 shares authorized, issued and outstanding |
| |||
|
|
|||
Total stockholders equity |
| |||
|
|
|||
Total liabilities and stockholders equity |
$ | | ||
|
|
The accompanying notes are an integral part of this balance sheet.
F-37
NOTES TO THE FINANCIAL STATEMENT
Note 1Organization
The Pennant Group, Inc. (the Company) was formed as a Delaware corporation on January 24, 2019. The Company has not commenced operations, nor has the Company entered into any contracts. The principal activity of the Company is intended to be that of a holding company comprising of operating companies providing services to the growing senior population in the United States, operating in multiple lines of businesses across Arizona, California, Colorado, Idaho, Iowa, Nevada, Oklahoma, Oregon, Texas, Utah, Washington, Wisconsin and Wyoming.
Note 2Summary of Significant Accounting Policies
Basis of Presentation-The balance sheet has been prepared in accordance with accounting principles generally accepted in the United States of America. Separate statements of operations, changes in stockholders equity and cash flows have not been presented because there have been no activities since incorporation.
Note 3Stockholders Equity
The Company is authorized to issue 1,000 shares of common stock, par value $0.001 per share (Common Stock). Under the Companys certificate of incorporation all shares of common stock are identical. All the outstanding shares of the Companys common stock are currently owned, directly by The Ensign Group, Inc.
Note 4Subsequent Events
The Company has evaluated all subsequent events through February 12, 2019, the date the balance sheet was available to be issued. The Company did not note any subsequent events requiring disclosure or adjustments to the balance sheet.
F-38
CONDENSED COMBINED BALANCE SHEETS
(Unaudited)
June 30,
2019 |
December 31,
2018 |
|||||||
(In thousands) | ||||||||
Assets |
||||||||
Current assets: |
||||||||
Cash |
$ | 43 | $ | 41 | ||||
Accounts receivableless allowance for doubtful accounts of $935 and $616, respectively |
27,704 | 24,469 | ||||||
Prepaid expenses and other current assets |
4,461 | 4,613 | ||||||
|
|
|
|
|||||
Total current assets |
32,208 | 29,123 | ||||||
Property and equipment, net |
13,158 | 10,458 | ||||||
Right-of-use assets (Note 13) |
237,948 | | ||||||
Restricted and other assets |
2,611 | 2,464 | ||||||
Intangible assets, net |
62 | 78 | ||||||
Goodwill |
42,392 | 30,892 | ||||||
Other indefinite-lived intangibles |
28,286 | 25,136 | ||||||
|
|
|
|
|||||
Total assets |
$ | 356,665 | $ | 98,151 | ||||
|
|
|
|
|||||
Liabilities and equity |
||||||||
Current liabilities: |
||||||||
Accounts payable |
$ | 4,902 | $ | 4,390 | ||||
Accrued wages and related liabilities |
12,458 | 12,786 | ||||||
Lease liabilitiescurrent (Note 13) |
13,152 | | ||||||
Other accrued liabilities |
12,521 | 12,371 | ||||||
|
|
|
|
|||||
Total current liabilities |
43,033 | 29,547 | ||||||
Long-term lease liabilitiesless current portion (Note 13) |
226,453 | | ||||||
Other long-term liabilities |
691 | 3,316 | ||||||
|
|
|
|
|||||
Total liabilities |
270,177 | 32,863 | ||||||
|
|
|
|
|||||
Commitments and contingencies |
||||||||
Equity: |
||||||||
Net parent investment |
73,315 | 55,856 | ||||||
Non-controlling interest |
13,173 | 9,432 | ||||||
|
|
|
|
|||||
Total equity |
86,488 | 65,288 | ||||||
|
|
|
|
|||||
Total liabilities and equity |
$ | 356,665 | $ | 98,151 | ||||
|
|
|
|
The accompanying notes are an integral part of these condensed combined financial statements.
F-39
CONDENSED COMBINED STATEMENTS OF INCOME
(Unaudited)
Six Months Ended June 30, | ||||||||
2019 | 2018 | |||||||
(In thousands) | ||||||||
Revenue |
$160,641 | $137,768 | ||||||
Expense |
||||||||
Cost of services |
121,767 | 101,941 | ||||||
Rentcost of services (Note 13) |
16,830 | 15,289 | ||||||
General and administrative expense |
15,133 | 8,991 | ||||||
Depreciation and amortization |
1,772 | 1,435 | ||||||
|
|
|
|
|||||
Total expenses |
155,502 | 127,656 | ||||||
Income from operations |
5,139 | 10,112 | ||||||
Provision for income taxes |
(32 | ) | 2,200 | |||||
|
|
|
|
|||||
Net income |
5,171 | 7,912 | ||||||
Less: net income attributable to noncontrolling interest |
350 | 370 | ||||||
|
|
|
|
|||||
Net income attributable to New Ventures |
$4,821 | $7,542 | ||||||
|
|
|
|
The accompanying notes are an integral part of these condensed combined financial statements.
F-40
CONDENSED COMBINED STATEMENTS OF CHANGES IN EQUITY
(Unaudited)
Net Parent
Investment |
Non-Controlling
Interest |
Total | ||||||||||
(In thousands) | ||||||||||||
Total equity as of December 31, 2018 |
$ | 55,856 | $9,432 | $ | 65,288 | |||||||
Noncontrolling interest attributable to subsidiary equity plan |
(2,814 | ) | 3,391 | 577 | ||||||||
Net income attributable to noncontrolling interest |
| 350 | 350 | |||||||||
Net transfer from parent |
15,452 | | 15,452 | |||||||||
Net income attributable to New Ventures |
4,821 | | 4,821 | |||||||||
|
|
|
|
|
|
|||||||
Total equity as of June 30, 2019 |
$ | 73,315 | $ | 13,173 | $ | 86,488 | ||||||
|
|
|
|
|
|
Net Parent
Investment |
Non-Controlling
Interest |
Total | ||||||||||
(In thousands) | ||||||||||||
Total equity as of December 31, 2017 |
$ | 54,996 | $ | 4,920 | $ | 59,916 | ||||||
Noncontrolling interest attributable to subsidiary equity plan |
(1,964 | ) | 2,645 | 681 | ||||||||
Net income attributable to noncontrolling interest |
| 370 | 370 | |||||||||
Net transfer to parent |
(6,005 | ) | | (6,005 | ) | |||||||
Net income attributable to New Ventures |
7,542 | | 7,542 | |||||||||
|
|
|
|
|
|
|||||||
Total equity as of June 30, 2018 |
$ | 54,569 | $ | 7,935 | $ | 62,504 | ||||||
|
|
|
|
|
|
The accompanying notes are an integral part of these condensed combined financial statements.
F-41
CONDENSED COMBINED STATEMENTS OF CASH FLOWS
(Unaudited)
Six Months Ended June 30, | ||||||||
2019 | 2018 | |||||||
(In thousands) | ||||||||
Cash flows from operating activities: |
||||||||
Net income |
$ | 5,171 | $ | 7,912 | ||||
Adjustments to reconcile net income to net cash provided by operating activities: |
||||||||
Depreciation and amortization |
1,772 | 1,435 | ||||||
Provision for doubtful accounts |
460 | 118 | ||||||
Share-based compensation |
1,127 | 1,177 | ||||||
Non-cash leasing arrangement (Note 13) |
161 | | ||||||
Change in operating assets and liabilities |
||||||||
Accounts receivable |
(3,695 | ) | (1,813 | ) | ||||
Prepaid expenses and other assets |
(1,110 | ) | (516 | ) | ||||
Operating lease obligations |
133 | | ||||||
Accounts payable |
162 | 583 | ||||||
Accrued wages and related liabilities |
(328 | ) | (1,029 | ) | ||||
Other accrued liabilities |
150 | 499 | ||||||
Other long-term liabilities |
| 885 | ||||||
|
|
|
|
|||||
Net cash provided by operating activities |
4,003 | 9,251 | ||||||
|
|
|
|
|||||
Cash flows from investing activities: |
||||||||
Purchase of property and equipment |
(3,641 | ) | (2,065 | ) | ||||
Cash payments for business acquisitions, net of cash received |
(14,759 | ) | | |||||
Cash payments for asset acquisitions |
(20 | ) | (48 | ) | ||||
Escrow deposits |
| (13 | ) | |||||
Restricted and other assets |
(147 | ) | (433 | ) | ||||
|
|
|
|
|||||
Net cash used in investing activities |
(18,567 | ) | (2,559 | ) | ||||
|
|
|
|
|||||
Cash flows from financing activities: |
||||||||
Proceeds from sale of subsidiary shares |
2,293 | | ||||||
Repurchase of subsidiary shares |
(2,293 | ) | | |||||
Net investment from/(to) parent |
14,566 | (6,689 | ) | |||||
|
|
|
|
|||||
Net cash provided by/(used in) financing activities |
14,566 | (6,689 | ) | |||||
|
|
|
|
|||||
Net increase in cash |
2 | 3 | ||||||
Cash beginning of period |
41 | 36 | ||||||
|
|
|
|
|||||
Cash end of period |
$ | 43 | $ | 39 | ||||
|
|
|
|
|||||
Supplemental disclosures of cash flow information: |
||||||||
Cash paid during the period for: |
||||||||
Lease liabilities |
$ | 16,721 | $ | | ||||
|
|
|
|
|||||
Non-cash financing and investing activity: |
||||||||
Capital expenditures |
$ | 600 | $ | 334 | ||||
|
|
|
|
|||||
Right-of-use assets obtained in exchange for new operating lease obligation |
$ | 4,198 | $ | | ||||
|
|
|
|
The accompanying notes are an integral part of these condensed combined financial statements.
F-42
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS
(Dollars and shares in thousands, except per share data)
(Unaudited)
1. DESCRIPTION OF BUSINESS
New Ventures (the Company, it, or its) is comprised of the home health and hospice agencies and substantially all of the senior living businesses of The Ensign Group, Inc. (NASDAQ: ENSG) (Ensign or the Parent), which was formed in 1999 with the goal of establishing a new level of quality care within the skilled nursing industry. As of June 30, 2019, the Companys subsidiaries operated 62 home health, hospice and home care agencies and 51 senior living communities located in Arizona, California, Colorado, Idaho, Iowa, Nevada, Oklahoma, Oregon, Texas, Utah, Washington, Wisconsin, and Wyoming.
Certain of the Companys subsidiaries, collectively referred to as the Service Center, provide certain accounting, payroll, human resources, information technology, legal, risk management, and other services to the operations through contractual relationships.
Each of the Companys affiliated operations are operated by separate, independent subsidiaries that have their own management, employees and assets. Each of the Parents affiliated operations are operated by separate, independent subsidiaries that have their own management, employees, and assets. References herein to the consolidated Company, Parent and its assets and activities is not meant to imply, nor should it be construed as meaning, that New Ventures or The Ensign Group, Inc. has direct operating assets, employees or revenue, or that any of the subsidiaries, are operated by New Ventures or The Ensign Group, Inc.
2. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of PresentationOn May 6, 2019, Ensign announced a proposed plan to separate its home health and hospice operations and substantially all of its senior living businesses into a publicly traded company, The Pennant Group, Inc. (Pennant). To accomplish the separation, Ensign will contribute the Companys assets and liabilities into Pennant and distribute to Ensigns stockholders substantially all of the outstanding shares of Pennant common stock. The distribution is expected to qualify as a tax-free transaction, except to the extent of cash received in lieu of fractional shares, after which Ensign stockholders will own shares in both Ensign and Pennant.
The accompanying unaudited condensed combined financial statements of the Company (the Interim Financial Statements) have been prepared on a stand-alone basis and are derived from the consolidated financial statements and accounting records of Ensign. The Interim Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States (GAAP) and pursuant to the regulations of the U.S. Securities and Exchange Commission (the SEC). Management believes that the Interim Financial Statements reflect all adjustments which are of a normal and recurring nature necessary to present fairly the Companys financial position and results of operations in all material respects. All intercompany transactions and balances between the various legal entities comprising the Company have been eliminated in the Interim Financial Statements. The condensed combined statements of income reflect income that is attributable to the Company and the noncontrolling interest.
The Company consists of various limited liability companies and corporations established to operate home health, hospice, home care, and senior living operations. The condensed combined balance sheets of the Company include assets and liabilities of the Parent that are specifically identifiable or otherwise attributable to the Company. Revenue was derived from transactional information specific to the Companys services provided. The costs in the condensed combined statements of income reflect direct and allocated costs.
F-43
NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
The financial information included herein may not reflect the condensed combined financial position, results of operations, changes in equity, and cash flows of the Company in the future, and does not reflect what they would have been had the Company been operated as a separate, stand-alone entity during the periods presented.
The Company engages in various transactions with subsidiaries of Ensign, including a cash management process and other shared services. Intercompany transactions with Ensigns businesses are not settled on a routine basis, all amounts due to (from) subsidiaries of Ensign, are classified as Net Parent Investment in the condensed combined balance sheets. Changes in the Parents equity investment arising from cash transactions are presented as financing activities in the accompanying condensed combined statements of cash flows.
Cost AllocationThe Interim Financial Statements include allocations of costs for certain shared services provided to the Company by Ensign subsidiaries. Such allocations include, but are not limited to, executive management, accounting, human resources, information technology, compliance, legal, payroll, insurance, tax, treasury, and other general and administrative items. These costs were allocated to the Company on a basis of revenue, location, employee count, or other measures. These cost allocations are reflected within general and administrative expense in the condensed combined statements of income, including for share-based compensation expenses disclosed in Note 12, Options and Awards. The amount of general and administrative costs allocated for the six months ended June 30, 2019 and 2018, inclusive of share-based compensation expense were $15,133 and $8,991, respectively. Management believes the basis on which the expenses have been allocated to be a reasonable reflection of the services provided to us during the periods presented.
The Parent is partially self-insured for healthcare, general and professional liability, and workers compensation, and historically allocated premium expense to all subsidiaries of Ensign in its accounting records. To reflect all of the insurance costs, quarterly actuary determined adjustments were allocated to the Company based on the proportional historical premium expense. No self-insurance accruals have been allocated to the Company as these accruals represent the obligations of the Parent.
The Parents external debt and related interest expense have not been allocated to the Company for any of the periods presented as no portion of the borrowings is being assumed by the Company as part of the separation.
Employees of the Companys subsidiaries participate in Ensigns equity-based incentive plans (the Ensign Plans) and the Cornerstone Subsidiary Equity plan (the Subsidiary Equity Plan). Share-based compensation includes the expense attributable to employees of the Companys subsidiaries participating in the Ensign Plans, as well as the allocated cost related to Ensign subsidiaries employees that participate in the Ensign Plans. Share-based compensation related to Ensign subsidiaries employees that participate in the Ensign Plans were allocated on the basis of revenue. All share-based compensation related to the Subsidiary Equity Plan was recognized in the Interim Financial Statements and, therefore, no cost allocation was necessary.
The share-based compensation costs associated with the Subsidiary Equity Plan awards is initially measured at fair value at the grant date and is expensed as non-cash compensation over the vesting term. Historically, these awards have been granted once a year and the fair value has been determined by an independent valuation of the subsidiary shares. The valuation incorporated a discounted cash flow analysis combined with a market-based approach to determine the fair value of the subsidiary equity.
Cash presented in the condensed combined balance sheets represents cash located at our operations. The Company participates in the Parents cash management program. Accordingly, no cash for this business was allocated to the Company in the Interim Financial Statements. The net activity of cash due to (from) the Parent is reflected in the net investment from the Parent.
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NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
Estimates and AssumptionsThe preparation of Interim Financial Statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the Interim Financial Statements and the reported amounts of revenue and expenses during the reporting periods. The most significant estimates in the Companys Interim Financial Statements relate to revenue, cost allocations, intangible assets and goodwill, impairment of long-lived assets, right-of-use assets and lease liabilities for leases greater than 12 months, and income taxes. Actual results could differ from those estimates.
Fair Value of Financial InstrumentsThe Companys financial instruments consist principally of cash, accounts receivable, accounts payable and accrued liabilities. The Company believes all of the financial instruments recorded values approximate fair values because of their nature or respective short durations. Fair value measurements are based on a three-tier hierarchy that prioritizes the inputs used to measure fair value. These tiers include: Level 1, defined as observable inputs such as quoted market prices in active markets; Level 2, defined as inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly; and Level 3, defined as unobservable inputs for which little or no market data exists, therefore requiring an entity to develop its own assumptions.
Revenue RecognitionOn January 1, 2018, the Company adopted Accounting Standards Codification (ASC) Topic 606, Revenue from Contracts with Customers (ASC 606) applying the modified retrospective method. The adoption of ASC 606 did not have a material impact on the measurement nor on the recognition of revenue of contracts, for which all revenue had not been recognized, as of January 1, 2018, therefore no cumulative adjustment has been made to the opening balance of retained earnings at the beginning of 2018. See Note 4, Revenue and Accounts Receivable.
Accounts Receivable and Allowance for Doubtful AccountsAccounts receivable consist primarily of amounts due from Medicare and Medicaid programs, other government programs, managed care health plans and private payor sources, net of estimates for variable consideration. The allowance for doubtful accounts reflects the Companys best estimate of probable losses inherent in the accounts receivable balance.
Property and EquipmentProperty and equipment are initially recorded at their historical cost. Repairs and maintenance are expensed as incurred. Depreciation is computed using the straight-line method over the estimated useful lives of the depreciable assets (ranging from three to 15 years). Leasehold improvements are amortized on a straight-line basis over the shorter of their estimated useful lives or the remaining lease term.
Impairment of Long-Lived AssetsThe Company reviews the carrying value of long-lived assets that are held and used in the operating subsidiaries for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of these assets is determined based upon expected undiscounted future net cash flows from the operating subsidiary to which the assets relate, utilizing managements best estimate, appropriate assumptions, and projections at the time. If the carrying value is determined to be unrecoverable from future operating cash flows, the asset is deemed impaired and an impairment loss would be recognized to the extent the carrying value exceeded the estimated fair value of the asset. The Company estimates the fair value of assets based on the estimated future discounted cash flows of the asset. Management has evaluated its long-lived assets and the Company did not identify any asset impairment during the six months ended June 30, 2019 and 2018.
Leases and Leasehold ImprovementsThe Company leases senior living communities and commercial office space. On January 1, 2019, the Company adopted Accounting Standards Codification Topic 842, Leases, using the modified retrospective transition method. Leases for reporting periods beginning after January 1, 2019
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NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
are presented under Topic 842, while prior period amounts are not adjusted and continue to be reported in accordance with our historic accounting under Topic 840. The Company has elected the package of practical expedients permitted under the transition guidance which allows us to not reassess (1) initial direct costs, (2) lease classification for existing or expired leases, and (3) lease definition for existing or expired contracts as of the effective date of January 1, 2019. The Company determines if an arrangement is a lease at the inception of each lease. At the inception of each lease, the Company performs an evaluation to determine whether the lease should be classified as an operating or finance lease. Operating leases are included in operating lease assets, current operating lease liabilities and noncurrent operating lease liabilities on the Companys condensed combined balance sheet. As the Companys leases do not provide an implicit rate, the Company uses its incremental borrowing rate based on the information available at lease commencement date in determining the present value of future lease payments. The Company records rent expense for operating leases on a straight-line basis over the term of the lease. The lease term used for straight-line rent expense is calculated from the date the Company is given control of the leased premises through the end of the lease term. The lease term excludes lease renewals as the renewal rents are not at a bargain, there are no economic penalties for the Company not to renew the lease, and it is not reasonably assured that the Company will exercise the extension options. The lease term used for this evaluation also provides the basis for establishing depreciable lives for buildings subject to lease and leasehold improvements.
The Company recognizes lease expense for leases with an initial term of 12 months or less on a straight-line basis over the lease term. These leases are not recorded on the condensed combined balance sheet. Certain of the Companys lease agreements include rental payments that are adjusted periodically for inflation. The lease agreements do not contain any material residual value guarantees or material restrictive covenants. The Company does not have material subleases.
Intangible Assets and GoodwillDefinite-lived intangible assets consist primarily of patient base and customer relationships. Patient base is amortized over a period of four to eight months, depending on the classification of the patients and the level of occupancy in a new acquisition when acquired.
The Companys indefinite-lived intangible assets consist of trade names and Medicare and Medicaid licenses. The Company tests indefinite-lived intangible assets for impairment on an annual basis or more frequently if events or changes in circumstances indicate that the carrying amount of the intangible asset may not be recoverable. The Company did not identify any asset impairment during the six months ended June 30, 2019 and 2018.
Goodwill represents the excess of the purchase price over the fair value of identifiable net assets acquired in business combinations. Given the time it takes to obtain pertinent information, the initial fair value might not be finalized at the time of the reported period. Accordingly, it is not uncommon for the initial estimates to be subsequently revised. The Company recorded goodwill and other intangible assets at the operation level when acquired, and as such, these assets are identifiable specifically to the operations of New Ventures. Goodwill is subject to annual testing for impairment. In addition, goodwill is tested for impairment if events occur or circumstances change that would reduce the fair value of a reporting unit below its carrying amount. The Company performs its annual test for impairment during the fourth quarter of each year. The Company did not identify any impairment charge during the six months ended June 30, 2019 and 2018. See further discussion at Note 9, Goodwill and Intangible Assets, Net.
Income TaxesHistorically, the Companys operations have been included in the Parents U.S. federal and state income tax returns and all income taxes have been paid by subsidiaries of Ensign. Income tax expense and other income tax related information contained in these Interim Financial Statements are presented on a separate tax return approach. Under this approach, the provision for income taxes represents income tax paid or payable
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NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
for the current year plus the change in deferred taxes during the year calculated as if the Company was a stand-alone taxpayer filing hypothetical income tax returns. Management believes that the assumptions and estimates used to determine these tax amounts are reasonable. However, the Companys Interim Financial Statements may not necessarily reflect its income tax expense or tax payments in the future, or what tax amounts would have been if the Company had been a stand-alone company during the periods presented.
Deferred tax assets and liabilities are established for temporary differences between the financial reporting basis and the tax basis of the Companys assets and liabilities at tax rates in effect when such temporary differences are expected to reverse. The Company generally expects to fully utilize its deferred tax assets; however, when necessary, the Company records a valuation allowance to reduce its net deferred tax assets to the amount that is more likely than not to be realized.
In determining the need for a valuation allowance or the need for and magnitude of liabilities for uncertain tax positions, the Company makes certain estimates and assumptions. These estimates and assumptions are based on, among other things, knowledge of operations, markets, historical trends and likely future changes and, when appropriate, the opinions of advisors with knowledge and expertise in certain fields. Due to certain risks associated with the Companys estimates and assumptions, actual results could differ.
Noncontrolling InterestAs grants related to the Subsidiary Equity Plan are vested and exercised , the Companys membership interest in its home health and hospice subsidiary is reduced based on the number of shares vested and exercised. The Company presents the noncontrolling interest and the amount of combined net income attributable to the Company in its Interim Financial Statements. The carrying amount of the noncontrolling interest is adjusted based on an allocation of subsidiary earnings based on ownership interest.
Share-Based CompensationThe Company measures and recognizes compensation expense for all share-based payment awards, including employee stock options, made to employees and Parents directors based on estimated fair values, ratably over the requisite service period of the award. Net income has been reduced as a result of the recognition of the fair value of all stock options and restricted stock awards issued, the amount of which is contingent upon the number of future grants and other variables. The total amount of share-based compensation was $1,127 and $1,177 for the six months ended June 30, 2019 and 2018, respectively, of which $903 and $932 was recorded in general and administrative expense.
Invested CapitalThe net parent investment on the condensed combined balance sheets represents Ensigns historical investment in the Company, the net effect of transactions with, and allocations from, the Parent and the Companys accumulated earnings.
Recent Accounting PronouncementsExcept for rules and interpretive releases of the SEC under authority of federal securities laws and a limited number of grandfathered standards, the Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) is the sole source of authoritative GAAP literature recognized by the FASB and applicable to the Company. For any new pronouncements announced, the Company considers whether the new pronouncements could alter previous generally accepted accounting principles and determines whether any new or modified principles will have a material impact on the Companys reported financial position or operations in the near term. The applicability of any standard is subject to the formal review of the Companys financial management and certain standards are under consideration.
Recent Accounting Standards Adopted by the Company
In February 2016, the FASB established Topic 842, Leases, by issuing ASU No. 2016-02, which requires lessees to recognize leases with terms longer than 12 months on the balance sheets and disclose key information
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NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
about leasing arrangements. Leases will be classified as either finance or operating, with classification affecting the pattern of expense recognition in the income statement. The classification criteria for distinguishing between operating and finance (previously capital) leases are substantially similar to the previous lease guidance, but with no explicit bright lines.
The Company adopted the standard as of January 1, 2019, using the modified retrospective transition method that allows it to apply the standard as of the adoption date and record a cumulative adjustment in equity, if applicable. The Company has elected the package of practical expedients permitted under the transition guidance which allows it to not reassess (1) initial direct costs, (2) lease classification for existing or expired leases, and (3) lease definition for existing or expired contracts as of the effective date of January 1, 2019. The new standard also provides practical expedients for an entitys ongoing accounting. The Company has made an accounting policy election to keep leases with an initial term of 12 months or less off of the balance sheets and recognize those lease payments in the condensed combined statements of income on a straight-line basis over the lease term. The Company has also elected the practical expedient to not separate lease and non-lease components for all of its leases as the non-lease components are not significant to the overall lease costs.
The adoption of this standard resulted in recognition of right-of-use assets and lease liabilities of $238,573 and $241,453, respectively, on the Companys combined balance sheet as of January 1, 2019. Equity was not impacted as a result of the adoption of this standard. The standard did not materially affect its combined net earnings or have a notable impact on liquidity or debt covenant compliance under the Parents current agreements. See further discussion at Note 13, Leases.
Prior to the adoption of ASC 842, the Company recognized revenue related to its senior living residency agreements in accordance with the provisions of ASC 840, Leases (ASC 840). Subsequent to the adoption of ASU 2016-02, Leases, lessors are required to separately recognize and measure the lease component of a contract with a customer utilizing the provisions of ASC 842 and the non-lease components utilizing the provisions of ASC 606, Revenue from Contracts with Customers. To separately account for the components, the transaction price is allocated among the components based upon the estimated stand alone selling prices of the components. Additionally, certain components of a contract which were previously included within the lease element recognized in accordance with ASC 840 prior to the adoption of ASU 2016-02 (such as common area maintenance services, other basic services, and executory costs) are recognized as non-lease components subject to the provisions of ASC 606 subsequent to the adoption of ASU 2016-02. Entities are required to recognize a cumulative effect adjustment to beginning retained earnings as of the initial application date of ASU 2016-02 for changes to amounts recognized for these certain components for the transition from ASC 840 to ASC 606. However, entities are permitted to elect the practical expedient under ASU 2018-11, Leases, allowing lessors to not separate non-lease components from the associated lease components when certain criteria are met. Entities that elect to utilize the lease/non-lease component combination practical expedient under ASU 2018-11 upon initial application of ASC 842 are required to apply the practical expedient to all new and existing transactions within a class of underlying assets that qualify for the expedient as of the initial application date with a cumulative effect adjustment to beginning retained earnings as of the initial application date for any changes recognized related to existing transactions.
Upon adoption of ASU 2016-02 and ASU 2018-11, the Company elected the lessor practical expedient within ASU 2018-11. The Company recognizes revenue under these resident agreements based upon the predominant component, either the lease or non-lease component, of the contracts rather than allocating the consideration and separately accounting for it under ASC Topic 842 and ASC Topic 606. The Company has concluded that the non-lease components of the agreements with respect to its senior living communities are the predominant component of the contract, therefore, the Company recognizes revenue for these residents agreements under ASC Topic 606. The timing and pattern of revenue recognition is substantially the same as that prior to the adoption of these standards.
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NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
In June 2018, the FASB issued ASU 2018-07, which simplifies several aspects of the accounting for nonemployee share-based payment transactions resulting from expanding the scope of Topic 718, Compensation-Stock Compensation, to include share-based payment transactions for acquiring goods and services from nonemployees. The amendments specify that Topic 718 applies to all share-based payment transactions in which a grantor acquires goods or services to be used or consumed in a grantors own operations by issuing share-based payment awards. The amendments also clarify that Topic 718 does not apply to share-based payments used to effectively provide (1) financing to the issuer or (2) awards granted in conjunction with selling goods or services to customers as part of a contract accounted for under Topic 606, Revenue from Contracts with Customers. The Company adopted this guidance effective January 1, 2019. The adoption of this guidance did not have a material impact on its combined financial statements and related disclosures.
Accounting Standards Recently Issued but Not Yet Adopted by the Company
In August 2018, the FASB issued amended guidance to simplify fair value measurement disclosure requirements. The new provisions eliminate the requirements to disclose (1) transfers between Level 1 and Level 2 of the fair value hierarchy, (2) policies related to valuation processes and the timing of transfers between levels of the fair value hierarchy, and (3) net asset value disclosure of estimates of timing of future liquidity events. The FASB also modified disclosure requirements of Level 3 fair value measurements. This guidance is effective for annual periods beginning after December 15, 2019, which will be the Companys fiscal year 2020, with early adoption permitted. The adoption of this standard is not expected to have a material impact on the condensed combined financial statements.
In January 2017, the FASB issued amended authoritative guidance to simplify and reduce the cost and complexity of the goodwill impairment test. The new provisions eliminate step 2 from the goodwill impairment test and shift the concept of impairment from a measure of loss when comparing the implied fair value of goodwill to its carrying amount to comparing the fair value of a reporting unit with its carrying amount. The FASB also eliminated the requirements for any reporting unit with a zero or negative carrying amount to perform a qualitative assessment or step 2 of the goodwill impairment test. The new guidance does not amend the optional qualitative assessment of goodwill impairment. This guidance is effective for annual periods beginning after December 15, 2019, which will be the Companys fiscal year 2020, with early adoption permitted. The adoption of this standard is not expected to have a material impact on the condensed combined financial statements.
In June 2016, the FASB issued ASU 2016-13 Financial InstrumentsCredit Losses (Topic 326): Measurement of credit Losses on Financial Instruments, which replaces the existing incurred loss impairment model with an expected credit loss model and requires a financial asset measured at amortized cost to be presented at the net amount expected to be collected. The guidance will be effective for fiscal years beginning after December 15, 2019, which will be the Companys fiscal year 2020, early adoption is permitted. The Company has not yet determined the effect of the ASU on its results of operations, financial condition or cash flows.
3. RELATED PARTY TRANSACTIONS AND NET PARENT INVESTMENT
The Interim Financial Statements include a combination of stand-alone and combined business functions between Ensign and the Companys subsidiaries. The Company leases 28 of its senior living communities from subsidiaries of the Parent. These leases are all based on a term of 15 years from the lease commencement date. The total amount of rent expense included in rentcost of services paid to related parties was $5,467 and $5,102 for the six months ended June 30, 2019 and 2018, respectively. These leases will be modified in connection with the spin-off resulting in an overall increase in rent expense. See Note 13, Leases for further discussion.
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NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
Certain related party activity occurs as the Companys subsidiaries receive services from the Parents subsidiaries. Services included in cost of services were $1,495 and $1,334 for the six months ended June 30, 2019 and 2018, respectively.
The condensed combined balance sheets of the Company include Parent assets and liabilities that are specifically identifiable or otherwise attributable to the Company and will be transferred to the Company in connection with the spin-off. Transactions that have occurred between subsidiaries of the Company and subsidiaries of the Parent are considered to be effectively settled at the time the transaction is recorded. The net effect of these transactions, including the cash management, is included in the condensed combined statements of cash flows as Net Investment to Parent.
4. REVENUE AND ACCOUNTS RECEIVABLE
Revenues are recognized when services are provided to the patients at the amount that reflects the consideration to which the Company expects to be entitled from patients and third-party payors, including Medicaid, Medicare and insurers (private and Medicare replacement plans), in exchange for providing patient care. The healthcare services in home health and hospice patient contracts include routine services in exchange for a contractual agreed-upon amount or rate. Routine services are treated as a single performance obligation satisfied over time as services are rendered. As such, patient care services represent a bundle of services that are not capable of being distinct. Additionally, there may be ancillary services which are not included in the rates for routine services, but instead are treated as separate performance obligations satisfied at a point in time, if and when those services are rendered.
Revenue recognized from healthcare services are adjusted for estimates of variable consideration to arrive at the transaction price. The Company determines the transaction price based on contractually agreed-upon amounts or rate, adjusted for estimates of variable consideration. The Company uses the expected value method in determining the variable component that should be used to arrive at the transaction price, using contractual agreements and historical reimbursement experience within each payor type. The amount of variable consideration which is included in the transaction price may be constrained, and is included in the net revenue only to the extent that it is probable that a significant reversal in the amount of the cumulative revenue recognized will not occur in a future period. If actual amounts of consideration ultimately received differ from the Companys estimates, the Company adjusts these estimates, which would affect net service revenue in the period such variances become known.
Revenue from the Medicare and Medicaid programs accounted for 54.1% and 52.7% of the Companys revenue for the six months ended June 30, 2019 and 2018, respectively. The Company records revenue from these governmental and managed care programs as services are performed at their expected net realizable amounts under these programs. The Companys revenue from governmental and managed care programs is subject to audit and retroactive adjustment by governmental and third-party agencies. Consistent with healthcare industry accounting practices, any changes to these governmental revenue estimates are recorded in the period the change or adjustment becomes known based on final settlement.
Disaggregation of Revenue
The Company disaggregates revenue from contracts with its patients by reportable operating segments and payors. The Company determines that disaggregating revenue into these categories achieves the disclosure objectives to depict how the nature, amount, timing and uncertainty of revenue and cash flows are affected by economic factors. A reconciliation of disaggregated revenue to segment revenue as well as revenue by payor is provided in Note 6, Business Segments.
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NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
The Companys service specific revenue recognition policies are as follows:
Home Health Revenue
Medicare Revenue
Net service revenue is recorded under the Medicare prospective payment system based on a 60-day episode payment rate that is subject to adjustment based on certain variables including, but not limited to: (a) an outlier payment if the patients care was unusually costly; (b) a low utilization adjustment if the number of visits was fewer than five; (c) a partial payment if the patient transferred to another provider or transferred from another provider before completing the episode; (d) a payment adjustment based upon the level of covered therapy services; (e) the number of episodes of care provided to a patient, regardless of whether the same home health provider provided care for the entire series of episodes; (f) changes in the base episode payments established by the Medicare program; (g) adjustments to the base episode payments for case mix and geographic wages; and (h) recoveries of overpayments.
The Company makes adjustments to Medicare revenue on completed episodes to reflect differences between estimated and actual payment amounts, an inability to obtain appropriate billing documentation and other reasons unrelated to credit risk. Therefore, the Company believes that its reported net service revenue and patient accounts receivable will be the net amounts to be realized from Medicare for services rendered.
In addition to revenue recognized on completed episodes, the Company also recognizes a portion of revenue associated with episodes in progress. Episodes in progress are 60-day episodes of care that begin during the reporting period, but were not completed as of the end of the period. As such, the Company estimates revenue and recognizes it on a daily basis. The primary factors underlying this estimate are the number of episodes in progress at the end of the reporting period, expected Medicare revenue per episode and the Companys estimate of the average percentage complete based on visits performed.
Non-Medicare Revenue
Episodic Based RevenueThe Company recognizes revenue in a similar manner as it recognizes Medicare revenue for episodic-based rates that are paid by other insurance carriers, including Medicare Advantage programs; however, these rates can vary based upon the negotiated terms.
Non-episodic Based RevenueRevenue is recorded on an accrual basis based upon the date of service at amounts equal to its established or estimated per visit rates, as applicable.
Hospice Revenue
Revenue is recorded on an accrual basis based upon the date of service at amounts equal to the estimated payment rates. The estimated payment rates are daily rates for each of the levels of care the Company delivers. Revenue is adjusted for an inability to obtain appropriate billing documentation or authorizations acceptable to the payor and other reasons unrelated to credit risk. Additionally, as Medicare hospice revenue is subject to an inpatient cap and an overall payment cap, the Company monitors its provider numbers and estimates amounts due back to Medicare if a cap has been exceeded. The Company records these adjustments as a reduction to revenue and increases to other accrued liabilities.
Senior Living Revenue
The Company has elected the lessor practical expedient within ASC 842, Leases and recognizes, measures, presents, and discloses the revenue for services under the Companys senior living residency agreements based
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NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
upon the predominant component, either the lease or nonlease component, of the contracts. The Company has determined that the services included under the Companys senior living residency agreements have the same timing and pattern of transfer. The Company recognizes revenue under ASC 606, Revenue Recognition from Contracts with Customers for its senior residency agreements for which it has estimated that the nonlease components of such residency agreements are the predominant component of the contract.
The Companys senior living revenue consists of fees for basic housing and assisted living care. Accordingly, we record revenue when services are rendered on the date services are provided at amounts billable to individual residents. Residency agreements are generally for a term of 30 days, with resident fees billed monthly in advance. For residents under reimbursement arrangements with Medicaid, revenue is recorded based on contractually agreed-upon amounts or rates on a per resident, daily basis or as services are rendered.
Revenue for the six months ended June 30, 2019 and 2018, is summarized in the following tables:
Six Months Ended June 30, | ||||||||||||||||
2019 | 2018 | |||||||||||||||
Revenue |
% of Revenue |
Revenue |
% of Revenue |
|||||||||||||
Medicare |
$ | 65,399 | 40.7 | % | $ | 55,937 | 40.6 | % | ||||||||
Medicaid |
21,537 | 13.4 | 16,691 | 12.1 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total Medicaid and Medicare |
86,936 | 54.1 | 72,628 | 52.7 | ||||||||||||
Managed care |
13,875 | 8.6 | 11,898 | 8.6 | ||||||||||||
Private and other (1) |
59,830 | 37.3 | 53,242 | 38.7 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Revenue |
$ | 160,641 | 100.0 | % | $ | 137,768 | 100.0 | % | ||||||||
|
|
|
|
|
|
|
|
(1) |
Private and other payors also includes revenue from all payors generated in home care operations for the six months ended June 30, 2019 and 2018. |
Balance Sheet Impact
Included in the Companys condensed combined balance sheets are contract assets, comprised of billed accounts receivable and unbilled receivables, which are the result of the timing of revenue recognition, billings and cash collections, as well as, contract liabilities, which primarily represent payments the Company receives in advance of services provided. The Company had no material contract liabilities for the six months ended June 30, 2019, related to its home health and hospice, or senior living services segments.
Accounts receivable as of June 30, 2019 and December 31, 2018 is summarized in the following table:
June 30, 2019 | December 31, 2018 | |||||||
Medicare |
$ | 13,799 | $ | 11,457 | ||||
Medicaid |
7,440 | 6,692 | ||||||
Managed care |
3,345 | 3,079 | ||||||
Private and other |
4,055 | 3,857 | ||||||
|
|
|
|
|||||
Accounts receivable, gross |
28,639 | 25,085 | ||||||
Less: allowance for doubtful accounts |
(935 | ) | (616 | ) | ||||
|
|
|
|
|||||
Accounts receivable, net |
$ | 27,704 | $ | 24,469 | ||||
|
|
|
|
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NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
Practical Expedients and Exemptions
As the Companys contracts with its patients have an original duration of one year or less, the Company uses the practical expedient applicable to its contracts and does not consider the time value of money. Further, because of the short duration of these contracts, the Company has not disclosed the transaction price for the remaining performance obligations as of the end of each reporting period or when the Company expects to recognize this revenue. In addition, the Company has applied the practical expedient provided by ASC 340, Other Assets and Deferred Costs, and all incremental customer contract acquisition costs are expensed as they are incurred because the amortization period would have been one year or less.
5. FAIR VALUE MEASUREMENTS
Our non-financial assets, which include long-lived assets, including goodwill, intangible assets and property and equipment, are not required to be measured at fair value on a recurring basis. However, on a periodic basis, or whenever events or changes in circumstances indicate that their carrying value may not be recoverable, we assess our long-lived assets for impairment. When impairment has occurred, such long-lived assets are written down to fair value. See Note 2, Summary of Significant Accounting Policies for further discussion of the Companys significant accounting policies.
6. BUSINESS SEGMENTS
The Company classifies its operations into the following reportable operating segments: (1) home health and hospice services, which includes the Companys home health, hospice and home care businesses; and (2) senior living services, which includes the operation of assisted living, independent living and memory care communities. The reporting segments are business units that offer different services and are managed separately to provide greater visibility into those operations.
As of June 30, 2019, the Company provided services through 62 affiliated home health, hospice and home care agencies, and 51 affiliated senior living operations.
The Company evaluates performance and allocates capital resources to each segment based on an operating model that is designed to maximize the quality of care provided and profitability. General and administrative expenses are not allocated to any segment for purposes of determining segment profit or loss, and are included in the all other category in the selected segment financial data that follows. The Companys Service Center provides various services to all lines of business. The accounting policies of the reporting segments are the same as those described in Note 2, Summary of Significant Accounting Policies. The Company does not review assets by segment and therefore assets by segment are not disclosed below.
Segment revenues by major payor source were as follows:
Six Months Ended June 30, 2019 | ||||||||||||||||
Home Health and
Hospice Services |
Senior Living
Services |
Total Revenue | Revenue % | |||||||||||||
Medicare |
$ | 65,399 | $ | | $ | 65,399 | 40.7 | % | ||||||||
Medicaid |
7,840 | 13,697 | 21,537 | 13.4 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Subtotal |
73,239 | 13,697 | 86,936 | 54.1 | ||||||||||||
Managed care |
13,875 | | 13,875 | 8.6 | ||||||||||||
Private and other |
9,211 | (1) | 50,619 | 59,830 | 37.3 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total revenue |
$ | 96,325 | $ | 64,316 | $ | 160,641 | 100.0 | % | ||||||||
|
|
|
|
|
|
|
|
F-53
NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
(1) |
Private and other payors in our home health and hospice services segment includes revenue from all payors generated in home care operations. |
Six Months Ended June 30, 2018 | ||||||||||||||||
Home Health and
Hospice Services |
Senior Living
Services |
Total Revenue | Revenue % | |||||||||||||
Medicare |
$ | 55,937 | $ | | $ | 55,937 | 40.6 | % | ||||||||
Medicaid |
5,758 | 10,933 | 16,691 | 12.1 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Subtotal |
61,695 | 10,933 | 72,628 | 52.7 | ||||||||||||
Managed care |
11,898 | | 11,898 | 8.6 | ||||||||||||
Private and other |
7,414 | (1) | 45,828 | 53,242 | 38.7 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total revenue |
$ | 81,007 | $ | 56,761 | $ | 137,768 | 100.0 | % | ||||||||
|
|
|
|
|
|
|
|
(1) |
Private and other payors in our home health and hospice services segment includes revenue from all payors generated in home care operations. |
The following table sets forth selected financial data combined by business segment:
Six Months Ended June 30, 2019 | ||||||||||||||||
Home Health
and Hospice Services |
Senior
Living Services |
All Other | Total | |||||||||||||
Revenue |
$ | 96,325 | $ | 64,316 | $ | | $ | 160,641 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Segment income (loss) before provision for income taxes (1) |
$ | 12,888 | $ | 7,434 | $ | (15,183 | ) | $ | 5,139 | |||||||
Depreciation and amortization |
$ | 580 | $ | 1,142 | $ | 50 | $ | 1,772 | ||||||||
Rentcost of services |
$ | 1,414 | $ | 15,416 | $ | | $ | 16,830 |
(1) |
Segment income (loss) includes depreciation and amortization expense and excludes general and administrative expense for home health and hospice and senior living services businesses. General and administrative expense is included in the All Other category. |
Six Months Ended June 30, 2018 | ||||||||||||||||
Home Health
and Hospice Services |
Senior
Living Services |
All
Other |
Total | |||||||||||||
Revenue |
$ | 81,007 | $ | 56,761 | $ | | $ | 137,768 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Segment income (loss) before provision for income taxes (1) |
$ | 11,087 | $ | 8,016 | $ | (8,991 | ) | $ | 10,112 | |||||||
Depreciation and amortization |
$ | 526 | $ | 909 | $ | | $ | 1,435 | ||||||||
Rentcost of services |
$ | 1,089 | $ | 14,200 | $ | | $ | 15,289 |
(1) |
Segment income (loss) includes depreciation and amortization expense and excludes general and administrative expense for home health and hospice and senior living services businesses. General and administrative expense is included in the All Other category. |
7. ACQUISITIONS
The Companys acquisition focus is to purchase or lease operations that are complementary to the Companys current businesses, accretive to the Companys business or otherwise advance the Companys strategy. The results of all the Companys operating subsidiaries are included in the Interim Financial Statements subsequent to the date of acquisition. Acquisitions are accounted for using the acquisition method of accounting.
F-54
NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
During the six months ended June 30, 2019, the Company expanded its operations with the addition of two home health agencies, four hospice agencies, two home care agencies and one stand-alone senior living operation. The Company did not acquire any material assets or assume any liabilities. The addition of these operations added a total of 52 operational senior living units to be operated by the Companys operating subsidiaries. A subsidiary of the Company entered into a separate operations transfer agreement with the prior operator as part of each transaction. The aggregate purchase price for these acquisitions was $14,779.
The fair value of assets for all home health, hospice and home care acquisitions was concentrated in goodwill and as such, these transactions were classified as business combinations in accordance with ASC 805. The purchase price for the business combinations was $14,759, which consisted of goodwill of $11,500 and indefinite-lived intangible assets of $3,150. As of the date of this filing, the preliminary allocation of the purchase price for the acquisitions in the second quarter was not finalized as necessary valuation information was not yet available. The fair value of assets for the senior living acquisition was concentrated in intangible assets and as such, this transaction was classified as an asset acquisition. The purchase price for the asset acquisition was $20.
During the six months ended June 30, 2018, the Company expanded its operations with the addition of two stand-alone senior living operations. In connection with the acquisition of the senior living communities, the Company entered into a new long-term triple-net leases with subsidiaries of the Parent. The Company did not acquire any material assets or assume any liabilities. A subsidiary of the Company entered into a separate operations transfer agreement with the prior operator as part of each transaction. The aggregate purchase price for these acquisitions was $48. The fair value of assets for all acquisitions was concentrated in definite-lived intangible assets and as such, these transactions were classified as asset acquisitions in accordance with ASC 805.
The Companys acquisition strategy has been focused on identifying both opportunistic and strategic acquisitions within its target markets that offer strong opportunities for return. The operating subsidiaries acquired by the Company are frequently underperforming financially and can have regulatory and clinical challenges to overcome. From time to time, these acquisitions are more strategic in nature that may or may not have positive operational results. Financial information, especially with underperforming operating subsidiaries, is often inadequate, inaccurate or unavailable. Consequently, the Company believes that prior operating results are not a meaningful representation of the Companys current operating results or indicative of the integration potential of its newly acquired operating subsidiaries. Pro forma financial information has been included for the businesses acquired during the six months ended June 30, 2019. Businesses acquired during the six months ended June 30, 2018 were deemed immaterial and as such, no pro forma financial information has been included. The acquisitions during the six months ended June 30, 2019 have been included in the June 30, 2019 condensed combined balance sheets of the Company, and the operating results have been included in the condensed combined statements of income of the Company since the dates the Company gained effective control. Revenue and income before tax included in the condensed combined statement of income relating to the acquisitions during the six months ended June 30, 2019 was $3,728 and $483, respectively.
The following table represents unaudited pro forma results of condensed combined operations as if the acquisitions to date in fiscal year 2019, had occurred at the beginning of 2018, after giving effect to certain adjustments.
Six Months Ended June 30, | ||||||||
2019 | 2018 | |||||||
Revenue |
$ | 171,589 | $ | 152,303 | ||||
Net income attributable to New Ventures (a) |
5,221 | 8,070 |
(a) |
Net income attributable to New Ventures for each of the six months ended June 30, 2019 and 2018 includes a tax impact of 25.0%, which is the effective tax rate without the impact of excess tax benefits from stock-based compensation. |
F-55
NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
Revenues and operating costs were based on actual results from the prior operator or from regulatory filings where available. If actual results were not available, revenues and operating costs were estimated based on available partial operating results of the prior operator of the operation, or if no information was available, estimates were derived from the Companys post-acquisition operating results for that particular operation.
The foregoing unaudited pro forma information is not indicative of what the results of operations would have been if the acquisitions had actually occurred at the beginning of the periods presented, and is not intended as a projection of future results or trends.
Subsequent to June 30, 2019, the Company acquired one hospice agency and one stand-alone senior living operation. In connection with the acquisition of the senior living community, the Company entered into a new long-term triple-net lease with a subsidiary of the Parent. The addition of these operations added a total of 91 operational senior living units to be operated by the Companys operating subsidiaries. The aggregate purchase price for these acquisitions was $4,000. As of the date of this report, the preliminary allocation of the purchase price for the acquisitions acquired subsequent to June 30, 2019 were not completed as necessary valuation information was not yet available. As such, the determination whether these acquisitions should be classified as business combinations or asset acquisitions under ASC 805 will be determined upon completion of the allocation of the purchase price. The Company has evaluated all subsequent events through August 19, 2019, the date the Interim Financial Statements were available to be issued.
8. PROPERTY AND EQUIPMENTNET
Property and equipment, net consist of the following:
June 30, 2019 | December 31, 2018 | |||||||
Leasehold improvements |
$ | 5,402 | $ | 4,299 | ||||
Equipment |
17,131 | 14,436 | ||||||
Furniture and fixtures |
875 | 583 | ||||||
|
|
|
|
|||||
23,408 | 19,318 | |||||||
Less: accumulated depreciation |
(10,250 | ) | (8,860 | ) | ||||
|
|
|
|
|||||
Property and equipment, net |
$ | 13,158 | $ | 10,458 | ||||
|
|
|
|
See also Note 7, Acquisitions for information on acquisitions during the six months ended June 30, 2019 and 2018.
9. GOODWILL AND INTANGIBLE ASSETSNET
The Company tests goodwill during the fourth quarter of each year or more often if events or circumstances indicate there may be impairment. The Company performs its analysis for each reporting unit that constitutes a business for which discrete financial information is produced and reviewed by operating segment management and provides services that are distinct from the other components of the operating segment, in accordance with the provisions of ASC Topic 350, Intangibles-Goodwill and Other (ASC 350). This guidance provides the option to first assess qualitative factors to determine whether it is more likely than not that the fair value of a reporting unit is less than its carrying value, a Step 0 analysis. If, based on a review of qualitative factors, it is more
F-56
NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
likely than not that the fair value of a reporting unit is less than its carrying value, the Company performs Step 1 of the traditional two-step goodwill impairment test by comparing the net assets of each reporting unit to their respective fair values. The Company determines the estimated fair value of each reporting unit using a discounted cash flow analysis. In the event a units net assets exceed its fair value, an implied fair value of goodwill must be determined by assigning the units fair value to each asset and liability of the unit. The excess of the fair value of the reporting unit over the amounts assigned to its assets and liabilities is the implied fair value of goodwill. An impairment loss is measured by the difference between the goodwill carrying value and the implied fair value.
The Company anticipates that the majority of total goodwill recognized will be fully deductible for tax purposes as of June 30, 2019. See further discussion of goodwill acquired at Note 7, Acquisitions.
The following table represents activity in goodwill by segment as of and for the six months ended June 30, 2019:
Home Health and
Hospice Services |
Senior Living
Services |
Total | ||||||||||
December 31, 2018 |
$ | 27,250 | $ | 3,642 | $ | 30,892 | ||||||
Additions |
11,500 | | 11,500 | |||||||||
|
|
|
|
|
|
|||||||
June 30, 2019 |
$ | 38,750 | $ | 3,642 | $ | 42,392 | ||||||
|
|
|
|
|
|
Other indefinite-lived intangible assets consists of the following:
June 30, 2019 | December 31, 2018 | |||||||
Trade name |
$ | 484 | $ | 328 | ||||
Medicare and Medicaid licenses |
27,802 | 24,808 | ||||||
|
|
|
|
|||||
Total |
$ | 28,286 | $ | 25,136 | ||||
|
|
|
|
Definite-lived intangible assets consist of the following:
June 30, 2019 | December 31, 2018 | |||||||||||||||||||||||||||
Intangible Assets |
Weighted
Average Life (Years) |
Gross
Carrying |
Accumulated
Amortization |
Net |
Gross
Carrying |
Accumulated
Amortization |
Net | |||||||||||||||||||||
Patient base |
0.7 | $ | 611 | $ | (602 | ) | $ | 9 | $ | 591 | $ | (573 | ) | $ | 18 | |||||||||||||
Customer relationships |
2.6 | 470 | (417 | ) | 53 | 470 | (410 | ) | 60 | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Total |
$ | 1,081 | $ | (1,019 | ) | $ | 62 | $ | 1,061 | $ | (983 | ) | $ | 78 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Amortization expense was $36 and $65 for the six months ended June 30, 2019 and 2018, respectively.
F-57
NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
Estimated amortization expense for each of the periods ending December 31 is as follows:
Year |
Amount | |||
2019 (remainder) |
$ | 17 | ||
2020 |
14 | |||
2021 |
14 | |||
2022 |
14 | |||
2023 |
3 | |||
|
|
|||
$ | 62 | |||
|
|
10. OTHER ACCRUED LIABILITIES
Other accrued liabilities consist of the following:
June 30, 2019 | December 31, 2018 | |||||||
Refunds payable |
$ | 2,001 | $ | 1,905 | ||||
Deferred revenue |
1,507 | 1,542 | ||||||
Resident deposits |
6,246 | 6,310 | ||||||
Property taxes |
876 | 932 | ||||||
Other |
1,891 | 1,682 | ||||||
|
|
|
|
|||||
Other accrued liabilities |
$ | 12,521 | $ | 12,371 | ||||
|
|
|
|
Refunds payable includes payables related to overpayments, duplicate payments and credit balances from various payor sources. Deferred revenue occurs when the Company receives payments in advance of services provided. Resident deposits include refundable deposits to residents and a small portion consists of non-refundable deposits recognized into revenue over a period of time. Property taxes include amounts owed on our various properties.
11. INCOME TAXES
The Company recorded income tax benefit and expense of $32 and $2,200 during the six months ended June 30, 2019 and 2018, respectively, or benefit of 0.6% of earnings before income taxes for the six months ended June 30, 2019, compared to 21.8% of income tax expense for the six months ended June 30, 2018. The effective tax rate for both six month periods include excess tax benefits from stock-based compensation which were offset by non-deductible expenses including non-deductible compensation.
The Company is not currently under examination by any major income tax jurisdiction. During 2019, the statutes of limitations will lapse on the Companys 2015 Federal tax year and certain 2014 and 2015 state tax years. The Company does not believe the Federal or state statute lapses or any other event will significantly impact the balance of unrecognized tax benefits in the next twelve months. The net balance of unrecognized tax benefits was not material to the Interim Financial Statements for the six months ended June 30, 2019 and 2018.
The Company implemented ASC 842 as described in the Summary of Significant Accounting Policies. The new lease standard had no impact to the net deferred assets.
12. OPTIONS AND AWARDS
Stockholders have approved the Parent stock plans (2007 Omnibus Incentive Plan and 2017 Omnibus Incentive Plan or collectively the Parent Plans) and the Company has implemented the Subsidiary Equity Plan
F-58
NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
(together with the Parent Plans the Plans), which provide for the granting of equity-based compensation. Under The Plans, stock-based payment awards, including employee stock options and restricted stock awards, are issued based on estimated fair value. The following disclosures represent share-based compensation expense relating to the Plans, including awards to employees of the Companys subsidiaries and an allocation of costs from employees in the Service Center. Total share-based compensation expense for all of the Plans for the six months ended June 30, 2019 and 2018:
Six Months Ended June 30, | ||||||||
2019 | 2018 | |||||||
Parent Plans direct expense |
$ | 224 | $ | 245 | ||||
Parent Plans allocated expense |
326 | 251 | ||||||
Subsidiary Equity Plan |
577 | 681 | ||||||
|
|
|
|
|||||
Total share-based compensation |
$ | 1,127 | $ | 1,177 | ||||
|
|
|
|
As share-based compensation expense recognized in the Companys condensed combined statements of income for the six months ended June 30, 2019 and 2018 was based on awards ultimately expected to vest, it has been reduced for estimated forfeitures. The Company estimates forfeitures at the time of grant and, if necessary, revises the estimate in subsequent periods if actual forfeitures differ.
The Company uses the Black-Scholes option-pricing model to recognize the value of stock-based compensation expense for share-based payment awards under the Plans. Determining the appropriate fair-value model and calculating the fair value of stock-based awards at the grant date requires considerable judgment, including estimating stock price volatility, expected option life and forfeiture rates. The Company develops estimates based on historical data and market information, which can change significantly over time.
The Parent Plans
Stock Options
Under the Parent Plans, options granted to employees of the subsidiaries of New Ventures employees generally vest over five years at 20% per year on the anniversary of the grant date. Options expire ten years after the date of grant. The fair value of each option is estimated on the grant date using a Black-Scholes option-pricing model with the following weighted average assumptions for stock options granted:
Grant Year |
Options
Granted |
Weighted
Average Risk- Free Rate |
Expected Life |
Weighted
Average Volatility |
Weighted
Average Dividend Yield |
|||||||||||||||
2019 |
5 | 2.2 | % | 6.3 | 33.9 | % | 0.3 | % | ||||||||||||
2018 |
9 | 2.7 | % | 6.2 | 32.0 | % | 0.6 | % |
The expected volatility is based on the historical market volatility of the Parents stock price over the expected life of the stock options granted. The expected life represents the period of time that the awards are expected to be outstanding and is based on the contractual terms of each instrument, taking into account employees historical exercise and termination behavior.
F-59
NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
For the six months ended June 30, 2019 and 2018, the following represents the exercise price and fair value displayed at grant date for stock option grants:
Grant Year |
Granted |
Weighted
Average Exercise Price |
Weighted
Average Fair Value of Options |
|||||||||
2019 |
5 | $ | 53.50 | $ | 19.16 | |||||||
2018 |
9 | $ | 36.61 | $ | 12.73 |
The weighted average exercise price equaled the weighted average fair value of common stock on the grant date for all options granted during the six months ended June 30, 2019 and 2018 and therefore, the intrinsic value was $0 at date of grant.
The following table represents the employee stock option activity during the six months ended June 30, 2019:
Number of
Options Outstanding |
Weighted
Average Exercise Price |
Number of
Options Vested |
Weighted
Average Exercise Price of Options Vested |
|||||||||||||
December 31, 2018 |
297 | $ | 15.94 | 182 | $ | 13.28 | ||||||||||
Employees transferred (1) |
32 | 20.66 | ||||||||||||||
Granted |
5 | 53.50 | ||||||||||||||
Forfeited |
(7 | ) | 21.56 | |||||||||||||
Exercised |
(47 | ) | 13.62 | |||||||||||||
|
|
|||||||||||||||
June 30, 2019 |
280 | $ | 17.38 | 194 | $ | 13.93 | ||||||||||
|
|
(1) |
Represents awards to employees that have transferred between the Company and the Parent during the six month period ended June 30, 2019. |
The following summary information reflects stock options outstanding, vested and related details as of June 30, 2019:
Stock Options Outstanding |
Stock
Options |
|||||||||||||||||||
Year of Grant |
Exercise Price |
Number
Outstanding |
Black-
Scholes Fair Value |
Remaining
Contractual Life (Years) |
Vested and
Exercisable |
|||||||||||||||
2009 |
$ | 4.06 - 4.56 | 4 | $ | 7 | 0 | 4 | |||||||||||||
2010 |
4.77 - 4.96 | 2 | 6 | 1 | 2 | |||||||||||||||
2011 |
5.90 - 7.99 | 13 | 46 | 2 | 13 | |||||||||||||||
2012 |
6.56 - 7.96 | 21 | 73 | 3 | 21 | |||||||||||||||
2013 |
7.98 - 11.49 | 19 | 88 | 4 | 19 | |||||||||||||||
2014 |
10.55 - 18.94 | 86 | 511 | 5 | 79 | |||||||||||||||
2015 |
21.47 - 25.24 | 39 | 353 | 6 | 25 | |||||||||||||||
2016 |
18.79 - 19.89 | 46 | 314 | 7 | 21 | |||||||||||||||
2017 |
18.64 - 22.90 | 27 | 190 | 8 | 8 | |||||||||||||||
2018 |
26.53 - 38.59 | 18 | 230 | 9 | 2 | |||||||||||||||
2019 |
53.50 - 53.99 | 5 | 95 | 10 | | |||||||||||||||
|
|
|
|
|
|
|||||||||||||||
Total |
280 | $ | 1,913 | 194 | ||||||||||||||||
|
|
|
|
|
|
F-60
NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
Restricted Stock Awards
All awards were granted at an issued price of $0 and generally vest over five years. A summary of the status of the Parents non-vested restricted stock awards as of June 30, 2019, and changes during the period ended June 30, 2019, is presented below:
Non-Vested
Restricted Awards |
Weighted Average
Grant Date Fair Value |
|||||||
Nonvested at December 31, 2018 |
21 | $ | 22.59 | |||||
Employees transferred (1) |
9 | 26.31 | ||||||
Vested |
(4 | ) | 25.10 | |||||
Forfeited |
(1 | ) | 19.58 | |||||
|
|
|||||||
Nonvested at June 30, 2019 |
25 | $ | 23.51 | |||||
|
|
(1) |
Represents non-vested awards related to employees that have transferred between the Company and the Parent during the six month period ended June 30, 2019. |
In future periods, the Company expects to recognize approximately $704 and $582 in share-based compensation expense for unvested options and unvested restricted stock awards, respectively, which were outstanding as of June 30, 2019. Future share-based compensation expense will be recognized over 2.9 and 2.8 weighted average years for unvested options and restricted stock awards, respectively. There were 86 unvested and outstanding options at June 30, 2019, of which 80 are expected to vest. The weighted average contractual life for options outstanding, vested and expected to vest at June 30, 2019 was 5.6 years.
The aggregate intrinsic value of options outstanding, vested, expected to vest and exercisable as of and for the period ended June 30, 2019 is as follows:
Options |
June 30, 2019 | December 31, 2018 | ||||||
Outstanding |
$ | 12,078 | $ | 6,545 | ||||
Vested |
9,104 | 4,604 | ||||||
Expected to vest |
2,974 | 1,941 | ||||||
Exercisable |
$ | 2,287 | $ | 2,263 |
The intrinsic value is calculated as the difference between the market value of the underlying common stock and the exercise price of the options.
Subsidiary Equity Plan
On May 26, 2016, the Parent implemented a management equity plan and granted stock options and restricted stock awards of a subsidiary of the Parent. These awards generally vest over a period of three to five years or upon the occurrence of certain prescribed events. The value of the stock options and restricted stock awards is tied to the value of the common stock of the subsidiary. The awards can be put to the Company at various prescribed dates, which in no event is earlier than six months after vesting of the restricted stock or exercise of the stock options. The Company can also call the awards, at any time. The Company did not grant any additional options or restricted stock awards during the six months ended June 30, 2019 and granted 221 options during the six months ended June 30, 2018. During the six months ended June 30, 2019 and 2018, there were 976 restricted stock awards that vested for both periods.
F-61
NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
The grant date fair value of the awards is recognized as compensation expense over the relevant vesting periods, with a corresponding adjustment to non-controlling interest. The grant value was determined based on independent valuation of the subsidiary shares close to the grant date. The valuation incorporated a discounted cash flow analysis combined with a market-based approach to determine the fair value of the subsidiary equity. Share-based compensation expense under the Subsidiary Equity Plan was $577 and $681 for the six months ended June 30, 2019 and 2018, respectively.
The following table represents stock options and restricted stock awards activity during the period ended June 30, 2019:
Number of
Options Outstanding |
Weighted
Average Exercise Price |
Non-Vested
Restricted Awards |
Weighted
Average Grant Date Fair Value |
|||||||||||||
December 31, 2018 |
483 | $ | 1.83 | 996 | $ | 1.37 | ||||||||||
Vested |
(976 | ) | 1.37 | |||||||||||||
Forfeited |
(2 | ) | 2.09 | | | |||||||||||
|
|
|
|
|||||||||||||
June 30, 2019 |
481 | $ | 1.83 | 20 | $ | 1.37 | ||||||||||
|
|
|
|
In future periods, the Company expects to recognize approximately $208 and $27 in share-based compensation expense for unvested options and unvested restricted stock awards, respectively, which were outstanding as of June 30, 2019. Future share-based compensation expense will be recognized over 3.4 and 0.4 weighted average years for unvested options and restricted stock awards, respectively. There were 163 vested and exercisable options at June 30, 2019. There were 318 unvested and outstanding options at June 30, 2019, all of which are expected to vest. The weighted average contractual life for options outstanding, vested and expected to vest at June 30, 2019 was 8.1 years.
In addition, in June 2019, the Company repurchased 469 shares under the Subsidiary Equity Plan for $2,293. The Company subsequently sold the shares and received net proceeds of $2,293.
13. LEASES
The Companys operating subsidiaries lease 51 senior living communities and its administrative offices under non-cancelable operating leases, most of which have initial lease terms ranging from five to 20 years. Most of these leases contain renewal options, most involve rent increases and none contain purchase options. The lease term excludes lease renewals as the renewal rents are not at a bargain, there are no economic penalties for the Company to renew the lease, and it is not reasonably assured that the Company will exercise the extension options. As of June 30, 2019, the Companys operating subsidiaries leased 28 communities from subsidiaries of the Parent. The existing leases with subsidiaries of the Parent are for initial terms of 15 years. In addition to rent, each of the operating companies are required to pay the following: (1) all impositions and taxes levied on or with respect to the leased properties (other than taxes on the income of the lessor); (2) all utilities and other services necessary or appropriate for the leased properties and the business conducted on the leased properties; (3) all insurance required in connection with the leased properties and the business conducted on the leased properties; (4) all community maintenance and repair costs; and (5) all fees in connection with any licenses or authorizations necessary or appropriate for the leased properties and the business conducted on the leased properties.
Fifteen of the Companys affiliated senior living communities, excluding the communities that are operated under the Ensign Leases, are operated under two separate master lease arrangements. Under these master leases,
F-62
NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
a breach at a single community could subject one or more of the other communities covered by the same master lease to the same default risk. Failure to comply with Medicare and Medicaid provider requirements is a default under several of the Companys leases and master leases. In addition, other potential defaults related to an individual community may cause a default of an entire master lease portfolio and could trigger cross-default provisions in the Parents outstanding debt arrangements and other leases. With an indivisible lease, it is difficult to restructure the composition of the portfolio or economic terms of the master lease without the consent of the landlord.
Impact of New Leases Guidance
The adoption of ASC 842 did not result in adjustments to the Companys condensed combined statement of income. The components of operating lease expense(1) , are as follows:
Six Months Ended June 30, | ||||||||
2019 | 2018 | |||||||
Facility Rentcost of services |
$ | 15,416 | $ | 14,200 | ||||
Office Rentcost of services |
1,414 | 1,089 | ||||||
|
|
|
|
|||||
Rentcost of services(1) |
16,830 | 15,289 | ||||||
|
|
|
|
|||||
General and administrative expense |
62 | 44 |
(1) |
Operating lease costs include short-term leases, which are immaterial. Property and insurance, incurred as part of our triple net lease, is included in cost of services for the period ended June 30, 2019 and 2018 of $2,179 and $1,863, respectively. |
Future minimum lease payments for all leases as of June 30, 2019:
Year |
Amount | |||
2019 (remainder) |
$ | 16,450 | ||
2020 |
32,881 | |||
2021 |
32,246 | |||
2022 |
31,760 | |||
2023 |
31,391 | |||
2024 |
30,986 | |||
Thereafter |
216,380 | |||
|
|
|||
Total lease payments |
392,094 | |||
Less: present value adjustments |
(152,489 | ) | ||
|
|
|||
Present value of total lease liabilities |
239,605 | |||
Less: current lease liabilities |
(13,152 | ) | ||
|
|
|||
Long-term operating lease liabilities |
$ | 226,453 | ||
|
|
Operating lease liabilities are based on the net present value of the remaining lease payments over the remaining lease term. In determining the present value of lease payments, the Company used its incremental borrowing rate based on the information available at the lease commencement date. As of June 30, 2019, the weighted average remaining lease term is 12.5 years and the weighted average discount rate used to determine the operating lease liability is 8.6%.
F-63
NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
Future minimum lease payments for all leases as of December 31, 2018 were as follows:
Year |
Amount | |||
2019 |
$ | 33,055 | ||
2020 |
32,181 | |||
2021 |
31,625 | |||
2022 |
31,241 | |||
2023 |
30,896 | |||
Thereafter |
243,333 | |||
|
|
|||
Total lease payments |
$ | 402,331 | ||
|
|
14. COMMITMENTS AND CONTINGENCIES
Regulatory MattersThe Company provides services in complex and highly regulated industries. The Companys compliance with applicable Federal, State and Local laws and regulations governing these industries may be subject to governmental review and adverse findings may result in significant regulatory action, which could include sanctions, damages, fines, penalties (many of which may not be covered by insurance), and even exclusion from government programs. The Company is a party to various regulatory and other governmental audits and investigations in the ordinary course of business and cannot predict the ultimate outcome of any Federal or State regulatory survey, audit or investigation. While governmental audits and investigations are the subject of administrative appeals, the appeals process, even if successful, may take several years to resolve. The Department of Justice, CMS, or other federal and state enforcement and regulatory agencies may conduct additional investigations related to the Companys businesses. The Company believes that it is presently in compliance in all material respects with all applicable laws and regulations.
Cost-Containment MeasuresGovernment and third party payors have instituted cost-containment measures designed to limit payments made to providers of healthcare services, and there can be no assurance that future measures designed to limit payments made to providers will not adversely affect the Company.
IndemnitiesFrom time to time, the Company enters into certain types of contracts that contingently require the Company to indemnify parties against third-party claims. These contracts primarily include (i) certain real estate leases, under which the Company may be required to indemnify property owners or prior operators for post-transfer environmental or other liabilities and other claims arising from the Companys use of the applicable premises, (ii) operations transfer agreements, in which the Company agrees to indemnify past operators of agencies and communities the Company acquires against certain liabilities arising from the transfer of the operation and/or the operation thereof after the transfer, (iii) certain Parent lending agreements, and (iv) certain agreements with the management, directors and employees, under which the subsidiaries of the Company may be required to indemnify such persons for liabilities arising out of their employment relationships. The terms of such obligations vary by contract and, in most instances, a specific or maximum dollar amount is not explicitly stated therein. Generally, amounts under these contracts cannot be reasonably estimated until a specific claim is asserted. Consequently, because no claims have been asserted, no liabilities have been recorded for these obligations on the Companys combined balance sheets for any of the periods presented.
LitigationThe Companys businesses involve a significant risk of liability given the age and health of the patients and residents served by its operating subsidiaries. The Company, its operating companies, and others in the industry may be subject to a number of claims and lawsuits, including professional liability claims, alleging that services provided have resulted in personal injury, elder abuse, wrongful death or other related claims. Healthcare litigation (including class action litigation) is common and is filed based upon a wide variety of
F-64
NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
claims and theories, and the Company is routinely subjected to these claims in the ordinary course of business, including potential claims related to patient care and treatment, professional negligence and class actions, as well as employment related claims. If there were a significant increase in the number of these claims or an increase in amounts owing should plaintiffs be successful in their prosecution of these claims, this could materially adversely affect the Companys business, financial condition, results of operations and cash flows. In addition, the defense of these lawsuits may result in significant legal costs, regardless of the outcome, and can result in large settlement amounts or damage awards.
In addition to the potential lawsuits and claims described above, the Company is also subject to potential lawsuits under the False Claims Act (the FCA) and comparable state laws alleging submission of fraudulent claims for services to any healthcare program (such as Medicare) or payor. A violation may provide the basis for exclusion from federally-funded healthcare programs. Such exclusions could have a correlative negative impact on the Companys financial performance. Some states, including California, Arizona and Texas, have enacted similar whistleblower and false claims laws and regulations. In addition, the Deficit Reduction Act of 2005 created incentives for states to enact anti-fraud legislation modeled on the FCA. As such, the Company could face increased scrutiny, potential liability and legal expenses and costs based on claims under state false claims acts in markets in which it does business.
In May 2009, Congress passed the Fraud Enforcement and Recovery Act (FERA) which made significant changes to the FCA, expanding the types of activities subject to prosecution and whistleblower liability. Following changes by FERA, healthcare providers face significant penalties for the knowing retention of government overpayments, even if no false claim was involved. Providers can now be liable for knowingly and improperly avoiding or decreasing an obligation to pay money or property to the government; including the retention of any government overpayment. The Patient Protection and Affordable Care Act of 2010 (the ACA) supplemented FERA by imposing an affirmative obligation on healthcare providers to return an overpayment to CMS within 60-day of identification or the date any corresponding cost report is due, whichever is later. According to CMSs February 12, 2016, final rule with respect to Medicare Parts A and B, providers have an obligation to proactively exercise reasonable diligence to identify overpayments. The 60 day clock begins to run after the reasonable diligence period has concluded, which may take at most six months from the receipt of credible information. Retention of any overpayment beyond this period may create liability under the FCA. In addition, FERA extended protections against retaliation for whistleblowers, including protections not only for employees, but also contractors and agents. Thus, there is generally no need for an employment relationship in order to qualify for protection against retaliation for whistleblowing.
The Company cannot predict or provide any assurance as to the possible outcome of any litigation. If any litigation were to proceed, and the Company and its operating companies are subjected to, alleged to be liable for, or agree to a settlement of, claims or obligations under federal Medicare statutes, the FCA, or similar state and federal statutes and related regulations, the Companys business, financial condition and results of operations and cash flows could be materially and adversely affected. Among other things, any settlement or litigation could involve the payment of substantial sums to settle any alleged civil violations, and may also include the assumption of specific procedural and financial obligations by the Company or its operating companies going forward under a corporate integrity agreement and/or other arrangement with the government.
Medicare Revenue RecoupmentsThe Company is subject to probe reviews relating to Medicare services, billings and potential overpayments by Unified Program Integrity Contractors (UPIC), Recovery Audit Contractors (RAC), Zone Program Integrity Contractors (ZPIC), Program Safeguard Contractors (PSC) and Medicaid Integrity Contributors (MIC) programs, collectively referred to as Reviews. As of June 30, 2019, five of the Companys independent operating subsidiaries had Reviews scheduled, on appeal or in dispute resolution process, both pre- and post-payment. The Company anticipates that these probe reviews will increase in
F-65
NEW VENTURES
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS(Continued)
frequency in the future. If an operation fails a Review and/or subsequent Review, the operation could then be subject to extended Review, suspension of payment, or extrapolation of the identified error rate to all billing in the same time period. As of June 30, 2019, the Companys independent operating subsidiaries have responded to the requests and the related claims are currently under Review, on appeal or in dispute resolution process.
Concentrations
Credit RiskThe Company has significant accounts receivable balances, the collectability of which is dependent on the availability of funds from certain governmental programs, primarily Medicare and Medicaid. These receivables represent the only significant concentration of credit risk for the Company. The Company does not believe there are significant credit risks associated with these governmental programs. The Company believes that an appropriate allowance has been recorded for the possibility of these receivables proving uncollectible, and continually monitors and adjusts these allowances as necessary. The Companys receivables from the Medicare and Medicaid programs accounted for approximately 74.2% and 72.4% of its gross accounts receivable as of June 30, 2019 and December 31, 2018, respectively. Revenue from reimbursement under the Medicare and Medicaid programs accounted for 54.1% and 52.7% of the Companys revenue for the six months ended June 30, 2019 and 2018, respectively.
15. DEFINED CONTRIBUTION PLAN
The Companys employees have historically participated in the Parents 401(k) defined contribution plan (the 401(k) Plan). Under the 401(k) Plan, eligible employees of the Parents subsidiaries may contribute up to 15% of their annual basic earnings. Additionally, the 401(k) Plan provides for discretionary matching contributions (as defined in the 401(k) Plan) by the Parent. Beginning in 2007, the 401(k) Plan allowed eligible employees to contribute up to 90% of their eligible compensation, subject to applicable annual Internal Revenue Code limits. The Parent allocated costs and made contributions to the 401(k) Plan on our behalf in the amount of $133 and $95 during the six months ended June 30, 2019 and 2018, respectively.
F-66
CONDENSED BALANCE SHEETS
(Unaudited)
June 30,
2019 |
January 24,
2019 |
|||||||
(In thousands) | ||||||||
Assets |
||||||||
Total assets |
$ | | $ | | ||||
|
|
|
|
|||||
Liabilities |
||||||||
Total liabilities |
| | ||||||
|
|
|
|
|||||
Stockholders Equity |
||||||||
Common Stock, par value $0.001 per share, 1,000 shares authorized, issued and outstanding |
| | ||||||
|
|
|
|
|||||
Total stockholders equity |
| | ||||||
|
|
|
|
|||||
Total liabilities and stockholders equity |
$ | | $ | | ||||
|
|
|
|
The accompanying notes are an integral part of these condensed balance sheets.
F-67
THE PENNANT GROUP, INC.
NOTES TO THE CONDENSED FINANCIAL STATEMENT
Note 1Organization
The Pennant Group, Inc. (the Company) was formed as a Delaware corporation on January 24, 2019. The Company has not commenced operations, nor has the Company entered into any contracts. The principal activity of the Company is intended to be that of a holding company comprising of operating companies providing services to the growing senior population in the United States, operating in multiple lines of businesses across Arizona, California, Colorado, Idaho, Iowa, Nevada, Oklahoma, Oregon, Texas, Utah, Washington, Wisconsin and Wyoming.
Note 2Summary of Significant Accounting Policies
Basis of PresentationThe condensed balance sheets have been prepared in accordance with accounting principles generally accepted in the United States of America. Separate statements of operations, changes in stockholders equity and cash flows have not been presented because there have been no activities since incorporation.
Note 3Stockholders Equity
The Company is authorized to issue 1,000 shares of common stock, par value $0.001 per share (Common Stock). Under the Companys certificate of incorporation all shares of common stock are identical. All the outstanding shares of the Companys common stock are currently owned, directly by The Ensign Group, Inc.
Note 4Subsequent Events
The Company has evaluated all subsequent events through August 19, 2019, the date the balance sheet was available to be issued. The Company did not note any subsequent events requiring disclosure or adjustments to the balance sheet.
F-68
Exhibit 99.2
Exhibit 99.2 Important Notice Regarding the Availability of Information Statement Materials THE ENSIGN GROUP, INC. THE ENSIGN GROUP, INC. 29222 RANCHO VIEJO RD., SUITE 127 SAN JUAN CAPISTRANO, CA 92675 You are receiving this communication because you hold shares in The Ensign Group, Inc. (Ensign). It has released informational materials regarding the spin-off of its wholly-owned subsidiary, The Pennant Group, Inc. (Pennant) and its consolidated subsidiaries that are now available for your review. This notice provides instructions on how to access the Ensign materials for informational purposes only. It is not a form for voting and presents only an overview of the Ensign materials, which contain important information and are available, free of charge, on the internet or by mail. We encourage you to access and review closely the Ensign materials and continue to view them online to access new or updated information. To effect the spin-off, Ensign will distribute substantially all of the shares of Pennant common stock on a pro rata basis to the holders of Ensign common stock. Immediately following the distribution, which will be effective as of the date and time referenced in the Information Statement that Pennant has prepared in connection with the spin-off, Pennant will be an independent, publicly traded company. Ensign is not soliciting proxy or consent authority from stockholders in connection with the spin-off. The Ensign materials consist of the Information Statement, including any supplements, that Pennant has prepared in connection with the spin-off. You may view the Ensign materials online at www.materialnotice.com and easily request a paper or e-mail copy (see reverse side). To facilitate timely delivery, please make your request for a paper copy by five business days prior to the distribution date referenced in the Information Statement. See the reverse side for instructions on how to access materials.
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