Item 1. Business
Founded in 1974, HMS is an industry-leading provider of cost containment and analytical solutions in the healthcare marketplace. Our mission is to make healthcare work better for everyone. We use data, technology, analytics and in-house expertise to deliver coordination of benefits, payment integrity and population health management solutions that help healthcare organizations reduce costs, improve health outcomes and drive the value of healthcare. We provide a broad range of payment accuracy solutions to government and commercial healthcare payers, including coordination of benefits services, to ensure that the right payer pays the claim, and payment integrity services that identify and correct improper healthcare billings and payments. Our population health management solutions include a multi-layered integrated portfolio of risk analytics, engagement and care management solutions that provide healthcare organizations the tools to address the needs of the whole person and improve the quality, cost, experience and outcomes of their entire population. Through our solutions, we help move healthcare forward by saving billions of healthcare dollars while helping consumers lead healthier lives.
We currently operate as one business segment with a single management team that reports to the Chief Executive Officer. HMS began its operations as Health Management Systems, Inc., which became our wholly owned subsidiary in March 2003 when we assumed its business in connection with the adoption of a holding company structure. We incorporated in the State of New York in October 2002 and reincorporated in the State of Delaware in July 2013. Our principal executive offices are located at 5615 High Point Drive, Irving, Texas 75038, and our telephone number is (214) 453-3000. Our website is www.hms.com.
During fiscal year 2020, our business continued to evolve through a combination of targeted acquisitions and strategic investments. In November 2020, we made an additional investment in MedAdvisor, an Australian-based digital medication adherence company, reinforcing our strategic relationship and efforts to expand internationally and into new markets. In December 2020, we entered into an agreement to acquire Lorica, a leading healthcare payment accuracy and data analytics company based in Australia. The transaction closed in January 2021. The addition of Lorica further strengthens our ability to apply advanced data and payment analytics to deliver significant cost savings and value to our clients and bolsters our reach into the Australian market.
Proposed Transaction with Gainwell
On December 20, 2020, we entered into the Merger Agreement wherein Gainwell will acquire HMS. The Merger Agreement provides that, upon the terms and subject to the satisfaction or waiver of the conditions set forth therein, Merger Sub will merge with and into HMS, with HMS continuing as the surviving corporation and a wholly owned subsidiary of Gainwell. Under the terms of the Merger Agreement, which has been unanimously approved by the HMS Board of Directors, HMS shareholders will receive $37.00 in cash per share.
The Merger Agreement includes customary representations, warranties and covenants. The consummation of the Merger is subject to customary closing conditions, including, among others, the adoption of the Merger Agreement by the affirmative vote of the holders of a majority of the shares of HMS's common stock outstanding and entitled to vote as well as the satisfaction of other customary closing conditions, including compliance with or performance, in all material respects, or in certain instances, in all respects, by each party of its covenants and obligations under the Merger Agreement. The Merger is anticipated to close in the first half of 2021.
The foregoing summary of the Merger Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Merger Agreement, which is filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on December 28, 2020 and incorporated by reference herein. Copies of the Current Report on Form 8-K and our other filings with the SEC, including our recent Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Proxy Statements and the amendments to these reports or statements,
are available free of charge on our website through the Investor Relations page, as soon as reasonably practicable after we electronically file them with, or furnish them to, the SEC. These materials, as well as similar materials for SEC registrants, may be obtained directly from the SEC through their website at www.sec.gov.
References to URL websites are intended to be inactive textual references only. The content of any website referred to in this 2020 Form 10-K is not incorporated by reference into this filing unless expressly noted.
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of COVID-19 as a pandemic, which has spread globally and throughout the United States. The course of COVID-19, including the responses to the pandemic and its effects, has created significant volatility, uncertainty and disruption in economic and normal business activities globally. It has also impacted our day-to-day operations and the operations of the vast majority of our customers, suppliers and partners. Although the pandemic has not had a material adverse effect on our operations to date, it did impact our financial results for 2020. The degree to which COVID-19 affects our future financial results and operations will depend on future developments which are highly uncertain and cannot be predicted. These uncertainties, include, among others, the recurrence, severity or duration of the ongoing pandemic, current or future domestic and international actions to contain and treat COVID-19, or their impact, and how quickly and to what extent normal economic and operating conditions can resume. Due to the speed with which the situation may change, we are not able to estimate the effect of COVID-19 on our financial results and operations at this time, but the effect could be material for fiscal year 2021 or during any future period affected directly or indirectly by this pandemic. For further discussion of the risks relating to COVID-19, see the “Risk Factors” section set forth in Part I, Item 1A of this 2020 Form 10-K.
Our Solutions
We provide solutions that apply broadly across the Medicaid, Medicare, commercial at-risk and employer self-insured markets. Our services span the payment and care continuum, from an individual’s enrollment in a healthcare program to pre-payment review of their claims, through post-payment identification and recovery of improper payments, and back to the individual where our consumer-driven solutions allow healthcare organizations to manage individuals' healthcare on a personal level, and at scale, using actionable analytics that drive individuals to take actions that improve health outcomes. Our coordination of benefits and payment integrity services ensure payment accuracy by addressing a wide spectrum of payment errors, including eligibility and coordination of benefits errors, the identification and investigation of potential fraud, and the review of claims on a prepayment and post-payment basis for improper payments and utilization effectiveness. Our population health management services assist customers in managing quality, risk, cost and compliance across all lines of business by engaging consumers, providing the tools to manage their care, and identifying existing or emerging health risk among consumer populations. Through our industry-leading technology, analytics and engagement solutions, we save billions of dollars annually while helping consumers lead healthier lives.
Our comprehensive solutions offer value throughout the healthcare continuum and include the following:
Coordination of Benefits (COB)
HMS provides a comprehensive, integrated suite of COB solutions to healthcare organizations, including Medicaid, Medicare, CHIP, healthcare exchanges, commercial payers and other at-risk entities. We deliver high value to our customers by delivering timely and accurate information about members' other insurance coverage, which enables our customers to better coordinate care, maximize cost savings, ensure accurate reimbursement and reduce administrative rework. We provide verified insurance coverage information as early as the point of enrollment, as well as at the point of prior authorization, or prior to the payment of a claim, to maximize cost avoidance. We pursue recovery for any healthcare claim for which another party was liable to pay first. Experience and analytics inform our ability to accurately identify those claims and deploy workflows and processes that ensure we recover the maximum amount of inappropriately paid expenditures for our customers.
We also assist customers in identifying other third-party insurance and recovering medical expenses where a member is involved in a casualty or tort incident. For Medicaid agencies exclusively, we provide estate recovery services to identify and recover Medicaid expenditures from the estates of deceased Medicaid members, in accordance with state policies. For the years ended December 31, 2020, 2019 and 2018, our COB services represented 69.7%, 64.5% and 66.4% of our total revenue, respectively.
Payment Integrity (PI)
Our PI solutions and services employ advanced data analytics, leading technologies and clinical expertise to maximize savings and deliver proven, measurable results for federal and state governments, commercial health plans, and other at-risk or self-insured entities. We help our customers identify and avoid improper payments, recover those overpayments when they occur, detect and prevent fraud, ensure compliance with regulations, and increase cost savings with innovative technology and processes. Our PI solutions, delivered on a pre- and post-pay basis across all claims and provider types, are data-driven and stakeholder-sensitive, resulting in better payment accuracy, lower administrative costs, and decreased incidents of fraud and abuse. We leverage predictive and prescriptive analytics, AI, NLP, and ML, and incorporate RPA into our operations for increased efficiency and operational effectiveness. For the years ended December 31, 2020, 2019 and 2018, our PI services represented 22.6%, 25.9% and 24.1% of our total revenue, respectively.
Payment accuracy revenue consists of revenue for our COB and PI solutions.
Population Health Management (PHM)
HMS' comprehensive PHM solutions reduce cost, enhance engagement and improve outcomes throughout the member lifecycle. Our flexible, scalable architecture and modular platform integrates early risk identification, advanced analytics, multi- channel outreach and care management components to help our customers target the right members at the right time for interventions, with outreach that drives action and change. Our prescriptive approach leverages AI, ML, NLP
and efficacy studies to proactively manage care for all members, drive better outcomes and quality scores, and enhance member satisfaction and retention, while reducing administrative and medical spend. Our PHM solutions enable our customers to understand the health of their unique populations in real-time, and identify future risks, then develop personalized care plans and actionable engagement programs for maximum return on investment. For the years ended December 31, 2020, 2019 and 2018, our PHM services represented 7.7%, 9.6% and 9.5%, of our total revenue, respectively.
Intellectual Property
Our ability to develop and maintain the proprietary aspects of our technology and operate without infringing the proprietary rights of others is important to our business and competitive position. We establish and protect our proprietary technology and intellectual property through a combination of patents, patent applications, trademarks, copyrights, domain names and trade secrets, as well as through contractual rights, including confidentiality, non-disclosure and invention assignment agreements, and other security measures.
As of December 31, 2020, our patent portfolio is comprised of approximately 90 domestic and international patents, and we are currently pursuing several patent applications in the United States and around the world. Our principal trademarks are our company name and corresponding design marks, including but not limited to HMS®, Accent®, Eliza®, Essette® and VitreosHealth®, and our key product marks, such as Elli®, FraudCapture®, HMS 360®, SolarisPlus®, COBManager® and other marks for our products. We also hold copyrights relating to certain aspects of our solutions and services. While we consider all of our intellectual and proprietary rights important to HMS, we believe our business as a whole is not materially dependent on any particular patent, trademark, license or other intellectual property right.
Customers
We provide our solutions to customers across a broad range of entities within the healthcare industry, including state and federal government agencies, health plans and PBMs, healthcare exchanges, employers, at-risk providers and ACOs, and other healthcare organizations. For the years ended December 31, 2020, 2019 and 2018, our total revenue was $673.3 million, $626.4 million and $598.3 million, respectively. No single customer accounted for 10% or more of our total revenue during any period presented.
The composition of our 10 largest customers changes periodically. For the years ended December 31, 2020, 2019 and 2018, our 10 largest customers represented 42.0%, 42.7% and 41.4% of our total revenue, respectively. We provide services under contracts (or subcontracts) that contain various revenue structures, including contingent revenue and to a lesser extent fixed-fee arrangements as well as cost-plus and time-and-materials pricing. The current terms of many of our federal and state government contracts range from one to five years, including renewal terms at the option of the customer. In many instances, we provide our services pursuant to agreements that are subject to periodic reprocurements. Several of our contracts, including those with some of our largest customers, may be terminated for convenience, in whole or in part, by the customer. Because we provide our services pursuant to agreements that are
open to competition from various businesses in the U.S. healthcare arena, we cannot provide assurance that our contracts, including those with our largest customers, will not be terminated for convenience or awarded to other parties. Additionally, we cannot provide assurance that any contracts that are renewed will have the same fee structures as the expiring contracts or otherwise be on satisfactory terms. The early termination of key contracts with significant customers, or the inability to renew such contracts on favorable terms or at all, may have an adverse effect on our financial condition, results of operations and cash flows.
In providing solutions and services to our customers, we rely heavily upon our technology systems and networks, as well as on those of third-party providers, to process, transmit, maintain, store and host the confidential, proprietary and sensitive information and data we receive from our customers and other data suppliers, including private insurance plans and financial institutions. The secure processing and maintenance of this information is critical to our operations and business strategy. Although we have spent significant resources to implement security and privacy programs and controls, train our workforce and enhance our security measures with the implementation of new technologies and processes, our information technology and infrastructure, and those of third parties on which we rely , could continue to be potentially subject to various forms of cyber-attacks, as further discussed under the heading “Part I, Item 1A. Risk Factors.”
Healthcare Landscape
The market for cost containment solutions is large and growing, driven by increasing healthcare costs, rising program enrollment and payment complexities. Established in 1965 under the Social Security Act, Medicaid provides health insurance and long-term care services and support to low-income families and individuals with disabilities in the United States. Medicaid is funded jointly by the federal and state governments and administered by the states. The Balanced Budget Act of 1997 created CHIP to help states expand coverage primarily to children whose families earned too much to qualify for Medicaid, yet not enough to afford private health insurance. Medicare is a federal program that is administered by CMS, and provides eligible persons age 65 and over and some disabled persons with a variety of hospital, medical insurance and prescription drug benefits. All three of these programs have opted to contract with managed care organizations, or MCOs, in whole or in part as a means of delivering quality healthcare to program beneficiaries and controlling costs.
By law, Medicaid programs serve as the payer of last resort and all other sources of coverage must pay for medical costs incurred by a Medicaid-eligible individual. The TPL rules of the Medicaid statute require, among other things, that states take reasonable measures to identify potentially liable third parties and process claims accordingly. Since 1985, we have provided state Medicaid agencies with services to identify third parties with primary liability for paying claims for Medicaid members, and since 2005, we have provided similar services to Medicaid managed care plans.
The Deficit Reduction Act enacted by Congress in 2006 contained provisions to strengthen the TPL rules and created the Medicaid Integrity Program under the Social Security Act to increase the government’s capacity to prevent, detect and address fraud, waste and abuse in the Medicaid program. Later that year, Congress passed the Tax Relief and Health Care Act of 2006, which established the Medicare RAC program. These measures, at both the federal and state level, have strengthened our ability to identify and recover erroneous payments on behalf of our customers. We became the Medicare RAC for Region D with our acquisition of HealthDataInsights, Inc. (“HDI”) in 2011 and again were awarded a region under the new Medicare RAC contracts in October 2016. We also serve as a Medicaid RAC to certain states pursuant to provisions of the ACA.
The ACA, generally referred to as “Obamacare,” was signed into law on March 23, 2010. The law aimed to decrease the uninsured population in the U.S. by expanding Medicaid, enabling access to healthcare coverage through health insurance exchanges, and mandating coverage for pre-existing conditions and other healthcare situations. It is estimated that 20 million people have gained healthcare coverage as a result of the ACA.
For 2021, Medicare and Medicaid are projected to pay approximately 38.6% of the nation’s healthcare expenditures and serve over 147.5 million beneficiaries. Many of these beneficiaries are enrolled in managed care plans, which have the responsibility for both patient care and claims adjudication. The dual aims of cost containment and quality healthcare outcomes are the same across all at-risk entities, including commercial health plans and government healthcare programs, such as Medicaid and Medicare.
Within the commercial market, health plans sell policies directly to individuals (on the open market or via health insurance exchanges), contract with employers to underwrite their employees’ care, or contract with self-insured employers to oversee benefit administration for their employees. This market also includes a growing number of risk bearing provider-sponsored plans that operate and market health plan benefits. According to CMS NHE projections, private health insurance covered approximately 200.4 million individuals at a cost of approximately $1.36 trillion in 2020.
Several commercial health plans also offer government-sponsored lines of business, including partnering with Medicare, Medicaid and CHIP to oversee care delivery for beneficiaries enrolled in those programs. States continue to focus on improving value, quality and outcomes through arrangements with MCOs. As of September, 2020, 40 Medicaid programs operated with some form of managed care and comprehensive risk-based managed care continues to be the predominant delivery system for Medicaid services in the U.S. More than two-thirds of beneficiaries nationally receive most or all of their care through risk-based MCOs and more than half of states that contract with MCOs enroll 75% or more of their Medicaid beneficiaries in MCOs. Managed care health plans continue to assume risk for Medicare lives, with approximately one in three (39%) of all Medicare beneficiaries – 24.1 million people out of 61.7 million Medicare beneficiaries overall, enrolled in Medicare Advantage plans in 2020.
HMS continues to serve government agency fee-for-service programs at the state and federal level. These plans are generally reliant on and susceptible to the government appropriations process that determines their budget and governs the number of beneficiaries they serve. According to the CMS NHE projections, Medicare programs in 2020 covered approximately 61.7 million people at a cost of approximately $858.5 billion and Medicaid/CHIP covered approximately 82.8 million people, costing approximately $669.1 billion. Altogether, it is projected that the government programs we serve covered approximately 144.5 million people at a total cost of nearly $1.53 trillion in 2020.
CMS projects that Medicare enrollment growth will increase by 2.9% in 2021, with expenditures to increase by 7.5% in 2021 compared to 2020; and Medicaid/CHIP enrollment growth will increase by 1.4% in 2021, with expenditures to increase by 5.3% in 2021 compared to 2020. As commercial and government health plans focus on strategies to contain costs across their different lines of business, HMS will continue offering solutions to meet their evolving needs.
Regulatory Environment
As a healthcare analytics and technology company, our business is heavily regulated and subject to complex and evolving laws, regulations and standards. In the U.S., we must adhere to local, state and federal laws and regulations relating to: privacy and data security, including but not limited to, HIPAA and substance abuse confidentiality regulations, HITECH and the Final Omnibus Privacy, Security, Breach Notification and Enforcement Rule, and the Massachusetts Standards for the Protection of Personal Information of Residents of the Commonwealth; labor and employment relations, including equal opportunity and affirmative action; prompt pay statutes; healthcare fraud, waste and abuse, including the federal anti-kickback statute and the federal False Claims Act; and similar state statutes and legislation.
As we expand into different areas of the healthcare industry, we may deliver new and enhanced solutions or enter into new markets that may further expose us to requirements under additional statutes and legislative schemes that have previously not been relevant to our business, such as the Fair Debt Collection Practices Act and other banking and credit reporting statutes, and certain consumer laws and regulations, including TCPA and similar state and federal laws on audio and telephone recording practices. We are also obligated by our contractual requirements with customers,
which may require that we comply with additional privacy regulations imposed upon certain types of customers, such as the federal Gramm-Leach-Bliley Act. In instances where we contract with federal and state governmental agencies directly, or the payment we receive for our services is paid by such government parties, we must also comply with the Federal Acquisition Regulations and similar federal and state procurement laws, which regulate the solicitation, award, administration and performance of government contracts.
Outside of the U.S., we must comply with the local and foreign laws and regulations in the jurisdiction in which we operate, as well as U.S. laws that apply to doing business internationally. These regulations involve matters concerning, among others: local and cross-border taxation; anticorruption, anti-competition, anti-bribery laws and other laws prohibiting payments to governmental officials, such as FCPA; immigration; government compliance and licensing; securities regulation; internal and disclosure control obligations; import/export controls; trade restrictions; conflict of interest; working conditions, health and safety, wage-and-hour standards and other employment regulations; environmental standards; intellectual property rights; and data privacy and protection, such as the European Union General Data Protection Regulation and Australia’s Privacy Act 1988 and Australian Privacy Principles, and cross-border data transfers.
Competitors
The U.S. healthcare marketplace is a dynamic industry with a range of businesses currently offering cost containment services, both directly or indirectly (through subcontracting), to some or all of the various healthcare payers, providers, employers and consumers. In addition, with improvements in technology and the growth in healthcare spending, new businesses are incentivized to enter this marketplace. Many customers also have the ability to perform some or all of the needed cost containment services themselves and choose to exercise that option to varying degrees. Therefore, competition is robust as customers have many alternatives available to them in their effort to contain healthcare costs.
We compete based on a variety of factors, including our ability to provide a broad range of solutions that span the entire healthcare claims payment and care services continuum. These include payment accuracy solutions focused on COB and PI related functions, as well as PHM solutions that support the ability of payers to better understand and engage consumers, perform effective outreach, and impact both costs and health outcomes.
The evolution of targeted strategic acquisitions and investments, coupled with innovative internal product development and enhancement, has led to HMS being a diversified, full services solution provider. During the course of 2020, we focused on innovating and rolling out new and enhanced offerings in each line of business. In coordination of benefits, we introduced our Coverage on Demand solution and continued to scale Medicare-to-commercial and commercial-to-commercial COB solutions. We saw success in PI with our emerging solutions offering, and progress is ongoing with new client implementations underway for our Pre-payment Clinical Claim Review and Episode of Care solutions. In PHM, we introduced crisis management solutions in response to the COVID-19 pandemic. We continue to invest resources and capital towards accelerating the development and market penetration of our fully integrated PHM platform, pharmacy solutions and whole person-consumer, centric offerings.
We have a proven record of delivering results that optimize savings and recoveries, enabled by:
▪in-depth government and commercial healthcare program experience and market leadership;
▪a nationally-acclaimed technology team with analytics, engineering, infrastructure and security expertise;
▪robust data assets that drive high value solutions;
▪prescriptive and predictive analytics, applied across Medicaid, Medicare and commercial at-risk populations;
▪an experienced team of clinical experts, supported by a panel of credentialed physicians from all specialties with deep healthcare policy, program and claims expertise;
▪ongoing investments in technology innovation in big data, AI, ML, NLP and RPA;
▪long-term, multi-level relationships with customers and other industry stakeholders; and
▪an ability to provide customers with actionable intelligence to help improve quality, financial and health outcomes, optimize patient and member engagement, and better manage costs.
Our competitors range in size from large, diversified national companies, to small, specialized firms. Some of these competitors have significantly greater financial and technical resources, and others have longer operating histories and greater name recognition than we do in certain markets. Within our payment accuracy portfolio of products and services, we compete primarily with large business outsourcing and technology firms, claims processors, healthcare consulting firms, and other vendors who provide some or all of these solutions to payers. In addition, we frequently work with customers who may elect to perform some or all of their cost avoidance and recovery functions in-house. Within the population health management sector, we compete primarily with vendors who provide care management, consumer engagement, and related technology services. Examples of companies with whom we currently compete across our offerings include:
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Accenture PLC
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Casenet LLC
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Change Healthcare, Inc.
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Cotiviti, Inc.
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Discovery Health Partners, LLC
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ExlService Holdings, Inc.
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IBM Watson Health
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Inovalon Holdings, Inc.
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Medecision, Inc.
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MHK
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Performant Financial Corporation
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Optum, Inc. (subsidiary of United Healthcare)
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Welltok, Inc.
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ZeOmega, Inc.
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Our Business Strategy
We believe that the steadily increasing enrollment and rising expenditures for Medicare and Medicaid, with most new enrollees entering managed care plans; an aging U.S. population with an increasing concentration of individuals with high-cost chronic conditions and often co-morbidities; and the overall complexity of the healthcare claims payment system in the U.S. all combine to create substantial growth opportunities for the suite of cost containment solutions we offer.
We also believe these factors present growth opportunities for our PHM services. We are focused on growing our business over the course of 2021 and beyond, both organically and inorganically, by leveraging existing key assets (e.g., our data, analytics, in-house expertise, and distribution channel) and pursuing a number of strategic objectives and initiatives, including:
▪Expanding the scope of our relationship with existing customers – by selling new, additive and enhanced solutions and services to our broad customer base, including those designed to improve consumer engagement and clinical outcomes, and cross-selling across customer lines of business.
▪Adding new customers – by driving sales enablement and marketing to commercial health plans, including Medicaid managed care and Medicare Advantage plans, at-risk group and individual health lines of business, and ASO plans; government healthcare payers, including Medicaid agencies, state employee health benefit plans and CHIPs; at-risk provider organizations and ACOs; and commercial self-insured employers.
▪Entering new markets for diversification and growth – by expanding into adjacent markets, such as Medicare Advantage, risk-bearing providers, employer, public health and pharmacy; leveraging opportunities through our international operations to access new markets overseas; developing and launching new and enhanced PI, PHM and engagement solutions targeted at high-growth markets; and strategic acquisitions of and investments in complementary businesses.
▪Introducing new innovative solutions and services – by increasing internal development initiatives designed to enhance and expand our existing suite of cost containment solutions and advance the delivery of a more comprehensive health technology offering.
▪Utilizing technology tools and innovation – by deploying technologies that leverage a big data environment to further enhance our data, analytics, and processes to create operating efficiencies, improve accuracy and quality, increase customer satisfaction, and drive revenue opportunities and scale.
▪Strategic deployment of capital – by investing in our IT infrastructure; internal growth initiatives; capabilities, technologies, and assets to complement our cost-containment expertise; building or acquiring adjacent capabilities to enhance our solution set; and expanding our data analytics capabilities. Our focus may include future acquisitions that represent long-term growth potential, target high-growth areas, are accretive to earnings, enhance our technological capabilities and fill a strategic need in our business portfolio as we seek to provide increasingly comprehensive solutions to our customers.
Talent and Human Capital Management
Our employees and culture are critical components to our success. As of December 31, 2020, we had approximately 3,170 employees worldwide, of which the majority were based within the U.S.
At HMS, we live our values every day. We believe these values—customer focus, results-driven collaboration, meaningful innovation, uncompromising integrity, widespread inclusion and absolute accountability—define the character and culture of our organization. We strive to attract, develop and retain the best talent by providing competitive pay and benefits, continuous growth and development, and a diverse and inclusive workplace that positively impacts our people, communities and environment.
Diversity and Inclusion
We are committed to fostering a diverse and inclusive environment where all employees can be their authentic selves and thrive. In fiscal 2020, we formed a Diversity & Inclusion Council to focus on gender, ethnicity, LGBTQ, veterans, persons with disabilities and cross-cultural diversity. Among its accomplishments, the employee-led Council established a governance framework and expanded HMS' employee resource groups aligned around shared interests, preferences, characteristics and backgrounds, which we believe empower employees, build leadership, promote equity and advance our business strategy. We also help drive diversity through our supplier diversity program. We believe inclusive procurement practices help us create value for our customers and communities.
We recognize the importance of giving back to the communities where we live and work, and believe that this commitment helps in our efforts to attract and retain an innovative and diverse workforce. Through our HMS Cares program, our people use their talent and expertise to serve those who are most vulnerable in our communities. We also encourage employees to engage and support our communities by providing them with paid time off to volunteer with charitable organizations that address key social determinants of health like hunger, poverty and housing, which align with our mission to make healthcare work for everyone. HMS makes charitable financial contributions to many of these organizations and we encourage employees to do the same by offering company matching opportunities.
Health, Safety and Wellness
We offer comprehensive compensation and benefits that promote and support the health, safety and well-being of our employees and their families to help them build happier and healthier lives. Employees have access to a variety of benefits, including, medical, dental and vision coverage, health and wellness programs, retirement benefits, financial wellness and planning, work/life assistance, telehealth and paid time off. We are also committed to providing a safe, healthy and productive workplace conducive to open collaboration and engagement.
Since the start of the COVID-19 pandemic, our top priority has been and continues to be the safety and well-being of our employees. Over the course of the pandemic, we implemented a number of precautionary and preemptive measures to protect their safety while ensuring continuity of service to our customers. Our efforts include transitioning essentially all of our employees to working remotely, suspending non-essential employee travel, canceling participation in in-person industry events and group meetings, promoting social distancing and enhanced cleaning and sanitization
efforts across office locations, implementing protocols to quarantine employees who may have been exposed to COVID-19, or show relevant symptoms, and extending additional paid time off to employees to obtain a COVID-19 vaccine. We also commenced preparedness plans at our facilities to maintain continuity of operations, which provide for flexible work arrangements, and maintain regular communications with our workforce as well as our customers and vendors. Although we have moved to a remote working environment without any significant disruptions to our business or control processes, and believe we are well-prepared to continue operating this way, we have a multi-phase plan to return to working on-site that gradually allows our workforce to return while practicing social distancing and other safety measures. Our management team continues to monitor the situation and manages our response in collaboration with customers, government officials and stakeholders. As COVID-19 continues to evolve, we may undertake additional actions to promote the safety and security of our employees, ensure the availability and functioning of our critical infrastructure, and support the communities in which we operate. Some of these measures may include imposing remote working arrangements for personnel when possible, investing in personal protective equipment, providing paid sick leave to affected employees, and other policies and initiatives that reduce the transmission of COVID-19.
Item 1A. Risk Factors
Our business is subject to significant risks, including the risks and uncertainties described below. You should carefully consider these risks, as well as the other information in this 2020 Form 10-K, including our Consolidated Financial Statements and the related Notes. The occurrence of any of these risks could adversely affect our business, financial condition, results of operations, and cash flows in a material way.
Risk Factors Summary
The principal risks and uncertainties affecting our business include, among others, those relating to the following factors:
▪any failure to complete the Merger, or delays in completing the Merger;
▪uncertainty about the Merger may adversely affect our business and our relationships with employees, customers, suppliers and others with whom we do business, and the Merger may disrupt our current plans and operations or divert management’s attention away from ongoing business opportunities and operational matters;
▪the Merger Agreement contains provisions that could discourage or deter a potential alternative purchaser that might otherwise have an interest in a business combination with us;
▪any legal proceedings filed against us in connection with the Merger could delay or prevent the completion of the Merger;
▪the effects of the COVID-19 pandemic could significantly disrupt our operations;
▪our ability to expand our business and implement our growth strategy;
▪our failure to innovate and develop new or enhanced solutions and services, or if these solutions and services are not adopted by our customers;
▪our acquisition and investment strategy may subject us to considerable business and financial risk;
▪we face significant competition for our solutions and services and we expect competition to continue to increase;
▪changes in the healthcare environment or in laws relating to healthcare programs and policies, particularly as they relate to the ACA and the Medicare and Medicaid programs;
▪healthcare spending fluctuations, simplification of the healthcare payment process or other aspects of the healthcare financing system, budgetary pressures and/or programmatic changes diminishing the scope of program benefits, or limiting payment integrity initiatives;
▪our systems and networks and those of third parties on which we rely may be subject to cyber security breaches and other disruptions that could compromise our information and harm our business;
▪system interruptions or failures could expose us to liability and harm our business;
▪any failure to maintain effective information processing systems and the integrity of the data in, and operations of, those systems;
▪our inability to successfully manage our relationships with the entities we depend on to supply information;
▪our international operations expose us to a number of business and financial risks;
▪you will not be able to rely on our operating results in any particular period as an indication of our future performance;
▪we face challenges associated with forecasting the revenue under our contracts;
▪our ability to protect our proprietary technology, information, processes, know-how, and other intellectual property, or if we become subject to third party claims of intellectual property infringement or misappropriation;
▪any failure to comply with the laws and regulations regarding individual privacy and information security;
▪we are subject to extensive domestic and foreign laws and regulations, including government and customer audits and investigations relating to our compliance with such laws and regulations;
▪adverse judgments or settlements in legal proceedings; and
▪the market price of our common stock may be volatile.
Risks Relating to Our Proposed Transaction with Gainwell
Failure to complete the Merger, or delays in completing the Merger, could materially adversely affect our business, financial condition, results of operations and stock price.
The proposed Merger is subject to various closing conditions such as the approval of our shareholders, among other customary closing conditions. It is possible that our shareholders will not approve the Merger or that a governmental authority may enjoin or otherwise prohibit the consummation of the Merger. If any condition to the closing of the Merger is not satisfied or, if permissible, waived, the Merger will not be completed. In addition, satisfying the conditions to the closing of the Merger may take longer than we expect. There can be no assurance that any of the conditions to closing will be satisfied or waived or that other events will not intervene to delay or result in the failure to consummate the Merger.
If the Merger is not completed, our ongoing business may be adversely affected, and we will be subject to a number of risks, including the following:
▪we may be required to pay Gainwell a termination fee of $67,392,807 if the Merger Agreement is terminated under certain circumstances;
▪the Merger Agreement places certain restrictions on the conduct of our business, which may have delayed or prevented us from undertaking business opportunities that, absent the Merger Agreement, may have been pursued;
▪we will still be required to pay certain significant costs relating to the Merger, such as legal, accounting, financial advisor and printing fees; and
▪matters relating to the Merger (including integration planning) may require substantial commitments of time and resources by our management, which could otherwise have been devoted to other opportunities that may have been beneficial to the Company,
in each case, without realizing any of the benefits of having completed the Merger, which may adversely affect our business and financial results. The market price of our common stock might decline materially as a result of any such failures to the extent that the current market prices reflect a market assumption that the Merger will be completed. If that were to occur, it is uncertain when, if ever, the price of our common stock would return to the price levels at which shares of our common stock currently trade.
We may also be negatively impacted if the Merger Agreement is terminated and our Board of Directors seeks but is unable to find another business combination or strategic transaction offering equivalent or more attractive benefits than the benefits expected to be provided in the Merger, or by our officers or members of our Board of Directors being subject to litigation related to entering into or failing to consummate the Merger.
Uncertainty about the Merger may adversely affect our business and our relationships with employees, customers, suppliers and others with whom we do business, and the Merger may disrupt our current plans and operations or divert management’s attention away from ongoing business opportunities and operational matters.
Uncertainty about the completion or effect of the Merger may affect the relationship between us and our employees, clients and suppliers, which may have an adverse effect on our business, financial condition and results of operations. These uncertainties may cause clients, suppliers and others that deal with us to seek to change existing business relationships and to delay or defer decisions concerning us. Changes to existing business relationships, including termination or modification, could negatively affect our revenues, earnings and cash flow, as well as the market price of our common stock. Gainwell may terminate the Merger Agreement under certain circumstances, including if there is a material adverse change in our business. If that were to happen, we may not be entitled to a termination fee under the Merger Agreement, or the applicable termination fee may be insufficient to compensate us.
In addition, we are dependent on the experience and industry knowledge of our officers, key management personnel and other key employees to operate our business and execute our business plans. Our current and prospective employees may experience uncertainty about their roles following the Merger, which may have an adverse effect on our ability to attract or retain key management personnel and other key employees. Our business could be negatively impacted if key employees depart because of issues related to the uncertainty and difficulty of integration or a desire not to remain with the business if the Merger is not consummated. Adverse effects arising from the pendency of the Merger could be exacerbated by any delays in consummation of the Merger or termination of the Merger Agreement.
The Merger Agreement contains provisions that could discourage or deter a potential alternative purchaser that might otherwise have an interest in a business combination with us.
The Merger Agreement contains provisions that may discourage a third party from submitting an alternative proposal to us during the pendency of the proposed Merger as well as afterward, should the Merger not be consummated, that might result in greater value to our shareholders than the Merger. These Merger Agreement provisions include a prohibition on soliciting or entering into discussions with any third party regarding any alternative proposals, subject to limited exceptions. However, our Board of Directors is permitted to take actions that it believes, after consultation with its advisors, are necessary to not act in a manner inconsistent with its fiduciary duties, including withdrawing or modifying its recommendation in favor of the proposed Merger, so long as Gainwell has the opportunity, if it desires, to negotiate the terms of the Merger to address the basis for the Board of Director’s recommendation change.
In addition, we may be required to pay to Gainwell a termination fee in cash equal to $67,392,807 in certain circumstances involving acquisition proposals for competing transactions.
If the Merger Agreement is terminated and we determine to seek another strategic transaction, we may not be able to negotiate a transaction on terms comparable to, or better than, the terms of the proposed Merger.
Any legal proceedings filed against us in connection with the Merger could delay or prevent the completion of the Merger.
Transactions such as the Merger often give rise to lawsuits by shareholders or other third parties. One of the conditions to the closing of the Merger is that the consummation of the Merger is not then enjoined, prevented, restrained, made illegal or otherwise prohibited by any governmental order (whether preliminary or final) or applicable law. In connection
with the Merger, plaintiffs may file lawsuits against us and/or our directors and officers in connection with the Merger. Such legal proceedings could also prevent or delay the completion of the Merger and result in additional costs. In addition, if any lawsuit is successful in obtaining an injunction prohibiting us or Gainwell from consummating the Merger on the agreed upon terms, the injunction may prevent the Merger from being completed within the expected timeframe, or at all. If the Merger is prevented or delayed, the lawsuits could result in substantial costs, including any costs associated with the indemnification of directors. The defense or settlement of any lawsuit or claim that remains unresolved at the time the Merger is completed may adversely affect our business, financial condition or results of operations.
Market, Industry and Strategic Risks
The effects of the COVID-19 pandemic could significantly disrupt our operations and adversely affect our business, financial condition, results of operations and cash flows.
The widespread outbreak of COVID-19 has created significant volatility, uncertainty, and disruption in economic activity and financial markets globally. Although the outbreak of COVID-19 has not had a material adverse effect on our operations to date, it did impact our financial results for the year ended December 31, 2020. There can be no assurance that COVID-19 will not have a material adverse effect on our future operational and financial performance. The extent to which COVID-19 could impact our operational and financial performance in future periods is currently uncertain and will depend on numerous evolving factors and future developments that we may not be able to accurately predict and to which we may not be able to respond. Such factors and developments include, but are not limited to: the duration, severity and spread of the outbreak; the measures undertaken by government authorities to contain, mitigate and treat COVID-19 and the effectiveness of such actions; the effect on the U.S. and global economies and actions taken in response; the overall impact on the businesses of our customers, partners, vendors and suppliers; changes in the healthcare industry as a result of COVID-19 and actions taken by regulatory authorities and industry participants in response to COVID-19, such as the suspension in medical record requests and audits to reduce administrative burden on hospitals; the health of and effect on our workforce; the future effects to our operational and financial results of the changes we have made to protect the safety and well-being of our employees and future operational disruptions or challenges we may face; increased cybersecurity and information security risk as a result of the transition of our employees to a remote work environment; and how quickly and to what extent normal economic and operating conditions may resume. For example, a portion of our business is tied to overall volumes of activity in the healthcare system, and due to a significant temporary reduction in volume resulting from the suspension or reduction of certain client contract work during part of 2020, we experienced lower revenues during the second quarter and continued to see an impact to our financial results in certain parts of our business in the third quarter. Further, our management has been intensely focused on mitigating COVID-19, which has required and will continue to require, a large investment of time, attention and resources. A prolonged outbreak could, among other things, strain our business continuity plans, create delays in our growth and strategic initiatives, reduce our sales and marketing activities, limit our access to financing on favorable terms, increase the Company’s exposure to potential impairment charges related to goodwill and intangible assets, hinder our ability to support our customers and operate our business effectively, heighten the risk of disruption to our information and reporting systems and internal controls, including those over financial reporting and other risk management systems, or require us to incur substantial costs. Additionally, our efforts to re-open our offices safely may not be successful, could subject our employees and partners to heightened risks for COVID-19 exposure and we may incur increased workforce costs associated with implementing further precautionary measures and workplace safety protocols to mitigate the spread and ensure the health of our workforce.
We cannot predict the degree to which COVID-19 will ultimately impact our operations and financial results, however, the effects of the COVID-19 pandemic, alone or taken together, could adversely affect our future business, financial condition, results of operations and cash flows. To the extent COVID-19 harms our business and financial results, it may also have the effect of heightening many of the other risks described in this “Risk Factors” section and other sections of this 2020 Form 10-K.
Our ability to expand our business will be adversely affected if we fail to implement our growth strategy.
The size and scope of our business operations have continued to expand over the past several years. We currently intend to drive our growth and expansion into new and adjacent healthcare areas and markets, however, our growth and expansion strategy carries costs and risks that, if not properly managed, could adversely affect our business. Our future growth will depend on, among other things, our ability to successfully execute our business plans, which includes penetrating new markets, capturing opportunities in emerging markets for HMS, cross-selling our solutions to new and existing customers, broadening and deepening our customer and industry relationships, leveraging our brand identity and talent pool, securing strategic acquisitions, investments and partnerships, and increasing the speed, quality, capacity and scale at which we deliver our services across emerging and more established markets, all while remaining competitive. We must also be flexible and responsive to customers’ needs and changes in the political, economic and regulatory environment in which we operate. The greater size and complexity of our expanding business may put additional strain on our administrative, operational and financial resources and can make optimal resource allocation more difficult to determine. It is possible that we may not be able to maintain or accelerate our growth. A failure to anticipate or properly address the demands and challenges that our continued growth and diversification may have on our resources and existing infrastructure may result in unanticipated costs and inefficiencies that could negatively impact our ability to execute on our business plans and growth goals, which may have a material adverse effect on our business, financial condition, results of operations and cash flows.
If we fail to innovate and develop new or enhanced solutions and services, or if these solutions and services are not adopted by our customers, it could have a material adverse effect on our business, financial condition, results of operations and cash flows.
Part of our growth strategy depends on our ability to respond to the evolving healthcare landscape with new, additive and innovative solutions and services that our existing and potential customers are willing to adopt. The development, marketing, implementation and delivery of these solutions and services may require that we make substantial financial and resource investments. We face risks that our new or enhanced offerings may not be responsive to customer preferences or industry changes, appropriately timed with market opportunity or effectively brought to market, and that the solution and service development initiatives that we prioritize may not yield the gains that we anticipate, if any. If we are unable to predict market preferences or healthcare industry changes, or if we are unable to develop or adapt solutions and services that are responsive to existing and potential customers’ needs, we may fail to expand our business, which could constrain our future revenue growth and materially adversely affect our business, financial condition, results of operations and cash flows.
Our acquisition and investment strategy may subject us to considerable business and financial risk.
To achieve our strategic goals, we have made a number of acquisitions and investments in businesses that have expanded our service offerings, including our PHM solutions, and broadened our customer base and our market and geographic presence. We may continue to pursue strategic acquisitions, investments and partnerships that advance our capabilities and build out our business lines in the future. We are subject to risks and uncertainties relating to our ability to consummate additional transactions that will be advantageous to us, including the Merger with Gainwell, and successfully integrate acquired or merged businesses, offerings technologies and employees. Future strategic acquisitions, investments and partnerships involve a number of factors that could affect our operations, including, but not limited to:
▪risks relating to the Merger with Gainwell, including failure to complete the Merger;
▪diversion of management’s attention and other resources;
▪our ability to successfully and timely integrate operational, financial, human resource and IT systems, functions, policies, processes and controls, and implement new operations, standards and technologies, without incurring substantial expenses, delays, difficulties or other issues;
▪continued coordination and cooperation with transaction parties or strategic partners for transition services;
▪difficulties in retaining or replacing key personnel and managing a geographically dispersed workforce, and other challenges associated with integrating employees and corporate cultures;
▪our ability to maintain relationships with customers and suppliers of acquired businesses and operations;
▪our ability to expand and further develop acquired businesses, technologies, employees and strategic relationships;
▪our ability to combine service offerings, or to cross-sell our solutions and acquired solutions to customers;
▪customer dissatisfaction or performance issues with acquired businesses, operations, products or strategic partners;
▪our ability to comply with regulatory requirements and avoid potential conflicts of interest in markets that we serve;
▪the misuse of intellectual property by personnel of acquired businesses and operations or strategic partners;
▪our ability to successfully enter into unfamiliar markets or manage new business lines;
▪compliance challenges related to new regulatory requirements or changes in foreign and international laws and regulations, such as those pertaining to data privacy, employment matters and taxation;
▪assumption of unanticipated legal or financial liabilities and/or negative publicity relating to activities of acquired companies, employees and strategic partners before the acquisition or investment;
▪exposure to litigation, claims and investigations in connection with the transaction or the acquired businesses and strategic partners, including claims from terminated employees, customers, former shareholders, government agencies or other third parties;
▪significant costs and expenses, including those related to severance payments, retention pay, assumed litigation and other liabilities, transition services, termination fees or other exit charges, legal, accounting or financial advisory fees and other transaction costs;
▪substantial reductions of our cash resources and/or the incurrence of debt;
▪our lack of control and sole decision-making authority with respect to the operations of strategic partners and investments, and potential changes in the economic or business interests, goals, financial condition or reputation of our strategic partners or the control of our strategic partners and investments;
▪any announced transaction may not close on the expected timeframe or at all;
▪possible erosion of employee morale, customer confidence or our relationships with strategic partners;
▪potential impairment of goodwill and other acquired intangible assets or of strategic investments made by us;
▪the failure of acquired businesses, operations, solutions or services to perform as expected or meet financial projections, which could negatively impact earnings or contingent consideration; and
▪potential dilution to our earnings per share.
In addition, divestitures of assets and businesses involve a variety of risks, including separation of operations, services or personnel, diversion of management’s attention, significant costs and expenses, disruption of business operations, potential loss of key employees, customer relationships or cash flow, and continued financial involvement in or liability with respect to the divested assets and businesses, including through indemnification and other contractual obligations. If we are unable to adequately address these risks or any of the foregoing factors, or fail to integrate the businesses that we acquire or merge with, we may not realize the cost efficiencies, synergies or other benefits that we anticipated from any future divestiture or strategic acquisition, investment or partnership, and our reputation, business, financial condition, results of operations and cash flows could be materially adversely affected.
We face significant competition for our solutions and services and we expect competition to continue to increase, which could materially adversely affect our business, financial condition, results of operations and cash flows.
The markets for payment accuracy and population health management solutions are intensely competitive, driven by rapidly changing technologies, evolving industry standards, customer demands to become more cost-effective and efficient, and increased consolidation in both the IT and healthcare industries. Our competitors range in size from large, diversified national companies (some of which have emerged as a result of industry consolidation), to small, specialized
firms. Some of our competitors may include current or former subcontractors or teaming partners seeking to establish direct relationships with our customers and provide similar services as the prime contractor, as well as current and prospective customers that elect to perform recovery and cost avoidance functions in-house or to develop in-house capacities for solutions and services that we provide or seek to provide. For example, certain state customers have combined or “bundled” TPL services under large-scale IT procurements, as they shift to implementing modular Medicaid Enterprise Systems. As part of this modular approach, they may select a new or less experienced vendor to provide the TPL module based on preferred relationships or favorable pricing. Consolidation among vendors and healthcare providers, as well as the merging of some of our competitors or formation of business alliances with other competitors, have contributed to the increasingly competitive environment. In addition, companies that have invested in proprietary technology different from our own service offerings, such as front-end analytics or consumer-centric capabilities, have emerged as new competitors due to the rapidly evolving healthcare IT landscape. There is also increasing sophistication in the solutions and services that our competitors are developing that may become more efficient or appealing to our customers and their member populations, or may offer greater interoperability. In order to remain competitive, we may need to quickly develop and market new and enhanced solutions and services responsive to emerging technologies and changes in the healthcare industry, which may require that we make substantial financial and resource investments.
We may not be able to compete successfully against our existing or future competitors. Some of these competitors have significantly greater financial and technical resources, and others have longer operating histories and greater name recognition than we do in certain markets. They may be able to (i) offer lower prices or negotiate fee reductions on our current solutions and services, (ii) respond more quickly than we can to new and emerging technologies and changing customer requirements, (iii) devote greater resources to the sale and promotion of their products and the development and implementation of new and improved systems, solutions and services for customers that we serve, and (iv) pursue various acquisitions that allow them to rapidly amass a wide array of capabilities. We may be forced to lower our pricing, unexpectedly scale or update our technological or data capabilities, or modify our offerings. Additionally, competitors may affect our business by entering into exclusive arrangements with our existing or potential customers or vendors. Notwithstanding any changes we make in response to increased competition, the demand for our solutions and services may still decrease as a result of increased competition. A failure to be responsive to customers’ needs or the changing industry landscape could frustrate our ability to maintain or expand our customer base, hire and retain new employees, pursue new business opportunities and contracts, complete future strategic acquisitions, investments and partnerships and operate our business effectively. Any inability to compete meaningfully could materially adversely affect our business, financial condition, results of operations and cash flows.
Our business could be materially adversely affected by changes in the U.S. healthcare environment or in laws relating to healthcare programs and policies, particularly as they relate to the ACA and the Medicare and Medicaid programs.
The healthcare industry in which we operate is subject to changing political, economic and regulatory influences that directly affect the practices and operations of federal, state and commercial healthcare organizations in the United States. When the ACA was passed, its emphasis on program integrity, cost containment and expansion of Medicaid created new opportunities to grow our business and our service offerings. The regulatory framework of the ACA and other healthcare reforms continues to evolve as a result of political changes and executive, legislative, regulatory and administrative developments as well as judicial proceedings. Since its adoption into law in 2010, there have been continued efforts by Congress to amend, enhance repeal or replace all or part of the ACA.
Although legislative attempts to completely repeal the ACA have been unsuccessful to date, and we believe would be unlikely under the current political climate, there have been significant attempts to challenge certain aspects of the ACA through other legislative measures and legal actions. The Supreme Court is currently considering the constitutionality of the ACA in the matter of California v. Texas. The Court heard oral arguments on November 10, 2020 and a decision is not expected until the late spring of 2021. Although a stay and partial final judgment has been issued pending appeals,
ensuring that the ACA remains operational in all respects, we cannot predict when the Supreme Court will issue a decision or what that decision will be, or the outcome of any litigation that has been filed relating to the ACA. As such, there remains considerable uncertainty surrounding the continued implementation of the ACA and what similar healthcare reform measures or other changes might be enacted at the federal and/or state level. We will continue to evaluate the effect that the ACA and its possible invalidation may have on our business, however, it is difficult to predict the full impact and influence that the ACA and the varying healthcare reform measures may have on the U.S. healthcare industry or policy, and any resulting changes may take time to unfold.
There have also been legislative initiatives and healthcare reform proposals from the federal and state governments in response to budgetary or deficit considerations, such as block grants. While this may lead to a demand for our services, it could also result in fee concessions, contract and project holds, early contract termination, and reduced scopes or non-renewal of our contracts with certain state government customers. Another variable that impacts our business will be how state programs, commercial health plans, private employers and other healthcare payers will respond to the possible enactment of federal or state health care reforms and possible changes to other federal, state or local laws or regulations affecting the health care industry, including any such laws or governmental regulations which are adopted in response to the COVID-19 pandemic. These organizations may react to such changed circumstances and financial pressures by taking actions to ramp up, curtail or defer their retention of cost containment providers like us, which could impact the demand for our solutions and services and our ability to increase or maintain sales of our existing solutions and services. Due to uncertainties regarding the outcome of future healthcare reform initiatives, and their enactment and implementation, we cannot predict which, if any, future reform proposals will be adopted or the effect such adoption may have on us. Future healthcare legislation and regulation could have a significant impact on our business. While certain changes may present us with new opportunities, our business, financial condition, results of operations and cash flows could be materially adversely affected if we are unable to adapt our solutions and services to meet changing requirements or expand service delivery into new areas, or if the demand for our solutions and services is reduced as a result of future legislative changes affecting Medicare, Medicaid or other publicly funded or subsidized health programs.
Healthcare spending fluctuations, simplification of the healthcare payment process or other aspects of the healthcare financing system, budgetary pressures and/or programmatic changes diminishing the scope of program benefits, or limiting payment integrity initiatives, could reduce the need for and the price of our solutions and services, which would have a material adverse effect on our business, financial condition, results of operations and cash flows.
Our projections and expectations are premised, in part, upon consistent growth rates in the Medicare and Medicaid programs and government spending on these programs, and the impact on the current healthcare financing system overall and need for our solutions and services within that existing framework. Our continued success is based in large part on offering solutions and services that improve the ability of our customers to identify and recover revenue that would otherwise be lost often as a result of procedural inefficiencies and complexities in the healthcare delivery and payment system. However, the need for our solutions and services, the price customers are willing to pay for them and the scope and profitability of our contracts could be negatively affected by a number of factors, including, but not limited to:
▪a lower than projected growth in Medicare and Medicaid program enrollment and expenditures;
▪changes in the level of federal government spending due to budgetary or deficit considerations, including the continuance of existing programs, as well as budgetary pressures that may drive changes at the state level;
▪unanticipated reductions in the scope of healthcare program benefits (such as, for example, state decisions to eliminate coverage of optional Medicaid populations or services or shifting lives into managed care plans);
▪the transition of healthcare beneficiaries from fee-for-service plans to value-based care and other alternative risk models;
▪modifications in provider billing behavior and habits, often in response to the success of our solutions and services or to changes that reduce healthcare spending;
▪the adoption of healthcare plans with significantly higher deductibles or other consumer healthcare cost-sharing;
▪customer improvements and enhancements to their internal healthcare claims and billing processes;
▪the simplification of the healthcare benefit and payment system through legislative or regulatory changes at the federal or state level (for example, legislative changes impacting the scope of mandatory audits, including limits on the look-back period for review in areas where we conduct audits); and
▪limits placed on ongoing program integrity initiatives, including the Medicare RAC program and state Medicaid RAC programs (for example, limitations or reductions in the amount of reviewable claims we audit, such as the modified ADR limits and sliding scale policy implemented by CMS for the current Medicare RAC contracts, which have a significant impact on the volumes of claims that Medicare RACs are permitted to review for inpatient providers and reduce their ability to identify overpayments and underpayments).
The occurrence of any of these events, or other changes to the funding of the Medicare and Medicaid programs or limitations in the scope of program eligibility, benefits, initiatives and healthcare spending that materially reduce our revenue or profitability with such programs may have an adverse effect on our future business, financial condition, results of operations and cash flows.
Our systems and networks and those of third parties on which we rely may be subject to cyber security breaches and other disruptions that could compromise our information and harm our business.
In the ordinary course of our business, we rely heavily upon our technology systems and networks, as well as on those of third-party providers, to process, transmit, maintain, store and host the confidential, proprietary and sensitive information and data we receive from our customers and other data suppliers, including private insurance plans and financial institutions. Some of the data we process, access, store and transmit may be outside of the United States due to our international business operations. In addition, subcontractors, teaming partners or other third-party vendors may receive or utilize this information on our behalf in support of the services we perform for our customers. The secure processing and maintenance of this information is critical to our operations and business strategy. We have devoted and continue to devote significant resources to implement security and privacy programs and controls, train our workforce and augment our security measures with new and enhanced technologies and processes, among other investments. Despite our security management efforts, our information technology and infrastructure, and those of third parties on which we rely, may continue to be vulnerable to computer hacking or phishing efforts, acts of vandalism or theft, introduction of malware, computer viruses, other malicious codes or other cyber-attacks, employee or insider malfeasance and misfeasance issues, fraud, human error, catastrophes, or unforeseen events. We may be unable to implement adequate preventive measures to protect against such compromises in the future or to effectively adapt our security measures to evolving security risks. As a result, our technology systems, including our data and our customers’ data, could be accessed improperly, made unavailable, improperly modified, corrupted or otherwise breached or compromised, or we could suffer system disruptions, shutdowns and denials of service. Similarly, we could be materially adversely affected by the loss of proprietary, trade secret or confidential technical and financial data if our internal networks are compromised. The occurrence of any of these events could harm the market perception of the effectiveness of our security measures, lead to reputational damage or the loss of our customers’ confidence in our solutions, negatively affect our ability to attract new customers, cause existing customers to terminate or not renew their existing contracts with us, or deter them from using our solutions or services in the future, all of which could reduce our revenue, increase our expenses and expose us to potential liability under privacy, security or other applicable laws and regulations, including losses and costs associated with any resulting fraud. We also may be subject to investigations, regulatory fines and penalties conducted or imposed by government regulatory agencies, and damages and other substantial costs associated with litigation, indemnification and contractual obligations, increased cybersecurity insurance premiums, and additional remediation efforts, such as credit monitoring, notice expenses, call center services or other corrective plans. We may be forced to spend significant time and resources investigating the cause of the breach, repairing system damage, remediating vulnerabilities in our security procedures, disseminating breach notifications, enhancing cyber security protection controls and measures, and deploying additional security personnel
and protection technologies, all of which could increase our expenses, divert the attention of our management and key personnel away from our business operations and materially adversely affect our business, financial condition, results of operations and cash flows
Business and Operational Risks
System interruptions or failures could expose us to liability and harm our business.
Our data and operation centers are essential to our business and our operations depend on our ability to maintain and protect our information systems. We attempt to mitigate the potential adverse effects of a disruption, relocation or change in operating environment; however, the situations we plan for and the amount of insurance coverage that we maintain may not be adequate in every case. Despite systems redundancy and security measures, our systems and operations are vulnerable to damage or interruption from, among other sources:
▪power loss, transmission cable cuts and telecommunications failures;
▪fires, floods, earthquakes, extreme weather conditions or other natural disasters;
▪software or hardware malfunctions, failures or defects;
▪operator error;
▪cyber-attacks, physical break-ins, sabotage or intentional acts of vandalism; and
▪other events beyond our control, such as COVID-19 and other pandemics and epidemics, war, terrorist attacks and other catastrophic events.
In addition, while there are backup systems in many of our facilities, an extended outage of utility or network services supplied by third party IT vendors may delay or disrupt the delivery or performance of the services we provide for our customers. We also utilize third-party cloud service providers to help us efficiently scale certain cloud-based solutions. If we or our cloud service providers and other suppliers encounter a lengthy business interruption or a denial of service, or in the event our disaster recovery and business continuity plans are not effective, or our applicable insurance coverage is denied or not adequate or available on a timely basis for all the liabilities that might be incurred, we could suffer operational, communication and service disruptions, disputes with customers and third parties, civil or criminal penalties, regulatory problems, increases in administrative expenses, financial penalties under our service level agreements with customers, loss of our ability to produce timely and accurate financial and other reports, damage to our reputation or customer relationships or other adverse consequences, any of which could have a material adverse effect on our business, financial condition, results of operations and cash flows.
Any failure to maintain effective information processing systems and the integrity of the data in, and operations of, those systems could materially adversely affect our business, financial condition, results of operations and cash flows.
Our ability to conduct our operations and accurately report our financial results depends on the integrity of the data in our information systems and the processes performed by those systems. As a result of the services we provide, we process a number of complex transactions that require us to access, store, retrieve, process, manage and transmit the information and data of our customers’ and external third parties, as well as our own data. Although we have invested a great deal of time and resources in developing systems, processes and controls that protect the integrity of the data, such measures cannot provide absolute security. It is possible that failures or errors in hardware and software, including those in third-party technology, or technical deficiencies in our systems could result in data loss or corruption, or cause the data that we collect, utilize or disseminate or the resulting services we deliver that rely on this data to be incomplete or contain inaccuracies that our customers regard as significant. In addition, these information systems and applications require continual maintenance, upgrading and enhancement to meet our operational needs, satisfy customer requests and handle our expansion and growth. Despite our testing and quality control measures, we cannot be certain that errors or system deficiencies will be found and that remediation can be done in a timeframe that is acceptable to our customers, or that customer relationships will not be impaired by the occurrence of errors or the need for remediation. In
addition, implementation of upgrades and enhancements may cost more, take longer or require more testing than originally expected. As we continue to expand our business, we face additional challenges in implementing adequate internal control over financial reporting. Situations may also arise in which the accuracy of our data analysis or the content and quality of our work product is central to the disposition of claims, controversies or litigation between our customers and third parties that would require us to allocate significant resources to fulfilling our contractual obligations to provide our customers with full and complete access to records, analysis and back-up documentation of our work. Assuring our capacity to fulfill these obligations as well as actually fulfilling them could impose significant burdens on our infrastructure for data storage, maintenance and processing, and require us to incur increased costs to supplement our personnel, data storage and computing resources, which could materially and negatively impact other business operations.
Our business could be materially adversely affected if we fail to maintain a high level of customer retention or fail to meet performance standards under our customer contracts, or if our customers elect to reduce the scope of our contracts or terminate them before their scheduled expiration dates.
We historically have derived and expect to continue to generate a significant portion of our revenue from a limited number of large customers at the federal and state level. Our contracts with these customers are subject to periodic renewal and some permit them to terminate their contracts on short notice, with or without cause. If a customer is dissatisfied with the quality or pricing of our work or if we fail to meet performance standards under our contracts, or if our solutions, technical infrastructure or services do not comply with the provisions of our contractual agreements or applicable regulatory requirements, the customer might seek to reduce the scope of the services we perform or prematurely terminate its agreements with us, or we could incur additional costs that may impair the profitability of a contract and damage our ability to obtain additional work from that customer, or other current or prospective customers. For example, some of our contracts contain liquidated damages provisions and financial penalties related to performance failures, which if triggered, could materially adversely affect our reputation, business, financial condition, results of operations and cash flows. We also may be required to disclose such liquidated damages or other financial penalties assessed against us in connection with future bids for services with other customers.
In addition, our government and commercial healthcare customers are subject to financial pressures or pressure from stakeholders that may cause them to terminate contracts for our services that they regard as non-essential or have the ability to develop or perform in-house. They could also redefine or reduce the scope of our contracts by, for example, significantly reducing the volume of data that we are permitted to audit, or decide to renew our contracts at lower performance fee levels. We may agree to reduce our fees mid-term or extend payment terms in response to financial or operational difficulties affecting our customers due to macroeconomic factors, such as COVID-19. Despite our right to prompt and full payment under the terms of our contracts, we could face challenges in obtaining timely or full payments for our properly provided services from our customers. If there is a substantial reduction in the scope of our services under, or a termination of, any of our key contracts with our major customers, or if we are exposed to significant costs, liabilities or negative publicity, our ability to compete for new contracts with current or prospective customer could be damaged and our business, financial condition, reputation, results of operations and cash flows could be materially adversely affected.
We depend on many different entities to supply information, and any inability to successfully manage our relationships with a number of these suppliers may harm the quality and availability of our solutions and services.
We obtain the data used in our solutions and services from many sources, including commercial health insurance plans, financial institutions, managed care organizations, government entities and non-government entities. From time to time, challenges arise in managing and maintaining our relationships with data sources that are not our customers and that furnish information to us pursuant to a combination of voluntary cooperation and legal obligations under laws and regulations that are often subject to differing interpretations. If a number of our information sources become unable or
unwilling to provide us with certain data under terms and conditions of receipt, processing or use that are acceptable to us and our customers, or if laws and regulations for use and protection of this data changes in a way that could disincentivize our suppliers, or impose unacceptable or unreasonable conditions, costs, or risks on us, we may not be able to obtain new or favorable agreements with alternative data suppliers. In addition, our ability to normalize and fully utilize the information we receive from various data sources to enhance and improve current services for our customers is an important component of our growth strategy. Although we believe that we have the legal and contractual rights necessary to normalize and use the data we have obtained from these sources for potential or contemplated solution and service offerings, we cannot provide assurance that these entities will permit the use of their data for these purposes. If we lose a number of our data sources or our access to their data, and fail to identify and reach the requisite agreements with suitable alternative suppliers or to successfully integrate their data into our solutions and services, or if there is a lack of accuracy or integrity in the data that current or future suppliers provide, we could experience service disruptions, increased costs, reduced quality of our solutions and services, or performance penalties under our customer contracts, which could have a material adverse effect on our business, financial condition, results of operations and cash flows.
We may rely on subcontractors and other third party providers to provide customers with a single-source offering or we may serve as a subcontractor to a third party prime contractor. If these parties fail to satisfy their obligations to us or if we are unable to maintain these relationships, our business, financial condition, results of operations and cash flows could be materially adversely affected.
In some areas of our business, we may engage subcontractors, teaming partners, vendors or other third party providers to provide our customers with a single-source solution for a broader range of service needs. These third parties include software vendors, utility and network providers, cloud service providers, contingent workers and other information technology service providers and solution partners. Our ability to deliver and implement solutions and serve our customers effectively depends on these third parties meeting our service standards in both timeliness and quality, and in certain instances, on our ability to obtain customer approval for the use of third party subcontractors. While we believe that we perform appropriate due diligence on third party providers and take adequate measures to ensure that they comply with the appropriate laws and regulations, we cannot guarantee that they will adhere to the terms set forth in their agreements with us. Performance deficiencies or misconduct by our third party providers may be perceived as inadequacies in our solutions or capabilities or cause us to fall short of our contractual obligations to our customers, which could materially adversely affect our customer relationships and reputation, result in termination of customer contracts, and subject us to disputes with our customers. In addition, if our third party service providers terminate or refuse to renew their relationships with us or offer their products to us in the future on less advantageous terms, we may not be able to perform or deliver solutions or services for existing customers as expected.
Similarly, we are and may in the future be engaged as a subcontractor to a third party prime contractor which contracts directly with the customer. Subcontracting arrangements where we are not the prime contractor pose unique risks to us because we do not have control over the customer relationship, and our ability to generate revenue under such subcontracts is dependent on the prime contractor, its performance and relationship with the customer, and its relationship with us. We cannot be certain that the prime contractor will provide adequate and timely services to the customer, comply with the terms of its prime contract with the customer or its subcontract agreement with us, or that it will construe its contractual rights and obligations in a reasonable way, act appropriately in dealing with us or customers, and remain in compliance with the relevant laws, rules or regulations. Any failure of the prime contractor to adequately perform its obligations under the prime contract or to comply with applicable laws, rules and regulations could materially adversely affect our reputation and subject us to a dispute with the prime contractor or the customer. In the event a prime contract is terminated, whether for non-performance by the prime contractor or otherwise, our subcontract will similarly terminate, and the resulting contract loss could materially adversely affect our business, financial condition, results of operations and cash flows.
We obtain a portion of our business through competitive bidding processes. Reprocurements and future contracts may not be awarded on the same level or our contract awards may be challenged by interested parties which could materially adversely affect our business, financial condition, results of operations and cash flows.
In order to market our solutions and compete for contracts with existing and potential state and federal customers, we are often required to respond to government-issued RFPs. These responses typically require us to assemble and submit a large volume of information within a rigid timetable, and to accurately estimate our cost structure for servicing the proposed contract, the time required to establish operations and the likely terms of proposals submitted by our competitors. We may also be required to disclose sensitive information, such as business developments and trade secrets, or the occurrence of certain negative events suffered by our business, including customer disputes, contract terminations, assessments of liquidated damages, corrective action plans, government inquiries or audits, pending claims and litigation, or adverse judgments and settlements in legal proceedings, which could impair our ability to win the contract at issue or have a material adverse effect on our reputation in the industry.
Even if we win these contracts, we may fail to secure favorable contract terms and conditions, or a government’s determination to award us the contract may be challenged by an interested party. Under the state and federal laws and regulations governing procurements of goods and services, challenges and award protests may be filed even if there are no valid legal grounds on which to base the protest. The filing of such challenges could potentially delay the start or implementation of the contract if the government agency determines to withhold a contract award or suspend contract performance while the protest is being considered, or to take corrective action on its own, such as soliciting new bids, reinitiating the RFP process or terminating the contract award or current procurement. In the event of irregularities that we perceive or learn of in the award or bidding process, we also may be forced to file protests in response to RFP awards to other bidders. Resolution of a protest, even in our favor, could divert our management's focus and force us to expend considerable funds in disputing the potential award or incur additional expenses to maintain our ability to timely start implementation, which may cause our actual results to differ materially and adversely from those anticipated. In addition, if we are unable to win reprocurements or protests of particular contracts, we may be precluded from entering certain customer markets for the term of the contract awarded to another party. Any failure to continue to obtain contracts in response to government RFPs, to design proposals that result in profitable contracts, to win new contracts or re-procure current contracts after they expire or to prevail in protests or challenges of contract awards could have a material adverse effect on our business, financial condition, results of operations and cash flows.
We may not be able to deliver our solutions and perform services efficiently if we are unable to attract and retain qualified employees.
Our successful delivery of solutions and services and ability to maintain our productivity and profitability is highly dependent on our ability to identify, recruit, employ, train, engage and retain skilled personnel. The success of recruitment and retention strategies depend on a number of factors, including the competitive demands for individuals with the skill sets we need, the level of compensation required to hire and retain such employees and immigration requirements that may affect our ability to sponsor employees for employment-based visas. Customers or competitors may seek to hire away qualified and seasoned employees, which could impact our ability to innovate and operate effectively, and require us to take legal action and incur additional costs. We may not be able to recruit or maintain the personnel necessary to efficiently operate and support our business in the future, Even if our recruitment and retention strategies are successful, we may experience higher labor costs that may not be offset by improved productivity or increased sales. Our inability to attract and retain top talent on a timely basis without significantly increasing our labor costs could materially adversely affect our business, financial condition, results of operations and cash flows.
Our future success depends, in part, on the continued service of members of our management team.
Our ability to execute on our business plans and future success requires that we attract, develop, motivate and retain experienced and innovative executive and senior leadership who have successfully managed, designed, implemented and led government services programs or information technology initiatives, or have relevant experience in other healthcare sectors, including data management and analytics. These individuals are in great demand and continue to remain a limited resource in our industry. The loss of one or more members of our management team could cause disruptions in, and harm to, our business. To the extent we lose an executive officer or senior leader, we may incur increased expenses in connection with the hiring, promotion or replacement of these individuals and the effective transfer of critical knowledge. Any failure to successfully transition key leadership roles could adversely affect our business, financial condition, results of operations and cash flows.
Our international operations expose us to a number of business and financial risks, which could materially adversely affect our business, financial condition, results of operations and cash flows.
We have expanded our business to include operations, investments, strategic relationships and personnel outside of the United States. Our international operations expose us to a number of business and financial risks, including, but not limited to:
▪unfavorable foreign currency exchange rates or fluctuations;
▪difficulties and increased costs involved in staffing, managing and communicating with teams outside of the U.S.;
▪seasonal reductions in business activity;
▪our ability to protect our intellectual property in foreign jurisdictions;
▪legal uncertainties inherent in transnational operations such as export and import regulations, tariffs and other trade barriers;
▪the impact of foreign laws, regulations and trade customs;
▪U.S. and foreign taxation issues;
▪restrictions on repatriation of income or capital or other restraints on our ability to transfer funds freely;
▪increased costs of marketing to and servicing international clients;
▪general political and economic trends, including the potential impact of civil unrest, terrorist attacks, international hostilities, natural disasters or other catastrophic events that reduce business activities in the parts of the world we do business, such as the COVID-19 pandemic;
▪regulatory changes that may lead to restrictions on immigration and travel for our employees; and
▪legal compliance costs and risks associated with international operations, including heightened risks with respect to certain laws, including without limitation, employment regulations, healthcare and data privacy laws, FCPA and similar laws and regulations in foreign jurisdictions.
If any of these risks materialize, our business, financial condition, results of operations and cash flows could be materially adversely affected.
Financial Risks
You will not be able to rely on our operating results in any particular period as an indication of our future performance because they are subject to significant fluctuation which may cause the market price of our common stock to decrease significantly.
Our financial results may fail to match our past or projected performance and could vary significantly from period-to- period as a result of a number of factors, some of which are outside of our control. We have experienced fluctuations in our revenue and operating results in the past and they may vary in the future for reasons that include, but are not limited to:
▪fluctuations in sales activity given our sales cycle;
▪the length of contract and implementation periods;
▪the commencement, completion or termination of contracts during any particular quarter;
▪contract costs and expenses, which may be incurred in periods prior to revenue being recognized;
▪the timing of period revenue recovery projects and third party payers’ claim adjudication;
▪the billing and budgeting cycles of our customers;
▪the timing of government procurement activities, including when contract awards are announced and the time required to resolve bid protests;
▪contract renewal discussions, which may result in delayed payments for services already performed;
▪changes in the pricing structure or other significant terms in our contracts, or the scope of services we perform;
▪technological and operational issues affecting our customers, including delays in payment receipt for previously recognized revenue due to certain customers' delayed processing of our findings through their systems, such as delays caused by the effects of COVID-19, and restrictions on our ability to use or access certain data or a lack of integrity or quality in the data or information we receive from certain data sources;
▪adjustments to age/quality of receivables and accruals as a result of factors such as delays involving contract limitations or changes, customer decisions to delay, avoid or refuse to make payments for our properly provided services, subcontractor performance deficiencies, managerial decisions not to pursue identified claim revenue from customers or otherwise, including as a result of the effects of COVID-19;
▪the impact of service disruptions or delays in the systems or operations of subcontractors, partners, vendors and other third party providers on which we rely on to deliver a single-source solution or service to our customers;
▪the timing of expenses related to the development, acquisition, divestiture, merger or integration of technologies or businesses and the timing of expenses related to strategic investments, dispositions and partnerships;
▪changes in applicable laws;
▪changes in accounting policies or guidelines; and
▪regulatory changes or general economic conditions as they affect healthcare providers and payers.
In addition, occasionally our state and federal customers are requested by third party payers or providers to refund payments that we previously recovered for our customers. If our customer chooses to refund money in response to these requests, regardless of whether an error actually occurred, we may be required to return the contingent revenue associated with such refunded payment for which we were previously paid. Consequently, our operating results are subject to significant fluctuation for any particular quarter, fiscal year, or other period, and may not be indicative of future periods. Our business is also subject to seasonal patterns resulting from increased efforts at year-end by certain customers to generate additional savings, complete compliance obligations and close gaps in care. However, taken as a whole, we do not consider our operations to be seasonal to any material degree. Due to these and other factors, it is difficult to predict the extent to which future variations could occur and there may be significant fluctuations in our revenue and operating results, which may cause the market price of our common stock to decrease significantly.
We face challenges associated with forecasting the revenue under our contracts, and any failure to accurately forecast such revenue could have a material adverse effect on our business, financial condition, results of operations and cash flows.
We may not be able to accurately estimate the factors upon which we base our contract pricing, or the costs and timing for implementing and completing our contracts. For a majority of our customer contracts, the payment of our fee is contingent upon the recoveries received by our customers. We also have cost-plus or time-and-materials based contracts with the federal government where our revenue is recognized based on costs incurred plus an estimate of the negotiated fee earned. Our ability to earn a profit on these contracts requires that we accurately estimate the costs involved with these contracts and assess the probability of achieving certain outcomes or milestones within the contracted time period. In addition, we cannot predict with certainty the costs or the period in which implementation or contracts may be completed when we introduce new or enhanced solutions into the marketplace. For our payment
accuracy services, we may face a long implementation period with a new customer or a new contract with an existing customer, making it difficult to reliably forecast revenue under those contracts. If we do not accurately estimate the costs and timing for completing projects, or if we encounter increased or unexpected costs, delays, failures, liabilities or risks, including those outside of our control, our contracts could prove unprofitable for us or yield lower profit margins than anticipated. Although we believe that we have recorded adequate provisions in our financial statements for losses on our fixed price and cost-plus contracts where applicable, as required under U.S. GAAP, our contract loss provisions may not be adequate to cover all actual future losses.
Our outstanding indebtedness could materially adversely affect our financial condition and our ability to operate our business, and we may not be able to generate sufficient cash flows to meet our debt service obligations or capital requirements.
As of December 31, 2020, the outstanding principal balance under our Credit Agreement was $240 million. Our Credit Agreement provides for a senior secured revolving credit facility in an aggregate principal amount equal to $500 million and is secured, subject to certain customary carve-outs and exceptions, by a first priority lien and security interest in substantially all of our tangible and intangible assets. Our outstanding indebtedness and any additional indebtedness we incur may have important consequences for us, including, without limitation, that:
▪we may be required to use a substantial portion of our cash flow to pay the principal of and interest on our indebtedness;
▪our indebtedness and leverage may increase our vulnerability to adverse changes in general economic and industry conditions, as well as to competitive pressures;
▪our indebtedness may expose us to the risk of increased interest rates because certain of our borrowings are and will be at variable interest rates;
▪our ability to obtain additional financing for working capital, capital expenditures, acquisitions, investments, strategic relationships and for general corporate and other purposes may be limited;
▪our indebtedness and leverage may prevent us from taking advantage of business opportunities as they arise or successfully carrying out our plans to expand our business; and
▪our flexibility in planning for, or reacting to, changes in our business and our industry may be limited.
Under the Credit Agreement, we are also required to comply with specified financial and operating covenants, which may limit our ability to operate our business as we otherwise might operate it. The Credit Agreement also contains (i) certain affirmative covenants that impose certain reporting and/or performance obligations on us and our restricted subsidiaries, (ii) certain negative covenants that generally limit, subject to various exceptions, us and our restricted subsidiaries from taking certain actions, including, without limitation, incurring indebtedness, creating liens, engaging in mergers and consolidations, disposing of certain assets or property, making certain investments and acquisitions, entering into certain transactions with affiliates, swap agreements or sale-leasebacks, making certain restricted payments, including dividends and share repurchases, changing our fiscal year or the lines of business that we or our restricted subsidiaries conduct to a material extent, and prepaying certain junior indebtedness, (iii) financial covenants consisting of a maximum consolidated leverage ratio and a minimum interest coverage ratio, and (iv) customary events of default for financings of this type.
Our obligations under the Credit Agreement may be declared due and payable upon the occurrence and during the continuance of an event of default, which includes, without limitation: non-payment of principal or reimbursement obligations when due; non-payment of interest, fees and other amounts for a period of five business days after the due date; material inaccuracies of representations and warranties; failure to perform or observe covenants, conditions or agreements (subject to any applicable grace periods); cross-defaults of certain indebtedness; inability to pay debts; certain acts of bankruptcy or insolvency; certain ERISA events; failure to pay certain material judgments; and a change of control as defined in the Credit Agreement. If not cured, an event of default could result in any amounts outstanding, including any accrued interest and unpaid fees, becoming immediately due and payable, and would give our lenders the
right to proceed against the collateral granted to them to secure the debt, which would require us to, among other things, seek additional financing in the debt or equity markets, refinance or restructure all or a portion of our indebtedness, sell selected assets, and/or reduce or delay planned capital or operating expenditures. Such measures might not be sufficient to enable us to service our debt, and any such financing or refinancing might not be available on economically favorable terms or at all. Our ability to make payments of principal and interest on our outstanding credit facility depends upon our future performance and our ability to generate cash flows. If we are unable to generate sufficient cash flows to meet our debt service obligations or are forced to take additional measures to be able to service our indebtedness, our business, financial condition and results of operations could be materially and adversely affected.
Additionally, certain of our indebtedness bears interest at variable interest rates, primarily based on LIBOR. In July 2017, the United Kingdom's Financial Conduct Authority announced its intention to phase out the use of LIBOR by the end of 2021. On November 30, 2020, ICE Benchmark Administration (the administrator of LIBOR) announced that, with the support of regulators, it intends to (i) cease publication of 1- week and 2 month LIBOR at the end of 2021 and (ii) subject to compliance with applicable regulations, it does not intend to cease publication of the remaining LIBOR tenors until June 30, 2023. Our Credit Agreement includes language to determine a replacement rate for LIBOR, if necessary; however, no consensus exists as to what rate or rates may become accepted alternatives to LIBOR, whether LIBOR will cease to be published or supported before or after 2021, or whether such alternative base rate will be more or less favorable than LIBOR. A transition away from LIBOR as a benchmark for establishing the applicable interest rate on certain borrowings could have a material adverse effect on the availability of financing and on our financing costs.
Changes in tax rules and regulations, or in interpretations thereof, may materially adversely affect our effective tax rates.
We are a U.S.-based company subject to taxation in multiple U.S. and foreign jurisdictions. As we continue to expand our business outside of the United States, we may become subject to additional tax laws and regulations, including those that could increase our exposure to additional tax liabilities and compliance, such as foreign tax laws, cross-border transfer pricing and laws relating to U.S. taxes on foreign operations. Our future effective tax rates could be materially affected by various factors, including changes in the tax rates of jurisdictions in which we do business, changes in relevant tax and accounting rules, regulations and interpretations, increases in expenses not deductible for tax purposes, including impairments of goodwill, changes in the valuation of our deferred tax assets and liabilities, and changes in geographic sales mix. Any unanticipated changes in our tax rates could affect our future results of operations.
In addition, we are subject to the continual examination of our income tax returns by the IRS and other domestic and foreign tax authorities. We regularly assess the likelihood of outcomes resulting from these examinations to determine the adequacy of our provision for income taxes and have reserved for potential adjustments that may result; however, the authorities in these jurisdictions could review our returns and decide to impose additional tax, including fines and penalties, and record-keeping obligations. The final determination of any of these examinations could have a material adverse effect on our business, financial condition, results of operations and cash flows.
Our insurance coverage and self-insurance reserves may not cover future claims, which could materially adversely affect our business, financial condition, results of operations and cash flows.
We currently self-insure a significant portion of expected losses associated with workers’ compensation claims, general business liabilities, property damage and employee health care benefits. We have purchased a fully-insured stop loss policy for our health plans to help offset our liability for both individual and aggregate claim costs and maintain insurance coverage with varying limits and retention amounts to help limit exposure to certain other risks. Insurance reserves are established for our estimated cost of claims incurred and unpaid as of the balance sheet date on an undiscounted basis, which is based on a number of assumptions and factors, including historical trends, actuarial assumptions, economic conditions and management judgments about the present and expected level of cost per claim. This determination is
closely monitored and adjusted when warranted by changing circumstances. Our prior growth could affect the accuracy of estimates based on historical experience. Should a greater amount of claims occur compared to what was estimated or medical costs increase beyond what was expected, our accrued liabilities might not be sufficient and we may be required to record additional expense. Unanticipated changes in the assumptions and estimates underlying our reserves could result in materially different amounts of expense reported under these programs, which could materially adversely affect our business, financial condition, results of operations and cash flows.
Changes in accounting standards issued by the FASB or other standard-setting bodies may adversely affect our business.
Our financial statements are subject to the application of U.S. GAAP, which is periodically revised and/or expanded. From time to time, we are required to adopt new or revised accounting standards issued by recognized authoritative bodies, including the FASB and the SEC. It is possible that accounting standards we are required to adopt may require changes to the current accounting treatment that we apply to our consolidated financial statements and may require us to make significant changes to our systems. Changes in accounting standards could result in a material adverse impact on our business, financial condition and results of operations.
Legal and Regulatory Risks
If we are unable to protect our proprietary technology, information, processes, know-how, and other intellectual property, or become subject to third party claims of intellectual property infringement or misappropriation, the value of our solutions and services may be diminished and our business may be materially adversely affected.
Our success as a company depends in part upon our ability to protect our core technology and intellectual property. Our expanding operations and efforts to develop new solutions and services also make protection of our intellectual property more critical. We seek to protect our intellectual property and other proprietary information through a combination of patent, trademark, copyright, trade secret and unfair competition laws, confidentiality agreements and invention assignment agreements with employees, consultants and other third parties, as well as through the terms of our agreements with customers and vendors, and other security measures. However, the steps we have taken to deter misappropriation of intellectual property may be insufficient to protect our proprietary information. For example, we may not always be successful at obtaining government registrations for our patents, trademarks, or copyrights that we seek to register. Even if we are successful, existing U.S. federal and state or foreign and international intellectual property laws offer only limited protection, and our property rights in foreign jurisdictions in which we operate or seek to do business may not receive the same degree of protection or enforceability as those in the United States.
Third parties may attempt to misuse our company name or trademarks to engage in improper or illegal conduct such as cyber-squatting or other cybercrimes using our marks, and we may not always be successful at quickly obtaining relief from agencies tasked with enforcing parties’ rights, or stopping such conduct before harm to third parties occurs. Similarly, misappropriation of our other intellectual property by third parties, or any disclosure or dissemination of our confidential and proprietary trade secrets, business intelligence, queries, algorithms and other similar information by any means, could undermine any competitive advantage we currently derive or may derive from that intellectual property. For example, our current and former employees, consultants or other third parties may unintentionally or willfully disclose our trade secrets, know-how or other confidential and proprietary information to competitors. Competitors have attempted to use the federal Freedom of Information Act and other federal and state open records laws to obtain our proposal responses and other documents we provide to government customers. We cannot be certain that our efforts to protect the confidential and proprietary trade secret information or intellectual property in these proposals or other documents will always be successful, even in spite of our objections and efforts to exempt such information from disclosure, due to the many factors underlying the various state and federal decisions to release information in response to open records requests. Parts of proposals may be incorporated into client contracts, which may be made publicly available. Additionally, certain of our solution offerings from recent acquisitions may incorporate open source software
licensed under various public domain licenses or without warranties, indemnification or other contractual protections. Although we carefully monitor and manage our use of open source software to avoid uses that would require us to disclose proprietary source code or violate applicable open source licenses, if we engage in such uses inadvertently, we may be required to discontinue certain features or capabilities of our software, release certain of our proprietary source code or take other remedial action. Moreover, there remains the possibility that others will independently develop competing technologies that may be equivalent or superior to ours. If our efforts to protect our intellectual property and other proprietary rights are inadequate to prevent unauthorized use or appropriation by third parties or our employees, the value of our brand and other intangible assets may be diminished and make us less competitive, which could have a material adverse effect on our business, financial condition, results of operations and cash flows. Third parties may also claim that we are infringing upon or misappropriating their intellectual property, using their intellectual property inconsistent with or without the appropriate license terms, or assert other legal challenges to our intellectual property. Our exposure to these risks may further increase after we acquire a business or technology because third parties may wait to make infringement and similar or related claims until after we have acquired the technology.
Any of these situations could cause us to expend significant time and resources and to incur substantial costs associated with settlements, litigation or other legal proceedings that may be necessary to defend ourselves or to enforce our intellectual property rights, in which we may not ultimately prevail, and could result in our being prevented from furnishing certain solutions and services. We may also be required to indemnify our customers if they become subject to third party claims relating to intellectual property that we license or otherwise provide to them, which could be costly.
A failure to comply with the laws and regulations regarding individual privacy and information security could subject us to legal actions, fines and penalties and negatively impact our reputation and operations.
Our ability to access, process, transmit and store sensitive data, including PHI and personally identifiable information of individuals, as well as other financial, confidential and proprietary information is essential to our business. The use and disclosure of information we obtain from our customers, subcontractors, government agencies, data suppliers and other third parties is regulated at the state, federal, international and industry levels. In particular, we are subject to HIPAA and other federal regulations and various U.S. state laws related to the privacy and security of health information. As such, we often function as a business associate under HIPAA, which also imposes standards and requirements on our downstream subcontractors or business associates. Additional legislation governing the acquisition, storage and transmission or other dissemination of health record information and other personal or sensitive information, including information outside the scope of HIPAA, continues to be proposed and come into force at the state level, such as the California Consumer Privacy Act and the California Privacy Rights Act. There are also numerous international privacy and security laws that govern the collection, dissemination, use, access, retention, storage, protection and confidentiality of personal information. The processes involved with accessing or transferring of personal information across international borders continue to grow increasingly complex.
In addition, laws, rules and regulations concerning the protection of personal information may be inconsistent across jurisdictions and are subject to evolving interpretations and frequent change by legislation, regulatory issuances or industry standards. As regulatory focus on privacy issues continues to increase and these laws and regulations continue to expand and become more complex, these potential risks to our business could intensify. Changes in laws or regulations associated with the enhanced protection of certain types of sensitive data, such as healthcare data or other personally identifiable information, along with increased customer demands for enhanced data security infrastructure, could greatly increase our cost of providing our solutions and services, and may subject us to additional liabilities.
Even though we take measures to comply with all applicable regulations and to ensure our business associates and subcontractors comply with these laws, regulations and rules, we have less than complete control over our business associates’ and subcontractors’ actions and practices. We may be exposed to data breach risk if there is unauthorized access to one of our or our subcontractors’ secure facilities, or to third-party enterprise cloud storage and cloud
computing application services that we use, or from lost or stolen laptops or other portable media from current or former employee theft of data containing PHI or customer confidential information, from computer hacking, malware, computer viruses or other malicious codes, phishing or other cyber-attacks, from misdirected mailings containing PHI, or other forms of administrative or operational error. If we or our subcontractors fail to comply with applicable laws; if unauthorized parties gain physical access to one of our facilities and steal or misuse confidential information; if we erroneously use or disclose data in a way that is inconsistent with our granted rights; or if such information is misdirected, lost or stolen during transmission or transport, we may suffer damage to our reputation, potential loss of existing customers and difficulty attracting new customers. We could also be exposed to, among other things, unfavorable publicity, governmental inquiry and oversight, allegations by our customers that we have not performed our contractual obligations, costs to provide notifications, credit monitoring or other remediation to affected individuals, fines or other penalties imposed by government regulatory agencies, or litigation by affected parties and possible financial obligations for damages or indemnification obligations related to the theft or misuse of such information, any of which could have a material adverse effect on our business, financial condition, results of operations and cash flows.
We are subject to extensive domestic and foreign laws and regulations, including government and customer audits and investigations relating to our compliance with such laws and regulations and a negative finding or other adverse determination could have a material adverse effect on our reputation, business, financial condition, results of operations and cash flows.
We operate in an increasingly complex regulatory environment. A significant portion of our business is regulated by the U.S. federal government and the states in which we operate. These laws and regulations are generally intended to benefit and protect individual citizens, including government program beneficiaries, health plan members and their dependents. As such, the federal and state governmental agencies administering these laws and regulations have broad latitude to enforce them. Our contracts with U.S. government agencies are also subject to unique contractual provisions and performance requirements, and, on an ongoing basis, government and customer reviews, audits and investigations to verify our compliance with our contracts and applicable laws and regulations, as well as specialized legal actions and enforcement proceedings. For example, the federal False Claims Act and similar state statutes permit government law enforcement agencies to institute suits against us for violations and, in some cases, to seek double or treble damages, penalties and assessments. In addition, private citizens, acting as whistleblowers, can sue on behalf of the government under the “qui tam” provisions of the federal False Claims Act and similar statutory provisions in many states.
In addition, the growth and continued expansion of our operations in the U.S. and abroad subject us to additional and sometimes conflicting legal and regulatory requirements. For example, in connection with our acquisition of Eliza Corporation, we became subject to the TCPA as a result of the member engagement services that we perform. We also face heightened consumer communication protections as a result of the changing regulatory environment. Our increased delivery of PHM solutions and penetration into new markets, such as ACOs, PBMs and commercial self-insured employers, could increase the likelihood and incidence of our being subjected to regulatory scrutiny or legal actions by third parties other than our customers, which may impose significant costs and strain on our resources.
The expansion of our international operations further subjects us to a variety of new foreign laws and regulations as well as U.S. laws that regulate the conduct and activities of U.S.-based businesses operating internationally. Our limited experience in operating our business in foreign jurisdictions increases the risk of non-compliance with international laws and regulations. Any changes in the laws of the countries in which we operate or utilize third-party resources may intensify our future legal and regulatory compliance burden and involve significant costs and resources. The inadequate enforcement of such laws or regulations could affect our business and results of operations. Despite our efforts, we may not be in compliance with all regulations in the countries in which we operate at all times, and may be subject to sanctions, penalties or fines as a result.
These laws and regulations, along with the terms of our government contracts, regulate how we do business, what services we offer and how we interact with customers, providers, other healthcare payers and the public. Although we have implemented policies and procedures designed to ensure compliance, there can be no assurance that our employees, subcontractors, vendors, agents, strategic partners or third parties with whom we do business, will not violate our policies. If the government discovers improper or illegal activities in the course of audits or investigations, we may be subject to various civil and criminal penalties and administrative sanctions, which may include termination of contracts, forfeiture of profits, suspension of payments, significant monetary damages and fines, loss of required certifications or licenses, and suspension, disqualification or debarment from doing business with the government. Similarly, if our customers assert that we have failed to properly perform or comply with our contractual obligations, or if the carriers to which we send billings assert that we have failed to properly comply with applicable federal or state billing rules and regulations, we may be required to provide refunds or make payments to resolve such issues. If we are found to be in violation of any applicable law or regulation, or if we receive an adverse review, audit or investigation from a government agency or customer related to our compliance with such laws or regulations or the terms of our government contracts, any resulting negative publicity, penalties or sanctions could have an adverse effect on our reputation in the industry, impair our ability to compete for new contracts or bid in response to RFPs in one or more jurisdictions, and have a material adverse effect on our business, financial condition, results of operations and cash flows.
Adverse judgments or settlements in legal proceedings could materially harm our business, financial condition, operating results and cash flows.
We are subject and may be a party to legal proceedings and claims that arise from time to time in the ordinary course of our business. These matters may include, but are not limited to, claims relating to billing and contractual disputes, subcontracts and teaming agreements, protection of confidential information, trade secrets or intellectual property rights, pending, terminated or completed acquisitions, dispositions, investments or other strategic transactions, individual or class action claims in relation to the services we, or the companies we acquire, may provide, adversary proceedings arising from customer bankruptcies, employment of our workforce and immigration requirements or compliance with any of a wide array of statutes, rules and regulations that pertain to different aspects of our business, both domestically and internationally. It may be necessary to initiate costly litigation or other proceedings to protect our business interests. There is a risk that we will not be successful or otherwise able to satisfactorily resolve any pending or future litigation. In addition, litigation and other legal claims are subject to inherent uncertainties and management’s view of currently pending legal matters may change in the future. Those uncertainties include, but are not limited to, litigation costs and attorneys’ fees, unpredictable judicial or jury decisions, and differing laws and judicial proclivities regarding damage awards in the jurisdictions in which we operate. Resolution may also require that HMS accept some amount of loss or liability in order to avoid customer abrasion, negative marketplace perceptions and other disadvantageous results. Unexpected outcomes in such legal proceedings, or changes in management’s evaluation or predictions of the likely outcomes of such proceedings (possibly resulting in changes in established reserves), could have a material adverse effect on our business, financial condition, results of operations and cash flows.
Federal and state governments may limit or prohibit outsourcing of certain programs or functions to private entities, refuse to grant consents or waivers necessary for them to perform such work, or impose other limitations on outsourcing that may obstruct cost-effective performance of our contracts.
U.S. federal or state governments could limit or prohibit private contractors like us from operating or performing elements of certain government functions or programs. As a condition of receiving federal funding, state and local government agencies may be required to operate such programs with government employees. Under current U.S. law, in order to privatize certain functions of government programs, the federal government must grant a consent and/or waiver to the petitioning state or local agency. If the federal government does not grant a necessary consent or waiver, the state or local government will be unable to outsource that function to a commercial entity. Such a situation could eliminate a contracting opportunity or reduce the value of an existing contract.
Similarly, the U.S. government may impose limitations or requirements on the outsourcing of work to offshore resources, which could make it more difficult for us to fulfill our contracts in a cost-effective manner. Certain areas of our operations use or involve vendor or subcontractor personnel located outside of the United States to supplement our workforce, who may (under carefully controlled circumstances) access certain PHI in the course of assisting us with various elements of the services we provide to our customers. The federal government and a number of states have proposed or passed laws or issued rules, regulations, and orders that would limit, restrict or wholly prohibit the use of offshore labor in performance of government contracts, or impose sanctions for the use of such resources. Some of our customers have already chosen to contractually limit or restrict our ability to use offshore personnel and systems. Intensified restrictions of this type or associated penalties could raise our costs of doing business, expose us to unexpected fines or penalties, increase the prices we must charge to customers to realize a profit and eliminate or significantly reduce the value of existing contracts or potential contract opportunities, any of which could have a material adverse effect on our business, financial condition, results of operations and cash flows.
We may be precluded from bidding on or performing certain work due to work we currently perform, which could adversely affect our business, financial condition, results of operations and cash flows.
Various laws, regulations and administrative policies prohibit companies from performing work for government agencies in capacities that might be viewed to create an actual or perceived conflict of interest. In particular, CMS has stringent organizational conflict of interest, or OCI, rules, which can limit our bidding for specific work for CMS, or for other contracts that might conflict, or be perceived by CMS to conflict, with contractual work for CMS. State governments and managed care organizations also have conflict of interest restrictions that could limit our ability to bid for certain work and impact our overall sales strategy. As we continue to grow and diversify our business operations, the likelihood that customers or potential customers will perceive conflicts of interest between our various activities, lines of business and customer relationships may increase. Such conflicts, whether real or perceived, could result in a loss of contracts or additional internal structural barriers that delay operational efficiency. We may also need to divest certain existing businesses or reorganize our current organizational and management structure in order to qualify for new contract awards or to appropriately mitigate conflicts and neutralize or avoid potential OCI issues. Our failure to devote sufficient care, attention and resources to managing these adjustments may result in technical or administrative errors that could expose us to potential liability or adverse regulatory action. In addition, OCI rules and standards change frequently, and are subject to varying interpretations and varying degrees and consistency of enforcement. We may not be successful in navigating these restrictions. If we are prevented from undertaking business opportunities due to real or perceived conflicts of interest, our business, financial condition, results of operations and cash flows could be adversely affected.
Risks Relating to Our Common Stock
The market price of our common stock may be volatile, and fluctuations in the price of our common stock may materially adversely affect our business, financial condition, results of operations and cash flows and result in significant losses for our shareholders.
The market price of our common stock has, at times, fluctuated significantly and may fluctuate in the future based on a variety of factors, many of which are beyond our control. During the 52-week period ended December 31, 2020, our common stock traded on the Nasdaq Global Select Market as high as $36.95 per share and as low as $18.20 per share. In addition to the risk and uncertainties described in this “Risk Factors” section, factors affecting our stock price include, among others, those relating to:
▪the timing of, and our ability to close, the Merger with Gainwell, as well as changes in factors that influence the timing or likelihood of closing the Merger successfully;
▪quarterly or annual earnings results or those of other companies in our industry;
▪changes in financial estimates or recommendations by securities analysts about our future operating and stock price performance or in the operating and stock price performance of other companies that investors deem comparable to our company;
▪news reports relating to trends, concerns and other issues in the healthcare industry, including perceptions in the marketplace regarding us and our competitors;
▪the financial projections we publicly provide and any changes in or failure to meet those projections;
▪future sales of shares of common stock in the public market by our executive officers or directors;
▪any changes in the number of our outstanding shares, including as a result of share repurchases;
▪actual or proposed changes in federal or state laws affecting the healthcare industry;
▪changes in accounting principles;
▪the public’s response to our press releases, or other public announcements, including our filings with the SEC;
▪securities class actions, shareholder lawsuits or other litigation; and
▪market conditions in the industry and the economy as a whole.
In addition, stock markets often experience significant price and volume fluctuations. These broad market fluctuations may materially adversely affect the market price of our common stock regardless of our operating performance. In the past, shareholders have instituted securities class action litigation following periods of market volatility. Any litigation against us could cause us to incur substantial costs, divert the time and attention of our management and other resources or otherwise harm our business.
We do not intend to pay dividends in the foreseeable future.
We have not paid or declared cash dividends on any of our common stock to date and do not intend to pay any cash dividends in the foreseeable future. In addition to the restrictions in our Credit Agreement, the Merger Agreement with Gainwell places certain restrictions on our ability to make or declare dividends or distributions to the stockholders of HMS. For additional information, please refer to the definitive proxy statement on Schedule 14A filed on February 22, 2021 and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Part II, Item 7 of this 2020 Form 10-K.
Certain provisions of our certificate of incorporation and bylaws could discourage unsolicited takeover attempts, which could depress the market price of our common stock.
Our certificate of incorporation authorizes the issuance of up to 5,000,000 shares of “blank check” preferred stock with such designations, rights and preferences as may be determined by our Board of Directors. Accordingly, our Board of Directors is empowered, without shareholder approval, to issue preferred stock with dividend, liquidation, conversion, voting or other rights, that could adversely affect the voting power or other rights of holders of our common stock. In the event of issuance, preferred stock could be utilized, under certain circumstances, as a method of discouraging, delaying, or preventing a change in control. Although we have no present intention to issue any shares of preferred stock, it is possible that we will do so in the future. In addition, our bylaws currently require advance notice of shareholder proposals for business to be conducted at meetings of our shareholders and for nominations of candidates for election to our Board of Directors and provide for Delaware as an exclusive forum for certain disputes with our shareholders, all of which could also have the effect of discouraging a change of control.
Item 1B. Unresolved Staff Comments
None.