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consolidation occurred between 1986 and 1989, and less than 2
percent of the consolidation occurred after 1989. Furthermore,
Hughes and Benesh have provided no data on the status of the home
health care industry in any of the other States in which
petitioner does business.
Significantly, although Hughes and Benesh characterized the
home care industry as "contracting", they provided no data that
shows that the health care business actually was contracting,
instead of consolidating. The data shows only that there were
fewer home health care agencies, not that there were fewer
dollars spent on home health care. In fact, due to the 1989
changes in the regulations governing reimbursements to home
health care agencies by Medicare, payment for a greater number of
services was allowed, which provided potential for increased
revenue.6 Thus, the data actually shows that each year there
were fewer agencies operating in a business that had expanding
6 At trial, Rogers gave the following testimony in response
to petitioner's lawyer's questions:
Q. And as a result of the number of home health industries
in the State of Tennessee, would you say that it was--
A. It was a free-for-all.
Q. --a competitive market?
A. It was a free-for-all.
Thus, Rogers did not characterize the business conditions as
competitive. He chose, instead, to use a description that would
not be unfamiliar to a 49'er participating in the California gold
rush.
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