Columbia/Hca Healthcare Corporation

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IN THE MA TTER OF COLUMBIAJCA HEALTH CAR CORPORATION MODIFYIJ'G ORDER 1'1 REGARD TO ALLEGED VIOLA TION OF SEC. 7 OF THE CLA YTON ACT AND SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT Docket C-36I9. Consent Order. Oct. I995--Modifing Order. July 14 1997 This order reopens a 1995 consent order -- that permitted Columbia/HCA and Healthtrst, Inc., to merge and required the divestiture of the lease agreement -- and this order modifies the consent order by terminating ColumbialHCNs obligation to divest a commercial lease (the Infusamed Lease) for office space in a building in Utah.

ORDER REOPENING AND MODIFYING ORDER On February 18 , 1997, Columbia/HCA Healthcare Corporation Columbia ) filed its Petition Of Columbia/HCA Healthcare Corporation To Reopen And Modify Order ("Petition ) pursuant to Section 5(b) of the Federal Trade Commission Act, 15 C.sc. 45(b), and Section 2. 51 of the Commission s Rules of Practice and Procedure, 16 CFR 2. 51. Respondent asks that the Commission reopen the proceeding in Docket No. C-3619 and modify the order to terminate the requirement that Columbia divest the commercial lease identified in Item 6 of Part II of Section A of Schedule B ofthe order the Infusamed Lease ). The Petition was placed on the public record for thirty days, until March 24, 1997, and no comments were received. For the reasons discussed below the Commission has determined to grant Columbia s Petition.

Columbia states that this Petition is the second step of two procedural steps to remedy a minor error in the order. On December 1995 , Columbia filed a petition to reopen and modify the order to terminate the Utah Hold Separate requirements upon its completion ofthe divestiture of the Par I assets listed on Schedule B ofthe order the Utah hospitals themselves The Part II assets listed on Schedule B consist of certain assets and businesses that were identified by Columbia during consent negotiations with Commission I andstaff as being related to each of the listed Utah hospitals, included the Infusamed Lease. On May 15 , 1996, the Commission Jl1e only distinction that the order expressly makes between the Part and Part II assc s is that the acquirer of a divested Pan I hospital need not give t11e Commission priur nuti f ;cation of the re-sak ofa Part I! asset to anyone who also owns a hospital in thcTclevant market. See on:r.r, paragraph Ivr COLlJ.\BIA/HCA HEAL THCARE CORPORA TION Modifying Order granted Columbia s December 5, 1995 petition. In addition, as of May , 1996, Columbia completed the divestitures of all of the Utah hospitals and related assets and businesses required by the order except for the Infusamed Lease Asset.

As explained in the Petition ' the Jeased space in question is used by Infusamed, a home health care company providing infusion and pharmacy services that was owned by Healthtrust, Inc, when it was acquired by Columbia. The order docs not require Columbia to divest the Infusamed business. It also appears that the lease was not part of the business of Pioneer Valley Hospital, with which it was identified as a relevant asset. Specifically, Columbia explains that, although the Infusamed program was located temporarily at Pioneer Valley Hospital to enable it to register with the state of Utah and secure necessary licenses, it was subsequently separately incorporated and was not in fact part of the competitive package comprising the Pioneer Valley Hospital Assets.

Columbia claims that the order should be reopened and modified on the grounds of changed conditions of fact. Specifically, Columbia asserts that there was a mutual mistake of fact during consent negotiations. According to Columbia, during consent negotiations both Columbia and the Commission were under the impression that the Infusamed Lease Asset was intrinsically related to Pioneer Valley Hospital, one of the Schedule B hospital assets. In reality, Columbia claims, the Infusamed Lease Asset was not "related" to Pioneer Valley Hospital in any sense that is competitively meaningful in terms of that hospital specifically or the relevant acute care inpatient hospital services market in Utah generally. As a result ofthis mistake Columbia asserts that there has been a "constructive change of fact" which warrants correction by reopening and modifying the order to eliminate the requirement that Columbia divest the Infusamed Lease Asset Columbia also asserts that reopening and modifying the order to eliminate its obligation to divest the Jnfusamed Lease Asset is in the public interest. Columbia states that forcing it to divest the Infusamed Lease will not further the original purposes of the order. Columbia also states that it will be burdened by unnecessary compliance obligations that will impede its ability (0 compete in the relevant Utah 2 Petition at 3 & ExrJibit D.

. In SUPPOTt, Columbia cites the Commission s cecision in Saint-Gobain/"\orton Industrial Ceramics Corporation, Docket :\0. C-3673 , Order Reopening and Modifying Order (1' ovember 19 1996) (mutual mistake caused a "constructive change offac!" justifying a modification). FEDERAL TRADE COMMISSION DECISIO"lS Modifying Ordcr 124 FTC acute care hospital market. Further, Columbia states that a forced divestiture will cause significant and unforesccn hann to competition for the provision of home health services by interfering with the ongoing business of the Infusamed regional home health care company.

Section 5(b) of the Federal Trade Commission Act, 15 U.S. c. 45 (b), provides that the Commission shall reopen an order to consider whether it should be modified if the respondent "makes a satisfactory showing that changed conditions of law or fact" require such modification, A satisfactory showing suffcient to require reopening is made when a request to reopen identifies significant changes in circumstances and shows that the changes eliminate the need for the order or make continued application of it inequitable or hannful to competition. S. Rep. No. 96-500, 96th Cong. , 2d Scss. 9 (J 979) (significant changes or changes causing unfair disadvantage); Louisiana-Pacific Corp. , Docket No. C-2956, Letter to John C. Hart (June 5 , 1986), at 4 (unpublished) ("Hart Letter Section 5(b) also provides that the Commission may modify an order when, although changed circumstances would not require reopening, the Commission detennines that the public interest so requires. Respondents are therefore invited in petitions to reopen to show how the public interest warrants the requested modification. Hart Letter at 5; 16 CFR 2. 51. In such a case, the respondent must demonstrate as a threshold matter some affnnative need to modify the order. Damon Corp., Docket No. C-2916, Letter to Joel E. Hoffman, Esq. (March 29 , 1983), 1979-83 Transfer Bindcr, FTC Complaints and Orders, (CCH) 007, p. 22 585 ("Damon Letter at 2, For example, it may be in the pubhc interest to modify an order to rchcvc any impediment to effective competition that may result from the order. Damon Corp. Docket No. C-2916, 101 FTC 689 692 (1983). Once such a showing of need is made, the Commission will balance the reasons favoring the requested modification against any rcasons not to make the modification. Damon Letter at 2. The Commission also will consider whether the particular modification sought is appropriate to remedy the identified hann. Damon Letter at The language of Section 5(b) plainly anticipates that the burden is on the petitioner to make a "satisfactory showing" of changed See also Uniled Srnles v. l.ollisinl1a- Pacifc CUlp, 967 f. 2d 1372 , 1376- 77 (9th Cir 1992) (" decision to reopen docs not necessariiy entail a dec:sion to modify the ordcr. Reopening may OCCt.T even where the petition itself docs not plead facts requiring modification COUiMBIA/HCA HEAL THCARE CORPORA TIm; Modifying Order conditions to obtain reopening of the order. The legislative history also makes eJear that the petitioner has the burden of showing, other than by conclusory statements, why an order should be modified. The Commission "may properly decline to reopen an order if a request is merely conclusory or otherwise fails to set forth specific facts demonstrating in detail the nature of the changed conditions and the reasons why these changed conditions require the requested modification of the order. " S. Rep. No. 96-500, 96th Cong. , 1st Sess. 10 (1979); see also Rule 2.51(b) (requiring affidavits in support of petitions to reopen and modify), If the Commission detennines that the petitioner has made the necessary showing, the Commission must reopen the order to consider whether modification is required and, if , the nature and extent of the modification. The Commission is not required to reopen the order, however, if the petitioner fails to meet its burden of making the satisfactory showing required by the statute. The petitioner s burden is not a Jight one in view ofthe public interest in repose and the finality of Commission orders. See Federated Department Stores, Inc. v. Moitle 425 D, S. 394 (1981) (strong public interest considerations support repose and finality). Columbia has not met its burden of showing that changed conditions of fact require reopening and modifying the order. First the Commission disagrees with Columbia s assertion that the mistaken inclusion of the Infusamcd Lease Asset was a mutual mistake by both parties to the consent negotiations. In deriving the Jist of related assets and businesses to be divested by Columbia along with the core divestiture assets required to be included as the Part I assets of Schedule B (i. which Utah hospitals should be divested), the Commission relied on the representations of Columbia that each one of the three separate lease assets identified by Columbia for inclusion on Part II, Section A , of Schedule B (i. Items 3 and 4 as well as Item 6, the Infusamed Lease Asset) was related to the business of Pioneer Ya11ey Hospital. It was only when Columbia negotiated its divestiture agreement with Paracelsus Healthcare Corporation, which acquired, among other things, the Pioneer Ya11ey and Davis hospitals in Utah, that Columbia realized its error and also ascertained that Paracelsus did not want the Infusamed Lease Asset. As the Commission stated in Saint-Gobain: "Oversights made unilateral11y by respondents do not constitute changed conditions fact within the meaning of Section 5(b) of the FTC ACT.'" The Saint-Gobain/Norton Industrial Ceramics Corporation, Docket 1\'0. C-3673 g., Modifying Order 124 FTC. mistake in this case was made unilaterally by Columbia and was not a mutual mistake of fact.

More significantly, however, this case does not present the kind of situation that the Commission recognized as establishing a constructive" change of fact in Saint-Gobain. Application of the constructive" changed facts ground for reopening a final order is limited to situations where, as in Saint-Gobain, the ordcr misnames mislabels or misidentifies a person, place or thing, and this error incorporated in the order prevents the respondent from complying with the order as written, so that the purposes of the order cannot be achieved. In these situations, the error will typically involve a single fact, the truth or accuracy of which is easily and objectively verifiable whether an individual is or is not an offcer of a particular corporation, or whether an asset is located at " l 05 Wright Bros. Drive" or " 150 Wright Bros. Drivc. " In these circumstances reopening and modification is necessar to allow achievement ofthc order s remedial purposes. Unlike the situation presented in Saint-Gobain, Columbia is not prevented from complying fully with the order as written, nor would divestiture of the Infusamed Lease Asset ITstrate the order s purposes. Accordingly, Columbia has not demonstrated that reopening of the order is compelled on grounds of changed condition of fact.

Columbia has, however, met its burden of showing that public interest considerations warrant reopening and modifying the order to eliminate the requirement to divest the Infusamed Lease Asset. Columbia has met its burden of showing an affnnative need to reopen thc proceeding caused by the continued operation of the order. Columbia has shown that in view of its divestiture of Pioneer Valley Hospital (the hospital with which the Infusamed Lease Asset was identified as a related asset), the Pioncer Valley Hospital acquirer lack of interest in the Infusamcd Lease Asset, and the lease s lack of competitive significance in the relevant acute care hospital market continuing to require Columbia to divest the lease is burdening it with unnecessary expense in tenns of achieving the ordcr s remedial purposes, and is having a negative impact on its ability to compete. Columbia has also shown that requiring it to divest the Infusamed Lease Asset will cause hann to competition in the market for the provision of home health services. The Commission s complaint did not identify any competitive problems in the market for home health services and, accordingly, the Commission sought no relicf in this COLl''vBIAfHCA HEAL TlICARE CORPORA non Concurring Statement market. Requiring Columbia to divest the lease in Eght of a lack of interest by the acquirer of the other divested assets, and the lack of any allegation in the complaint that a competitive problem exists in the home health services market, would impede competition in that market.

Where the potential hann to the respondent outweighs any further need for the order, the Commission may modify the order in the public interest to a110w the respondent to retain the relevant assets Because the Infusamed Lease Asset has been shown to have no competitive significance in the acute care hospital market in Utah there is no need for Columbia to divest the lease. The remedial purposes identified in the order have already been achieved by the divestitures that have taken place. Further, requiring Columbia to divest the Inf11named Lease Asset will cause hann to competition for the provision of home health services. The hann and costs to Columbia associated with the continuing requirement to divest the lease appear to be significant, while there do not appear to be any benefits associated with requiring the divestiture, Accordingly, II is ordered That this matter bc, and it hereby is reopened; and II is filrlher ordered That the ordcr in Docket No. 3619, be and it hereby is, modified by deleting the asset identified as Schedule , Section A, Part II, Item 6: "Lcase of7, 134 sq. ft. , 150 Wright Bros. Drive, Suite 540, Salt Lake City, Utah 84116" from the Est of assets to be divested.

Commissioner Azcuenaga and Commissioner Starek concurrng in the result only.

COXCURRI',G ST A TEME'iT OF C0\1\1JSS10NER MARY L. AZCUENAGA Today, the Commission reopens the order against ColumbialCA Healthcare Corporation under Section 5(b) of the Federal Trade Commission Act, 15 U.S.c. 45(b), to eEminate the requirement that ColumbialCA divest an ordinary commercial lease of a 7143 square foot offce suite on the ground that reopening and modifying the order is in the public interest. I agree with the result but not with the rcasoning of the majority.

See C. Johnson & Sons, Inc, Docket :-o. 3418 , Order Reopemng Proceeding and Modifying Order C\ovember 8, 1993) (mder modified on pubic interest b'TOunds to eliminate requircment to divest rcmaining intematiom.l Rcnuzit assets not in the relevant market and not wanted by the acquirer Oft!lC divested North Ar.erican Renuzit assets); T&N plc, Docket o. C-3312 , Order Reopening Proceeding and Modifying Order (1\ovember 13, 1(91) (order modified on public interest grounds to permit respondent to retain inventory not \vantcd by the acquircr). Concurrng Statement 124 FTC. The majority is correct that a showing of affnnative need is required before an order wil be reopened under the public interest standard, and only after such a showing of affnnative need does the Commission balance the public interest reasons for and against the modification, See Damon Corp. , Docket No. C-2916, Letter to Joel E. Hoffman, Esq. (Mar. 29 1983). Commission Rule 2.51(b), 16 CFR 51 (b), provides that the petition must be supported by affidavits containing " specific facts" justifying the reopening and modification of an order and cautions against "conclusory" justifications. Because ColumbialHCA failed to make the requisite showing of affinnative need under Rule 2.51 (b), I cannot agree with the majority that the petition should be granted under the public interest standard, Finding affnnative need, the majority states: "continuing to require Columbia to divest the lease is burdening it with unnecessary expense in tenns of achieving the order s remedial purposes, and is having a negative impact on its ability to compete." Order at 5. The affdavit filed in support of ColumbialHCA' s petition contains the bare assertion that the expenditure of time and other resources (presumably to find a buyer for the lease) will impede its ability to 1 It is virtually always foreseeable atcompete in the hospital market. the time a consent agreement is signed that a divestiture will entail time and other resources" to accomplish, An order need not be reopened and modified on the basis of a circumstance that is foreseeable at the time that a consent order is signed. See Louisiana-Pacific Corp. , Docket No. C-2956, Letter to John C. Hart (June 5 , 1986); United States v. Louisiana-Pacifc Corp. 967 F, 1372 1378 (9th Cir. 1992), ColumbialHCA does not assert, much less support, a particular cost of leaving the requirement to divest the lease in the order. This omission alone is suffcient ground to deny the petition under the public interest standard. On this point, the Commission s decision is tantamount to waiving the requirements of Rule 2.51(b) that a petition must be supported with particularity. It seems to me that the requirements of Rule 2.51(b) are there for good reason, and I see no reason to waive them.

The entire explanation provided in the supporting affdavit is as follows: "ColumbialHCA will suffer unforeseen competitive harm if it is forced to divest I11C Infusamcd Lease Asset. Columbia/! ICA is extremely unlikely to find a buyer for the lease, which will terminate in five months. \1canwhilc the required expenditure of time and other resources will impede ColumbiaiHCA' s ability to compete cffcctiveiy, particularly in the Salt Lake Area acute care r,ospital market. Finally, a forced divestiture win interfere with the ongoing business of the Infusamcu regional home health care company. COLUMB1A1HCA HEAL THCARE CORPORA TION Concumng Statement The majority s substantive discussion of affnnative need is contained in one paragraph, Order at 4-5, After stating its conclusion that the petitioner has shown affnnative need, the majority refers in one sentence to three circumstances to bolster its conclusion: thc already completed divestiture of Pioneer Valley Hospital, the hospital acquirer s asserted lack of interest in the lease, and the "lack of competitive significance L of the lease J in the relevant acute care hospital market." Order at 4-5. None is explained. Pioneer Valley Hospital was divested, as required by the Commission s order, to Paracelsus Healthcare Corp" except for the lease in question, which was listed among the "Pioneer Valley Assets" to be divested. It is at best unclear why a partial divestiture justifies elimination of the remaining divestiture obligation. Surely this is not a precedent the majority would like to establish for other cases. Second, the majority relies on "the Pioneer Valley Hospital acquirer s 1aek of interest" in the lease. Assuming the truth of this conclusion, it is not at all clear why it should bc relevant. Columbia/HCA asserts in a single scntcncc that Parace1sus did not want the lease in question. Petition Para. 8. In the past, the Commission has been rigorous in probing assertions like this. Its failure to do so here is an indication that the Commission thinks the lease is competitively insignificant, which, indecd, is thc next circumstance to which the majority refers as a basis for granting the petition. The majority s reliance on the " lack of competitive significance (ofthe lease) in the relevant acute care hospital market" amounts to a finding that the Commission made a mistake in requiring divestiture ofthe lease. But for the assumption that the lease was competitively significant, there would have been no possible reason to require divestiturc in the first place. Finally, thc majority states that divestiture of the lease "will cause hann to competition in the market for the provision of home health services. " Order at 5. This asserted harm is entirely unexplained ' no doubt because the market for home health services was not alleged in the complaint and is not otherwise at issue in the order that ColumbialHCA seeks to have changed. Presumably, the majority The closest the majority comes to an explanation is: "Requiring Columbia to divest the lease in light of a lack of interest by the acql.irer of the other divested assets, and the lack of interest by the acquirer of the other divested assets, and the lack of any allegation in the complaint that a competitive problem exists in the home health services market, would impede competition in that market. " Order at 5. The complaint also lacks any allegation that a competitive problem exists in the market for commercial real estate in Salt Lake Ciry, just to take one of any number of examples, but that hardly justifies changing an order th8.t addresses the market for acute care hospital services FEDERAL TRADE COMMISSIOK DECISIONS Statement 124 FTC would not so lightly assume hann to competition in a market it has not studied or previously identified if the majority were deciding liability. To do so in this context undermines the Commission analytical standards.

The petitioner asserts that the petition should be granted on the basis of mutual mistake offact (constructive change offact), citing Saint-GobainIorton Industrial Ceramics Corp. , Order Reopening and Modifying Order, Docket No. C-3573 ('ovember 19 1996). On that ground, I concur in the result.

STATEMENT OF COYlYlISSIONER ROSCOE B. ST AREK, II CONCCRR1:\G IN THE RESULT The order in this case requires respondent to divest assets in several areas of the country, as a remedy for the likely anti competitive effects of respondent's acquisition of Healthtrust, Inc. - The Hospital Company. One ofthe assets required to be divested is the "Infusamed Leasc " an offce space in Salt Lake City from which respondent s Infusamed subsidiary provides infusion and phannacy services.

Respondent has petitioned to reopen and modify the order to eliminate the Infusamed Lease ftom the schedule of assets to be divested. Respondent claims that both parties to the consent settlement of this matter (i. both respondent and the Commission) labored under the erroneous assumption that thc Infusamed Lease was a vital part of Pioneer Valley Hospital-- one of the primary assets that respondent was required to divest -- when in fact the Infusamed Lease has no critical relationship to the Hospital. Arguing that this mutual error regarding the Infusamed Lease constitutes a constructive change of fact " respondent bases its request on our ruling last fall in Saint- GobainJorton Industrial Ceramics COrp I -the case in which we articulated the concept of a " constrctive change of fact." Alternatively, respondent contends that the public interest requires the deletion of the Infusamed Lease from the divestiture assets.

I rcach thc same conclusion as my colleagues: respondent has made the case for modifying the order. The Infusamed Lease is not critically related to Pioneer Valley Hospital and should not have been included in the assets to be divested. I am comfortable reaching this Docket No. C- 3673 (OracT Reopening and \Iodifying Order, Nov. 19 , 1996). COLUMBIA/HCA HEAL THCARE CORPORATION Statement result either on a "constructive change of fact" basis or on the ground that it is in the public interest to grant the requested modification. In the present order, however, the majority concludes that respondent has not shown a "constructive change of fact" within the parameters outlined in Saint-Gobain. First, my colleagues "disagree(J with Columbia s assertion that the mistaken inclusion of the Infusamed Lease Asset was a mutual1 mistake by both parties to thc consent negotiations. '" The majority tries to bolster this conclusion by observing that "the Commission relied on the representations of Columbia that each one of the three separate Icase assets identified by Columbia for inclusion (in the relevant schedule to the consent order was related to the business of Pioneer Valley Hospital. . . . The mistake in this case was made unilaterally by Columbia and was not a mutual1 mistake of fact. ,,3 But as I understand the facts, both respondent and the Commission were under the misimpression that the Infusamed Lease was sufficiently related to Pioncer Valley to require inclusion in the set of divestiture assets. That the Commission may have "relied" on respondent' s representations to this effect changes nothing: with or without such reliance, the fact remains that both parties to the consent agreement -- Columbia/HCA and the Commission -- entertained an incorrect view of the Infusamed Lease. This mistake was no less mutual" than was the error (concerning the status of certain Carborundum managers) at the heart of the " constructive change of fact" doctrine that we announced in Saint-Gobain The majority s second reason for rejecting respondent' constructive change of fact" claim is even more perp1exing. The majority states: " (TJhis case does not present the kind of situation that the Commission recognized as establishing a ' constructive' change of fact in Saint-Gobain. Application of the 'constructive' changed facts ground for reopening a final order is limited to situations where, as in Saint-Gobain, the order misnames, mislabe1s or misidentifies a person, place or thing, and this error incorporated in the ordcr prevents the respondent from complying with the order as written, so that the purposes ofthe order cannot be achieved. In these situations 2 Order Reonening and \1odifyin Order at 4 (Julv 14 , 1997) :-OT 1 suspect, did the Commission "rely " a1'.y less or, respondent s representations in Saint- Gobain than in the present case. Indeed, if the CUIT.mission:" had done an If. dependent fact-finding concerning the Carborundum personnel u rather than relying on responden: s representations -- it is higr.ly likely that there never would have been an er:"or coneeming the Carborundum managers ;, FEDERAL TRADE COMMISSIO;- DECISIONS Statement 124 FTC. the error will typically involve a single fact, the truth or accuracy of which is easily and objectively verifiable. . . ,,5 I search in vain for language in our Saint-Gobain order to support the gloss my colleagues have put on it here. Nothing in that order speaks to the singularty ofthe fact at issue or to its easy or objective verifiability. With regard to prevention of compliance with the order and frustration of its purposes, the only sentence pertinent to this issue in our Saint-Gobain order' is hardly authority for the almost categorical limitation that my colleagues announce today. All of the majority post hoc qualifications on the meaning of Saint-Gobain seem designed to mitigate the impact of a decision with which they may have become uncomfortable. If that is the majority's purpose however, it finds no source in the text of Saint-Gobain itself. In any event, even if my collcagues are COITect that the kind of mistake cognizable under the "constructive change of fact" doctrine will typically involve a single fact, the truth or accuracy of which is easily and objectively verifiable " why is the Infusamed Lease situation not a suitable candidate? Although my colleagues are silent on this question, the critical facts sUITounding the Infusamed Lease do not differ materially (in tenns of objective verifiability, etc,) from the facts concerning the Carborundum managers in Saint-Gobain, and I find the present case a worthy candidate for application of the constructive change of fact doctrinc.

Having rejected changed conditions of fact as a basis for modifying the order, thc majority turns to respondent' s assertion that public interest considerations also warrant the requested relief. Although I agree that it is in the public interest to excuse respondent from an obligation to divest the Infusamed Lease, I cannot agree that respondent has satisfied the " affnnative need" standard, which has become enshrned in the Commission s public interest order modifications despite having no rightful place in our jurisprudence, 7 Indeed, were my colleagues to apply their affrmative need criterion with any sort of rigor, respondent' s public interest argument would fail. For example, I would be interested to learn what evidence supports the majority s observation that " continuing to require Order Reopening and Modifying OnJer supra, at 4. 6 "Saint-Gobain cannot, therefore, comply \with the term of paragraph 5.d. of the Hold Separate. In the Matter of Saint-GohainlNorton Industrial Ceramics Corp. , Order Reopening and Modifying Order supra n. 1 , at 4 I for one directly pertinent illustration afmy oft-stated views on affrmative need see In the Matter ofCoIumbiaJHCA Healthcare Corp., Docket No. C-3619, Order Reopening and Modifying Order (May 15, 1996) (Statement ofCommissiom:r Roscoe B. Starck, l!, Concun' ing in the Result). , COLLNfBIAlHCA HEAL THCARE CORPORA TION Statement Columbia to divest the (InfusamedJ lease is burdening it with unnecessary expense in tenns of achieving the order s remedial purposes, and is having a negative impact on its ability to compete. ,,8 Moreover, how has Columbia shown that "requiring it to divest the Infusamed Lease Asset will cause hann to competition in the market for the provision of home health services"?' And what is in the record to support the majority s conclusion that " (rJequiring Columbia to divest the lease in light of a lack of interest by the acquirer of the other divested assets, and the Jack of any allegation in the complaint that a competitive problem exists in the home health services market would impede competition in that market,,?lO Absent more information and analysis regarding home health services in the Salt Lake City area, how could the Commission possibly know that requiring respondent to divest the Infusamed Lease would "impede competition" in that " market"? Respondent's petition furnishes little in the way of substantiation, nor does the order issued today go beyond the conclusory.

Nevertheless, it is clearly in the public interest to grant the requested relief. The Infusamed Lease was included among the divestiture assets through an error, and -- entirely apart from the role that this error plays under the constructive change of fact doctrinc -the public interest requires that it be rectified. This conclusion is derived from a simple, straightforward balancing of the reasons to delete this divestiture requirement against the reasons to retain it. Consideration of the " affinnative need" question simply muddles the . l'analysls, . Order Reopenmg and \1odifying Order, supra 1'. , at 5 9 Id Id.

11 As I have noted elsewhere (aJ case such as tr,is one -- in which the affrmative need evidence ' is paltr, but the requested relief fairly cries out to be granted -- demonstnltcs why the Commssion should summon the will to jettison the 'affrmative need' concept and embrace explicitly a simple cost/encfit balancing approach to order modifications pursuant to the ' public interest standard oflCommissionj Rule 2. 51," Statement of Commissioner Roscoe E. Stan, II , Concuning in the Result supra, at 2.