Notice2025-20311
United States, et al. v. UnitedHealth Group Incorporated, et al.; Response of Plaintiff United States to Public Comments on the Proposed Final Judgment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 19, 2025
Issuing agencies
Justice DepartmentAntitrust Division
Full Text
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<title>Federal Register, Volume 90 Issue 221 (Wednesday, November 19, 2025)</title>
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[Federal Register Volume 90, Number 221 (Wednesday, November 19, 2025)]
[Notices]
[Pages 52109-52114]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-20311]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States, et al. v. UnitedHealth Group Incorporated, et al.;
Response of Plaintiff United States to Public Comments on the Proposed
Final Judgment
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h), that the Response of Plaintiff
United States to Public Comments on the Proposed Final Judgment has
been filed with the United States District Court for the District of
Maryland in United States of America, et al. v. UnitedHealth Group
Incorporated, et al., Civil Action No. 1:24-cv-03267.
Copies of the Public Comments and the United States' Response are
available for inspection on the Antitrust Division's website at <a href="http://www.justice.gov/atr">http://www.justice.gov/atr</a>.
Suzanne Morris,
Deputy Director Civil, Enforcement Operations, Antitrust Division.
United States District Court for the District of Maryland
United States of America, et al., Plaintiffs, v. UNITEDHEALTH
GROUP INCORPORATED, and AMEDISYS, INC., Defendants.
Case No. 1:24-cv-03267-JKB
Judge James K. Bredar
Response of Plaintiff United States to Public Comments on the Proposed
Final Judgment
Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C.
16(b)-(h) (the ``Tunney Act''), the United States submits this response
to the public comments it received regarding the proposed Final
Judgment in this case. The United States received 173 comments about
the proposed remedy, which are summarized and addressed below. After
careful consideration of the submitted comments, the United States
continues to believe that the proposed remedy is in the public interest
because it will provide an effective and appropriate remedy for the
antitrust violations the Complaint alleged. The proposed Final Judgment
remedies most of the lost competition that the Complaint alleged would
otherwise have resulted from the acquisition of Amedisys, Inc.
(``Amedisys'') by UnitedHealth Group Incorporated (``UnitedHealth'').
The proposed Final Judgment will also remedy Amedisys's violation of
the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (``HSR Act''),
15 U.S.C. 18a.
Specifically, the proposed Final Judgment will protect competition
by requiring Defendants to divest 152 home health locations, 11 hospice
locations, and 1 palliative care location in local markets in 19 states
throughout the country to BrightSpring Health Services, Inc.
(``BrightSpring''), The Pennant Group, Inc. (``Pennant''), or another
acquirer acceptable to the United States. Further, it will remedy
Amedisys's violation of the HSR Act by requiring Amedisys to pay a
civil penalty of $1.1 million and to conduct antitrust compliance
training for corporate leadership and their direct reports and certain
Amedisys field leadership for all lines of business.
After this Response has been published in the Federal Register,
pursuant to 15 U.S.C. 16(d), the United States will move that the Court
enter the proposed Final Judgment.\1\
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\1\ On November 10, 2025, the United States moved the Court to
permit the United States to publish the public comments on the
Antitrust Division's website due to the expense of publishing the
comments in the Federal Register and the accessibility to the public
of the Division's website. (Dkt. 242). The Court granted that motion
on November 12, 2025. (Dkt 243). Those comments will be accessible
at <a href="http://www.justice.gov/atr">www.justice.gov/atr</a>.
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I. Procedural History
On November 12, 2024, the United States, along with the Attorneys
General of Maryland, Illinois, New Jersey, and New York (collectively,
the ``Plaintiff States''), filed a civil antitrust Complaint (Dkt. 1)
seeking to enjoin the proposed acquisition. The Complaint alleges that
UnitedHealth's acquisition of Amedisys threatens to substantially
lessen competition in local home health, hospice, and nurse labor
markets throughout the country in violation of Section 7 of the Clayton
Act, 15 U.S.C. 18. In the Complaint, the United States also alleges
that Amedisys erroneously and inaccurately certified compliance with
its obligations under the HSR Act, 15 U.S.C. 18a.
On August 7, 2025, Plaintiffs filed the proposed Final Judgment, as
well as a stipulation signed by all parties that consent to entry of
the proposed Final Judgment after compliance with the requirements of
the Tunney Act.\2\ (Dkt. 198-1, 198-2). On August 8, 2025, the United
States filed a Competitive Impact Statement describing the proposed
Final Judgment. (Dkt. 202).
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\2\ The settlement arose out of mediation, which was ordered by
the Court on February 25, 2025. (Dkt. 116).
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The United States arranged for the publication of the Complaint,
the proposed Final Judgment, and the Competitive Impact Statement in
the Federal Register on August 14, 2025, and caused notice regarding
the same, together with directions for the submission of written
comments relating to the proposed Final Judgment, to be published in
The Washington Post from August 17 to August 23, 2025, and in the
Baltimore Sun from August 16 to August 22, 2025. The 173 public
comments received in response are described below and attached as
Exhibit A.\3\ The 60-day period for public comment has now ended.
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\3\ Individual commenters' street addresses, personal phone
numbers, the email domains of individuals' email addresses, as well
as the name of one self-identified employee of UnitedHealth have
been redacted from the comments.
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II. Standard of Judicial Review
Under the Clayton Act and Tunney Act, proposed Final Judgments, or
``consent judgments,'' in antitrust cases
[[Page 52110]]
brought by the United States are subject to a 60-day comment period,
after which the Court shall determine whether entry of the proposed
Final Judgment ``is in the public interest.'' 15 U.S.C. 16(e)(1). In
making that determination, the Tunney Act, as amended in 2004, directs
the Court to consider the following factors:
(A) the competitive impact of such judgment, including termination
of alleged violations, provisions for enforcement and modification,
duration of relief sought, anticipated effects of alternative remedies
actually considered, whether its terms are ambiguous, and any other
competitive considerations bearing upon the adequacy of such judgment
that the court deems necessary to a determination of whether the
consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the
relevant market or markets, upon the public generally and individuals
alleging specific injury from the violations set forth in the complaint
including consideration of the public benefit, if any, to be derived
from a determination of the issues at trial.
15 U.S.C. 16(e)(1)(A) & (B).
In considering these statutory factors, the Court's inquiry is
necessarily a limited one, as the government is entitled to ``broad
discretion to settle with the defendant within the reaches of the
public interest.'' United States v. Microsoft Corp., 56 F.3d 1448, 1461
(D.C. Cir. 1995); United States v. U.S. Airways Grp., Inc., 38 F. Supp.
3d 69, 75 (D.D.C. 2014) (explaining that the ``court's inquiry is
limited'' in Tunney Act settlements); United States v. InBev N.V./S.A.,
No. 08-1965 (JR), 2009 U.S. Dist. LEXIS 84787, at *3 (D.D.C. Aug. 11,
2009) (noting that a court's review of a proposed final judgment is
limited and only inquires ``into whether the government's determination
that the proposed remedies will cure the antitrust violations alleged
in the complaint [is] reasonable, and whether the mechanisms to enforce
the final judgment are clear and manageable''); United States v.
Charleston Area Med. Ctr., Inc., No. 2:16-3664, 2016 U.S. Dist. LEXIS
145963 at *5 (S.D.W.V. Oct. 21, 2016) (``In evaluating whether the
proposed final judgment is in the public interest, the inquiry is `a
narrow one.''' (quoting Massachusetts v. Microsoft Corp., 372 F.3d
1199, 1236 (D.C. Cir. 2004))).
As the U.S. Court of Appeals for the District of Columbia Circuit
has held, under the Tunney Act, a court considers, among other things,
the relationship between the remedy secured and the specific
allegations in the government's complaint, whether the proposed final
judgment is sufficiently clear, whether its enforcement mechanisms are
sufficient, and whether it may positively harm third parties. See
Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the
relief secured by the proposed Final Judgment, a court may not ``make
de novo determination of facts and issues.'' United States v. W. Elec.
Co., 993 F.2d 1572, 1577 (D.C. Cir. 1993) (quotation marks omitted);
see also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc.,
152 F. Supp. 2d 37, 40 (D.D.C. 2001); United States v. Enova Corp., 107
F. Supp. 2d 10, 16 (D.D.C. 2000); InBev, 2009 U.S. Dist. LEXIS 84787,
at *3. Instead, ``[t]he balancing of competing social and political
interests affected by a proposed antitrust [judgment] must be left, in
the first instance, to the discretion of the Attorney General.'' W.
Elec. Co., 993 F.2d at 1577 (quotation marks omitted). ``The court
should also bear in mind the flexibility of the public interest
inquiry: the court's function is not to determine whether the resulting
array of rights and liabilities is the one that will best serve
society, but only to confirm that the resulting settlement is within
the reaches of the public interest.'' Microsoft, 56 F.3d at 1460
(internal quotation marks omitted); see also United States v. Deutsche
Telekom AG, No. 19-2232 (TJK), 2020 WL 1873555, at *7 (D.D.C. Apr. 14,
2020). More demanding requirements would ``have enormous practical
consequences for the government's ability to negotiate future
settlements,'' contrary to congressional intent. Microsoft, 56 F.3d at
1456. ``The Tunney Act was not intended to create a disincentive to the
use of the consent [judgment].'' Id.
The United States' predictions about the efficacy of the remedy are
to be afforded deference by the Court. See, e.g., Microsoft, 56 F.3d at
1461 (recognizing courts should give ``due respect to the Justice
Department's . . . view of the nature of its case''); United States v.
Republic Servs., Inc., 723 F. Supp. 2d 157, 160 (D.D.C. 2010) (noting
``the deferential review to which the government's proposed remedy is
accorded''); United States v. Archer-Daniels-Midland Co., 272 F. Supp.
2d 1, 6 (D.D.C. 2003) (``A district court must accord due respect to
the government's prediction as to the effect of proposed remedies, its
perception of the market structure, and its view of the nature of the
case.''). The ultimate question is whether ``the remedies [obtained by
the Final Judgment are] so inconsonant with the allegations charged as
to fall outside of the `reaches of the public interest.''' Microsoft,
56 F.3d at 1461.
Moreover, the Court's role under the Tunney Act is limited to
reviewing the remedy in relationship to the violations that the United
States has alleged in its Complaint and does not authorize the Court to
``construct [its] own hypothetical case and then evaluate the decree
against that case.'' Microsoft, 56 F.3d at 1459; see also U.S. Airways,
38 F. Supp. 3d at 75 (noting that the court must simply determine
whether there is a factual foundation for the government's decisions
such that its conclusions regarding the proposed settlements are
reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (``[T]he
`public interest' is not to be measured by comparing the violations
alleged in the complaint against those the court believes could have,
or even should have, been alleged.''). Because the ``court's authority
to review the decree depends entirely on the government's exercising
its prosecutorial discretion by bringing a case in the first place,''
it follows that ``the court is only authorized to review the decree
itself,'' and not to ``effectively redraft the complaint'' to inquire
into other matters that the United States did not pursue. Microsoft, 56
F.3d at 1459-60. Further, ``[i]n evaluating objections to settlement
agreements under the Tunney Act, a court must be mindful that [t]he
government need not prove that the settlements will perfectly remedy
the alleged antitrust harms[;] it need only provide a factual basis for
concluding that the settlements are reasonably adequate remedies for
the alleged harms.'' United States v. Iron Mountain, Inc., 217 F. Supp.
3d 146, 152-53 (D.D.C. 2016) (internal citations omitted). The Court's
authority is essentially binary: it may approve a proposed final
judgment that falls within the ``reaches of the public interest,'' or
it may reject one that does not. Microsoft, 56 F.3d at 1461-62. ``Short
of that eventuality, the Tunney Act cannot be interpreted as an
authorization for a district judge to assume the role of Attorney
General.'' Id. at 1462.\4\
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\4\ If the Court concludes that the proposed Final Judgment is
not in the public interest, each party must then determine its next
steps for the litigation, which may include continuing to litigate
the case, attempting to settle the case on different terms, or
Plaintiffs' dismissing the case.
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In its 2004 amendments to the Tunney Act, Congress made clear its
intent to preserve the practical benefits of using judgments proposed
by the United States in antitrust enforcement
[[Page 52111]]
and added the unambiguous instruction that ``[n]othing in this section
shall be construed to require the court to conduct an evidentiary
hearing or to require the court to permit anyone to intervene.'' Public
Law 108-237, 221, 118 Stat. 668-69 (codified as amended at 15 U.S.C.
16(e)(2)); see also U.S. Airways, 38 F. Supp. 3d at 76 (indicating that
a court is not required to hold an evidentiary hearing or to permit
intervenors as part of its review under the Tunney Act). This language
explicitly wrote into the statute what Congress intended when it first
enacted the Tunney Act in 1974. As Senator Tunney explained: ``The
court is nowhere compelled to go to trial or to engage in extended
proceedings which might have the effect of vitiating the benefits of
prompt and less costly settlement through the consent [judgment]
process.'' 119 Cong. Rec. 24,598 (1973) (statement of Sen. Tunney). ``A
court can make its public interest determination based on the
competitive impact statement and response to public comments alone.''
U.S. Airways, 38 F. Supp. 3d at 76 (citing Enova Corp., 107 F. Supp. 2d
at 17).
III. The Investigation, the Harm Alleged in the Complaint, and the
Proposed Final Judgment
The proposed Final Judgment is the culmination of a thorough
investigation conducted by the Antitrust Division of the U.S.
Department of Justice regarding UnitedHealth's proposed acquisition of
Amedisys and Amedisys's violation of the HSR Act, as well as eight
months of intensive litigation regarding the transaction. Based on the
evidence gathered during the investigation, the United States concluded
that (a) the proposed acquisition was likely to substantially lessen
competition in local home health, hospice, and nurse labor markets
throughout the country, in violation of 15 U.S.C. 18; and (b)
Amedisys's erroneous and inaccurate certification related to its
production of documents and information during the Antitrust Division's
investigation violated the HSR Act, 15 U.S.C. 18a.
UnitedHealth is the owner of LHC Group, Inc. (``LHC''), which is
the nation's largest home health provider and a large provider of
hospice services. (Dkt. 202 at 3). UnitedHealth's acquisition target,
Amedisys, is the second-largest home health provider in the United
States and third-largest provider of hospice services. (Dkt. 202 at 4).
UnitedHealth's acquisition of Amedisys would have eliminated the direct
competition between UnitedHealth and Amedisys and increased
concentration enough to render the acquisition presumptively
anticompetitive in hundreds of local home health markets, local hospice
markets, and local home health and hospice nurse labor markets. (Dkt. 1
at ] 51).
The proposed Final Judgment provides an effective and appropriate
remedy for the likely competitive harms arising from UnitedHealth's
acquisition of Amedisys. The proposed Final Judgment has several
components, which the parties agreed to abide by during the pendency of
the Tunney Act proceeding, and which the Court ordered in the Asset
Preservation and Hold Separate Stipulation and Order, entered on August
11, 2025. (Dkt. 203).
First, Defendants must divest all offices and contracts for 152
home health, 11 hospice, and one palliative care branches and agencies
across 19 states. These facilities, which are identified in the
proposed Final Judgment, must be divested to BrightSpring, Pennant, or
another acquirer acceptable to the United States in its sole
discretion, after consultation with any affected Plaintiff State. In
addition, six of the home health locations that Defendants must divest
share licenses or certifications and federal Centers for Medicare and
Medicaid Services (``CMS'') identification numbers with locations that
Defendants are retaining. Defendants may be required to divest up to
eight additional home health locations if these six divested locations
are not able to obtain the necessary regulatory approvals to operate as
they did on July 17, 2025, or to bill CMS for the treatment of Medicare
or Medicaid patients.
Second, the proposed Final Judgment contains provisions intended to
facilitate the acquirers' efforts to hire certain employees. The
divested assets must include employment contracts for more than 1,800
``Relevant Personnel,'' who are full-time, part time, or contract
employees of the Defendants whose work supports the operations of the
divested home health, hospice, and palliative care agencies and
branches.
Third, the proposed Final Judgment requires Defendants to provide
certain services to maintain the viability and competitiveness of the
divestiture assets during the transition to the acquirers. These
transition services must be provided for a period of up to 365 calendar
days on terms and conditions reasonably related to market conditions
for the provision of transition services. The United States can approve
one or more extensions of this period in its sole discretion, for up to
an additional 180 calendar days. An acquirer may terminate the
transition services agreement, or any portion of it, without cost or
penalty at any time upon 30 days' notice.
The proposed Final Judgment also includes robust mechanisms that
will allow the United States and the Court to monitor the effectiveness
of the relief and to enforce compliance. For example, the proposed
Final Judgment provides for the appointment of a monitor who has the
power and authority to investigate and report on Defendants' compliance
with the terms of the Final Judgment and the Asset Preservation and
Hold Separate Stipulation and Order during the pendency of the
divestitures and is required to file reports with the United States at
least every 90 days. On November 4, 2025, the Court appointed William
Berlin as the monitor. (Dkt. 241). He is actively working to ensure
that all outstanding divestitures proceed appropriately.
In addition, the proposed Final Judgment provides the United States
with the ability to investigate Defendants' compliance with the Final
Judgment and expressly retains and reserves all rights for the United
States to enforce the provisions of the proposed Final Judgment,
including its rights to seek an order of contempt from the Court.
Finally, the proposed Final Judgment resolves the United States'
claim relating to Amedisys's violation of the HSR Act by requiring
Amedisys to pay a civil penalty of $1.1 million within 30 days of the
Court's entry of the Final Judgment. Amedisys must also conduct
antitrust compliance training, the form and content of which must be
approved by the United States, for its corporate leadership and their
direct reports and certain field leadership for all lines of business.
Together, these requirements of the proposed Final Judgment will
preserve competition in local home health, hospice, and nurse labor
markets and provide an appropriate remedy for Amedisys's violation of
the HSR Act.
IV. Summary of Public Comments and the United States' Response
The United States received 173 comments about the proposed Final
Judgment. Of those, 169 (or 97%)--of which 164 were emails of a page or
less--did not specifically address any local home health, hospice, and
nurse labor markets or the proposed remedy, raised issues far broader
than the merger such as general concerns about monopolization in
healthcare, or otherwise made complaints outside the
[[Page 52112]]
scope of the Court's Tunney Act review such as criticizing the United
States for settling the matter rather than continuing to litigate it.
However, in addition to these very general comments, the United
States received more detailed comments from the American Economic
Liberties Project; the owner of a home health company; the CEO of a
healthcare consulting firm; and an individual comparing Pennant's
employee benefits plans to those of LHC and Amedisys.
A. Comments Asserting General Harm to Home Health or Hospice Patients
or to Nurses Without Analysis or Substantiation
Several comments assert that the acquisition will harm home health
or hospice patients or nurses (or patients or workers generally),
including by eliminating competition.\5\ For example, one commenter
writes that the acquisition ``will allow the conglomerate to get away
with increased costs, reduced quality of services and poor working
conditions for employees.'' \6\ Another commenter states that the
acquisition would ``drive up prices for consumers during their most
stressful events due to lack of healthy competition'' and there would
be ``[n]o incentive to lower prices whatsoever,'' noting that
UnitedHealth ``will not be threatened by a smaller competitor.'' \7\
Similarly, several commenters assert that the United States has
``cav[ed] to Big Medicine at the expense of vulnerable hospice patients
and the workers who care for them.'' \8\
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\5\ TC-007; TC-009; TC-020; TC-031; TC-041; TC-043; TC-045; TC-
046; TC-047; TC-048; TC-049; TC-050; TC-051; TC-056; TC-064; TC-087;
TC-093; TC-096; TC-100; TC-111; TC-112; TC-115; TC-121; TC-122; TC-
123; TC-124; TC-126; TC-140; TC-141; TC-149; TC-156; TC-158; TC-161.
\6\ TC-045.
\7\ TC-066.
\8\ See, e.g., TC-007; TC-050; TC-054; TC-060; TC-064.
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These comments do not discuss any of the local home health,
hospice, or labor markets that were alleged in the Complaint or how the
proposed remedy is allegedly inadequate to resolve the competitive harm
that would be created by the merger in those markets. The United States
agrees that the proposed merger, unremedied, poses a substantial threat
to competition. But the divestitures Defendants agreed to in the
proposed Final Judgment address those concerns.
As described in the Competitive Impact Statement (Dkt. No. 202),
the proposed Final Judgment requires significant divestitures to
restore most of the lost competition that the Complaint alleges would
have otherwise resulted from UnitedHealth's acquisition of Amedisys and
is therefore in the public interest. In settling a contested
litigation, the United States was not required to secure a remedy that
addresses the harm in every market alleged in the Complaint or to
obtain the same relief that would have resulted from a successful
challenge in litigation. See United States v. SBC Commc'ns, Inc., 489
F. Supp. 2d 1, 17 (D.D.C. 2007) (in determining whether a proposed
settlement is in the public interest, a district court ``must accord
deference to the government's predictions about the efficacy of its
remedies, and may not require that the remedies perfectly match the
alleged violations because this may only reflect underlying weakness in
the government's case or concessions made during negotiation''); U.S.
Airways, 38 F. Supp. 3d at 75-76 (noting that a court should not reject
the proposed remedies because it believes others are preferable and
that room must be made for the government to grant concessions in the
negotiation process for settlements).
B. Comments Addressing ``Big Medicine,'' UnitedHealth, Pharmaceutical
Issues, or the U.S. Healthcare System
Some comments criticize consolidation or monopolization in
healthcare generally, ``Big Medicine,'' or the business practices of
UnitedHealth or Amedisys.\9\ Several comments focus on defects in the
U.S. healthcare system, sometimes accompanied by stories of negative
experiences with healthcare providers or insurers.\10\ Some comments
discuss or criticize health insurers generally or UnitedHealth's health
insurance practices.\11\ Other comments raise concerns about the
practices of pharmaceutical companies, the cost of prescription drugs,
and data privacy.\12\
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\9\ See, e.g., TC-002; TC-005; TC-011; TC-016; TC-018; TC-019;
TC-021; TC-024; TC-035; TC-036; TC-037; TC-038; TC-040; TC-044; TC-
046; TC-047; TC-049; TC-052; TC-053; TC-055; TC-058; TC-059; TC-061;
TC-062; TC-063; TC-068; TC-069; TC-071; TC-072; TC-074; TC-077; TC-
079; TC-083; TC-084; TC-085; TC-086; TC-088; TC-089; TC-091; TC-094;
TC-095; TC-097; TC-099; TC-101; TC-102; TC-104; TC-109; TC-113; TC-
114; TC-116; TC-117; TC-118; TC-120; TC-125; TC-128; TC-133; TC-134;
TC-137; TC-139; TC-142; TC-145; TC-146; TC-147; TC-150; TC-153; TC-
154; TC-155; TC-160; TC-161; TC-162; TC-163; TC-164; TC-166; TC-167;
TC-169; TC-170; TC-171; TC-173.
\10\ See, e.g., TC-012; TC-025; TC-027; TC-028; TC-034; TC-039;
TC-057; TC-067; TC-070; TC-080; TC-082; TC-099; TC-105; TC-131; TC-
136; TC-148; TC-151; TC-155; TC-157.
\11\ TC-004; TC-010; TC-013; TC-017; TC-033; TC-035; TC-064; TC-
070; TC-090; TC-105; TC-119; TC-135; TC-136.
\12\ See TC-002; TC-006; TC-008; TC-012; TC-015; TC-022; TC-023;
TC-026; TC-080; TC-082; TC-103; TC-129; TC-135; TC-144; TC-162.
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These comments do not discuss the local home health, hospice, and
labor markets alleged in the Complaint or how the proposed remedy is
allegedly inadequate to resolve the competitive harm that would be
created by the merger in those markets. Because these comments do not
relate to whether the proposed Final Judgment reasonably addresses the
harms alleged in the Complaint, they are beyond the scope of this
Tunney Act proceeding and do not provide a basis for rejecting the
proposed Final Judgment. See U.S. Airways, 38 F. Supp. 3d at 76
(``[T]he Court's role under the [Tunney Act] is limited to reviewing
the remedy in relationship to the violations that the United States has
alleged in its Complaint.'') (internal citation omitted).
C. Comments That Criticize the United States for Settling the Case
After Filing the Complaint
Several comments suggest that the proposed Final Judgment is not in
the public interest because the United States settled the case after
previously filing a lawsuit challenging the merger.\13\ These comments
generally do not engage with the proposed Final Judgment or provide any
reasons why it is inadequate to remedy the competitive harms alleged in
the Complaint.
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\13\ See, e.g., TC-007; TC-010; TC-014; TC-027; TC-029; TC-031;
TC-032; TC-050; TC-054; TC-060; TC-064; TC-073; TC-078; TC-081; TC-
093; TC-096; TC-107; TC-108; TC-112; TC-130; TC-132; TC-138; TC-143;
TC-165; TC-168.
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The Tunney Act is designed to provide the United States with the
flexibility to settle antitrust cases when the settlement is in the
public interest. See United States v. Bechtel Corp., 648 F.2d 660, 666
(9th Cir. 1981) (``The court is required to determine not whether a
particular [judgment] is the one that will best serve society, but
whether the settlement is `within the reaches of the public interest.'
More elaborate requirements might undermine the effectiveness of
antitrust enforcement by consent [judgment].'') (internal citation
omitted); Microsoft, 56 F.3d at 1456 (``The Tunney Act was not intended
to create a disincentive to the use of the consent [judgment].''). In
addition, finding a settlement not to be in the public interest because
it occurred after the initiation of litigation would discourage
settlements. United States v. Waste Mgmt. Inc., No. 84-2832, 1985 WL
25733, at *6 (D.D.C. June 6, 1985) (declining to inquire into
[[Page 52113]]
environmental record of acquiring firm because it ``would discourage
antitrust settlements, which are designed to preserve the competitive
structure of an entire industry without the necessity of time-consuming
trials'').\14\
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\14\ Some comments are so brief, vague, or off-topic as to
preclude a meaningful response. See TC-065; TC-075; TC-076; TC-092;
TC-106; TC-127; TC-152. In addition, a few comments request that the
settlement be scrutinized under the Tunney Act without taking a
position on the likely competitive effects of the acquisition or the
divestiture. See TC-030; TC-042; TC-098; TC-110.
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D. Comment From the American Economic Liberties Project
The American Economic Liberties Project (``AELP'') submitted a
comment on behalf of themselves and other organizations asking the
Court to reject the proposed Final Judgment under the Tunney Act.\15\
The AELP contends that UnitedHealth ``has a well documented history of
prioritizing its own financial interests over patient welfare,'' \16\
citing (a) other Department of Justice investigations of UnitedHealth
related to Medicare billing fraud and legal challenges of
UnitedHealth's prior acquisitions not related to home health or
hospice, (b) a Federal Trade Commission lawsuit against OptumRx, a
subsidiary of UnitedHealth, and (c) an article in The Guardian relating
to allegations that UnitedHealth secretly paid nursing homes to prevent
or delay transfers of older patients to hospitals. These alleged
violations by UnitedHealth, however, are outside the scope of the
Complaint and not relevant to the likely competitive effects of the
proposed Final Judgment here. They are thus outside the scope of the
Court's Tunney Act review. See U.S. Airways, 38 F. Supp. 3d at 76.
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\15\ TC-172 at 5. The letter was also signed by the Association
for Independent Medicine; the Center for Health and Democracy;
Demand Progress Education Fund; Free2Care; Healthcare Rebel
Alliance; Midwest Anesthesia Partners, Association for Independent
Medicine; National Nurses United; People's Action Institute;
Resilient Healthcare Consulting; and the Rural Urban Bridge
Initiative.
\16\ TC-172 at 3.
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The AELP further asserts that the divestitures do not address all
the markets that were alleged in the Complaint and that the merger
would further consolidate UnitedHealth's ``standing as the dominant
force in nearly every corner of the American healthcare system.'' \17\
For this reason, the AELP contends that the divestitures are likely to
fail to remedy the loss of competition from the merger.
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\17\ TC-172 at 4.
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The proposed Final Judgment reflects a compromise of claims. The
fact that the proposed Final Judgment does not address all markets
alleged in the Complaint is not a basis for finding that the proposed
Final Judgment is ``so inconsonant with the allegations charged as to
fall outside of the `reaches of the public interest.''' Microsoft, 56
F.3d at 1461. This is true particularly where, as here, a case is
settled by negotiations during contested litigation. See SBC Commc'ns,
Inc., 489 F. Supp. 2d at 17 (in determining whether a proposed
settlement is in the public interest, a district court ``must accord
deference to the government's predictions about the efficacy of its
remedies, and may not require that the remedies perfectly match the
alleged violations because this may only reflect underlying weakness in
the government's case or concessions made during negotiation''); U.S.
Airways, 38 F. Supp. 3d at 75-76 (noting that a court should not reject
the proposed remedies because it believes others are preferable and
that room must be made for the government to grant concessions in the
negotiation process for settlements). Requiring the United States to
reject reasonable settlements and litigate every case to conclusion
would waste scarce government and private resources, delay benefits to
consumers, and create perverse incentives that discourage reasonable
compromises.
The AELP also raises concerns with proposed divestiture buyers
BrightSpring and Pennant. The AELP argues that BrightSpring is ``owned
by the highly-leveraged private-equity firm KKR,'' noting that KKR is a
defendant in a Department of Justice lawsuit alleging violations of the
HSR Act.\18\ The AELP further asserts that an investigation of
BrightSpring's group homes for individuals with intellectual and
developmental disabilities revealed ``serious regulatory violations
related to resident care, abuse, neglect, and poorly trained and
understaffed caregivers.'' \19\ The AELP also notes that Pennant is a
for-profit company. The United States, however, evaluated the proposed
divestiture buyers extensively through discovery in litigation and
during a lengthy process leading to the proposed Final Judgment. The
United States concluded that BrightSpring and Pennant are both
currently strong competitors in the areas in which they offer home
health and hospice services and are likely to continue to compete
vigorously with the home health and hospice assets that they would
obtain through the divestitures. The United States further concluded
that KKR's partial ownership of BrightSpring and Pennant's for-profit
status were unlikely to affect the ability and incentives for the
divestiture buyers to compete in the local home health, hospice, and
labor markets in which they are acquiring divestiture assets.
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\18\ TC-172 at 4.
\19\ TC-172 at 4-5 (internal quotation marks omitted).
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Finally, the AELP claims that the $1.1 million civil penalty that
Amedisys must pay is incommensurate with the merger's $3.3 billion
purchase price and would fail to deter corporate misconduct. The AELP,
however, compares the civil penalty to the purchase price of the
merger, rather than the maximum potential fine available under the HSR
Act, 15 U.S.C. 18a. The maximum civil penalty during the period of the
violation was $51,744 a day for a violation that the United States
alleged to have occurred from December 18, 2023, to August 26, 2024.
The maximum total potential civil penalty is thus $13,091,232. The $1.1
million civil penalty imposed by the proposed Final Judgment, which is
approximately 8.4% of the total penalty, along with the additional
injunctive relief, will appropriately penalize Amedisys and deter it
and others from future violations of the HSR Act. The penalty is also
appropriate here because Amedisys agreed to take corrective action
internally before submitting a second certificate of compliance on
August 26, 2024, and because it is willing to resolve the matter
through the proposed Final Judgment, thereby avoiding the risks and
costs associated with litigation.\20\
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\20\ The only other comment to address the HSR Act aspect of the
remedy asserted that Amedisys's failure to fully comply with the HSR
Act during the review process ``raises additional concerns about the
transparency and integrity of the process that led to the proposed
settlement.'' TC-126. The United States, however, thoroughly
investigated Amedisys's compliance with the HSR Act. The Complaint
did not allege that Amedisys was in violation of the HSR Act after
its August 26, 2024 certification, and the Competitive Impact
Statement acknowledged that Amedisys agreed to take corrective
action internally, which ameliorates any potential for concern about
the process that led to a settlement more than eleven months after
Amedisys cured its HSR Act violation.
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E. Comments From the CEOs of a Home Health Provider and a Healthcare
Consulting Firm
The CEO of a home health company submitted a comment asking the
Court to reject the proposed Final Judgment. The commenter contends
that the divestitures ``fail to address the profound vertical harms of
this merger.'' \21\ The commenter claims that vertical integration
allows insurers to ``rig the system'' against independent home health
providers by paying them lower reimbursements, engaging in
[[Page 52114]]
``retaliation and bogus practices'' (such as frivolous lawsuits,
``endless medical records requests,'' ``refund demands,'' and
``denials''), steering patients to agencies that they own, and
ultimately eliminating independent providers from the market.
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\21\ TC-001 at 1.
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Another commenter, the CEO of a healthcare consulting firm,
similarly alleges that the merger will ``deepen [UnitedHealth's]
chokehold'' on U.S. healthcare, allowing it to steer patients to its
own agencies, deny or delay approvals to competing home health
providers, and pay independent home health providers far below cost
while overpaying its subsidiaries.\22\ This commenter asserts that
after UnitedHealth acquired LHC, ``independent agencies were driven out
by reimbursement discrimination and arbitrary denials'' and that
patients suffered as a result. The commenter also notes that
UnitedHealth is under investigation for alleged overpayments to its
Medicare Advantage business.
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\22\ TC-003 at 1.
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The United States did not allege any harm related to vertical
theories--that is, harm to home health or hospice competition by virtue
of Amedisys being acquired by an insurer--in its Complaint. Vertical
concerns therefore are outside the scope of the Tunney Act proceeding.
See U.S. Airways, 38 F. Supp. 3d at 76 (``[T]he Court's role under the
[Tunney Act] is limited to reviewing the remedy in relationship to the
violations that the United States has alleged in its Complaint.'')
(internal citation omitted).\23\
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\23\ The CEO of the competing home health provider also asserts
that ``[b]ased on antitrust expert John Mark Newman's analysis, the
probability of all 164 divestures succeeding perfectly is a mere
0.0027%.'' TC-001 at 1. The CEO of the healthcare consulting firm
similarly claims that the odds of all 164 divestitures succeeding
without harm is 0.0027%. TC-003 at 1. Neither commenter, however,
supplies any information that would allow the United States to
assess or respond to this assertion.
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F. Comment Relating to Pennant's Benefit Structure
One commenter raises concerns about the transfer of employees from
Amedisys and LHC to Pennant.\24\ While acknowledging that the
divestiture has the potential to be successful, the commenter notes
several aspects of Pennant's benefits packages that are allegedly
uncompetitive and asserts that, without ``meaningful long-term
improvements, Pennant will face a mass exodus of skilled staff.'' \25\
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\24\ TC-159.
\25\ TC-159 at 1-2.
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The divesture to Pennant is intended to preserve competition,
including competition for labor, in the local markets in which Pennant
is acquiring assets. After a thorough vetting of the divestiture
buyers, the United States concluded that Pennant would likely have the
incentive to compete in the areas in which it is acquiring divestiture
assets. As the commenter acknowledges, Pennant will harm its own
business if it fails to offer competitive wages, benefits, and working
conditions. By establishing Pennant as an independent competitor in the
local labor markets in which it acquired home health or hospice
agencies, the remedy in the proposed Final Judgment gives Pennant the
incentive to compete for home health and hospice nurses.
V. Conclusion
After careful consideration of the public comments, the United
States continues to believe the proposed Final Judgment provides an
effective and appropriate remedy for the antitrust violations alleged
in the Complaint and is therefore in the public interest. The United
States will move this Court to enter the proposed Final Judgment after
this response is published in the Federal Register and the public
comments are published in the manner approved by the Court (see Dkt.
243), as required by 15 U.S.C. 16(d).
Dated: November 14, 2025
Respectfully submitted,
/s/ David M. Stoltzfus
David M. Stoltzfus,
United States Department of Justice Antitrust Division, 450 Fifth
Street NW, Suite 4100, Washington, DC 20530, Telephone: (202) 598-
2978, Email: <a href="/cdn-cgi/l/email-protection#721613041b165c01061d1e0608140701320701161d185c151d04"><span class="__cf_email__" data-cfemail="1d797c6b7479336e69727169677b686e5d686e797277337a726b">[email protected]</span></a>, Counsel for Plaintiff United
States of America.
[FR Doc. 2025-20311 Filed 11-18-25; 8:45 am]
BILLING CODE 4410-11-P
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