The shift to value-based care models has at its core a need to manage population health using large and diverse clinical settings, access to data and technology to manage care, and assumption of financial risk leading to horizontal and vertical integration. Aggressive federal and state enforcement of antitrust and other competition laws appear to be in tension with this movement. In particular, the adoption of new state competition, quality, access and cost laws is creating additional burdens on health care entities—including private equity-backed entities and management services organizations—considering new transactions. These new laws and regulations are highlighted below and discussed in greater detail in our podcast series, which also address ways to mitigate their impact. Many of these laws are rooted in the Model Act.
Illinois: Beginning January 1, 2024, Illinois will require health care facilities and provider organizations to provide 30-day pre-closing notice to the state Attorney General’s Office of any merger, acquisition or contracting affiliation. Illinois’ review process applies to all applicable in-state entities, and out-of-state entities with sufficient patient revenue in Illinois. While transaction “approval” is not explicitly required, the Attorney General has discretion to open an investigation and challenge conduct the Attorney General deems anti-competitive.
Minnesota: Beginning May 27, 2023, health care entities formed or licensed in the state of Minnesota with average annual revenue of $80 million or more must provide 60-day pre-closing notice to the state Attorney General’s Office and Commissioner of Health for covered transactions, which includes mergers, transfers of ownership and the creation of new health care entities. SeeHF 402. The Attorney General has authority to commence an action blocking or unwinding the transaction if determined necessary to protect the public interest. Additionally, beginning January 1, 2024, health care entities with average annual revenue between $10 million and $80 million must submit notice to the Commissioner of Health of covered transactions 30 days pre-closing (or within 10 business days of the date the parties reasonably anticipated entering into the transaction). The Commissioner of Health will use this data to analyze the impact of transactions in Minnesota on cost, quality, and access to health care.
Rhode Island: Under the Hospital Conversions Act, transfers of at least 20% of ownership or control of a hospital in Rhode Island require approval by both the Department of Health (“DOH”) and the Attorney General (“AG”). The law captures both for-profit and not-for-profit hospitals, though the review process varies slightly depending on entity type. DOH and the AG have 180 days from the date of acceptance of the application to either approve, approve with conditions, or disapprove the application, though not-for-profit hospitals may be eligible for an expedited review.
New York: Effective on or about August 1, 2023, health care entities including physicians practices, physician groups, and management services organization must provide 30 day pre-closing notice to the New York Department of Health for transactions that result in a $25 million or more increase in a health care entity’s total gross in-state revenue. The recently enacted legislation does not grant the Department of Health approval authority, but requires that the Department post a summary of proposed transactions on its website and allow for public comment.
Oregon: The Health Care Market Oversight Program (the “HCMO Program”), administered by the Oregon Health Authority (“OHA”), requires 30-day pre-closing notice and approval of material health care transactions. If OHA determines a comprehensive review is needed, it then has up to 180 days to review transactions in detail for their impacts on cost, equity, access and quality of care. OHA has broadly enforced its review authority and captured several national platform transactions to date. OHA has also imposed conditions on certain transactions and plans to maintain oversight of the impacts of transactions for up to five years after closing.
California: Starting in April 2024, health care entities must notify the Office of Health Care Affordability (“OHCA”) of proposed transactions at least 90 days prior to closing. SeeCal. Health & Saf. Code § 127500 et seq. OHCA will start accepting notices on January 1, 2024. From there, OHCA has 60 days to either approve a transaction or subject it to a lengthier cost and market impact review, which could extend the review period to over 200 days. OHCA issued proposed regulations on July 28, 2023 that further clarify the entities and transactions subject to review, details regarding comprehensive reviews, and other details of the notice process. OHCA will hold a public workshop to discuss the proposed regulations on August 15th. The comment period is open through August 31st, and regulations will be finalized in Q4 2023.
Connecticut: The state Attorney General requires 30-day pre-closing notice of any material change transaction involving health care group practices, hospitals or hospital systems. If the Attorney General determines that the transaction will adversely impact competition, it may open a deeper inquiry or seek to postpone the transaction. While no strict timeline is given, transaction review may take up to, or greater than, 200 days after the notice is received.
Washington: Hospitals, hospital systems and provider organizations must provide notice to the state Attorney General of material transactions at least 60 days prior to closing. Washington’s review process applies to in-state entities, and out-of-state entities with sufficient patient revenue in Washington.
Nevada: Entities must inform the state Attorney General (30 days pre-closing) and/or the Nevada Department of Health and Human Services (60 days post-closing) of proposed health care transactions. The state does not have approval authority under either framework, but may initiate an investigation if it identifies any violations. Notice requirements are generally not triggered unless transaction parties have a large Nevada presence.
California: Proposed legislation in California would require 90-day pre-closing notice and approval from the Attorney General for medical groups, hospitals, hospital systems, health facilities, health care service plans, health insurers, and pharmacy benefit managers entering into certain transactions that would result in a material change with a value of at least $15,000,000. The Attorney General would have 90 days to either consent to, give conditional consent to, or not consent to the transaction. SeeAB 1091. This review process would be in addition to the existing process overseen by the Office of Health Care Affordability.
Pennsylvania: Proposed legislation in Pennsylvania would require provider organizations and for-profit entities who own or operate hospitals, hospice agencies, or nursing homes to notify the state Attorney General’s Office 90 days before entering into certain transactions or agreements that result in a material change. See Senate Bill 584. The Attorney General may utilize the full 90 days (with an option to extend an additional 30 days) to determine whether the proposed transaction is against the public interest. If passed, the legislation would take effect 60 days after enactment.
Washington: Proposed legislation to expand the scope of Washington’s existing review process failed in 2023. See Senate Bill 5241.
North Carolina: Proposed legislation requiring hospital entities and their affiliates to provide pre-closing notice to the state Attorney General’s Office of certain transactions failed in 2023. See Senate Bill 16.
Maine: Proposed legislation requiring health care entities to submit pre-closing notice of certain health transactions and obtain approval from the state Attorney General’s Office failed in 2023. SeeH.B. 894.
Florida: Proposed legislation requiring health care entities to submit pre-closing notice to the state Attorney General’s Office of certain transactions failed in 2020. See H.B. 711.
Navigating State Regulation of Health Care Transactions