HealthTrax - A Health Care Transaction Laws Tracker

Health care transactions, including private equity health care transactions, are under review from both federal and state regulators and legislators. In particular, new state competition, quality, access and cost laws are creating additional requirements on health care entities considering new transactions, from private equity backed entities to management services organizations. These laws and regulations are highlighted below and discussed in greater detail in our podcast series, which also offers ways to mitigate their impact.

Please note that the laws highlighted in our map represent those that require the review of health care transactions that historically fell outside of review by states under facility licensure, certificate of need, non-profit and insurance laws. We also note that these laws do not include state review processes focused solely on mergers and acquisitions involving licensed in-state hospitals.

California

[back to map]

Enacted

As of April 1, 2024, health care entities must notify the Office of Health Care Affordability (“OHCA”) of proposed material change transactions at least 90 days prior to closing. From there, OHCA will either i) within 45 days, issue a waiver to a cost and market impact review (“CMIR”), or ii) within 60 days, notify parties of its decision to conduct a CMIR, which could extend the review period to over eight months. OHCA issued regulations in December 2023 that further clarify the entities and transactions subject to review, details regarding comprehensive reviews, and other details of the notice process. OHCA will start accepting notices on January 1, 2024. Cal. Health & Saf. Code § 127500 et seq; 22 CCR 97431 et seq.

Failed

AB 3129: Proposed legislation would have required private equity groups and hedge funds to (i) provide 90 days pre-closing notice to and obtain consent from the Attorney General prior to a change of control or an acquisition of a health care facility or provider group, and (ii) provide pre-closing notice to the Attorney General of a change of control or an acquisition of either a nonphysician provider with a gross annual revenue of more than $4,000,0000, or a provider with gross annual revenue between $4,000,000-25,000,000. The legislation would have also provided for additional restrictions on a private equity or hedge fund’s ability to control or contract with certain health care entities, including a prohibition on interfering with professional judgment or exercising certain types of control over physician, psychiatric, and/or dental practices. See AB 3129. AB 3129 passed in the California legislature, but was vetoed by Governor Newsom in September 2024. Governor Newsom cited concerns regarding the redundancy of the bill with the Office of Health Care Affordability’s (OHCA’s) existing authority to review and evaluate health care transactions in the state.

AB 1091: Proposed legislation requiring certain health care entities entering into transactions resulting in a material change with a value of at least $15,000,000 to submit pre-closing notice and obtain approval from the Attorney General failed in 2024. See AB 1091.

Connecticut

[back to map]

Enacted

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. Conn. Gen. Stat. § 19a-486i.

Failed

Proposed legislation in Connecticut would have required, by January 1, 2025, that the Office of Health Strategies develop a plan concerning private equity ownership of Connecticut-licensed health care facilities, including (1) assessing whether a certificate of need should be required for a private equity firms’ acquisition of a health care facility; and (2) recommending requirements for the disclosure of information by a health care facility that has private equity ownership. See HB 5319.

Florida

[back to map]

Failed

Illinois

[back to map]

Enacted

As of January 1, 2024, Illinois requires 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 between two or more health care facilities or provider organizations. 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. A link to the health care transaction notice form can be found here. 740 Ill. Comp. Stat. 10/7.2a.

Indiana

[back to map]

Enacted

As of July 1, 2024, Indiana requires health care entities, including but not limited to medical and dental providers, insurers, administrators, and private equity partnerships entering into transactions with health care companies, to notify the Office of the Attorney General ninety (90) days before undergoing a merger or acquisition with another health care entity with a value of at least $10 million. While transaction “approval” is not explicitly required, the Attorney General has discretion to 1) analyze in writing any antitrust concerns; or 2) issue a civil investigative demand for additional information. IC §§ 25-1-8.5-1 — 25-1-8.5-4.

Maine

[back to map]

Failed

Massachusetts

[back to map]

Enacted

Health care service providers and provider organizations with more than $25 million in annual patient revenue in Massachusetts must provide 60 days pre-closing notice of any material change transaction to the state Attorney General, the Center for Health Information and Analysis, and the Health Policy Commission (“HPC”). Guidance released in January 2024 clarifies that management services organizations that negotiate contracts with payers are captured by the law as provider organizations. HPC has 30 days to either initiate cost and market impact review (“CMIR”), which may delay closing up to 215 days from the initial notice date, or to decline to issue a CMIR. Mass. Gen. Laws Ch. 6D § 13; 958 CMR 7.00.

Failed

Proposed legislation requiring for-profit investors to submit pre-closing notice to the Attorney General, the Center for Health Information and Analysis, and the Health Policy Commission (HPC) failed in 2024 after the Massachusetts House and Senate failed to agree on a compromise bill. H.4653 passed in the Massachusetts House in May 2024 before moving to the Senate, where the text was amended and replaced with S. 2881. While both bills proposed expanding notice requirements, the Senate bill broadly expanded the extent of oversight by regulators involved, including HPC’s right to modify proposed material changes, and restrictions on the MSO-PC structure and real estate transactions with unsafe financial actors.

Minnesota

[back to map]

Enacted

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. See Minn. Stat. § 145D.01. 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). See Minn. Stat. § 145D.02. The Commissioner of Health will use this data to analyze the impact of transactions in Minnesota on cost, quality, and access to health care.

Failed

Nevada

[back to map]

Enacted

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 during the pre-closing review. Notice requirements are generally not triggered unless transaction parties have a large Nevada presence. Nev. Rev. Stat. § 598A.290 et seq.; Nev. Rev. Stat. § 439A.126.

New York

[back to map]

Enacted

As of 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 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. N.Y. Pub. Health Law § 4550 et seq.

North Carolina

[back to map]

Failed

Oregon

[back to map]

Enacted

The Health Care Market Oversight 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. Or. Rev. Stat. § 415.500 et seq.; Or. Admin. R. 409-070-0000 through -0085.

Legal Challenges: In October 2022, the Oregon Association of Hospitals and Health Systems (“OAHHS”), a hospital trade group, filed a lawsuit in the U.S. District Court in Portland challenging the Oregon Health Authority’s (“OHA’s”) Health Care Market Oversight (“HCMO”) Program. OAHHS sought to invalidate the OHA HCMO program on grounds that it is unconstitutionally vague, in violation of the Due Process Clause of the Fourteenth Amendment, and impermissibly delegates legislative powers to OHA, in violation of the nondelegation doctrine of the Oregon Constitution. Both parties filed for summary judgment, and the judge (Judge Michael Simon, District of Oregon) issued an opinion on May 16, 2024 siding with OHA on the federal question, and declining to assert jurisdiction on the state law question. OAHHS filed a notice of appeal with the U.S. Court of Appeals for the Ninth Circuit on June 18, 2024.

Pennsylvania

[back to map]

Proposed

H.B. 2344: Proposed legislation in Pennsylvania would require health care facilities to notify the state Attorney General’s Office 45 days before entering into certain transactions or agreements that result in a material change. See House Bill 2344. The Attorney General may utilize the full 45 days (with an option to extend) to determine whether the proposed transaction is against the public interest. If passed, the legislation would take effect 180 days after enactment.

H.B. 2012: Proposed legislation in Pennsylvania would require 120 days written notice to the Attorney General prior to the effective date of a merger, acquisition, or contracting affiliation between two or more health care facilities, health care facility systems or provider organizations. Health care transactions between a Pennsylvania entity and an out-of-state entity, where the out-of-state entity generates at least $10 million in health care services revenue from patients residing in Pennsylvania, are included in the notice requirement. If passed, the legislation would go into effect 60 days after enactment. See H.B. 2012.

S.B. 548: 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 548. 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

[back to map]

Enacted

Failed

In January 2024, Washington re-introduced proposed legislation that would have expanded the scope of the current review process, including lengthening the notice period, broadening the scope of entities subject to notice requirements, and enhancing the Attorney General’s enforcement authority. The bill was amended in February 2024 to further provide for a preliminary and comprehensive review process, an expedited review process, and a process for requesting confidentiality. Similar proposed legislation had previously been introduced during the 2023 regular session, but did not pass. See Senate Bill 5241.

Recent State Legislation

California: Proposed legislation would have required private equity groups and hedge funds to (i) provide 90 days pre-closing notice to and obtain consent from the Attorney General prior to a change of control or an acquisition of a health care facility or provider group, and (ii) provide pre-closing notice to the Attorney General of a change of control or an acquisition of either a nonphysician provider with a gross annual revenue of more than $4,000,0000, or a provider with gross annual revenue between $4,000,000-25,000,000. The legislation would have also provided for additional restrictions on a private equity or hedge fund’s ability to control or contract with certain health care entities, including a prohibition on interfering with professional judgment or exercising certain types of control over physician, psychiatric, and/or dental practices. See AB 3129. AB 3129 passed in the California legislature, but was vetoed by Governor Newsom in September 2024. Governor Newsom cited concerns regarding the redundancy of the bill with the Office of Health Care Affordability’s (OHCA’s) existing authority to review and evaluate health care transactions in the state.
Indiana: As of July 1, 2024, Indiana requires health care entities, including but not limited to medical and dental providers, insurers, administrators, and private equity partnerships entering into transactions with health care companies, to notify the Office of the Attorney General ninety (90) days before undergoing a merger or acquisition with another health care entity with a value of at least $10 million. See Senate Bill 9.
Massachusetts: Health care service providers and provider organizations with more than $25 million in annual patient revenue in Massachusetts must provide 60 days pre-closing notice of any material change transaction to the state Attorney General, the Center for Health Information and Analysis, and the Health Policy Commission (“HPC”). Guidance released in January 2024 clarifies that management services organizations that negotiate contracts with payers are captured by the law as provider organizations. HPC has 30 days to either approve the transaction or initiate a more in depth cost and market impact review (“CMIR”), which may delay closing up to 215 days from the initial notice date.

Federal Activity

Federal Agency RFIs

Federal regulators have sought public comment on a range of private equity activities in the health care industry, with a focus on those that are not currently captured under federal agency review.

On March 5, 2024, the DOJ, FTC and HHS launched a joint Request for Information (“RFI”), “Request for Information on Consolidation in Health Care Markets,” regarding the impact of private equity firms’ investments in health care providers, facilities or ancillary products or services on quality of care and workforce experience, as well as the claimed goals and objectives of the transactions. Public comments submitted in response to the RFI are meant to inform the agencies’ identification of enforcement priorities and future action aimed at promoting and protecting competition in health care markets.
- Multistate AG Letter: On June 5, a multistate coalition of eleven attorneys general (“AGs”) submitted a comment letter in response to the FTC’s RFI voicing their concern over the consolidation in health care by private equity. In this letter, the AGs of CA, CT, DE, IL, MN, NJ, OR, PA, RI, WA, and DC advocated for increased oversight and enforcement of private equity health care transactions. Echoing concerns expressed by the FTC in its initial RFI, the AGs argued that the fundamental private equity business model (e.g., raising capital and debt financing) and typical organizational structures (including MSO models) result in a lack of transparency and create a unique set of incentives that do not align with patient care. In light of these concerns, the AGs proposed three recommendations in support of government action by the DOJ, FTC and HHS: 1) explore mechanisms to improve transparency regarding PE ownership and control (e.g., expand collection of information on the ownership and corporate structure of health care entities), 2) finalize and enforce rules prohibiting contractual provisions limiting competition in the health care industry, including those related to anti-steering and anti-tiering; and 3) encourage coordination and “creative enforcement” among state and federal agencies to identify regulations and laws to address conduct by PE in health care beyond traditional competition laws. Public comments such as this letter will inform the FTC, DOJ and HHS’s identification of enforcement priorities and future actions.
On May 23, 2024, the DOJ and FTC launched a complementary RFI, “Corporate Consolidation Through Serial Acquisitions and Roll-Up Strategies,” focused on the strategies and effects of private equity’s use of serial acquisitions in a host of industries, including health care, to amass significant control over key products and services. Once these serial acquisition strategies are identified, the agencies have vowed to use the full scope of their statutory authorities to protect free and fair competition and prevent undue consolidation. The RFI comment period was extended until September 20, 2024. Of note, the U.S. Chamber of Commerce submitted a comment expressing concern that the DOJ and FTC are approaching this topic with a bias against private equity and cautioning a more conservative approach following the close of the comment period.

Proposed Legislation

Corporate Crimes Against Health Care Act of 2024: On June 11, 2024, Senators Elizabeth Warren (D-MA) and Ed Markey (D-MA) introduced the Corporate Crimes Against Health Care Act of 2024 that is aimed at rooting out corporate greed and private equity abuse in the health care industry. The bill proposes to introduce five new requirements: 1) authorizes the AG and State AGs to claw back all compensation, including salaries, issued to private equity and portfolio company executives within a 10-year period before or after an acquired health care firm experiences serious avoidable financial difficulties due to “looting” on the part of the private equity firm; 2) imposes civil and criminal liability (up to six years’ imprisonment) for managers that contribute to such serious avoidable financial difficulties; 3) prohibits payments from Federal Health Care Programs to entities that sell assets to or use assets as collateral for a loan with a real estate investment trust (“REIT”) (with an exception for REIT financing arrangements already in place); 4) requires certain entities, including health systems, physician practices, ambulatory surgical centers, home health agencies, assisted living and hospice facilities and their owners/controllers to annually report data (which will be made publicly available) related to their transactions, owners/controlling entities, real estate and financials; and 5) requires that the HHS Office of Inspector General conduct a study evaluating profit-driven practices in health care delivery and submit a report to Congress. See Corporate Crimes Against Health Care Act of 2024.
Health Over Wealth Act: On July 25, 2024, Senator Ed Markey (D-MA) introduced the Health Over Wealth Act in the Senate, with Rep. Pramila Jayapal (D-WA) introducing the companion bill, HB 9156, in the House. Senator Markey’s proposed federal legislation would impose additional reporting requirements on for-profit health care entities and establish an HHS task force to address and limit the role of private equity and consolidation in health care, including by requiring private equity firms to obtain licensure to invest (directly or indirectly) in health care entities. Additionally, similar to Rep. Jayapal’s proposed legislation, the Health Over Wealth Act would allow HHS to prohibit a private equity fund from acquiring control over a health care entity pending review by an HHS task force. See S. 4804.
Health Care Ownership Transparency Act: Introduced by Rep. Pramila Jayapal (D-WA) in 2023, the Health Care Ownership Transparency Act would require the HHS Secretary to establish a task force to address and limit the role of private equity and consolidation in health care. The bill would allow HHS to prohibit a private equity fund from acquiring control over Medicare providers and suppliers pending review by an HHS task force. The bill would also impose additional disclosure requirements regarding private equity investment interests in Medicare enrollees, such as the percentage of equity contributed by partners of a private equity fund. See HR 1754.

Congressional Hearings, Investigations and Reports

August 8, 2024, Congressional Research Service Report: “Private Equity Investments in Health Care: Selected Enforcement Issues,” which includes discussion of federal antitrust law and the USAP case.
July 11, 2024 Senate Special Committee on Aging hearing titled "Health Care Transparency: Lowering Costs and Empowering Patients” at which Senator Elizabeth Warren (D-MA) called for increased transparency of private equity ownership in health care.
On April 1, 2024, chair Senator Gary Peters (D-MI) of the Senate Homeland Security and Governmental Affairs Committee launched an inquiry into the effects of private equity management of emergency medicine departments.
January 31, 2024 Subcommittee on Health of the Committee on Energy and Commerce hearing titled “Health Care Spending in the United States: Unsustainable for Patients, Employers, and Taxpayers” where Congresswoman Lori Trahan (D-MA) rebuked Steward Health Care’s private equity business model as leading to a dangerous trend in community hospital closures across the nation.
On December 6, 2023, chair Senator Sheldon Whitehouse (D-RI) and ranking member Senator Chuck Grassley (R-Iowa) of the Senate Budget Committee launched an investigation into the role of private equity ownership of hospitals.

Lawsuits

In September 2023, the FTC filed a civil action against U.S. Anesthesia Partners and PE firm Welsh Carson, alleging they violated antitrust law resulting from acquisitions and certain contracting with competitors and payors. The claims against Welsh Carson were dismissed in May 2024. Read more here.

FAQs

What are state health care transaction laws?
State health care transaction laws are an emerging type of oversight by state regulators (e.g., state attorneys general, or state health care agencies) that require pre-closing notice and/or approval for certain material transactions involving health care entities. The National Academy for State Health Policy (“NASHP”) has published a Model Act for State Oversight of Proposed Health Care Mergers, which includes a number of the provisions that states have incorporated into their health care transaction laws and proposed legislation.

Please note that our map of state health care transaction laws does not cover facility licensure, certificate of need, nonprofit or insurance laws. It also does not cover state review processes focused solely on transactions involving licensed in-state hospitals.
What types of health care entities are subject to review?
The types of health care entities subject to these laws is a state-specific inquiry. Generally, however, the laws are aimed at capturing traditional medical providers and health care facilities (e.g., physician practices, clinics, institutions, facilities). A number of laws have a broader scope and also capture non-provider health care entities. We have included below a few examples of the types of entities captured in certain states. We note that this list is not exhaustive.
1. Management Services Organizations (MSOs): MA, OR, NY
2. Third-Party Administrators (“TPAs”): CA, IN, OR
3. Pharmacies: OR
4. Private equity investors in health care: IN, OR
What is considered a “material transaction” subject to review?
The definition of “transaction” and standards for materiality vary by state. State health care transaction laws generally define “transactions” to include mergers and acquisitions, affiliations and agreements that result in a transfer of control, assets or operations, or formation of a health care entity.

Materiality thresholds for transactions subject to review vary in each state. Materiality thresholds may take into account a number of different factors, including the transaction value, the revenue of entities involved in the transaction and/or the resulting percentage change of control in a health care entity.
Do these laws allow state regulators to block transactions?
Regulators’ authority over transactions varies from state to state. Currently, the only state health care transaction law that provides the state with explicit approval authority over transactions is Oregon’s. The majority of state health care transaction laws do not grant the state with the authority to block transactions, but instead allow the state to refer transactions to the state Attorney General for further investigation if there are concerns that the transaction will have anti-competitive effects. Upon referral, the state Attorney General has discretion to pursue enforcement actions under antitrust laws, including injunctions to block a transaction or issuance of a civil investigative demand for additional information. To date, we are not aware of any instances in which any state Attorney General has exercised this power.

Furthermore, Massachusetts’s and California’s laws do not grant the state with approval authority over transactions, but they do allow the state to initiate a Cost and Market Impact Review (“CMIR”) of the transaction. Of course, referrals to the state Attorney General and/or CMIR reviews could significantly delay transactions (as described below).
Are there continuing obligations after a state regulator reviews the transaction?
It depends, but the answer in most states is no. Oregon’s state health care transaction law grants the Oregon Health Authority (“OHA”) with the authority to impose “conditions” to its approval of a transaction, which may range from obligations to maintain certain contracts or service levels, or submit additional reports to the state. Furthermore, for all transactions that have been subject to OHA’s review, OHA conducts follow-up reviews at one- year, two years and five years post-closing to analyze the transaction’s impacts.
How do these laws affect deal timeline?
State health care transaction laws generally require pre-closing notice between 30 to 90 days pre-closing. As such, parties should be prepared to build the relevant pre-closing period into deal timelines. States also have broad authority to extend such review periods if they deem a filing entity’s notice to be incomplete. Upon receipt of an initial notice submission, regulators will often send the filing entity supplemental requests that must be answered to their satisfaction prior to the notice being deemed “complete” and the clock for the review period to begin.

Additionally, as noted above in #4, certain states, such as Massachusetts and California, have the ability to initiate CMIRs, which could result in material transaction delays.
What is required in a notice submission?
Most states post forms online that include the specific requests that must be included in a notice submission. Notices often require submitters to include a description of the transaction, information about entities involved in the transaction, and an overview of the anticipated impacts of the transaction (e.g., on access, cost, and quality of care). Additionally, more onerous notices (e.g., California’s Office of Health Care Affordability’s notice) may require entities to provide attachments including pre- and post-closing organizational charts, deal documents, corporate governance documents, and financial statements.
Will the contents of notice submissions be posted online?
The answer depends on the state – currently, several states (MA, OR, CA, NY) post information regarding notices received online. State health care transaction laws vary regarding the confidentiality of materials produced in connection with a submission. Most states’ laws include mechanisms by which entities can request confidential treatment of certain information or documents in their filings. The state, however, often has broad discretion to approve or reject such requests. It is therefore important to carefully review submission contents with counsel to ensure that filing entities appropriately assert confidentiality protections.
What happens if entities do not file?
States have a variety of enforcement mechanisms, which range from civil penalties of a certain dollar amount per day, to equitable remedies such as specific performance or injunctive relief. While we are not aware of any penalties imposed to date, some state regulators proactively review press releases regarding transactions online to identify transactions subject to review. For example, Oregon Health Authority has posted information on its website regarding a transaction between two Oregon health systems that failed to submit a filing. It is unclear, however, whether any penalties have been imposed on such entities.
Have any of these laws been challenged?
We are aware of one key legal challenge against state health care transaction laws. In October 2022, the Oregon Association of Hospitals and Health Systems (“OAHHS”), a hospital trade group, filed a lawsuit in the U.S. District Court in Portland challenging the Oregon Health Authority’s review program. OAHHS sought to invalidate the OHA’s review program on grounds that it is unconstitutionally vague, in violation of the Due Process Clause of the Fourteenth Amendment, and impermissibly delegates legislative powers to OHA, in violation of the nondelegation doctrine of the Oregon Constitution. Both parties filed for summary judgment, and the judge issued an opinion on May 16, 2024 siding with OHA on the federal question, and declining to assert jurisdiction on the state law question. OAHHS filed a notice of appeal with the U.S. Court of Appeals for the Ninth Circuit on June 18, 2024.