Indiana Senate Bill 9 requires written notice of mergers or acquisitions of health care entities

On March 13, 2024, Indiana Governor Eric J. Holcomb signed Senate Bill No. 9 (SEA 9) which will amend the Indiana Code regarding notice of mergers and acquisitions of health care entities.

The measure, effective July 1, 2024, adds a new chapter 8.5 to the Indiana Code which provides in section 4(a) that [a]n Indiana health care entity participating in a merger or acquisition with another health care entity with total assets, including combined entities and holdings, of at least ten million dollars ($10,000,000), at least ninety (90) days before the merger. or acquisition, give written notice of the merger or acquisition to the attorney general’s office in the manner prescribed by the attorney general’s office.

The bill was introduced by state Sen. Chris Garten (R-Charlestown) and is a direct result of the recommendations of a health care oversight task force.

The task force, which Garten chaired, studied the reasons why Hoosiers continued to pay among the highest health care costs in the country, stated a press release issued by Indiana Senate Republicans. Testimony during the task force meetings highlighted the role that market consolidation plays in increasing health care costs.

Indiana SEA 9 is also a product of Gartens’ collaborative work with stakeholders and health care experts to create a merger review policy that allows the state to monitor antitrust issues, the release said. SEA 9 would be an effective method of accomplishing this and would be considerably less intrusive than state laws requiring approval of mergers because it only requires notice.

warning

The required notice must include:

  1. The company’s address and federal tax number;
  2. The name and contact information of a representative of the healthcare entity in relation to the merger or acquisition;
  3. A description of the healthcare entity;
  4. A description of the merger or acquisition, including the intended timeline;
  5. A copy of any materials that have been sent to a federal or state agency about the merger or acquisition.

The notice must be certified before a notary public. The legislation states that the state attorney general’s office will maintain the confidentiality of all non-public information and that such confidential information may not be released to the public.

Definitions

Indiana SEA 9 provides the following definitions:

Acquisition.Any agreement, arrangement or activity the consummation of which results in a person directly or indirectly acquiring control of another person.

Health entityincludes:

  1. Any organization or business that offers diagnostic, medical, surgical, dental or rehabilitative care.
  2. An insurer that issues a policy of accident and sickness insurance as defined in the Indiana Code, except for the following types of coverage:
    • Insurance for accident, credit, dental, vision, long-term care or disability income only;
    • Coverage issued as a supplement to civil liability insurance;
    • Auto Medical Payment Insurance;
    • A specific illness policy;
    • A policy that provides indemnity benefits not based on any spending requirement; including a plan that offers coverage for:
      • Hospital confinement, critical illness or intensive care, or
      • Gaps for deductibles or co-payments;
    • Workers’ compensation or similar insurance;
    • A student health plan;
    • A complementary plan that always pays in addition to other coverage.
  3. A health maintenance organization (as defined by Indiana Code);
  4. A pharmacy benefit manager (as defined in Indiana Code);
  5. A trustee (as defined in Indiana Code);
  6. A private equity firm, regardless of where the private equity firm is located, that intends to enter into a merger or acquisition with an entity described in subdivisions (1) through (5).

fusionmeans any change of ownership, including: (1) an acquisition or transfer of assets; or (2) the purchase of shares effected by a merger agreement.

Review and consent

Section 9 of the Indiana SEA provides that: Not later than forty-five (45) days after the filing of a notice under subsection (a), the Office of the Attorney General (1) shall review the information filed with the notice; and (2) may discuss in writing any antitrust issues with the merger or acquisition.

Finally, Indiana SEA 9 provides that the attorney general’s office will provide the required written analysis to the applicant; and may issue a civil investigative demand under the Indiana Code to a health care entity that has sent a notice under this section to obtain additional information. It further notes that any information received or produced by the state attorney general’s office under this section is confidential.

Takeaway food

The National Conference of State Legislatures reported that in 2023 (as of October 2023), states enacted at least 36 bills in 24 states related to health care consolidation and competition, including related policies with the merger and revision of the health system. Through these enacted bills, some states would require, or may in the future require, notice or consent of transactions.[1]These laws or proposed laws would require a potential acquirer to demonstrate that the proposed transaction will not have an adverse impact on the cost, quality, access to health care services or adversely affect the health care workforce. In states where health care transactions have already been affected or are likely to be affected by notice or approval requirements, providers and sponsors should begin to consider what data they would produce if required to to submit this notice or consent request and start collecting and tracking this supporting data now.

For Indiana, providers and sponsors should be aware that the dollar threshold ($10,000,000) is much lower than other states such as California (Cal. Code Regs. tit. 22, 97435).and following.), New York (NY Pub. Health L. 4550and following.) or Oregon (Or. Rev. Stat. 415,500and following.), among others, and that the definition of a healthcare entity is not limited to traditional providers but also includes a private equity company, regardless of geographic location. These factors combined may increase the number of transactions that are subject to SEA’s 9-year (90) day pre-closing notice requirement.

Epstein Becker Green attorney Ann W. Parks contributed to this post.

[1]See, for example, CA Assembly Bill 3129: Notice and Consent for Private Equity, Hedge Funds Acquiring/Changing Control of Healthcare Facilities, Provider Groups,Health Law Advisor(March 14, 2024); New York State Enacts New Notice Requirements Targeting Private Equity Healthcare Transactions,Health Law Advisor(July 12, 2023);;Minnesota House Bill HF 4206 would prohibit ownership interests, operational/financial control of health care providers by Private Equity and REITS,Health Law Advisor(March 15, 2024); and time is running out in the Oregon State Senate for HB 4130, but it will likely return in 2025,Health Law Advisor(March 12, 2024).

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