New York State enacts notice requirements for material health care transactions

On May 3, 3023, New York State enacted a law that will require health care entities to provide written notice, with supporting documentation, to the State Department of Health (DOH) of "material transactions" at least 30 days before closing.¹ Copies will be provided to the antitrust, health care and charities bureaus of the office of the New York Attorney General. During this 30-day period prior to closing, the DOH will post on its website for public comment a summary of the proposed transaction and its likely impact. However, this law does not require parties to receive the DOH's approval before closing.

This legislation follows other states that have been considering additional notification requirements for health care transactions (on top of the federally required HSR filing, where applicable). For example, California, Connecticut, Massachusetts, Nevada, Oregon, and Washington have passed laws requiring notice to state authorities and/or expanding the scope of their review process. Similar laws are currently pending in Illinois, Maine, Minnesota, and North Carolina. The New York law was enacted in an effort to address private equity investment in health care, which the legislature states is subject to less regulation and oversight than other health care delivery structures.²

This notice requirement, which will go into effect on August 1, 2023, applies to health care entities such as a physician practice, group, or management services organization or similar entity providing all or substantially all of the administrative or management services under contract with one or more physician practices, provider-sponsored organization, health insurance plan, or any other kind of health care facility, organization or plan providing health care services in New York.³ The law excludes authorized/licensed New York insurers and pharmacy benefit managers.

The law defines a "material transaction" as any of the following, occurring during a single transaction or in a series of related transactions that take place within a rolling twelve month time period:

• A merger with a health care entity;
• An acquisition of one or more health care entities (e.g., assignment, sale, or other conveyance of assets, voting securities, membership, or partnership interest or the transfer of control);
• An affiliation agreement or contract formed between a health care entity and another person; or
• A formation of partnership, joint venture, accountable care organization, parent organization, or management services organization for purpose of administering contracts with health plans, third-party administrators, pharmacy benefit managers, or health care providers as prescribed by the commissioner by regulation.⁴

However, certain transactions are excluded from this notice requirement:

• Clinical affiliations of health care entities formed for the purpose of collaborating on clinical trials or graduate medical programs;
• A "de minimis" transaction or series of related transactions that result in a health care entity increasing its total gross in-state revenues by less than US$25 million; and
• Transactions already subject to review under certain articles of the New York Public Health Law:
  • Article 28 (hospitals; diagnostic and treatment centers; ambulatory surgery centers)
  • Article 30 (emergency medical services)
  • Article 36 (home care)
  • Article 40 (hospices)
  • Article 44 (health maintenance organizations)
  • Article 46, 46-A, 46-B (continuing care retirement communities; assisted living).⁵

Written notice must include and/or identify:

• Names and addresses of the parties to the transaction;
• Copies of any definitive agreements governing terms and conditions of the transaction;
• Locations where health care services are provided by each party and the in-state revenue they generate;
• Plans to reduce or eliminate services and/or health plan participation;
• The closing date; and
• A description of the nature and purpose of the transaction, including:
  • The anticipated impact of the material transaction on cost, quality, access, health equity, and competition in the impacted markets; and
  • Any commitments by the health care entity to address anticipated impacts.⁶

Failure to notify the DOH will be subject to civil penalties, and each day the violation continues will constitute a separate violation.