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Global rules on foreign direct investment (FDI)
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United States | Publication | 5月 2023
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:
However, certain transactions are excluded from this notice requirement:
Written notice must include and/or identify:
Failure to notify the DOH will be subject to civil penalties, and each day the violation continues will constitute a separate violation.
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