Thinking of Selling or Buying a Florida Medical Practice or Hospital? Be Advised, Pending Antitrust Legislation Proposes to Add a Speed Bump

Florida has been at the forefront of some very interesting healthcare M&A activity in the past year, including an influx of private equity and consistent growth in Hospital and Health Plan vertical integration.  Unless subject to antitrust filing requirements, these high profile transactions are typically carried out under veils of confidentiality and announced upon completion.  However, Florida M&A is not insulated from recent Florida House health reform initiatives.  If the Florida House gets its way, the pace of healthcare transactions in Florida may hit a speed bump in the form of a notice, delay and potential for a pre-close assessment by the Florida Attorney General.

The Florida House activity in the health care space cannot be understated.  In a striking video, the Florida House promises the 2019 legislative session will bring “more affordab[ility], more choices, more practitioners, more access, more quality, and more value” to the State’s health care market. In the video, the Florida House promises to end “government protection for hospital monopolies” and increase “enforcement against providers who violate antitrust laws.”

On April 11, 2019 the Florida House demonstrated its bipartisan commitment to increase visibility of provider consolidation activities in the State by unanimously voting to pass Florida House Bill 1243 (“HB 1243” or “Bill”) sponsored by Rep. Colleen Burton (R). The Bill’s unanimous passage, only a month after introduction, sends a strong signal that the Florida House is committed to more transparency for certain Florida healthcare transactions and providing a “waiting period” to ensure antitrust law is followed and enforced.  The Bill was forwarded to the Senate, and we will be closely monitoring how the Senate responds to this initiative.

If enacted into law, HB 1243 would require each party of any transaction involving a group practice, hospital, or hospital system that results in a material change to another group practice of four or more physicians, hospital, or hospital system to provide written notice to the Florida Office of Attorney General (“AG”) at least 90 days before the effective date of such a transaction. A party’s failure to provide proper written notice would subject such entity to sizable potential civil penalties of up to $500,000.00.  Additionally, in counties where there is only one entity contracting with or employing any category of medical specialists, such entity’s restrictive covenants would be void and unenforceable until there is new market entry by a competitor entity for at least three years.

HB1243 is designed to provide the Florida AG with an opportunity to scrutinize hospital and group practice health care transactions of all sizes, including transactions that might not otherwise have required a federal pre-merger notification, filing, and review under the Federal Hart-Scott-Rodino Act (“HSR”).   Because the proposed waiting period of ninety days is longer than that required under HSR, it may delay transactions already covered under HSR.

If HB1243 is enacted, health care buyers and sellers will need to be aware of the impact on their plans to buy, sell, and operationalize health care transactions in Florida.  This would add an additional layer of regulatory submissions to the AHCA approvals already on the radar of private equity investors. While the Bill may not pass before the Senate’s legislative session adjourns on May 3rd, we are closely monitoring the political climate around health care.

Businesses should carefully evaluate their acquisition pipeline and growth strategies in light of the bipartisan support for HB1243.  This issue has momentum and, if not passed in this session, is likely to resurrect in future sessions. We recommend that physicians closely evaluate the timing of any exit strategy, taking into account the risk of an M&A slowdown caused by new regulatory requirements. Businesses should carefully consider whether to expedite acquisitions and other material business transformations before the Bill’s likely chilling effect on investor interest due to the pre-transaction waiting period and increased regulatory scrutiny.

The Epstein Becker Green St. Petersburg, Florida office is closely monitoring this legislation as well as other Florida health reform efforts.  If you have questions about HB1243 or the antitrust implications of your hospital or physician transaction, please contact Kathleen Premo and Elizabeth Scarola  to discuss pro-active strategies for such a transaction in our current Florida political environment.