Effective January 2024: Illinois Joins Growing List of States that Require Attorney General Notice of Healthcare Transactions

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Public Act 103-0526 amends certain provisions of the Illinois Antitrust Act, the State Finance Act and the Illinois Health Facilities Planning Act to grant the IL AG oversight over a broad array of transactions that involve healthcare facilities. The legislation that would become Public Act 103-0526 passed the Illinois House of Representatives on March 24, 2023, arrived in the Illinois Senate on March 27, 2023, and passed both chambers of the General Assembly on May 18, 2023. The General Assembly then sent the legislation to Governor Pritzker for his approval on June 16, 2023, which he provided on August 11, 2023.

As we reported in a previous On the Subject regarding House Bill 2222, Public Act 103-0526 requires 30 days’ prior notice to the IL AG of any merger, acquisition or contracting affiliation between two or more healthcare facilities or provider organizations not previously under common ownership or contracting affiliation (covered transactions). Transactions that are submitted to the Illinois Health Facilities and Services Review Board in compliance with the Illinois Health Facilities Planning Act get automatically submitted to the IL AG. Any healthcare facility or provider organization that is a party to a covered transaction and files a premerger notification to the federal antitrust enforcement agencies in compliance with the Hart-Scott-Rodino Act must simultaneously provide a copy of such filing to the IL AG.

Any healthcare facility or provider organization that is party to a covered transaction not described above (i.e., a transaction that does not require a filing under the Hart-Scott-Rodino Act or a change of ownership filing with the Illinois Health Facilities and Services Review Board) would be required to provide written notice to the IL AG.

The IL AG can request additional information, as it deems necessary, within 30 days of receiving notice of the covered transaction. If the IL AG requests additional information, the covered transaction may not proceed until 30 days after the parties have substantially complied with the request. Failure to comply with the IL AG notice requirements and responses to IL AG requests for additional information would expose the healthcare facility or provider organization to a penalty of $500 for each day in violation, after a 10-day cure period, which when collected is then deposited into a new antitrust enforcement fund.

While the scope of Public Act 103-0526 is quite broad, its full impact remains to be seen. Much depends upon how active the IL AG is in requesting additional information from applicants. Healthcare facilities and provider organizations that are concerned about potential delays or onerous requests for information as a result of Public Act 103-0526 should consult with their legal counsel to determine the appropriate time to file the required notice to the IL AG.

For more information or for assistance with Public Act 103-0526, please contact one of the authors.

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