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Indiana Joins States Focusing on Consolidation of Health Care

On March 13, 2024, Indiana joined the ranks of states exercising greater oversight and regulation of health care transactions.  Senate Enrolled Act No. 9 (S.B. 9), which takes effect on July 1, 2024, requires written notice to the Indiana Attorney General (the AG) 90 days in advance of an acquisition or merger involving an Indiana “health care entity” that results in a change of control.  The law does not grant the AG authority to approve or deny a transaction, but the AG may evaluate any antitrust concerns and issue a civil investigative demand for additional information. 

Health Care Entities and Transactions Subject to S.B. 9

S.B. 9 defines a “health care entity” to mean any of the following:

  • An organization or business that provides diagnostic, medical, surgical, dental, or rehabilitative care;
  • An insurer that issues a policy of accident and sickness insurance (with certain exceptions);
  • A health maintenance organization;
  • A pharmacy benefit manager;
  • An administrator; and
  • A private equity partnership, regardless of where located, seeking to enter into a merger or acquisition with any of the foregoing entities.     

Under the law, an “acquisition” means any agreement, arrangement or activity which results in a person acquiring, directly or indirectly, the control of another person, and a “merger” means any change of ownership, including an acquisition or transfer of assets and the purchase of stock effectuated by a merger agreement.  An Indiana health care entity involved in an acquisition or merger with another health care entity with total assets, including combined entities and holdings, of at least $10 million is required to provide the notice. 

Notice of Proposed Transaction

S.B. 9 requires that notice to the AG include the following information from each health care entity to the transaction: 

  • Business address and federal tax number; 
  • Name and contact information of a representative of the health care entity;
  • Description of the health care entity;
  • Description of the merger or acquisition, including the anticipated timeline; and
  • A copy of any materials that have been submitted to a federal or state agency concerning the merger or acquisition. 

The AG is required to keep nonpublic information confidential and the information will not be released to the public. 

Review of Transaction

Within 45 days from submission of notice of a transaction, the AG shall review the information and may prepare a written analysis of any antitrust concerns.  The AG is required to provide any written analysis to the health care entity that submitted the notice and may also issue a civil investigative demand for additional information. 

What’s Next

Similar to other state health care transaction review laws previously discussed in this blog, S.B. 9 is another example of a state taking a closer look at health care transactions that previously would not have been subject to review.  As the scope of state legislation over health care transactions continues to expand, parties are faced with navigating processes and requirements that are not always clear and could raise more questions than answers. S.B. 9, for example, lacks details (especially whether a health care entity with total assets of $10 million means Indiana-based assets or assets wherever located), which hopefully will be addressed in regulations.

Please join us for our Health Care Roundtable Webinar on March 20, 2024 to learn more about what to expect going forward.  

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Pamela Polevoy

Special Counsel

Pamela handles complex health care transactions and provides intricate regulatory and compliance counsel to health care clients across the United States.
Deborah handles complex transactions, including mergers and acquisitions, joint ventures, and affiliations, for leading health care providers and investors across the United States.