Schedule

• Innovative and disruptive transaction models–past, present, and future

• Circumstances that have fostered innovations in the transactional space

• Recognizing the need for a customized transaction structure

• Balancing key business and regulatory considerations in developing innovative and disruptive transaction models

• What is driving the increasing and evolving state regulatory and disclosure requirements?

• Summary of the differing state regulatory review and disclosure requirements

• Increased breadth of state regulatory review including valuation and transaction structure, and post-transaction impact on competition, access to care, cost of care, quality of care, workforce, health equity, and financial feasibility

• Best practices on navigating the review and disclosure process from the unique viewpoints of a state regulator, private attorney, and transaction consultant

• Recommendations in each of the above areas to increase the likelihood of a smooth process

• Case studies: Real life stories and examples from the front line

• A walkthrough of a health care acquisition by a private equity firm, as a primer to health care transactions

• To help the audience understand the different roles of a lawyer in health care transactions, using in-house and outside counsel voices

• Summarize main transaction documents and processes in a deal life cycle, while providing practical tips and best practices from their personal and practice experience

• A high-level review of certain regulatory and compliance issues that frequently impact health care transactions

• Motivations behind establishing payor/provider joint ventures

• Considerations in picking the right partner

• Key issues to consider in establishing a joint venture

• Integration considerations and challenges

• How to implement and integrate a successful joint venture

This program will examine the looser affiliation models that health systems are using to partner with private equity-backed physician practices. Models to be examined will include clinical co-management agreements, recruitment agreements, medical directorships and management services agreements. The speakers will review the structures of each model and the legal and regulatory considerations. The speakers will then go into detail, practically, how these models can be utilized for these types of partnerships.

• Antitrust laws and current risk environment

  • Antitrust Enforcers and roles:

    • Federal – Hart Scott Rodino Process

      • FTC

      • DOJ

    • State

      • State merger/transaction review statutes

      • Non-profit entity considerations

• Antitrust considerations in healthcare transactions

  • Mergers and Acquisitions

  • Competitor Collaborations

  • Vertical Transactions

  • Transaction Terms

    • Information sharing

    • Non-Competes

• This panel will be partially lecture-style and partially informal discussion with on-the-ground perspectives shared. Panelists include two veteran ERISA attorneys: One who is currently practicing with a large law firm in Washington, D.C. with 10 years’ in-house experience at a large health system, and a high-ranking in-house attorney with one of the nation’s largest private health care systems

• A focus on the mechanics for analyzing employee benefits and executive compensation matters in a deal, from due diligence to reps, warranties, covenants and the purchase agreement. The content will also outline the potential exposure to a buyer if benefits issues are not timely identified or addressed in a transaction, including situations where benefits can become "deal killers”

• On-the-ground experiences and best practices learned from handling large transactions with complex benefits and compensation issues, including coordinating with in-house and outside counsel, HR professionals and deal teams, as well as benefits transition and integration issues after closing

• Case study of a deal gone awry including next steps for growth, disclosures, and claims

• The Day of the Deal: Purchase price, earn-outs, valuations, and compliance

• The morning after: Escrows, R&W insurance, root cause analysis, audits and policies and procedures

• Post Mortem: How to avoid the missteps, including CPOM structuring, security assessments, coding reviews and contract reviews of lease arrangements, employment agreements, offshoring arrangements and marketer relationships

• Lessons learned from successes and fiascos, actionable pointers, and a few tools to make it all work

Increasingly, health systems are partnering with niche operators with focused expertise and success in operating verticals like dialysis, behavioral health, urgent care, ambulatory surgery, imaging and managed care. Health systems enter into these partnerships with the hopes of driving the success of these areas, which may not be core competencies of a traditional health system but are essential for succeeding in the evolving healthcare environment. Partnership with one of these platform operators can improve access and care offerings, drive a stronger bottom line and reduce operational headache for the health system. But partnerships are not easy, and as the partnership is formed and deal terms are defined, it is essential for the health system and the partner to navigate staying aligned with their mission and business objectives, adhering to the specific  regulations and standards driven by their for-profit/not-for profit status and regulatory environment, working through matters of governance and day-to-day control of operations and ensure fair economic terms – all to ultimately ideally arrive at a sustainable partnership that benefits each party. In this presentation, we will leverage the use of specific case studies to cover:

• Rationale and trends in these partnerships

• Key points of negotiation, including governance, operational control, etc

• Strategies for navigating concern around “break up” – including in the event of a change of control

• Financial considerations including

  • Asset contributions including valuation considerations

  • How the management fee is determined

  • How to fund growth

• Navigating strategic and competitive considerations and alignment

From the perspective of seasoned transaction counsel and financial advisor that are very active in the health care deal space, the audience will gain insights into recent developments and challenges in health system M&A. The session will discuss:

• An informative analysis and assessment of dealmaking trends in the industry, using case studies and personal experience to explore the current state of health system transactions and associated best practices in structure, governance and process

• A focus on, and compare and contrast, reasons significant transactions were announced and/or successfully closed vs. blocked, abandoned, or unwound.  The presentation will highlight lessons or takeaways in connection with these mergers, acquisitions and partnerships, focusing on strategies for success and pitfalls to avoid

• Practical pointers on core deal choreography, including aligned common vision, strategic communications, diligence timing, deal ambassadors, stakeholder viewpoints and regulatory /third party approvals

• Motivations behind establishing payor/provider joint ventures

• Considerations in picking the right partner

• Key issues to consider in establishing a joint venture

• Integration considerations and challenges

• How to implement and integrate a successful joint venture

There is considerable industry uncertainty as the Federal Trade Commission and the U.S. Department of Justice continue to test new theories and pursue novel strategies as they challenge business transactions and conduct. Their enforcement activities are targeting a range of business arrangements (e.g., mergers, joint operating agreements, and other partial ownership arrangements) between and among both traditional not-for-profit and private equity-owned entities. PE entities are a particular focus of the agencies, with the FTC recently holding a full-day workshop to explore the "financialization" of health care allegedly resulting from private equity buyouts. While the Agencies have lost a significant number of their litigated challenges, they have obtained rulings that support their continued enforcement, including with respect to vertical and cross-market merger effects, as well as the criminal prosecution of wage-fixing and no-poach arrangements. At the same time, the FTC aims to expand its enforcement with respect to “unfair methods of competition” under Section 5 of the FTC Act, and the DOJ warns that it may seek criminal penalties for monopoly violations of Section 2, which historically have been addressed civilly. This session will provide an overview of these developments as well as practical pointers to assist Offices of General Counsel as they seek to provide clear and useful guidance to their strategic and business partners despite regulatory uncertainty.

Hospital and Health System transactions including the following:

• Buying part of a hospital (selected locations); not all off-campus PB locations

• Consolidating/merging  hospitals and creating remote hospital locations or PB locations

• Purchase and complete relocation of certain services lines or facilities

• Enrollment and registration considerations (i.e. 855A, HRSA registration, etc.)

• Data management and privacy considerations

• Designing deal structure in light of Fraud and Abuse considerations

• Other reimbursement and compliance concerns

• The Government’s Enforcement focus on Private Equity Investors in Health Care Industry Acquisitions

• The types of enforcement risks and actions

• Approaches for responding to the investigation that can enable the parties to close a pending transaction despite the existence of a government investigation

• Using data analysis to assess, measure, and mitigate the potential exposure from a government investigation

• Insuring regulatory and investigative risks

Join leaders of AHLA's Dispute Resolution Service for a discussion of how best to craft a dispute resolution clause for a health care transaction.   No matter how skillfully a health care transaction is negotiated, factors outside of the lawyers' control can create tension.  Don't wait until it's too late.  Plan how conflicts will be managed while the parties are still on good terms.

This event is not included in the program registration; pre-registration is required. Attendees and speakers are welcome.

• Emerging and evolving legal risks and practical realities of handling data during due diligence

• Recent case studies and court cases ripped from the headlines

• How data may affect important questions such as transaction value, follow on compensation values, and the ability to pass regulatory hurdles and/or regulatory scrutiny

• Tips and takeaways, with a sample framework for transaction data management

• Overview of Artificial Intelligence (AI) and Machine Learning (ML) and current uses of AI and ML in health care

• Legal risk areas for transactions, including privacy, fraud and abuse, and FDA regulation of medical devices

• Example representations and warranties

• Recent developments in digital health and AI, including enforcement actions and regulatory guidance

As health systems face unprecented financial challenges, health system leaders and their board members have increased their level of partnership and engagement in order to address these challenges. 

This session will share real-life examples of how a Board member and a Chief Legal Officer leveraged their respective experiences to evaluate strategic alternatives to evolve the traditional health system into the 21^st century health system.  The panelists will cover topics including:

• Review the role of the Board in selecting transaction advisors, including investment bankers, transaction counsel, public relations firms and diligence partners
• Detail the process used to manage a transaction from the perspective of a Board member and a Chief Legal Officer
• Discuss structural alternatives to best integrate the Board into transaction oversight
• Review examples of the guiding principles used to evaluate transactions involving the entire health system, joint ventures or business lines
• Discuss the strategy to provide Board education around transaction oversight and fiduciary responsibilities

We will discuss joint ventures in which non-profit health systems contribute existing post-acute or ancillary services to a new joint venture with a for-profit entity:

• Factors prompting the proliferation of such joint ventures

• Structure and key deal points

• Key considerations to ensure your FMV opinion is defensible

• Ensuring the FMV opinion for the management fee is compliant

• Deal risks and risk mitigation

This session will address how health care organizations should plan an effective strategy to “win” the evolving reimbursement shift to value-based care, and will cover the following areas:

• Policy interpretation being set by CMS and Congress

• Health care organizational strategy to navigate value-based policy and payer contracting opportunities

• Contracting documentation, from governance charters to payer participation agreements and notice filings

• Funds flow and financial return

• The regulatory framework that must be adhered

This panel will discuss the states' authority to investigate health care mergers and acquisitions for antitrust-related issues and states where this authority is expanding. In particular, this discussion will cover:

• States' historic and current approach to health care merger investigations under antitrust law

• The increase in state "Baby HSR" laws and their implications for health care transactions

• Expansion of states' authority to review health care mergers and acquisitions through state charitable trust laws

• Recent health care transactions that have been investigated by a state for antitrust and related concerns

• Earnout market and deal trends

• Fraud and abuse regulatory and compliance considerations (e.g., Federal Anti-Kickback Statute, the Stark Law & State Fraud and Abuse Laws)

• Analysis of deal scenarios and case studies

• Practical tips and guardrails on structuring earn-out provisions

• Best practices and alternative options

The regulatory environment for dealmaking has never been more uncertain. The federal antitrust agencies are continuing to challenge health care transactions aggressively under an ever-broadening range of theories. This panel will discuss key changes in approach, including:

• Expanded theories of harm and more stringent review thresholds under the FTC and DOJ 2023 Merger Guidelines

• Focus on private equity transactions and labor market impacts

• Potential changes to HSR prenotification regime

• Agency resistance to remedies to address competitive concerns

• Ongoing agency investigations and studies into health care markets

Hospital and Health System transactions including the following:

• Buying part of a hospital (selected locations); not all off-campus PB locations

• Consolidating/merging  hospitals and creating remote hospital locations or PB locations

• Purchase and complete relocation of certain services lines or facilities

• Enrollment and registration considerations (i.e. 855A, HRSA registration, etc.)

• Data management and privacy considerations

• Designing deal structure in light of Fraud and Abuse considerations

• Other reimbursement and compliance concerns

Test your knowledge of healthcare valuation and transactions in this fun and interactive session based on the “Who Wants to Be a Millionaire?” game show. Even if you don’t make it to the hot seat, we will have an interactive audience polling for each question and a live discussion on the correct answers. So can you make it all the way to the million dollar question?

• Key fair market value and commercial reasonableness issues in due diligence for physician financial arrangements

• Practical “best practices” in reviewing FMV and CR in due diligence

• Responding to potential physician financial arrangement issues during due diligence (Seller vs. Purchaser)

• Physician financial arrangement corrective actions: Pre- and Post- Acquisition actions

• Practical guidance for General Counsel, Chief Legal Officers, and other in-house attorneys who are faced with difficult issues that arise when business teams and/or private equity partners demand certain outcomes that may or may not align with legal objectives

• A deep-dive with audience participation in finding out what to do in these situations and how to handle the dilemma of representing a client who is also your direct supervisor

• Speaking from experience, I am familiar with how often these issues arise, and I think it would be very helpful for those who are in these positions to discuss and strategize with their peers

• Ethical principles and relevant Rules of Professional Conduct will be discussed

Key Issues Explored:

• Leading indicators of distress

• Due diligence considerations

• Timeline considerations

• Economic terms and risk shifting

• Stalking horse auctions and private sales

• The rationale “For” (and “Against”) scale

• Preparing for, designing, and executing a robust transaction process

• Crossing the regulatory finishing line

• Antitrust hygiene for management and directors, especially under new HSR ‎requirements

• Anticipating state regulatory and issues, maintaining transaction compliance and ‎obtaining regulatory approvals

• Best practices to maximize the probability of a successful transaction

Site-neutral payment policy—i.e., the alignment of payment rates across ambulatory settings—is a hot topic.  A shifting legal landscape coupled with congressional interest in expanding site-neutral payment policies has made the issue top of mind for many hospitals and health systems.  Oftentimes, these issues come to the fore in the context of transactions and other development initiatives. In this presentation, the speakers will address the following:

• The current legal landscape, including recent payment, billing and coding changes regarding hospital outpatient clinic visits

• Common site-neutral payment issues in hospital and health system development initiatives, including facility expansions and service mix changes

• Recent legislative proposals that would impose additional site-neutral payment limitations on services provided in hospital outpatient departments

• Best practices for evaluating site-neutral payment issues in transactions, including modeling financial impact, conducting due diligence review, and negotiating definitive agreements

• Overview of Artificial Intelligence (AI) and Machine Learning (ML) and current uses of AI and ML in health care

• Legal risk areas for transactions, including privacy, fraud and abuse, and FDA regulation of medical devices

• Example representations and warranties

• Recent developments in digital health and AI, including enforcement actions and regulatory guidance

This panel will discuss common topics arising before, during, and after transactions involving private equity and physician practices (particularly hospital-based specialties), as well as recent developments in the regulatory landscape. Topics of discussion will include:

• Common motivations for physician practices to seek private equity partnerships

• Common areas of concern for hospital partners

• Legal and financial implications of hospital partners’ concerns

• Near-, medium-, and long-term considerations for partnerships between hospitals and PE-backed physician practices

• Emerging developments in state-level review of such transactions

From the perspective of seasoned transaction counsel and financial advisor that are very active in the health care deal space, the audience will gain insights into recent developments and challenges in health system M&A. The session will discuss:

• An informative analysis and assessment of dealmaking trends in the industry, using case studies and personal experience to explore the current state of health system transactions and associated best practices in structure, governance and process

• A focus on, and compare and contrast, reasons significant transactions were announced and/or successfully closed vs. blocked, abandoned, or unwound.  The presentation will highlight lessons or takeaways in connection with these mergers, acquisitions and partnerships, focusing on strategies for success and pitfalls to avoid

• Practical pointers on core deal choreography, including aligned common vision, strategic communications, diligence timing, deal ambassadors, stakeholder viewpoints and regulatory /third party approvals

• Case study of a deal gone awry including next steps for growth, disclosures, and claims

• The Day of the Deal: Purchase price, earn-outs, valuations, and compliance

• The morning after: Escrows, R&W insurance, root cause analysis, audits and policies and procedures

• Post Mortem: How to avoid the missteps, including CPOM structuring, security assessments, coding reviews and contract reviews of lease arrangements, employment agreements, offshoring arrangements and marketer relationships

• Lessons learned from successes and fiascos, actionable pointers, and a few tools to make it all work

Many quaternary-care academic health systems are affecting strategies to extend their missions into surrounding communities. In doing so, they have become increasingly acquisitive of community health systems and related medical groups. While bringing several benefits to these communities, such transactions are also fraught with challenges to align and integrate different cultures, missions, operations, incentives, and governance structures among the medical staffs and employed medical groups. This session explores the legal and operational challenges to arrive at clinical integration between academic and community medical groups through the lens of individuals who have structured these transactions and led the integrations. Key issues to explore include:

• Recent trends in partnerships between academic health systems and community hospitals, including objectives of such strategies

• Items to consider in the Letter of Intent and Purchase Agreement to best accomplish integration goals

• The considerations, challenges, and effects of decisions to merge or align medical staffs (especially when one is a closed staff model)

• Best practices for effective community hospital and medical staff integrations

• Medical group and academic department governance to accomplish successful integration

• Legal and operational challenges to align compensation and benefit structures

• The Government’s Enforcement focus on Private Equity Investors in Health Care Industry Acquisitions

• The types of enforcement risks and actions

• Approaches for responding to the investigation that can enable the parties to close a pending transaction despite the existence of a government investigation

• Using data analysis to assess, measure, and mitigate the potential exposure from a government investigation

• Insuring regulatory and investigative risks

The regulatory environment for dealmaking has never been more uncertain. The federal antitrust agencies are continuing to challenge health care transactions aggressively under an ever-broadening range of theories. This panel will discuss key changes in approach, including:

• Expanded theories of harm and more stringent review thresholds under the FTC and DOJ 2023 Merger Guidelines

• Focus on private equity transactions and labor market impacts

• Potential changes to HSR prenotification regime

• Agency resistance to remedies to address competitive concerns

• Ongoing agency investigations and studies into health care markets

This program will examine the looser affiliation models that health systems are using to partner with private equity-backed physician practices. Models to be examined will include clinical co-management agreements, recruitment agreements, medical directorships and management services agreements. The speakers will review the structures of each model and the legal and regulatory considerations. The speakers will then go into detail, practically, how these models can be utilized for these types of partnerships.

• Practical guidance for General Counsel, Chief Legal Officers, and other in-house attorneys who are faced with difficult issues that arise when business teams and/or private equity partners demand certain outcomes that may or may not align with legal objectives

• A deep-dive with audience participation in finding out what to do in these situations and how to handle the dilemma of representing a client who is also your direct supervisor

• Speaking from experience, I am familiar with how often these issues arise, and I think it would be very helpful for those who are in these positions to discuss and strategize with their peers

• Ethical principles and relevant Rules of Professional Conduct will be discussed

Site-neutral payment policy—i.e., the alignment of payment rates across ambulatory settings—is a hot topic.  A shifting legal landscape coupled with congressional interest in expanding site-neutral payment policies has made the issue top of mind for many hospitals and health systems.  Oftentimes, these issues come to the fore in the context of transactions and other development initiatives. In this presentation, the speakers will address the following:

• The current legal landscape, including recent payment, billing and coding changes regarding hospital outpatient clinic visits

• Common site-neutral payment issues in hospital and health system development initiatives, including facility expansions and service mix changes

• Recent legislative proposals that would impose additional site-neutral payment limitations on services provided in hospital outpatient departments

• Best practices for evaluating site-neutral payment issues in transactions, including modeling financial impact, conducting due diligence review, and negotiating definitive agreements

As health systems face unprecented financial challenges, health system leaders and their board members have increased their level of partnership and engagement in order to address these challenges. 

This session will share real-life examples of how a Board member and a Chief Legal Officer leveraged their respective experiences to evaluate strategic alternatives to evolve the traditional health system into the 21^st century health system.  The panelists will cover topics including:

• Review the role of the Board in selecting transaction advisors, including investment bankers, transaction counsel, public relations firms and diligence partners
• Detail the process used to manage a transaction from the perspective of a Board member and a Chief Legal Officer
• Discuss structural alternatives to best integrate the Board into transaction oversight
• Review examples of the guiding principles used to evaluate transactions involving the entire health system, joint ventures or business lines
• Discuss the strategy to provide Board education around transaction oversight and fiduciary responsibilities

This session will address how health care organizations should plan an effective strategy to “win” the evolving reimbursement shift to value-based care, and will cover the following areas:

• Policy interpretation being set by CMS and Congress

• Health care organizational strategy to navigate value-based policy and payer contracting opportunities

• Contracting documentation, from governance charters to payer participation agreements and notice filings

• Funds flow and financial return

• The regulatory framework that must be adhered

This panel will discuss the states' authority to investigate health care mergers and acquisitions for antitrust-related issues and states where this authority is expanding. In particular, this discussion will cover:

• States' historic and current approach to health care merger investigations under antitrust law

• The increase in state "Baby HSR" laws and their implications for health care transactions

• Expansion of states' authority to review health care mergers and acquisitions through state charitable trust laws

• Recent health care transactions that have been investigated by a state for antitrust and related concerns

Key Issues Explored:

• Leading indicators of distress

• Due diligence considerations

• Timeline considerations

• Economic terms and risk shifting

• Stalking horse auctions and private sales

This panel will discuss common topics arising before, during, and after transactions involving private equity and physician practices (particularly hospital-based specialties), as well as recent developments in the regulatory landscape. Topics of discussion will include:

• Common motivations for physician practices to seek private equity partnerships

• Common areas of concern for hospital partners

• Legal and financial implications of hospital partners’ concerns

• Near-, medium-, and long-term considerations for partnerships between hospitals and PE-backed physician practices

• Emerging developments in state-level review of such transactions