[co-author: Stephanie Kozol]*
On August 11, Illinois Governor J.B. Pritzker signed House Bill 2222 (Public Act 103-0526) into law — bolstering Illinois’ antitrust prevention efforts by expanding the oversight purview of its Attorney General’s (AG) office with respect to health care transactions. Under the new law, the Illinois AG now has the power to review and assess certain “covered transactions” entered into between health care facilities and providers.
Among other things, House Bill 2222 amends the Illinois Antitrust Act by requiring health care facilities and provider organizations to provide 30 days’ notice to the Illinois AG prior to engaging in any merger, acquisition, or contracting affiliation between two or more health care facilities or provider organizations not previously under common ownership or contracting affiliation (“covered transactions”). If an out-of-state entity is involved in the transaction, notice is only required if the out-of-state entity generates $10 million or more in annual patient revenue from Illinois residents.
In addition to amending the Illinois Antitrust Act, House Bill 2222 also amends the Illinois Finance Act by establishing a new antitrust enforcement fund, and amends Illinois’ Health Facilities Planning Act by adding a requirement of notice to the Illinois AG for change of ownership of a health care facility.
House Bill 2222 also grants Illinois’ AG the authority to request additional information, as it deems necessary, within 30 days of receiving notice of the covered transaction. If the AG requests such additional information, the transaction may not proceed until 30 days after the parties have substantially complied with the requests.
With the enaction of House Bill 2222, Illinois joins the likes of California, Connecticut, Massachusetts, New York, and others in crafting a dedicated health care transaction review process. However, despite the legislature’s commendable efforts to stem the tide of antitrust conduct by establishing a broad review process, the act has the potential to negatively impact the health care market due to potentially indeterminate delays. Because House Bill 2222 requires, but does not define, substantial compliance with requests of Illinois’ AG, there is significant risk of extended delays given the lack of clarity with respect to what conduct would satisfy the “substantial compliance” threshold. For example, if the determination of compliance is left to the sole discretion of Illinois’ AG, then the review process can last however long it takes for the Illinois AG to make its determination, with no obvious check on that power evident in the act’s text.
Takeaway
States and their AGs remain committed to identifying and addressing perceived antitrust violations — particularly in the realm of health care. Whether it be alleged pricing, market allocation, or transactional violations, states have painted a clear target on the back of the health care industry. In light of this focus, it is incumbent upon participants in the health care industry to stay apprised of the onslaught of state legislation specifically tailored to scrutinize every aspect of the health care market.
*Senior Government Relations Manager
