Schedule

• Recent health care M&A activity and outlook for rest of 2023
• Health care sectors and themes with strongest interest from the investor community
• Valuation trends given impact of interest rate environment and recessionary risks
• Provident compensation and alignment strategies

This session will explore the evolving financial constraints in the market in relation to:

• Strategic and financial health care transactions
• Legislative and regulatory pressures
• Expansion of government health care programs

• A walkthrough of a health care acquisition by a private equity firm, as a primer to health care transactions
• The different roles of a lawyer in health care transactions, using in-house and outside counsel voices
• 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

• The payor shift to value-based reimbursement and why organizations are looking at implementing value-based models right now
• Legal description of the regulatory framework around value-based models. This includes the 3 new AKS safe harbors and Stark law exceptions as well as some other exceptions and safe harbors that could afford protection as well
• Different types of transactions to demonstrate the breadth of what can constitute a “value-based enterprise.” For example, it could be small, such as value-based arrangement between two parties for a limited patient population. Alternatively, it could be a large elaborate network involving the formation of one or more legal entities that cover a broad population
• Lessons that we have learned on the front lines of implementing various value-based enterprises and models. These lessons will include discussion of common hurdles to implementation and best practices for contracting and documentation
• Case studies to describe some insight that organizations can use as they begin to prepare for and implement value-based enterprises and models

• The last several years has seen an explosion in private equity (PE) investment in all types of providers: physician practices, hospitals, etc. –what happened and why?
• PE investment in 2023 and Beyond–the market is still hot? Is this for real?
• What types of health care providers is PE targeting in the near future?
• How should providers prepare and position for PE investment?
• How are these deals being structured, both legally and financially? Spotting regulatory sticking points for deals and growth
• How are hospitals competing–and increasingly partnering with PE?
• Real life issues that come up in these transactions–legal, business and other

This interactive session will provide an overview of antitrust topics relevant to health lawyers, with an emphasis on understanding recent major changes in the enforcement landscape. The topics will include:

• The current antitrust landscape at the antitrust agencies
• Mergers, acquisitions, and joint ventures, including an overview of how the antitrust agencies review transactions
• Gun jumping, including due diligence and integration planning during the pendency of mergers and other acquisitions
• Competitor collaborations in health care, including how the agencies analyze collaborations among competitors, as well as information sharing and potential for price-fixing and wage-fixing concerns

• Common compliance issues found after due diligence on physician practices and other health care providers
• Lessons learned from post-acquisition surprises
• Best practices for how to incorporate pre-closing diligence findings
• Common proactive methods for auditing, monitoring, and internal controls after diligence

Your clients may have a robust diligence process ahead of closing, but what about compliance risks afterward? How can you best guide your clients to mitigate risk once a physician practice or other health care entity is acquired? Join us in this session to learn from our experience in post-acquisition surprises. We will consider options for establishing auditing, monitoring, and internal controls to mitigate compliance and regulatory risks after closing on a deal.

What is digital health? We will walk through three representative digital health transactions and discuss:

• Key issues relating to privacy, data and intellectual property
• Key issues relating to the negotiation posture of the parties
• Potential transaction structures/solutions

In the past few years, we have been in a bull market that has led to historically high levels of mergers and acquisitions in the health care space. But as the market continues to cool, COVID stimulus funds cease, and the after-effects of the pandemic set in, we expect to see more businesses struggling to survive. This presents an opportunity in the market for strategic acquirers looking to purchase distressed assets or entities at lower valuations. Acquiring distressed businesses presents unique challenges including, but not limited to:

• Fraudulent transfer actions
• Successor liability claims
• De Facto merger issues

Traditional risk-mitigation strategies, such as representations and warranties and indemnification may not be viable options in a distressed deal. We will discuss strategies to successfully mitigate these risks in distressed transactions.

This panel will explore the antitrust agencies’ approach to remedies and “litigating the fix” in health care merger review and will cover the following topics:

• The antitrust agencies’ historic approach to merger remedies
• New policy positions taken by agency leaders in the Biden administration
• Takeaways from recent merger settlements in the pharmaceutical, medical device and health insurance industries
• Recent litigated cases involving proposed merger remedies in health care and life sciences, including UnitedHealth/Change Healthcare

This panel will also explore Certificates of Public Advantage, which are state laws that effectively shield certain hospital mergers from federal antitrust scrutiny. The Federal Trade Commission has been active in opposing COPAs and last year issued a staff policy paper warning states against the use of COPA laws.  This panel will discuss the pros and cons of COPAs and provide updates on activity in this area.

• A roadmap for Board members of health care entities that are undergoing an M&A or other significant transaction
• A guide for Board members (and their General Counsels) in understanding the Board’s fiduciary duties, how to appropriately evaluate and approve a transaction, and governance approval processes, among other things
• Board members’ obligations and responsibilities at various phases throughout the transaction, including pre-transaction (where the entity is positioning itself to be acquired or evaluating targets), during the diligence, negotiation, and closing phases of the deal, and post-closing
• The attorney's ethical responsibilities in representing a Board while working with and and advising Hospital management leadership

This panel will cover complex issues that are presented by physician practice transactions utilizing the MSO model, including:

• Contingent and deferred payments to owners of physician practices
• Models for the distribution of transaction proceeds among physician owners
• Particular tax considerations depending on the tax classification of the practice
• Management fee structure considerations in light of corporate practice of medicine and fee-splitting prohibitions
• Structuring enforceable Equity Transfer Restriction Agreements

The federal antitrust agencies have been busy this past year, and their actions have direct implications for health care transactions, ranging from how the agencies go about reviewing mergers and acquisitions to their view of non-competes for employees and in the context of a sale of a business. This program will discuss the impact on deals from the following developments:

• The NEW FTC and DOJ Merger Guidelines
• Labor and ESG considerations in the context of antitrust transaction reviews
• The NEW FTC Act Section 5 Policy Statement
• The FTC's Notice of Proposed Rulemaking on Non-Competes
• DOJ's recent withdrawal of three Policy Statements on Health Care Antitrust Enforcement
• The FTC's close review of cross-market mergers

Strategic investors remain committed to the health care space and are challenging how not-for-profit health care organizations approach their affiliation and acquisition strategies. Not-for-profit health care organizations generally have two options when deciding how to exist and thrive in an industry that now includes robust private equity participation: Collaborate or compete. This session will examine:

• The last several years has seen an explosion in private equity (PE) investment in all types of providers: physician practices, hospitals, etc. –what happened and why?
• Current market trends regarding this evolving dynamic between private equity and not-for-profit health systems for talent and services
• The business and regulatory implications of such movements
• What is on the horizon for health care organizations as strategic investments increase

• Staying on top of the trends in health care M&A
• Strategies for addressing structural and purchase price considerations, including roll-over equity, earn-outs, indemnification and RWI
• Diligence tactics to identify top health care regulatory compliance risks and landmines
• Pragmatic approaches on how to maximize your diligence work streams, including important considerations when choosing an outside consultant(s) or valuation firm(s) and performing billing and clinical documentation reviews
• Compensation and valuation methodologies and tools
• Practical tips on how to manage regulatory risks and develop successful integration plans after closing

Vertical deals have become commonplace across the health care industry. Recent transactions have blurred the lines between hospitals, physician groups, insurers, pharmacies, and IT vendors/consultants.

Vertical deals are under heightened antitrust scrutiny. The Biden administration has promised to ramp up enforcement of these transactions through revised merger guidelines and increased skepticism of behavioral remedies and vertical merger efficiencies. Our presentation will help dealmakers navigate this enforcement landscape by addressing the following topics:

• Understanding and documenting the business justifications for vertical deals
• How antitrust enforcers and economists assess vertical deals under the antitrust laws
• Recent developments in the courts
• Strategies merging parties can employ to minimize antitrust risk through proactive deal planning and information safeguards

• Lessons learned from working with start-up companies that have built multi-state business models for delivering telehealth services
• The corporate structures of such models (e.g., MSO and Friendly PC models)
• Potential compensation structures, for both MSO Fees and PC Provider compensation
• Liability considerations
• Regulatory Considerations: CPOM, Self-Referrals, Anti-Kickback, licensing of physicians, registrations issues of MSO/Telemedicine Companies
• High profile fraud cases dealing with telemedicine companies

• Opportunities for potential buyers and advantages of bankruptcy transactions
• Risks and disadvantages for potential buyers
• How a distressed business can maximize the value of its assets and sell its business as a going concern
• Case study: recent sale of a proton therapy center in Knoxville, TN through Chapter 11
• Impact of a distressed transaction on a seller’s creditors
• Alternatives to bankruptcy and when advisable

• The evolution and convergence of provider models and how they drive the need to reframe and establish new investment and affiliation opportunities among private equity, private physicians, employed physicians of hospitals, and for-profit and not-for profit tertiary providers, including academic medical centers
• Transaction structuring strategies and tools to mitigate and manage the regulatory, licensing, and payment impact of
  • Accelerated migration of traditionally inpatient procedures to outpatient settings as the model for high quality and low cost care interacts with medical and technological innovation (for example, total joints and complex ortho are moving to ASCs)
  • The remaining importance of sites of service for clinical services requiring an inpatient setting (such as high-complexity cardiology cases and emergent interventions), the growth of procedures involving local anesthetic and conscious sedation being performed in the office setting, as well as navigating the economic and practical effects in a transaction
• Recent innovations, trends and shifts in outpatient provider M&A concepts and contractual provisions related to purchase price mechanics, due diligence, governance, transition services, indemnification and risk allocation and post-closing covenants related to restrictive covenants, changes of ownership and “bad physician” scenarios
• Key comments related to emerging trends in fraud and abuse laws in evolving regulatory landscapes, such as no-surprise laws, out of network arrangements and ancillary provider arrangements (such as laboratory, pharmacy and similar arrangements) typical of outpatient providers
• The changing business environment for independent outpatient provider facilities (such as a “stand alone” outpatient center), in the context of the rapid and significant growth of large physician practice platforms
• “Battle tested” draft language, provisions and examples showing various types of approaches depending on triggering factors and circumstances

As health systems face an increasingly difficult and uncertain operating environment, health system leaders and board members are asking new questions: “How must we redesign our strategy, and how does our current portfolio of assets and services align with our new strategic direction? What do we do well, where do we partner or exit, and where are we vulnerable?” Through the lens of select case studies, this session—representing the diverse perspectives of in-house counsel, outside counsel, and strategic advisor—will address options for the strategic realignment of services and the potential benefits and limitations of different approaches. Topics will include:

• Boardroom dynamics as members weigh strategic objectives against community needs and financial realities
• The evolving relevance of traditional system-to-system M&A in a post-pandemic environment
• Health systems’ accelerated use of partnership models in areas such as outpatient surgery, post-acute care, behavioral health, home health/hospice, imaging, and lab services
• The continued influence of investor-owned and private equity in non-acute areas such as ambulatory surgery centers, physician practices, and value-based care
• Considerations for protecting party interests if partnership models fail to achieve desired results
• Considerations for health systems to access “capital light” strategies

This program will explore ways that health systems are trying to compete with private equity firms in affiliations with physicians.

• New models of health system/physician affiliations
• Changes in structures and transaction terms from past affiliation models
• Review of applicable legal issues
• Negotiation tips for both parties
• Review of transactions that have broken down

This panel will cover complex issues that are presented by physician practice transactions utilizing the MSO model, including:

• Contingent and deferred payments to owners of physician practices
• Models for the distribution of transaction proceeds among physician owners
• Particular tax considerations depending on the tax classification of the practice
• Management fee structure considerations in light of corporate practice of medicine and fee-splitting prohibitions
• Structuring enforceable Equity Transfer Restriction Agreements

Strategic investors remain committed to the health care space and are challenging how not-for-profit health care organizations approach their affiliation and acquisition strategies. Not-for-profit health care organizations generally have two options when deciding how to exist and thrive in an industry that now includes robust private equity participation: Collaborate or compete. This session will examine:

• The last several years has seen an explosion in private equity (PE) investment in all types of providers: physician practices, hospitals, etc. –what happened and why?
• Current market trends regarding this evolving dynamic between private equity and not-for-profit health systems for talent and services
• The business and regulatory implications of such movements
• What is on the horizon for health care organizations as strategic investments increase

• The last several years has seen an explosion in private equity (PE) investment in all types of providers: physician practices, hospitals, etc. –what happened and why? Pros and Cons
• Why is the government focusing on Private Equity investments in health care? What factors increase the risk of government scrutiny of Private Equity role in a health care enterprise?
• What types of actions/investments by Private Equity are likely to garner media attention?
• Antitrust scrutiny of Private Equity investments in health care

• A roadmap for Board members of health care entities that are undergoing an M&A or other significant transaction
• A guide for Board members (and their General Counsels) in understanding the Board’s fiduciary duties, how to appropriately evaluate and approve a transaction, and governance approval processes, among other things
• Board members’ obligations and responsibilities at various phases throughout the transaction, including pre-transaction (where the entity is positioning itself to be acquired or evaluating targets), during the diligence, negotiation, and closing phases of the deal, and post-closing
• The attorney's ethical responsibilities in representing a Board while working with and and advising Hospital management leadership

• Current popular models for bringing care to the patient’s residence, from routine primary care to hospital-at-home
• Risk/benefit assessment considerations for offering your patients care at home: Reimbursement, ED/urgent care utilization, ensuring health equity, long stay and chronic care
• Transactional considerations, including fraud and abuse, application of waivers (ACO and others), valuing unique intangibles, regional non-competition issues, integration with existing brick-and-mortar service offerings, risk mitigation surrounding staff and patient safety, and affiliation strategies (provider do-it-yourself vs. contracting with an outside mobile services provider)

• Description and review of value-based arrangements (“VBAs”)
• Legal and financial foundation of VBAs
• Fair market value methodologies specific to VBAs (i.e., valuing physician practices, provider compensation, related services arrangements)
• Implications for VBAs in formation of entities/structuring partnerships
• How to maximize value from a VBA (i.e., ensuring the correct infrastructure)

• The last several years has seen an explosion in private equity (PE) investment in all types of providers: physician practices, hospitals, etc. –what happened and why?
• PE investment in 2023 and Beyond–the market is still hot? Is this for real?
• What types of health care providers is PE targeting in the near future?
• How should providers prepare and position for PE investment?
• How are these deals being structured, both legally and financially? Spotting regulatory sticking points for deals and growth
• How are hospitals competing–and increasingly partnering with PE?
• Real life issues that come up in these transactions–legal, business and other

• Why anesthesia services agreements have become such a pressing issue for so many hospitals
• How to structure effective financial support arrangements
• Building flexibility into the arrangement and creating effective oversight
• Specific regulatory/ legal issues
• Practical tips for launching a new arrangement

• The payor shift to value-based reimbursement and why organizations are looking at implementing value-based models right now
• Legal description of the regulatory framework around value-based models. This includes the 3 new AKS safe harbors and Stark law exceptions as well as some other exceptions and safe harbors that could afford protection as well
• Different types of transactions to demonstrate the breadth of what can constitute a “value-based enterprise.” For example, it could be small, such as value-based arrangement between two parties for a limited patient population. Alternatively, it could be a large elaborate network involving the formation of one or more legal entities that cover a broad population
• Lessons that we have learned on the front lines of implementing various value-based enterprises and models. These lessons will include discussion of common hurdles to implementation and best practices for contracting and documentation
• Case studies to describe some insight that organizations can use as they begin to prepare for and implement value-based enterprises and models

• The last several years has seen an explosion in private equity (PE) investment in all types of providers: physician practices, hospitals, etc. –what happened and why? Pros and Cons
• Why is the government focusing on Private Equity investments in health care? What factors increase the risk of government scrutiny of Private Equity role in a health care enterprise?
• What types of actions/investments by Private Equity are likely to garner media attention?
• Antitrust scrutiny of Private Equity investments in health care

• Within the current health care landscape, it may be advantageous to enter joint ventures, partnerships, or other third-party arrangements that enable health care providers to best support their patients
• However, these types of arrangements may trigger tax or other reporting consequences that should be considered and addressed at the outset
• This session will discuss the various tax-related issues that may arise when implementing a joint venture or similar arrangement
• Further, it will provide suggestions for addressing these issues in the negotiations so that resolutions may be memorialized in the organizing documents for the arrangement

The federal antitrust agencies have been busy this past year, and their actions have direct implications for health care transactions, ranging from how the agencies go about reviewing mergers and acquisitions to their view of non-competes for employees and in the context of a sale of a business. This program will discuss the impact on deals from the following developments:

• The NEW FTC and DOJ Merger Guidelines
• Labor and ESG considerations in the context of antitrust transaction reviews
• The NEW FTC Act Section 5 Policy Statement
• The FTC's Notice of Proposed Rulemaking on Non-Competes
• DOJ's recent withdrawal of three Policy Statements on Health Care Antitrust Enforcement
• The FTC's close review of cross-market mergers

This program will explore ways that health systems are trying to compete with private equity firms in affiliations with physicians.

• New models of health system/physician affiliations
• Changes in structures and transaction terms from past affiliation models
• Review of applicable legal issues
• Negotiation tips for both parties
• Review of transactions that have broken down

The speaker(s) will discuss a broad range of health care management arrangement examples, key issues, and share example ranges of compensation rates for each. Topics of management arrangements discussed will include:

• Background and market trends regarding physician practice management arrangements in states that ban the Corporate Practice of Medicine
• Examples of FMV management fees for several types of physician practices, with and without surgical facilities and Designated Health Services (DHS)
• An advanced discussion of the issues and implications of the emerging management company joint venture model
• Other management arrangement nuances and fringe observations

This panel will explore the antitrust agencies’ approach to remedies and “litigating the fix” in health care merger review and will cover the following topics:

• The antitrust agencies’ historic approach to merger remedies
• New policy positions taken by agency leaders in the Biden administration
• Takeaways from recent merger settlements in the pharmaceutical, medical device and health insurance industries
• Recent litigated cases involving proposed merger remedies in health care and life sciences, including UnitedHealth/Change Healthcare

This panel will also explore Certificates of Public Advantage, which are state laws that effectively shield certain hospital mergers from federal antitrust scrutiny. The Federal Trade Commission has been active in opposing COPAs and last year issued a staff policy paper warning states against the use of COPA laws.  This panel will discuss the pros and cons of COPAs and provide updates on activity in this area.

Vertical deals have become commonplace across the health care industry. Recent transactions have blurred the lines between hospitals, physician groups, insurers, pharmacies, and IT vendors/consultants.

Vertical deals are under heightened antitrust scrutiny. The Biden administration has promised to ramp up enforcement of these transactions through revised merger guidelines and increased skepticism of behavioral remedies and vertical merger efficiencies. Our presentation will help dealmakers navigate this enforcement landscape by addressing the following topics:

• Understanding and documenting the business justifications for vertical deals
• How antitrust enforcers and economists assess vertical deals under the antitrust laws
• Recent developments in the courts
• Strategies merging parties can employ to minimize antitrust risk through proactive deal planning and information safeguards

• Lessons learned from working with start-up companies that have built multi-state business models for delivering telehealth services
• The corporate structures of such models (e.g., MSO and Friendly PC models)
• Potential compensation structures, for both MSO Fees and PC Provider compensation
• Liability considerations
• Regulatory Considerations: CPOM, Self-Referrals, Anti-Kickback, licensing of physicians, registrations issues of MSO/Telemedicine Companies
• High profile fraud cases dealing with telemedicine companies

• Description and review of value-based arrangements (“VBAs”)
• Legal and financial foundation of VBAs
• Fair market value methodologies specific to VBAs (i.e., valuing physician practices, provider compensation, related services arrangements)
• Implications for VBAs in formation of entities/structuring partnerships
• How to maximize value from a VBA (i.e., ensuring the correct infrastructure)

• Common compliance issues found after due diligence on physician practices and other health care providers
• Lessons learned from post-acquisition surprises
• Best practices for how to incorporate pre-closing diligence findings
• Common proactive methods for auditing, monitoring, and internal controls after diligence

Your clients may have a robust diligence process ahead of closing, but what about compliance risks afterward? How can you best guide your clients to mitigate risk once a physician practice or other health care entity is acquired? Join us in this session to learn from our experience in post-acquisition surprises. We will consider options for establishing auditing, monitoring, and internal controls to mitigate compliance and regulatory risks after closing on a deal.

• The evolution and convergence of provider models and how they drive the need to reframe and establish new investment and affiliation opportunities among private equity, private physicians, employed physicians of hospitals, and for-profit and not-for profit tertiary providers, including academic medical centers
• Transaction structuring strategies and tools to mitigate and manage the regulatory, licensing, and payment impact of
  • Accelerated migration of traditionally inpatient procedures to outpatient settings as the model for high quality and low cost care interacts with medical and technological innovation (for example, total joints and complex ortho are moving to ASCs)
  • The remaining importance of sites of service for clinical services requiring an inpatient setting (such as high-complexity cardiology cases and emergent interventions), the growth of procedures involving local anesthetic and conscious sedation being performed in the office setting, as well as navigating the economic and practical effects in a transaction
• Recent innovations, trends and shifts in outpatient provider M&A concepts and contractual provisions related to purchase price mechanics, due diligence, governance, transition services, indemnification and risk allocation and post-closing covenants related to restrictive covenants, changes of ownership and “bad physician” scenarios
• Key comments related to emerging trends in fraud and abuse laws in evolving regulatory landscapes, such as no-surprise laws, out of network arrangements and ancillary provider arrangements (such as laboratory, pharmacy and similar arrangements) typical of outpatient providers
• The changing business environment for independent outpatient provider facilities (such as a “stand alone” outpatient center), in the context of the rapid and significant growth of large physician practice platforms
• “Battle tested” draft language, provisions and examples showing various types of approaches depending on triggering factors and circumstances

As health systems face an increasingly difficult and uncertain operating environment, health system leaders and board members are asking new questions: “How must we redesign our strategy, and how does our current portfolio of assets and services align with our new strategic direction? What do we do well, where do we partner or exit, and where are we vulnerable?” Through the lens of select case studies, this session—representing the diverse perspectives of in-house counsel, outside counsel, and strategic advisor—will address options for the strategic realignment of services and the potential benefits and limitations of different approaches. Topics will include:

• Boardroom dynamics as members weigh strategic objectives against community needs and financial realities
• The evolving relevance of traditional system-to-system M&A in a post-pandemic environment
• Health systems’ accelerated use of partnership models in areas such as outpatient surgery, post-acute care, behavioral health, home health/hospice, imaging, and lab services
• The continued influence of investor-owned and private equity in non-acute areas such as ambulatory surgery centers, physician practices, and value-based care
• Considerations for protecting party interests if partnership models fail to achieve desired results
• Considerations for health systems to access “capital light” strategies