Antitrust and Competition Law

Federal and state antitrust enforcement is an inevitable consideration in affiliations, joint ventures, mergers, clinical integration initiatives, and data exchanges. McCann Health Law provides counsel to health care providers, provider networks, and health care information and services companies, often collaborating with transactional counsel on:

  • Competitive analyses of prospective transactions, clinical integration strategies, and managed care negotiations

  • Minimizing transactional antitrust risks

  • Defending Department of Justice, Federal Trade Commission and state attorney general investigations

  • Antitrust litigation defense

  • Organizational market position and compliance risk assessment

  • Compliance with the Robinson-Patman Act compliance and “own use” restrictions

Representative Experience

  • Advised the parties to a merger of East Coast medical centers on the development of an integration plan and the incorporation of that plan into their antitrust strategy.

  • Assisted a Northeastern academic medical center and a large community hospital to develop an integration strategy in conjunction with federal and state antitrust and charitable trust reviews.

  • Conducted an antitrust assessment of a strategic partnership plan involving a pediatric medical center and numerous community hospitals.

  • Advised a large Midwestern integrated delivery system on antitrust issues relating to an ongoing acquisition and growth strategy.
    Representation of both parties in a state attorney general investigation of the combination of two large Northeastern health systems. The investigation was closed without challenge.

  • Representation in Federal Trade Commission and state attorney general investigations of the acquisition of a community hospital by a well-known integrated delivery system in the Eastern U.S. Both investigations were closed without challenge.

  • Defense of an FTC challenge to the merger of two prominent suburban hospital organizations serving a major Midwestern metropolitan area.

  • Representation in a Federal Trade Commission investigation of a 200-bed suburban hospital’s merger with a prominent health system competitor in a large Midwestern city. The investigation was closed without challenge.

  • Defense of a nine-month Federal Trade Commission investigation related to the sale of a large Southwestern health system’s acute care assets to an in-market competitor. The investigation concluded without challenge.

  • Representation of a large Eastern U.S. multi-hospital health system in a 10-month investigation by the Federal Trade Commission and the state attorney general related to the acquisition of an in-market competitor. The investigations concluded pursuant to a negotiated consent agreement with the attorney general and without challenge from the FTC.

  • Internal assessment of a major health system’s exposure to antitrust claims and a variety of business tort claims stemming from business strategies adopted by the system, which prompted threats of litigation by a competitor.

  • Ongoing advice to integrated and non-integrated provider network organizations, including the clinically integrated network of a major Southeastern academic medical center, a variety of physician-hospital organizations (PHOs), and a pediatric independent practice association (IPA).

  • Advising a major academic medical center on the formation of a clinically integrated network involving its faculty and community-based physicians.

  • Preparation of a comprehensive antitrust audit for a large multi-facility health care system, examining the potential risks of various business strategies in light of its potential market power in different geographic and product markets, as well as the implications of various business strategies that might increase market share.

  • Representation of a large mid-Atlantic health care system in a Department of Justice investigation of marketing practices, which ultimately settled without a finding of liability.

Rob McCann is one of the few attorneys in the past 20 years to win a trial before a Federal Trade Commission Administrative Law Judge.

 

Strategic Partnerships, Mergers, Affiliations, and Joint Ventures

As a corollary to antitrust representation, McCann Health Law works with health systems, academic medical centers, hospitals, and other health care providers in planning, structuring, and executing strategic affiliations, including corporate change of membership, mergers, acquisitions, divestitures, and joint ventures.

I have worked with clients through all phases of strategic transactions: evaluation of opportunity, due diligence, analysis, negotiation, document production, closing, and implementation.

Representative Experience

  • Advised a Southeastern academic medical center in regard to joint venturing with a large teaching hospital to create a combined physician enterprise

  • Advised a Midwestern integrated delivery system on the prospective combination of its health plan with another in an adjacent market.

  • Worked with a Western U.S. pediatric medical center to restructure its affiliation with an academic partner and develop service line joint ventures.

  • Advised a Midwestern health system on the purchase of two hospitals and their related businesses from a regional Catholic health care system.  I also advised the same client on strategies for strengthening its affiliations with regional partners and  on the formation of a rehabilitation services joint venture with an independent rehabilitation hospital.

  • Represented a Midwestern health system in its merger with a health system in an adjacent market through the formation of a common tax-exempt parent organization.

  • Advised a Western U.S. integrated delivery system in an acquisition partnership with a for-profit hospital company and then the subsequent acquisition of a community-based nonprofit hospital -- one of the first for-profit acquisitions of a nonprofit hospital in that state and one of the few such acquisitions by a nonprofit/for-profit partnership in the United States.

 

Provider Integration and Population Health

Provider integration and the development of clinical integration strategies is fraught with antitrust risks. McCann Health Law has considerable experience structuring those relationships, not only from an antitrust compliance standpoint, but also from the standpoint of creating viable business models.  I have advised clients in the development and implementation of clinically integrated networks (CINs), whether in the form of Accountable Care Organizations (ACOs), Physician Health Organizations (PHOs), or Independent Practice Associations (IPAs); negotiated ACO arrangements offered by third-party payers; negotiated and implemented co-management arrangements; and developed traditional Management Service Organization (MSO) models.

McCann Health Law also has experience in the development of provider-payor strategic partnerships and joint ventures, and in the creation and representation of provider-sponsored HMOs and PPOs.

Representative Experience

  • Represented an IPA of community-based pediatricians in the formation of a pediatric CIN based at a large urban pediatric medical center, including the creation of a business plan for the network.

  • Assisted a physician-based integrated delivery system in development of a regional CIN with two other health systems.

  • Worked with a major academic medical center to develop a CIN that included community-based physicians and hospitals, as well as medical center faculty and hospitals.

 

Capital Financing

Access to capital is an essential factor in the execution of competitive strategies.  Providers face persistent demands for financial resources to update and replace technology, install and expand information systems, and maintain a competitive presence in the market.  Health care organizations and their financial advisors are exploring alternatives to traditional public bond offerings, including direct bank placements and lease transactions. I have represented health care organizations as borrowers across the spectrum of finance transactions, including both tax-exempt and taxable bond financing; public offerings; direct placement; traditional bank financing; construction loans; lines of credit; lease financing, swap structuring, novations and terminations; and master indenture restructuring and restatements.

Representative Experience

  • Advised a Western U.S. medical center in the negotiation of facilities to maintain liquidity during the COVID shutdown.

  • Represented a large West Coast pediatric medical center in the refinancing of approximately $100 million of tax-exempt revenue bonds and concurrent restatement of its Master Trust Indenture.

  • Represented a Western U.S. health system in an approximate $200 million financing through a combination of a public tax-exempt bond issue and a privately-placed taxable bond issue.

  • Advised a Midwestern charitable foundation in the negotiation of a start-up grant for a new medical school.

  • Structured the defeasance and prepayment of a 250-bed community hospital’s outstanding revenue bonds and the defeasance of its Master Trust Indenture in connection with the hospital’s affiliation with a large integrated Midwestern health system.

  • The defeasance and prepayment of a nonprofit system’s outstanding revenue bonds and tax-exempt leases and defeasance of its existing Master Trust Indenture in connection with the sale of substantially all of the assets of the nonprofit hospital system to a for-profit hospital company.

  • The defeasance and prepayment of outstanding revenue bonds, pooled financing, and credit agreements, and withdrawal from an academic medical center’s obligated group, in connection with a 200-bed urban hospital’s disaffiliation from the academic medical center and subsequent merger with a prominent suburban health system in a large Midwestern city.

  • Assisted multiple clients in novation of outstanding interest rate swaps.

 

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