The Illinois attorney general (IL AG) has released its much-anticipated Healthcare Transaction Notice Form (the Form), which parties must submit before undertaking certain “Covered Transactions” that are not otherwise reportable under the Hart-Scott-Rodino (HSR) Act or Illinois Health Facilities and Services Review Board (IL HFSRB) requirements. Parties involved in Covered Transactions that will close after January 30, 2024, will be required to submit the Form and comply with related timing restrictions.

IN DEPTH

BACKGROUND

Effective January 1, 2024, healthcare facilities and provider organizations are required to provide notice to the IL AG of certain proposed mergers, acquisitions and contracting affiliations (Covered Transactions) at least 30 days prior to the Covered Transaction closing or effective date.

To facilitate the notice process, the IL AG released the Form that transaction parties must complete for Covered Transactions that are not (1) reportable under the HSR Act or (2) the subject of a change of ownership application with the IL HFSRB. Similar to the HSR filing process, each party to a Covered Transaction (each a Filing Party) must separately complete and submit a Form to the IL AG. The Form is available on the IL AG’s website, which also provides a direct link to contact the IL AG with questions and to make submissions via email.

HSR-REPORTABLE COVERED TRANSACTIONS

Parties to Covered Transactions that are reportable to the federal government under the HSR Act need not complete the Form. However, each party is required to provide a copy of its HSR Act filing to the IL AG via email at HealthTransactions@ilag.gov.

IL HFSRB-REVIEWABLE COVERED TRANSACTIONS

Parties to Covered Transactions that are subject to a change of ownership review by the IL HFSRB need not complete the Form. The IL HFSRB will provide the IL AG with a copy of the change of ownership filing it receives, as required by the Illinois Antitrust Act (Antitrust Act).

ALL OTHER COVERED TRANSACTIONS

As we previously reported in April 2023 and August 2023, the newly effective changes to the Antitrust Act require notice of a broad swath of Covered Transactions to be submitted to the IL AG, including those that are not reportable under the HSR Act and not reviewable by the IL HFSRB.

According to the IL AG’s website, responsive information provided in the Form is exempt from disclosure under the Freedom of Information Act (FOIA) and will be treated as confidential as if produced pursuant to a subpoena. The Form instructions provide a reminder to the Filing Party that the IL AG may request additional information within 30 days of receipt of the Form and that the transaction closing will be tolled for 30 days after the parties “substantially comply” with the IL AG’s requests.

Chief of the Antitrust Bureau at the IL AG Elizabeth Maxeiner has commented that parties will not hear anything back from the IL AG if the IL AG does not have any concerns that arise during its 30-day review of the Covered Transaction. Accordingly, for Filing Parties, “no news is good news” 30 days after submission of the Form.

THE FORM

The Form solicits the following information from each Filing Party, which must be completed in Acrobat Reader:

1. Names and business addresses of all parties to the Covered Transaction
2. Anticipated effective date of the Covered Transaction
3. Brief description of the nature and purpose of the Covered Transaction
4. List of all locations where healthcare services are currently provided by the Filing Party
5. Space for the Filing Party to provide additional information
6. Filing Party’s contact information
7. Whether the Filing Party is represented by an attorney, and if so, that attorney’s contact information
8. Wet signature of the Filing Party

Applicants are permitted to submit additional information with the Form.

TRANSACTION PLANNING

The IL AG has the authority to enforce the Antitrust Act. For transactions that appear to raise questions regarding anti-competitive effects, parties should consider submitting additional information addressing those issues in their Form. Parties should build time into their transaction timelines to gather the information to address those questions. Parties should also consider requesting a dialogue with the IL AG in advance of submitting the Form, potentially streamlining review time by previewing the Covered Transaction before the mandatory preclosing notice date. (The office of the IL AG has indicated that it would be open to addressing requests for dialogue in advance of parties providing the written notice.) Healthcare facilities and provider organizations should also consult with legal counsel to determine the best approach to reply to any request from the IL AG for additional information to increase the likelihood of achieving substantial compliance and timely closing of a Covered Transaction.