Healthcare is one of the industries facing increased scrutiny over dealmaking.
If it feels like healthcare transactions are under the microscope more now than ever, that’s because the Federal Trade Commission (FTC) is indeed cracking down to a level not seen in some time. Two decades, to be exact.
The regulatory climate hasn’t exactly slowed down the rate of hospitals agreeing to deals, but it is making life harder for organizations pursuing consolidation—a strategy that hospitals will continue to heavily explore heading into 2024 as they battle thin margins.
The FTC and Department of Justice (DOJ) released their Hart-Scott-Rodino Report, which revealed that 3,152 transactions were reported in the fiscal year 2022. That figure is the second-highest number of reported transactions over the past 10 years and more than 62% above the prior decade average.
Together, the FTC and DOJ filed 50 merger enforcement actions, representing the highest level of enforcement activity since 2001, when 55 merger enforcement actions occurred. The FTC alone accounted for 24 of the challenges in 2022: 11 in which it issued final consent orders after a public comment period, seven in which the transaction was abandoned or restructured as a result of antitrust concerns raised during investigation, and six in which the agency initiated administrative or federal court litigation.
In a statement to Congress regarding the report, FTC chair Lina Khan, joined by commissioners Rebecca Kelly Slaughter and Alvaro Bedoya, said: “The stakes here are real for the American people. We have heard from a wide breadth of people about how consolidation directly threatens their ability to live stable and secure lives.”
The FTC representatives pointed to the significant increase in transactions, as well as their complexity and scale.
“Transactions have also grown increasingly complex, in both deal structure and potential competitive impact,” they said. “Investment vehicles have changed, alongside major transformations in how firms compete in today’s economy. The size of mergers has likewise substantially grown.”
To help with the burden the level of activity is placing on the agency, the representatives asked Congress for additional resources and an update to the HSR Act. Specifically, the FTC wants to extend the 30-day window the agency is allowed to determine whether a deal warrants close investigation, along with the 30-day timeline after the merging parties certify they have “substantially complied” with the inquiry.
“Accordingly, these timelines are challenging in ordinary times given the agencies’ tight resources, and the recent deal surge has further underscored their inadequacy,” the representatives said.
Just days before releasing the report and statement, the FTC and DOJ issued their final 2023 merger guidelines to create a framework that more aligns with current M&A court rulings.
Jay Asser is the contributing editor for strategy at HealthLeaders.
The Federal Trade Commission and Department of Justice released their annual Hart-Scott-Rodino Report, showing that the number of reported transactions in fiscal year 2022 was the second-highest in the past 10 years.
Fifty merger enforcement actions were filed, which was the most since 2001, with the FTC accounting for 24 of the challenges.
In a statement to Congress, the FTC asked for additional resources and an extension to the 30-day regulatory review period as part of the HSR Act.