Provided by:  Jennifer Kirschenbaum, Esq.

March 14, 2023

Sometime ago, the hospital systems decided they wanted to acquire private medical practices in New York State and they were going to pay no value for them. So, they started contacting and offering to compensation established physicians for their depreciated furniture, fixture and equipment as well as an offer for continued employment at a very fair compensation rate. This trend took hold and stayed steady for a while, with large systems as the only game in town willing to take on a mature medical practice.  Then, a few years ago, a new buyer came into town; Private Equity - individual and corporate investors consolidating to buy portfolio platforms together in healthcare in New York.  All of a sudden private practitioners who previously had no one to sell to, no exit strategy for the product of their professional career, had a new buyer, a new option, for the twilight of their career, or a new opportunity for growth, depending on the seller.   

You may have heard of a bill in this year‘s budget under consideration by Albany, a modification to Section 45-A of the Public Health Law (
REVIEW AND OVERSIGHT OF MATERIAL TRANSACTIONS). That bill, if approved,  will require certain private equity transactions involving medical practices to undergo department of health, public health council review. That process is currently reserved in New York State for Article 28 license facilities  And, currently, Public Health Council review includes a rigorous bureaucratic process in the vetting of the public need to determine whether or not an issuance/authorization to operate is appropriate. If this bill is passed, there will certainly be, depending on its reach, cooling in private equity purchases in New York State.  While one might argue that individual practice transaction may not be impacted, the ability to scale and turn a more consolidated product in the marketplace may be harder to do in a new and more restrictive environment. The impact to the individual seller may not be immediately felt, but consequences may take us back to a time where practices are worth less and have fewer options. The large systems in our state seem like the biggest winners if this bill is to pass  and the individual practice owner looking for varied options are looking like the biggest losers.  We will continue to monitor the progress of this bill and keep you updated. Text below.  Of note, part of the proposed review process may include - 

  • State advance access to transaction documents and parties to discuss impact
  • Negative impact study on patient costs, access to services, healthy equity and health outcomes
  • Whether there may be a likelihood of anticompetitive effects
  • financial condition of the parties
  • character and competence of officers or directors
  • Source of funds
  • fairness of an exchange of shares, assets, cash or other considerations
  • Details on the transaction 

 

https://www.nysenate.gov/legislation/bills/2023/s4007

ARTICLE 45-A
               REVIEW AND OVERSIGHT OF MATERIAL TRANSACTIONS
 SECTION 4550. LEGISLATIVE PURPOSE AND INTENT.
         4551. DEFINITIONS.
         4552. REVIEW AND OVERSIGHT OF MATERIAL TRANSACTIONS.
         4553. NOTICE OF MATERIAL TRANSACTION; REQUIREMENTS.
         4554. MATERIAL TRANSACTION REVIEW.
         4555. PENALTY FOR NONCOMPLIANCE; INJUNCTIVE RELIEF.
         4556. RULES AND REGULATIONS.
         4557. SEPARABILITY.
   §  4550.  LEGISLATIVE PURPOSE AND INTENT. WHILE HOSPITALS REMAIN VITAL
 TO THE HEALTH SYSTEM, SERVICES ARE INCREASINGLY BEING DELIVERED  THROUGH
 AMBULATORY  CARE.  THIS  SHIFT  TO AMBULATORY CARE IS GIVING RISE TO NEW
 HEALTH CARE DELIVERY STRUCTURES THAT ARE NOT SUBJECT TO THE SAME FACILI-
 TY LICENSURE AND OVERSIGHT REQUIREMENTS. IN PARTICULAR, THERE HAS BEEN A
 PROLIFERATION OF LARGE PHYSICIAN PRACTICES  BEING  MANAGED  BY  ENTITIES
 THAT  ARE  INVESTOR-BACKED. AS A GENERAL MATTER, PHYSICIAN PRACTICES ARE
 SUBJECT TO FAR LESS REGULATION AND OVERSIGHT THAN HOSPITALS UNDER  ARTI-
 CLE TWENTY-EIGHT OF THIS CHAPTER, HOME CARE AGENCIES UNDER ARTICLE THIR-
 TY-SIX  OF  THIS  CHAPTER, HOSPICE PROVIDERS, OR PROVIDERS OF BEHAVIORAL
 HEALTH SERVICES UNDER ARTICLES THIRTY-ONE AND THIRTY-TWO OF  THE  MENTAL
 HYGIENE  LAW,  AS  WELL  AS MANAGED CARE ORGANIZATIONS OR OTHER INSURERS
 AUTHORIZED UNDER THIS CHAPTER OR THE INSURANCE LAW. EVEN AS THESE  INVE-
 STOR-BACKED ENTITIES INCREASINGLY TAKE ON THE CHARACTERISTICS ASSOCIATED
 WITH DIAGNOSTIC AND TREATMENT CENTERS UNDER ARTICLE TWENTY-EIGHT OF THIS
 CHAPTER  OR  OTHER LICENSED PROVIDER TYPES, OR MAY ASSUME MORE RISK FROM
 MANAGED CARE ORGANIZATIONS AND LICENSED INSURERS,  THEY  REMAIN  UNREGU-
 LATED  BY  THE  STATE OUTSIDE OF THE LICENSURE OF THE INDIVIDUAL PRACTI-
 TIONERS WHO PRACTICE AT THESE SITES AND ENROLLMENT  IN  MEDICAID.  MORE-
 OVER, TRANSACTIONS INVOLVING THE CHANGE OF CONTROL, BY VIRTUE OF A SALE,
 MERGER  OR  ACQUISITION OF THESE PROVIDERS, ARE NOT SUBJECT TO ANY STATE
 CHANGE OF OWNERSHIP OR CONTROL REVIEW, SUCH THAT THE STATE IS  NOT  ABLE
 TO  TRACK  OR MONITOR THE IMPACT OF THESE TRANSACTIONS ON COST, QUALITY,
 ACCESS, EQUITY, AND COMPETITION.
   THIS PHENOMENON MAY HAVE A NEGATIVE IMPACT  ON  PATIENT  CARE,  HEALTH
 CARE  COSTS,  AND  ULTIMATELY  ACCESS TO SERVICES. THESE LARGE INVESTOR-
 BACKED HEALTH CARE ENTITIES SHIFT VOLUME AND BUSINESS AWAY FROM COMMUNI-
 TY HOSPITALS AND THEIR AMBULATORY CARE NETWORKS  AND  OTHER  SAFETY  NET
 PROVIDERS,   UNDERMINING  THEIR  FINANCIAL  SUSTAINABILITY,  WHICH  MUST
 CONTINUE TO PROVIDE ESSENTIAL SERVICES TO THE  COMMUNITY.  IN  ADDITION,
 THE  CONCENTRATION  OF  THESE  INVESTOR-BACKED  PHYSICIAN PRACTICES IS A
 SIGNIFICANT CONTRIBUTOR TO HEALTH CARE COST INFLATION,  WHICH  HAS  ALSO
 GIVEN  RISE  TO  OTHER  LEGISLATION,  INCLUDING  THE NO SURPRISE BILLING
 PROVISIONS IN THE FINANCIAL SERVICES LAW.
   § 4551. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE,  THE  FOLLOWING
 TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   1. "CONTROL" MEANS THE POSSESSION, DIRECT OR INDIRECT, OF THE POWER TO
 DIRECT OR CAUSE THE DIRECTION OF THE MANAGEMENT AND POLICIES OF A HEALTH
 CARE  ENTITY,  WHETHER  THROUGH  THE  OWNERSHIP OF VOTING SECURITIES, BY
 CONTRACT (EXCEPT A  COMMERCIAL  CONTRACT  FOR  GOODS  OR  NON-MANAGEMENT
 SERVICES) OR OTHERWISE; BUT NO PERSON SHALL BE DEEMED TO CONTROL ANOTHER
 PERSON SOLELY BY REASON OF BEING AN OFFICER OR DIRECTOR OF A HEALTH CARE
 ENTITY.   "CONTROL" SHALL BE PRESUMED TO EXIST IF ANY PERSON DIRECTLY OR
 S. 4007--A                         139                        A. 3007--A

 INDIRECTLY OWNS, CONTROLS, OR HOLDS WITH THE POWER TO VOTE  TEN  PERCENT
 OR MORE OF THE VOTING SECURITIES OF A HEALTH CARE ENTITY.
   2.  "HEALTH  CARE ENTITY" SHALL INCLUDE BUT NOT BE LIMITED TO A PHYSI-
 CIAN PRACTICE OR MANAGEMENT  SERVICES  ORGANIZATION  OR  SIMILAR  ENTITY
 PROVIDING ALL OR SUBSTANTIALLY ALL ADMINISTRATIVE OR MANAGEMENT SERVICES
 UNDER  CONTRACT  WITH ONE OR MORE PHYSICIAN PRACTICE, PROVIDER-SPONSORED
 ORGANIZATION, HEALTH INSURANCE PLAN, OR ANY OTHER KIND  OF  HEALTH  CARE
 FACILITY,  ORGANIZATION  OR  PLAN PROVIDING HEALTH CARE SERVICES IN THIS
 STATE; PROVIDED, HOWEVER, THAT A "HEALTH CARE ENTITY" SHALL NOT  INCLUDE
 AN  INSURER DIRECTLY AUTHORIZED TO DO BUSINESS IN THIS STATE, OR A PHAR-
 MACY BENEFIT MANAGER REGISTERED OR LICENSED IN THIS STATE. AN  "INSURER"
 SHALL  NOT INCLUDE NON-INSURANCE SUBSIDIARIES AND AFFILIATED ENTITIES OF
 INSURANCE COMPANIES REGULATED UNDER THE INSURANCE LAW OR THIS CHAPTER.
   3. "HEALTH EQUITY" SHALL MEAN ACHIEVING THE HIGHEST  LEVEL  OF  HEALTH
 FOR  ALL  PEOPLE  AND  SHALL ENTAIL FOCUSED EFFORTS TO ADDRESS AVOIDABLE
 INEQUALITIES BY EQUALIZING THOSE CONDITIONS FOR HEALTH  FOR  THOSE  THAT
 HAVE  EXPERIENCED  INJUSTICES, SOCIOECONOMIC DISADVANTAGES, AND SYSTEMIC
 DISADVANTAGES.
   4. "MATERIAL TRANSACTION" SHALL MEAN:
   (A) ANY OF THE FOLLOWING, OCCURRING DURING A SINGLE TRANSACTION OR  IN
 A  SERIES  OF RELATED TRANSACTIONS, THAT TAKE PLACE WITHIN A TIME PERIOD
 AND MEET OR EXCEED THRESHOLDS, AS  DETERMINED  BY  THE  COMMISSIONER  IN
 REGULATION, FOR FACTORS INCLUDING BUT NOT LIMITED TO CHANGES IN REVENUE:
   (I) A MERGER WITH A HEALTH CARE ENTITY;
   (II) AN ACQUISITION OF ONE OR MORE HEALTH CARE ENTITIES, INCLUDING BUT
 NOT  LIMITED  TO  THE  ASSIGNMENT,  SALE, OR OTHER CONVEYANCE OF ASSETS,
 VOTING SECURITIES, MEMBERSHIP, OR PARTNERSHIP INTEREST OR  THE  TRANSFER
 OF CONTROL;
   (III)  AN  AFFILIATION OR CONTRACT FORMED BETWEEN A HEALTH CARE ENTITY
 AND ANOTHER PERSON; OR
   (IV) THE FORMATION OF A PARTNERSHIP, JOINT VENTURE,  ACCOUNTABLE  CARE
 ORGANIZATION,  PARENT  ORGANIZATION, OR MANAGEMENT SERVICES ORGANIZATION
 FOR THE PURPOSE OF ADMINISTERING CONTRACTS WITH HEALTH PLANS, THIRD-PAR-
 TY ADMINISTRATORS, PHARMACY BENEFIT MANAGERS, OR HEALTH  CARE  PROVIDERS
 AS PRESCRIBED BY THE COMMISSIONER BY REGULATION.
   (B) "MATERIAL TRANSACTION" SHALL NOT INCLUDE A CLINICAL AFFILIATION OF
 HEALTH CARE ENTITIES FORMED FOR THE PURPOSE OF COLLABORATING ON CLINICAL
 TRIALS  OR GRADUATE MEDICAL EDUCATION PROGRAMS AND SHALL NOT INCLUDE ANY
 TRANSACTION THAT IS ALREADY SUBJECT  TO  REVIEW  UNDER  ARTICLE  TWENTY-
 EIGHT, THIRTY, THIRTY-SIX, FORTY, FORTY-SIX, FORTY-SIX-A, OR FORTY-SIX-B
 OF THIS CHAPTER.
   §  4552. REVIEW AND OVERSIGHT OF MATERIAL TRANSACTIONS. 1. THE DEPART-
 MENT SHALL HAVE THE AUTHORITY TO  REVIEW  AND  APPROVE  MATERIAL  TRANS-
 ACTIONS, WHICH MAY BE FURTHER DEFINED BY THE COMMISSIONER IN REGULATION,
 TO  ASSESS  SUCH  TRANSACTIONS'  IMPACT ON COST, QUALITY, ACCESS, HEALTH
 EQUITY AND COMPETITION IN THE HEALTH CARE SERVICE MARKET.
   2. IN ACCORDANCE WITH THIS ARTICLE, AND WITH THE RULES AND REGULATIONS
 PROMULGATED BY THE COMMISSIONER PURSUANT TO SECTION  FORTY-FIVE  HUNDRED
 FIFTY-SIX  OF  THIS ARTICLE, THE DEPARTMENT SHALL ADOPT CRITERIA FOR THE
 CONSIDERATION OF REQUESTS BY HEALTH CARE ENTITIES TO CONSUMMATE A  MATE-
 RIAL  TRANSACTION.  THE  CRITERIA  SHALL  INCLUDE  THE FACTORS LISTED IN
 SUBDIVISION ONE OF SECTION FORTY-FIVE HUNDRED FIFTY-FOUR OF  THIS  ARTI-
 CLE.
   3.  NOTHING  IN  THIS ARTICLE SHALL LIMIT OR RESTRICT THE AUTHORITY OF
 THE SUPERINTENDENT OF FINANCIAL SERVICES UNDER ARTICLE FIFTEEN, SIXTEEN,
 S. 4007--A                         140                        A. 3007--A
 
 SEVENTEEN, FORTY-TWO, FORTY-THREE, SEVENTY-ONE, OR SEVENTY-THREE OF  THE
 INSURANCE LAW, OR REGULATIONS PROMULGATED THEREUNDER.
   § 4553. NOTICE OF MATERIAL TRANSACTION; REQUIREMENTS. 1. A HEALTH CARE
 ENTITY  SHALL  NOT  CONSUMMATE  A MATERIAL TRANSACTION WITHOUT OBTAINING
 APPROVAL FROM THE DEPARTMENT FOR SUCH MATERIAL TRANSACTION.
   2. IN ORDER TO OBTAIN  APPROVAL  OF  A  MATERIAL  TRANSACTION  BY  THE
 DEPARTMENT,  A HEALTH CARE ENTITY SHALL SUBMIT TO THE DEPARTMENT WRITTEN
 NOTICE AND APPLICATION, WITH SUPPORTING DOCUMENTATION AS DESCRIBED BELOW
 AND FURTHER DEFINED IN REGULATION, WHICH  THE  DEPARTMENT  SHALL  BE  IN
 RECEIPT  OF  AT LEAST THIRTY DAYS BEFORE THE DESIRED CLOSING DATE OF THE
 TRANSACTION, IN THE FORM AND MANNER PRESCRIBED BY THE  DEPARTMENT.  SUCH
 WRITTEN NOTICE SHALL INCLUDE, BUT NOT BE LIMITED TO:
   (A)  THE NAMES OF THE PARTIES TO THE PROPOSED MATERIAL TRANSACTION AND
 THEIR CURRENT ADDRESSES;
   (B) COPIES OF ANY DEFINITIVE AGREEMENTS GOVERNING  THE  TERMS  OF  THE
 MATERIAL TRANSACTION, INCLUDING PRE- AND POST-CLOSING CONDITIONS;
   (C)  IDENTIFICATION  OF  ALL  LOCATIONS WHERE HEALTH CARE SERVICES ARE
 CURRENTLY PROVIDED BY EACH PARTY AND THE REVENUE GENERATED IN THE  STATE
 FROM SUCH LOCATIONS;
   (D)  ANY PLANS TO REDUCE OR ELIMINATE SERVICES AND/OR PARTICIPATION IN
 SPECIFIC PLAN NETWORKS;
   (E) THE DESIRED CLOSING DATE OF THE PROPOSED MATERIAL TRANSACTION;
   (F) A BRIEF DESCRIPTION OF THE NATURE  AND  PURPOSE  OF  THE  PROPOSED
 MATERIAL  TRANSACTION,  WHICH  WILL  BE  USED TO INFORM THE REVIEW UNDER
 SECTION FORTY-FIVE HUNDRED FIFTY-FOUR OF THIS ARTICLE, INCLUDING:
   (I) THE ANTICIPATED IMPACT OF THE MATERIAL TRANSACTION ON COST, QUALI-
 TY, ACCESS, HEALTH EQUITY, AND  COMPETITION  IN  THE  IMPACTED  MARKETS,
 WHICH MAY BE SUPPORTED BY DATA AND A FORMAL MARKET IMPACT ANALYSIS; AND
   (II)  ANY COMMITMENTS BY THE HEALTH CARE ENTITY TO ADDRESS ANTICIPATED
 IMPACTS; AND
   (G) A NON-REFUNDABLE APPLICATION FEE.
   3. EXCEPT AS PROVIDED IN SUBDIVISION TWO OF SECTION FORTY-FIVE HUNDRED
 FIFTY-FOUR OF THIS ARTICLE, SUPPORTING  DOCUMENTATION  AS  DESCRIBED  IN
 SUBDIVISION TWO OF THIS SECTION SHALL NOT BE SUBJECT TO DISCLOSURE UNDER
 ARTICLE SIX OF THE PUBLIC OFFICERS LAW.
   §  4554.  MATERIAL  TRANSACTION  REVIEW. 1. WHEN REVIEWING A POTENTIAL
 MATERIAL TRANSACTION, THE DEPARTMENT MAY CONSIDER THE FOLLOWING:
   (A) WHETHER THE PARTIES TO THE TRANSACTION CAN  DEMONSTRATE  THAT  THE
 POTENTIAL  POSITIVE  IMPACTS  OF  THE  MATERIAL TRANSACTION OUTWEIGH THE
 POTENTIAL NEGATIVE IMPACTS RELATED TO FACTORS SUCH AS:
   (I) PATIENT COSTS;
   (II) ACCESS TO SERVICES;
   (III) HEALTH EQUITY; AND
   (IV) HEALTH OUTCOMES;
   (B)   WHETHER THERE IS A  SUBSTANTIAL  LIKELIHOOD  OF  ANTICOMPETITIVE
 EFFECTS  FROM  THE  TRANSACTION THAT OUTWEIGH THE BENEFITS OF THE TRANS-
 ACTION INCLUDING BY INCREASING OR MAINTAINING  SERVICES  TO  UNDERSERVED
 POPULATIONS  OR  STABILIZING  THE  OPERATIONS  OF  THE EXISTING DELIVERY
 SYSTEM;
   (C) THE FINANCIAL CONDITION OF THE PARTIES TO THE TRANSACTION;
   (D) THE CHARACTER AND COMPETENCE OF THE PARTIES  OR  ANY  OFFICERS  OR
 DIRECTORS THEREOF;
   (E) THE SOURCE OF THE FUNDS OR ASSETS FOR THE TRANSACTION;
   (F)  THE  FAIRNESS  OF  ANY EXCHANGE OF SHARES, ASSETS, CASH, OR OTHER
 CONSIDERATION FOR THE SHARES OR ASSETS TO BE RECEIVED; AND
 S. 4007--A                         141                        A. 3007--A

   (G) ANY OTHER RELEVANT INFORMATION NECESSARY TO DETERMINE  THE  IMPACT
 OF THE MATERIAL TRANSACTION.
   2.  IF  THE DEPARTMENT DOES NOT ACT ON THE APPLICATION AS DESCRIBED IN
 SUBDIVISIONS THREE AND FOUR  OF  THIS  SECTION  WITHIN  THIRTY  DAYS  OF
 RECEIPT  OF  WRITTEN  NOTICE AND APPLICATION AS DESCRIBED IN SUBDIVISION
 TWO OF SECTION FORTY-FIVE HUNDRED FIFTY-THREE OF THIS ARTICLE, THEN  THE
 TRANSACTION SHALL BE DEEMED APPROVED. DURING SUCH THIRTY-DAY PERIOD, THE
 DEPARTMENT  SHALL POST IN A MANNER DETERMINED BY THE DEPARTMENT IN REGU-
 LATION FOR PUBLIC NOTICE AND PUBLIC COMMENT WHICH  MAY  HELP  TO  INFORM
 WHETHER  THE  DEPARTMENT  TAKES  FURTHER  ACTIONS  AS DETERMINED BY THIS
 SECTION. AT A MINIMUM, THE PUBLIC NOTICE SHALL INCLUDE:
   (A) A SUMMARY OF THE PROPOSED TRANSACTION;
   (B) AN EXPLANATION OF THE GROUPS OR INDIVIDUALS LIKELY TO BE  IMPACTED
 BY THE TRANSACTION;
   (C)  INFORMATION  ABOUT SERVICES CURRENTLY PROVIDED BY THE HEALTH CARE
 ENTITY, COMMITMENTS BY THE HEALTH CARE ENTITY TO CONTINUE SUCH  SERVICES
 AND ANY SERVICES THAT WILL BE REDUCED OR ELIMINATED; AND
   (D)  DETAILS ABOUT HOW TO SUBMIT COMMENTS, IN A FORMAT THAT IS EASY TO
 FIND AND EASY TO READ.
   3. THE DEPARTMENT SHALL NOTIFY THE PARTIES TO THE  TRANSACTION  WITHIN
 THIRTY DAYS OF RECEIPT OF WRITTEN NOTICE AND APPLICATION AS DESCRIBED IN
 SUBDIVISION  TWO OF SECTION FORTY-FIVE HUNDRED FIFTY-THREE OF THIS ARTI-
 CLE THAT IT IS WITHHOLDING APPROVAL OF THE TRANSACTION IF  NECESSARY  TO
 CONDUCT  A  THOROUGH  EXAMINATION  AND  COMPLETE ANALYSIS OF WHETHER THE
 TRANSACTION IS CONSISTENT WITH  THE  CRITERIA  ESTABLISHED  PURSUANT  TO
 SUBDIVISION  FOUR  OF SECTION FORTY-FIVE HUNDRED FIFTY-TWO OF THIS ARTI-
 CLE, INCLUDING THE FACTORS LISTED IN SUBDIVISION ONE OF THIS SECTION.
   (A) THE DEPARTMENT MAY REQUEST ADDITIONAL INFORMATION  FROM  A  HEALTH
 CARE  ENTITY THAT IS A PARTY TO THE MATERIAL TRANSACTION AND SUCH ENTITY
 SHALL PROMPTLY REPLY USING THE FORM OF COMMUNICATION REQUESTED AND  SUCH
 REPLY SHALL BE AFFIRMED AS TRUE AND ACCURATE UNDER PENALTY OF PERJURY BY
 AN OFFICER OF THE ENTITY, IF REQUIRED.
   (B)  A  HEALTH  CARE  ENTITY  SHALL NOT REFUSE TO PROVIDE DOCUMENTS OR
 OTHER INFORMATION REQUESTED PURSUANT TO THIS ARTICLE ON THE GROUNDS THAT
 SUCH INFORMATION IS PRIVILEGED OR CONFIDENTIAL.
   (C) THE DEPARTMENT MAY RETAIN ACTUARIES, ACCOUNTANTS OR OTHER  PROFES-
 SIONALS INDEPENDENT OF THE DEPARTMENT AS NECESSARY TO ASSIST IN CONDUCT-
 ING  ITS  ANALYSIS  OF  A  PROPOSED MATERIAL TRANSACTION. THE DEPARTMENT
 SHALL DESIGNATE THE PARTY OR PARTIES TO THE  MATERIAL  TRANSACTION  THAT
 SHALL BEAR THE COST OF RETAINING SUCH PROFESSIONALS.
   (D)    THE  DEPARTMENT MAY TAKE OTHER ACTIONS TO SEEK PUBLIC INPUT AND
 OTHERWISE ENGAGE  THE  PUBLIC  BEFORE  MAKING  A  DETERMINATION  ON  THE
 PROPOSED MATERIAL TRANSACTION.
   4.  (A) UNLESS THE MATERIAL TRANSACTION IS APPROVED PURSUANT TO SUBDI-
 VISION TWO OF THIS SECTION, THE DEPARTMENT SHALL  ISSUE  A  FINAL  ORDER
 REGARDING THE MATERIAL TRANSACTION.
   (B) IF THE DEPARTMENT DISAPPROVES THE MATERIAL TRANSACTION OR APPROVES
 THE MATERIAL TRANSACTION SUBJECT TO CONDITIONS, THE DEPARTMENT MAY NOTI-
 FY  THE  ATTORNEY  GENERAL  OF THE DEPARTMENT'S FINDINGS AND ANALYSIS SO
 THAT THE ATTORNEY GENERAL MAY, IF APPROPRIATE, CONDUCT AN  INVESTIGATION
 INTO WHETHER THE HEALTH CARE ENTITIES HAVE ENGAGED IN UNFAIR COMPETITION
 OR  ANTICOMPETITIVE  BEHAVIOR  AND,  IF NECESSARY, TAKE STEPS TO PROTECT
 CONSUMERS IN THE HEALTH CARE SERVICES MARKET.
   (C) PURSUANT TO  THIS  SUBDIVISION,  THE  DEPARTMENT  SHALL  HAVE  THE
 AUTHORITY TO REQUIRE UNDERTAKINGS AS A CONDITION OF APPROVING A MATERIAL
 TRANSACTION,  INCLUDING  BUT NOT LIMITED TO, INVESTMENTS IN THE COMMUNI-
 S. 4007--A                         142                        A. 3007--A
 
 TIES AFFECTED BY SUCH MATERIAL TRANSACTION, COMPETITION PROTECTIONS, AND
 CONTRIBUTIONS TO  STATE-CONTROLLED  FUNDS,  INCLUDING  THE  HEALTH  CARE
 TRANSFORMATION  FUND  PURSUANT  TO  SECTION  NINETY-TWO-HH  OF THE STATE
 FINANCE  LAW,  TO PRESERVE ACCESS OR TO OTHERWISE MITIGATE THE IMPACT OF
 THE MATERIAL TRANSACTION ON THE HEALTH CARE DELIVERY SYSTEM.
   5. A HEALTH CARE ENTITY THAT IS A PARTY TO AN APPROVED MATERIAL TRANS-
 ACTION SHALL NOTIFY THE DEPARTMENT UPON CLOSING OF  THE  TRANSACTION  IN
 THE FORM AND MANNER PRESCRIBED BY THE DEPARTMENT.
   § 4555. PENALTY FOR NONCOMPLIANCE; INJUNCTIVE RELIEF.  1.  THE DEPART-
 MENT  MAY  IMPOSE  A  CIVIL  PENALTY  IN AN AMOUNT OF UP TO TEN THOUSAND
 DOLLARS PER DAY FOR ANY VIOLATION OF THIS ARTICLE. ALL FEES, FINES,  AND
 PENALTIES  DERIVED  FROM  THE OPERATION OF THIS ARTICLE SHALL BE PAID TO
 THE DEPARTMENT AND SHALL BE DEPOSITED IN THE HEALTH CARE  TRANSFORMATION
 FUND  ESTABLISHED PURSUANT TO SECTION NINETY-TWO-HH OF THE STATE FINANCE
 LAW.