Those who follow hospital and 必威官网bethealth system M&A activity know that the market has been"frothy."We all see the high profile,"sexy"出现在新闻头条的交易,但是,for every large deal,there are myriad smaller deals that involve rural hospitals,县医院和,唯一的社区医院,many of which are struggling,通常在运营和财务上都是如此。These deals,不管它们的大小,often are strategically important for the involved parties and,due to the financial issues many are facing,extremely complex.

Below are seven thoughts relevant to the acquisition of,或与…有联系,troubled hospitals:

  1. Cash is Often King经常,one of the biggest hurdles to acquiring a troubled facility is the drain on cash it is experiencing.Generally,credit lines are maxed out and the hospital's bond rating is poor,making it difficult to borrow,especially if cash flow is anemic.这通常会使交易处于危险之中,因为目标公司在交易结束前总有资金耗尽的风险。This situation may require the acquirer to agree to provide financing to the target hospital;doing so often requires negotiation with bond trustees or with senior lenders who will likely insist on strict subordination agreements,with no guarantee that the loans will ever be recouped or repaid.Care should be taken to carefully prescribe the use of the financing proceeds so that they are applied in the most effective fashion (as noted below,然而,the antitrust laws still apply during the period between signing and closing,这限制了收购方对目标公司运营的控制)。The acquirer should be prepared to walk away from its loans should the transaction,ultimately,fail either because the target will not have the wherewithal to repay the loans and/or the loans will be deeply subordinated to senior indebtedness.
  2. 勤奋是极其重要的:毫不夸张地说,医院交易中的勤奋很重要,but it is even more so in the context of the acquisition of a troubled hospital.In our experience,苦苦挣扎的医院缺乏资源来仔细监控合规情况或聘请适当的法律顾问;更糟糕的是,有些人对他们与推荐来源和补偿的关系采取积极的态度。The acquirer will generally inherit many of the liabilities of the target (including its Medicare and Medicaid reimbursement liabilities),and because (as described below) indemnification is financially impracticable or unlikely,这些交易大多是,我们喜欢称之为diligence deals;"the decision to acquire a troubled hospital is,and should be,前提是,and results of,the acquirer's diligence efforts.
  3. The Law Still Applies:Despite the fact that a hospital is troubled and its survival depends upon some sort of successful acquisition or affiliation,各方必须铭记围绕其存在的各种法律,操作,and acquisition still apply.  For example,the acquisition could be subject to state certificate of need laws,而且最肯定的是要遵守国家许可证和注册法,all of which are subject to statutory timing and waiting periods and can slow down the acquisition process.  Depending upon the state involved,and how critical the hospital is to care in its community,可能会寻求地方或州政府的干预,以加速这些时间段,or expedite review.  Moreover,更重要的是,the parties should keep in mind that federal and state antitrust laws apply,特别是在遗嘱执行期间(e.,the period between signing of a definitive purchase agreement and closing).   Often,in light of the precarious financial position in which a target hospital might find itself,双方希望在交易结束之前就开始合作解决问题。While laudable,and something that would seem to make perfect sense from a business perspective,各方应寻求法律顾问,以确保不参与所谓的枪跳,"会导致per se违反联邦和州反垄断法。
  4. Peculiarities Relative to Government 必威官网betHealth Care Entities:We've seen a number of transactions involving government 必威官网bethealth care entities,如县医院或保健区设施。必威官网betThe acquisition of,或与…有联系,these entities will carry its own set of issues.第一,and foremost,这些实体中的许多都受到国家公开记录的约束,or"sunshine,"法律规定某些会议,或文件,relative to the proposed transaction may be subject to public disclosure and scrutiny.此外,许多此类交易的批准可能需要公告和公开会议。此外,acquirers need to be sensitive to the fact that decision makers may include community members who sit on country or district boards,many of whom,尽管有公民意识,可能不具备强大的医疗保健业务敏锐性,并可能受到必威官网bet政治“or optics of the transaction.Finally,care must be taken to review state law to ensure that there are not specific statutes or rules relative to acquisition of governmental 必威官网bethealth care entities;for example,some states require that all employees of the target be granted the opportunity to stay or,或者收购人同意清偿被收购实体的所有未清偿债务,etc.In addition to the above,county/district hospitals often have loyal constituencies.  The fate of these hospitals is often of great importance to the communities they serve.因此,and this probably goes without saying,it is often vital that the acquiring entity have a good story to tell as to why the combination makes sense,这个故事应该围绕着保持或提高病人的护理质量和连续性,along with helping the employees retain their jobs.It is important to remember that these facilities often hold a prominent place in the communities they serve and,often,are one of the largest employers.因此,要讲的故事应该很有说服力,更重要的是这个故事,or should be,told in the event the transaction fails.Consistent,在这种情况下,现实的交流是适当的。
  5. 交易计划:与麻烦医院交易的经济和监管方面一样重要的是交易计划。我们这么说是因为,often,由于上述原因,时间至关重要。因此,我们相信,在努力工作的同时,smart acquirers plan ahead to deal,on a timely basis,with issues such as union contracts,physician compensation that may need to be adjusted,leases and the like.Failure to adequately plan for the issues that may arise related to the above sorts of matters can significantly slow down a transaction,thus putting further strain on the target.
  6. 选择破产:Depending,of course,on the circumstances,在考虑将破产程序作为促进交易的手段时,可能有些智慧。根据目标医院的性质,非政府与政府实体的破产程序可能受《联邦破产法》第11章或第9章的约束。确定特定医院实体符合哪种类型的破产程必威体育网站序(第9或11章)可能是事实密集和复杂的,so it should be conducted by experienced counsel at the earliest opportunity.  The distinction can be significant because,一般来说,第11章程序(非政府实体程序)更具可预测性,并提供了更为成熟的机制来保护潜在的资产买方。the common method of selling assets through the bankruptcy process involves the use Section 363 of Chapter 11 of the Code to sell assets free and clear of liens and encumbrances.  Chapter 9 does not have an analogous provision,though the few courts to have considered the matter have allowed sales to proceed in Chapter 9 under applicable state law.根据第363条,the proposed buyer can become a"跟踪马bidder,其拟议购买必须在法院主办的拍卖会上进行更高或更好的出价,though subject to certain types of court approved bid protections.因此,the stalking horse bidder risks losing the bid despite its work and efforts.  Moreover,虽然363条款出售可以允许一定的优先权,待撤销和/或重新谈判的未履行合同和其他责任,the Centers for Medicare and Medicaid betway体育appServices take the position that if the acquirer assumes the Medicare provider agreement of the target (which is a common approach in many of these transactions) the bankruptcy proceedings will not extinguish pre-closing Medicare liabilities or obligations,如超额支付债务。第11章和第9章程序之间的另一个显著区别是,债务人根据第363条出售资产的能力不受大多数养老金负债的限制。Again,no analogous power is found in Chapter 9,though in the Detroit Chapter 9 case,the court did allow some modification of pension benefits,as part of a final plan of reorganization,not as part of an asset sale.
  7. Alternative Strategies: Sophisticated acquirers are well counseled to consider strategies that may be alternatives to acquisitions.For example,depending upon the market,仅仅与挣扎中的实体竞争,而不是试图获得它,可能更明智。The idiom"小心你想要的”might be apt in certain situations.常常有一种使命驱动的欲望,on the part of the acquirer,为了拯救一个挣扎的系统,which is understandable.However,如果收购使收购方面临风险,有必要重新审视交易的主题,以及是否更明智地帮助目标患者和员工群体,让他们选择一个替代方案。

Although sometimes smaller and involving fewer dollars than hospital deals that make headlines,troubled deals are a fact of life in 必威官网bethealth care and carry with them their own sets of complexities.The above list of considerations is but a few that will arise.

For more information on Foley's 必威官网betHealth Care Industry Teams including the team,出版物,以及其他材料,visitfoley.com/必威官网bethealth-care/保健.