Federal antitrust enforcers under the previous administration heavily scrutinized private equity in health care. In the current administration, federal level scrutiny may wane but state level examination may increase as states look to enact their merger notification regimes with some focusing specifically on health care transactions.
During the Biden Administration, PE ownership and acquisitions of health care entities was specifically targeted by federal antitrust enforcers. On March 3, 2024, the FTC hosted a Workshop titled Private Capital, Public Impact, An FTC Workshop on Private Equity in Health Care, where the FTC invited government officials, academics, economists, practitioners, and the public at large to share their views on the effects of PE investment in the health care system.At this workshop, leaders of both the Federal Trade Commission and the Antitrust Division of the Department of Justice expressed their concern about PE ownership in health care. For instance, then-Chair Khan stated in her opening remarks that “[over] the past two years, the FTC has heard an ongoing concern about the ways that private equity buyouts in health care have worsened outcome for workers and patients alike” and that a “common theme across comments is that growing financialization in the health care industry can force medical professionals to subordinate their medical judgment to corporate decision-makers, profit motives at the expense of patient health.”
In connection with this workshop, the FTC, DOJ, and HHS issued a Request for Information on PE ownership in health care. The press release stated that the cross-government inquiry sought “to understand how certain health care market transactions may increase consolidation and generate profits for firms while threatening patients’ health, workers’ safety, quality of care, and affordable health care for patients and taxpayers.” In response to this RFI, eleven state attorneys general submitted comments to the RFI. The coalition of state AGs was led by California Attorney General Rob Bonta who stated that “[w]e have seen the continued playbook from private equity groups regarding health care purchases: Serving corporate profiteers by maximizing their profits at the expense of access, quality, and affordability of health care for Americans nationwide.”
Current FTC Chairman Andrew Ferguson has stated that health care remains a priority for FTC antitrust enforcement. However, it is notable that current FTC leadership likely does not share the same hostility toward PE as previous FTC leadership. Earlier this year, the FTC entered into a consent decree with PE firm Welsh Carson in connection with the matter involving alleged anticompetitive acquisitions by Welsh Carson’s portfolio company U.S. Anesthesia Partners (USAP). Chair Ferguson (joined by Commissioner Holyoak) issued a statement clarifying their position on Welsh Carson as a PE firm: “I write to pierce through this breathless rhetoric to make clear that this case is an ordinary application of the most elementary antitrust principles.That Welsh Carson is a private equity firm is irrelevant; the antitrust analysis would be the same if Welsh Carson were, for example an individual or institutional investor.” However, another recent action by the FTC involved interlocking directors of two health care companies as the DOJ and FTC continue their renewed enforcement efforts of Clayton Act Section 8 initiated under the previous administration. Both companies are PE-owned and the Bureau of Competition director noted “[w]e encourage all firms to review their board memberships to avoid any overlaps with competitors – including when new members are added as a result of investments by private equity firms or other new shareholders.” This appears consistent with an October 2022 DOJ press release regarding Section 8 enforcement, which noted two interlocks that were caused by the presence of directors representing PE firms.
At the state level, states have recently started to require parties with a certain nexus to the state submit their Hart-Scott-Rodino filing to the state AG’s office. These states are adopting the Uniform Antitrust Pre-Merger Notification Act that was approved by the Uniform Commission in 2024. Washington and Colorado are the first two states to have passed their versions of the law which applies to all industries. Five other states and the District of Columbia have pending legislation to adopt their versions of the law. In addition, 15 states also have notification laws (or pending legislation) specific to health care transactions. For health care-specific transactions, many states require notification of transactions involving providers (hospitals or physician groups) without any regard to the size of transaction (in contrast to the current HSR size-of-transaction threshold of $126.4 million).
Some states have passed laws or introduced bills that target PE investment in medical practices. In January 2025, Massachusetts passed a law that requires PE firms and hedge funds investing in health care entities to provide certain financial information and other disclosures. This is similar to a law passed by Indiana in May 2025. In June 2025, Oregon passed a law that strengthened its corporate practice of medicine (CPOM) restriction targeting corporate and PE acquisitions of independent medical practices. In early September 2025, California lawmakers introduced a bill targeting transactions involving PE firms (and hedge fund investors) seeking to acquire in-state medical providers. In addition to the current state laws requiring notification of certain transactions, PE firms and health care entities need to monitor the California bill and other similar laws and proposed state legislations across the country to assess state-specific antitrust risks. The enforcement spotlight on PE health care transactions may now be shifting from the federal antitrust agencies to their state counterparts.
Kevin Hahm is a partner at the law firm Hunton Andrews Kurth LLP where he focuses on antitrust merger review, including pre-transaction counseling, merger investigations and merger litigations. He can be reached at [email protected], or via the firm’s website – https://www.huntonak.com.
