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Normal Steps in a Physician Practice Merger

By: Reed Tinsley
Tel: (281) 379-5988
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As I've noticed, stated and PREACHED, physician practice mergers are heating up. A practice merger in my opinion is an EXCELLENT strategic option to address the future of physician medical practice. A merger is definitely something you should be looking at as a way to maintain your competitive position and maintain a healthy bottom line. So if you ever do consider talking to your colleagues about a merger, here are the normal steps in the process.

Friendship and courtship: Prior to substantive discussions, the groups likely have made contact with each other via informal means.

Commitment to move forward: At some point, the groups agree that they should "get down to brass tacks" and look at the merger in a more formal manner.

Antitrust review: Depending on the local market, a first step for many groups is to engage an attorney to conduct an antitrust review. While the details of such a review are beyond the scope of this document, the group should seek experienced legal counsel in this area if there are any concerns about creating significant market power.

Merger Committee appointment and empowerment: Unless the practices are very small, it wise to appoint a Merger Committee to do the bulk of the discussion and negotiation effort in the merger. It is desirable that the rest of the physicians empower this group to discuss and negotiate on the key merger issues. Typically this Committee includes one to three individuals from each of the groups.

Confidentiality, non-competitive use, "no-shop" agreement: In order to protect their rights and the confidentiality of information, the groups should have their attorney draft a letter in which each group agrees to: a. Keep the other group's information confidential. b. Use the information only for the purposes of merger negotiations. c. Not seek or negotiate offers with others for a period of time. While this last point is optional, it can be important if the groups are going to expend significant resources during their negotiations.

Initial data gathering: In order to improve the efficiency and effectiveness of the merger discussions, a significant amount of information must be gathered from each group. Such information may include practice documents and financial information. In addition, it is typically appropriate to have each physician and administrator interviewed or surveyed to identify any merger concerns that they may have.

Merger Committee meetings/retreat to review data, discuss and resolve issues: using the information gathered in the prior step, the Merger Committee meets to discuss, negotiate and reach agreements in principle related to the key merger issues. There are two alternatives in how this process may be conducted:

a. For groups who have already had significant discussion or are very knowledgeable about each other, a Merger Retreat (typically 2 to 2 1/2 days) can be used to finalize agreements in principle.

b. For groups who have the need for more in-depth discussion and negotiation, a series of meetings are held during which agreements in principle are made. During this effort other professionals (such as accountants, attorneys, benefits consultants, etc.) are involved as needed.

Perform due diligence:During this effort, the attorneys and accountants review a number of practice related documents to identify any issue that might impact the merger from a legal perspective.

Reach agreement in principle and execute Letter of Intent: Once most of the key decisions have been made, the groups execute a Letter of Intent under which they agree to merge under agreed upon terms unless certain events occur. This authorizes the groups to move forward with the next step.

Create merger documents: Once agreements have been made, the attorneys will draft: Merger Agreement (primary purpose is requiring each group to make full disclosure about its activities).

New Entity Corporate Documents

New Entity Shareholder Agreement (Buy-sell)

New Entity Physician Employment Agreements

Other needed documents

At the same time, the accountants will be developing the financial information needed to close the merger.

Develop post-closing operational integration plan: The work discussed up to this point is focused primarily on the legal and organizational aspects of the merger. Once the groups are on track to merger an operational integration plan must be developed.

Merge ("Day 1"): The day that the papers are signed and all are committed to move forward.

Implement post-closing integration plan: The operational integration plan is implemented.

Reed Tinsley, CPA, is a Houston-based CPA, Certified Valuation Analyst, and healthcare consultant. He works closely with physicians, medical groups, and other healthcare entities with managed care contracting issues, operational and financial management, strategic planning, and growth strategies. His entire practice is concentrated in the health care industry.

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