Or. Admin. Code § 410-141-5265 - CCO ACQUISITIONS AND MERGERS: Procedure For Acquiring Controlling Interest
(1) An
acquiring party shall:
(a) File a complete
Form A, as described in OAR
410-141-5270, with the Authority
for approval. If more than one acquiring party is required to file a Form A
under this paragraph, any or all acquiring parties that are acting in concert
may jointly file a Form A;
(b)
Deliver or mail a statement, as described in (4) below, to the Authority
concurrently with a complete Form A, as described in (a) above. this statement
is required to be sent by certified mail, return receipt requested. If a joint
statement is filed under paragraph (a) of this subsection, the joint statement
must be mailed or delivered under this paragraph.
(2) If the person being acquired is
considered to be a CCO solely because of the definition of "CCO" in OAR
410-141-5255, the name of the
CCO on the cover page shall be indicated as follows: "ABC Company, a subsidiary
of XYZ Holding Company."
(3)
References to "the CCO" contained in Form A shall refer to both the subsidiary
CCO and the person being acquired.
(4) The statement an acquiring party is
required to file with the Authority under this (1)(b) above must be made under
oath or affirmation and contain the following information:
(a) The name and address of the CCO that is
subject to the acquisition and of each acquiring party that must file the
statement, additional biographical and business information about each
acquiring party that must file the statement, and business plans and
information regarding persons who shall serve as or perform functions of
directors or officers, as required by the Authority.
(b) The source, nature and amount of the
consideration used or to be used in effecting the activity, a description of
any transaction in which funds were or are to be obtained for the activity and
the identity of persons that provide the consideration. If a source of
consideration is a loan made in the lender's ordinary course of business, the
identity of the lender must remain confidential if the acquiring party filing
the statement requests confidentiality.
(c) Fully audited financial information as to
the earnings and financial condition of each acquiring party for the acquiring
party's preceding five fiscal years, or for as long as the acquiring party and
any predecessors of the acquiring party have existed, if the acquiring party
and the acquiring party's predecessors have existed for a shorter period of
time, and similar unaudited information as of a date not earlier than 90 days
before the statement was filed.
(d)
Any plan or proposals that each acquiring party that must file a statement has
to liquidate the CCO, to sell the CCO's assets or to merge or consolidate the
CCO with any person or to make any other material change in the CCO's business,
corporate structure or management.
(e) The number of shares of any security of a
type described in OAR
410-141-5260 that each acquiring
party proposes to acquire, the terms of any offer, request, invitation,
agreement or acquisition of any security of a type described in OAR
410-141-5260 and a statement as
to the method by which the acquiring party determined the fairness of the
proposal.
(f) The amount of each
class of any security of a type described in OAR
410-141-5260 that each acquiring
party owns beneficially or concerning which each acquiring party has a right to
acquire beneficial ownership.
(g) A
full description of any contracts, agreements or understandings with respect to
any security of a type described in OAR
410-141-5260 in which any
acquiring party is involved, including but not limited to contracts, agreements
or understandings that govern a transfer of any of the securities or that
relate to joint ventures, loan or option arrangements, puts or calls, loan
guarantees, guarantees against loss or guarantees of profits, division of
losses or profits, or giving or withholding proxies. The description must
identify the persons with which each acquiring party has entered into the
contract, agreement or understanding.
(h) The names of persons who have purchased
any securities of a type described in OAR
410-141-5260 during the 12
months before the date on which the acquiring party files the statement under
this section, together with the dates of purchase and the amount and type of
consideration the persons paid or agreed to pay.
(i) A description of any recommendations to
purchase any securities of a type described in OAR
410-141-5260 that an acquiring
party made during the twelve (12) months before the date on which the acquiring
party files the statement under this section, or of any recommendations that
another person made as a result of interviewing an acquiring party or at an
acquiring party's suggestion.
(j)
Copies of all tender offers, requests, exchange offers, invitations to tender
or agreements to acquire securities of a type described in OAR
410-141-5260, along with any
additional material used to solicit the tender offers, requests, exchange
offers, invitations to tender or agreements, if any additional material was
distributed.
(k) The term of any
contract, agreement or understanding for soliciting securities of a type
described in OAR 410-141-5260 for tender that is
made with or proposed to be made with a broker-dealer, together with the fees,
commissions or other compensation the broker-dealer will receive in connection
with the solicitation.
(l) Business
plans for the CCO after the proposed activity, including analyses of the
following (with any relevant supporting documentation):
(A) How, after the proposed activity, the CCO
shall be able to:
(i) Innovate, coordinate
care, provide value, and deliver high-quality services;
(ii) Demonstrate commitment to addressing
health disparities and inequities;
(iii) Be strongly connected to the community
served by the CCO, including the CCO's community advisory council, community
health improvement plan, and the Authority's requirements to engage with the
community;
(iv) Provide services
cost effectively and within cost growth limits imposed by the Authority or the
state;
(v) Support social
determinants of health in the community served by the CCO, as required by its
CCO Contract;
(vi) Perform its
responsibilities under the CCO Contract and applicable law;
(vii) Comply with requirements in the CCO
Contract and applicable law concerning its governing body; and
(viii) Satisfy the policy priorities adopted
by the Oregon Health Policy Board.
(B) If the proposed activity may result in
the termination of members from a CCO or the transition of members from one CCO
to another CCO, how the acquiring entity and CCO shall facilitate those
terminations and transitions in compliance with
42 C.F.R. §§
438.52,
438.56,
438.62 and the CCO
Contract.
(C) Cost of, access to
and quality of health care for Oregonians, including health care outside of the
Medicaid program;
(D) Health equity
in Oregon, including data on race, ethnicity, preferred spoken and written
languages and disability status (collected in accordance with the practices and
standards established in OAR chapter 943, division 70) of patient populations
impacted by the proposed activity;
(E) The financial stability of the CCO and
the financial strategies that may influence the CCO; and
(F) The CCO's medical loss ratio.
(m) An agreement to submit an
annual enterprise risk report under OAR
410-141-5330 during which the
acquiring party controls the CCO and an acknowledgment that the acquiring party
and all subsidiaries in the holding company system that are within the
acquiring party's control will provide, at the director's request, information
the director needs to evaluate enterprise risk to the CCO.
(5) All requests or invitations for tenders
or advertisements that make a tender offer or request or invite tenders of
securities for control of a CCO made by or on behalf of any acquiring party
required to file Form A under this section must have the information specified
in subsection (2) of this rule. Copies of the materials must be filed with the
Authority at least ten (10) days before the time the materials are first
published or sent or given to security holders. Any additional materials that
solicit or request the tenders after the initial solicitation or request must
have the information specified in subsection (2) of this rule. Copies of the
additional materials must be filed with the Authority at least ten (10) days
prior to the time the materials are first published or sent or given to
security holders.
(6) If any
acquiring party required to file Form A under this section is a partnership,
limited partnership, syndicate or other group, the Authority may require that
the information specified in subsection (2) of this rule be given with respect
to each partner of the partnership or limited partnership, each member of the
syndicate or group and each person that controls the partner or member. If any
partner, member or person is a corporation or if the acquiring party is a
corporation, the Authority may require that the information described in
subsection (2) of this rule be given with respect to the corporation and each
officer and Authority of the corporation and each person that is directly or
indirectly the beneficial owner of more than 10 percent of the outstanding
securities of the corporation.
(7)
If any material change occurs in the facts set forth in the statement filed
under this section, the party that filed the statement shall file with the
Authority and send to the CCO, within two business days after the party learns
of the change, an amendment that sets forth the change together with copies of
all documents and other material relevant to the change.
(8) If an offer, request, invitation,
agreement or acquisition described in OAR
410-141-5260 is proposed to be
made by means of a registration statement under the Securities Act of 1933,
15 U.S.C.A. §
77a et seq., or in circumstances that require
disclosing similar information under the Securities Exchange Act of 1934,
15 U.S.C.A. §
78a et seq., or under a state law that
requires a similar registration or disclosure, the party or parties may use the
registration statement or disclosure to provide the information the party or
parties must provide in the statement required under subsection (1) of this
section. Such a registration statement may be used to supply information
required by a Form A, not to replace the Form A.
Notes
Statutory/Other Authority: ORS 413.042, 414.572, 414.591 & 414.605
Statutes/Other Implemented: ORS 414.570-414.686 & 415.001-415.430
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