Private Equity and the Corporatization of Health Care

67 Pages Posted: 1 Mar 2023 Last revised: 24 Feb 2024

See all articles by Erin C. Fuse Brown

Erin C. Fuse Brown

Georgia State University College of Law

Mark A. Hall

Wake Forest University - School of Law

Date Written: 2023

Abstract

Private equity has rapidly expanded its presence in the health care sector, expanding its investment targets from hospitals and nursing facilities to physician practices. The incursion of private equity is the latest manifestation of a long trend toward the corporatization and financialization of medicine. Private equity pools investments from large, private investors to buy controlling stakes in companies through leveraged buyouts or similar arrangements that use the companies’ own assets to finance debt. These investors seek to earn handsome profits by rapidly increasing revenues before selling off the investment. Private equity’s incursion into health care is especially concerning. The drive for quick revenue generation threatens to increase costs, lower health care quality, and contribute to physician burnout and moral distress. These harms stem from market consolidation, overutilization and up-coding, constraints on physicians’ clinical autonomy, and compromises in patient care. Policymakers attempting to counter these threats can barely keep up. Like a cloud of locusts, private equity moves so quickly that by the time lawmakers become aware of the problem and researchers study the effects, private equity has moved on to other investment targets. While it remains unclear whether private equity investment is fundamentally more threatening to health policy than other forms of acquisition and financial investment—whether by publicly traded companies, conglomerate health systems, or health insurers—the threat of commercialization is heightened. Even if private equity is not uniquely harmful, it is extremely adept at identifying and exploiting market failures and payment loopholes. The emphasis on short-term returns and exit, heavy reliance on debt, and the insulation from professional and ethical norms make private equity investors more avid to exploit revenue opportunities than institutional repeat-players. Thus, this Article’s central claim is that the influx of private equity into health care poses sufficient risks to warrant an immediate legal and policy response. Public policy should primarily target correcting market failures and closing payment loopholes and only secondarily aimed to curb private equity investment per se.

The good news is that we already have many legal tools under federal and state law with the potential to address the harms of commercialization. These can be used or sharpened to address the particular concerns raised by private equity’s incursion into physician markets. Key tools include antitrust oversight, fraud and abuse enforcement, and state laws regulating the corporate practice of medicine and the terms of physician employment. In some instances, legislative or regulatory action may be needed to adapt existing laws. In others, new laws may be needed to close payment loopholes or correct market distortions. A leading example is the recent No Surprises Act, which curtails surprise out-of-network medical billing.

While the article lays out a roadmap for additional legal and policy actions to protect the health system from the acute risks of private equity, these are patches rather than systemic solutions. If these patches fail to stave off the incessant march toward commercialization of health care, we may see renewed calls to fundamentally rethink the market orientation of the U.S. health system.


By permission of the Stanford Law Review, from the Stanford Law Reivew at 76 Stan. L. Rev. (forthcoming 2024). For information visit http://stanfordlawreview.org.

Keywords: private equity, health care, hospitals, medical billing, private investment, health economics

JEL Classification: H75, I11, I18, K32

Suggested Citation

Fuse Brown, Erin C. and Hall, Mark A., Private Equity and the Corporatization of Health Care ( 2023). Stanford Law Review, Vol. 76, 2024, Georgia State University College of Law, Legal Studies Research Paper No. 2024-01, Wake Forest Univ. Legal Studies Paper No. 4373557, Available at SSRN: https://ssrn.com/abstract=4373557

Erin C. Fuse Brown (Contact Author)

Georgia State University College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

Mark A. Hall

Wake Forest University - School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States
336-716-9807 (Phone)

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