Membership Substitution Transactions: Why Are They So Misunderstood?

Membership substitution transactions are the most common form of business combination transaction in the nonprofit hospital industry. They are also widely misunderstood and the source of many mistakes. Many large 501(c)(3)s have become more acquisitive as a result of economic pressures of the ACA. Nonprofit health systems have been getting much better at participating in and winning competitive sale processes, resulting in an increased use of this business combination form.

In April 2013, St. Luke’s Episcopal Health System announced its sale, via membership substitution, to Catholic Health Initiatives. In responding to a suit from physician owners (a minority faction) of a St. Luke’s subsidiary, St. Luke’s Sugar Land Hospital, St. Luke’s attorney asserted: “the ownership of St. Luke’s Sugar Land Hospital is totally unchanged by the Transaction.” We have no opinion on this legal debate, but it points out something that repeatedly arises in these transactions – most participants don’t really understand them to any depth.

Given the forecasted level of nonprofit hospital M&A activity in the coming years, as well as the increased use of the membership substitution specifically, it is important that these new and often inexperienced participants consider the implications of the structure. This article will explore the membership substitution structure – its history, use, pros, cons, and potential future applications. Issues such the impact on one’s credit stature, bond covenants, and the legal handling of consolidating Master Trust Indentures are reviewed.

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