Medicare Medicaid and Insolvency Handbook Jurisdiction Payment and Enforcement

<p>If the 1980s was a decade of real estate busts and
precipitous drops in oil prices, the late '90s was a period of great
uncertainty for health care providers and bankruptcy attorneys. After
Congress passed the Balanced Budget Act of 1997—which altered
the manner in which health care providers were paid – health care
providers scrambled to decipher what remedies were available for them
to stave off elimination by the federal government through the use of
collection devices such as recoupment, suspension and civil monetary
penalties. </p><p>As is the case with bankruptcy law, what appeared decided
in a nonbankruptcy context such as Medicare law was ripe for
reconsideration in bankruptcy court. Health care providers and their
counsel learned to challenge long-standing case law regarding
jurisdiction and administrative exhaustion—whether a provider
agreement remained an executory agreement in bankruptcy, and whether
recoupment, setoff and suspension against providers was a violation of
the automatic stay. </p><p>The authors of this book are former assistant
regional counsel with the Office of General Counsel for the Department
of Health and Human Services, and the book is no mere exercise into
the vagaries of health care and bankruptcy law. Rather, their
monograph is an authoritative foray into the intricate intersection
between health care and bankruptcy law. The text is logically organized
and presented in a direct, concise manner. The discussions on both
health care and bankruptcy matters are sufficiently detailed to
provide analysis useful to the reader, but not so complex as to render
the discussion oblique and cumbersome.

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Government attorneys will find the discussion on Office of Inspector
General exclusion cases a welcome addition to any government attorney's
arsenal of knowledge.
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<p>The book is written from a government perspective. Moreover, if the
authors were pressed to answer how they perceive themselves, they
would most likely answer that they are health care lawyers first,
bankruptcy lawyers second. As such, a review of the book suggests that
the book is slightly tilted toward explaining Medicare concepts as
opposed to delving into the nuances of bankruptcy practice. One of the
book's many achievements is to explain the federal government's
position on a multitude of issues, notably the government's
long-standing insistence that jurisdictional issues regarding
administrative exhaustion are defined by §405 of the Social
Security Act and not §§1331 and 1334 of Title 28. Further,
the authors acknowledge the varied treatment the litigating components
of the federal government take on treatment of Medicare contracts in
bankruptcy. </p><p>The book is well-organized and comprehensive, and the
reader is not distracted by an overuse of footnotes. The glossary of
(primarily) health care terms is an excellent introduction to the
book. The book starts with background chapters on basic Medicare law
that are written in an interesting and informative manner. I have not
had the occasion to litigate Medicare cases recently, and found the
discussion on The Medicare Prescription Drug, Improvement and
Modernization Act of 2003 – which made numerous changes to Part
A and B of Medicare – informative and useful. The authors
discuss only the most relevant cases to a particular issue and offer
concrete advice on how a particular issue has played out in the
courts. The analysis provided in each section logically builds upon
prior discussions but can be read independently in researching a topic.
Clearly, the monograph could be used by the reader in starting and
answering legal research. </p><p>The chapter on "Bankruptcy
Basics," while helpful to the novice bankruptcy lawyer, will
likely be too elementary for the experienced bankruptcy lawyer.
Moreover, in an effort to be comprehensive, the authors include a
discussion on chapter 13, which is not applicable to a Medicare debtor
other than health care professionals, presumably in the student loan
context. </p><p>The authors cover the gambit of health care issues in
bankruptcy cases. As one would expect, there is a thorough discussion
of the jurisdictional interplay of both Medicare and bankruptcy law.
The most relevant cases are discussed in chronological order with due
recognition as to the development of case law dealing with
administrative exhaustion. Further, the authors explain the concept of
recoupment both in the bankruptcy and health care context. Recoupment
issues are appropriately addressed with due recognition as to why the
United States pursues recoupment as opposed to filing a proof of claim
in bankruptcy. The authors also explain the limitations on the
transfer of provider agreements and sale of Medicare receivables.
</p><p>Government attorneys will find the discussion on Office of Inspector
General exclusion cases a welcome addition to any government
attorney's arsenal of knowledge. Exclusion cases offer a myriad of
troublesome issues for any lawyer to consider. Further, the discussion
and synthesis of cases on suspension is particularly cogent given the
changes to BAPCPA. The authors consider the effect of confirmation and
discharge on the federal government's right of recoupment and setoff.
The authors then analyze whether recoupment and setoff survive
confirmation if not expressly retained in a plan and whether these
rights remain viable after discharge under applicable nonbankruptcy
law. </p><p>One of the more intriguing aspects of the book is the discussion
regarding using civil monetary penalties for quality-of-care
violations in nursing homes. Although still somewhat in its infancy,
this is a proactive measure that the DOJ has been considering to
eradicate quality-of-care issues in nursing homes. Moreover, it is one
of the areas where the federal government has both investigative and
litigative resources to pursue remedial and monetary remedies. There is
also a useful survey of sovereign immunity issues and cases as they
relate to state and federal government practice. </p><p>The book concludes
with a brief overview of BAPCPA as it relates to health care issues.
The authors accurately touch upon those changes to the Code that have
resulted in adjustment to bankruptcy health care cases. They also offer
a cursory discussion of the major changes to the Code. This discussion,
although somewhat limited, makes the entire book even more timely for
its ability to incorporate the new law into the discussion. There is
also included an "Epigram" that discusses the impact of the
Eastern District of Pennsylvania's jurisprudence on bankruptcy health
care cases. The authors use the Easten District of Pennsylvania as a
microcosm of the development of many of the issues faced in these types
of cases by analyzing 10 decisions out of the district. </p><p>In sum,
<i>Medicare, Medicaid and Insolvency Handbook: Jurisdiction, Payment,
and Enforcement</i> would be an excellent addition to any law library
involving an insolvency or health care practice. With a text of 502
pages, it is a useful, learned treatise on Medicare and bankruptcy
law. </p><hr><p><b><font size="4">Footnotes</font></b></p><p>1 The views
expressed in this article are Mr. Gargotta's and do not necessarily
reflect the views of the Department of Justice or Department of Health
and Human Services.</p>