Vitalsigns Homecare, Inc.

UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
In re 	: 	Chapter 7
VITALSIGNS HOMECARE, INC. 	: 	CASE NO. 08-41101-JBR
DEBTORS 	:
AMENDED MEMORANDUM OF DECISION ON MOTION TO AUTHORIZE SALE OF
PROPERTY OF THE ESTATE (I.E. THE DEBTOR’S MEDICARE PROVIDER
NUMBER) FREE AND CLEAR OF LIENS, CLAIMS, AND ENCUMBRANCES
This matter came before the Court for hearing on the Chapter 7 Trustee’s Motion
to Authorize the Sale of Property of the Estate (namely, the Debtor’s Medicare provider
number), Free and Clear of Liens, Claims, and Encumbrances (#75) and the Partial
Objection of the Department of Health and Human Services (“HHS”) (#83). 	The
potential purchaser, ABC Home & Healthcare, Inc. (“ABC”), filed a Statement in Support
(#86) of the Trustee’s Motion.
FACTS
The facts are not in dispute. The Debtor, which at that time was engaged in
providing home health care services, filed a voluntary petition pursuant to Chapter 11 of
the United States Bankruptcy Code on April 9, 2008. The Debtor was a participant in
the Medicare program. As such, the Debtor was eligible to be paid the reasonable cost
of covered services its employees rendered to Medicare beneficiaries. In order to bill
and receive payment, the Debtor was required to be enrolled as a Medicare provider
and have a Medicare provider number.
On May 29, 2008 the case was converted to one under Chapter 7 and on the
same day the Chapter 7 Trustee was appointed. The Debtor’s operations ceased and
the Chapter 7 Trustee transferred the Debtor’s patients to other home health care
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agencies. ABC, which is not currently an approved Medicare provider, was not among
the agencies to which any of the Debtor’s patients were transferred.
On July 3, 2008 the Chapter 7 Trustee sought Court approval to establish a
procedure to disclose certain information to ABC in order for ABC to conduct due
diligence in connection with its anticipated offer to purchase the Medicare provider
number. On July 18, 2008 the Chapter 7 Trustee submitted the final Medicare billing for
services rendered by the Debtor. Approximately one month later, the Chapter 7 Trustee
filed his motion to sell the Medicare provider number and “any and all rights, privileges
and entitlements associated therewith,” free of liens, claims, and encumbrances, to ABC
for $40,000. Among the claims which the Chapter 7 Trustee seeks to shed is HHS’ right
to recoup overpayments from future Medicare payments. The United States, on behalf
of HHS, objects.
POSITION OF THE PARTIES
The Trustee and ABC urge the Court to enter an order permitting the sale of the
Medicare provider number, free of any liens, claims or encumbrances, including the
right of HHS to seek recoupment for any overpayment. Arguing that the Court of
Appeals for the First Circuit has never addressed the issue currently before this Court,
the Chapter 7 Trustee and ABC rely on In re BDK Health Management, Inc., 1998 WL
34188241 (Bankr. M.D.Fla. Nov. 16, 1991), as support for their contention that the
provider number constitutes a statutory entitlement, not an executory contract subject to
the requirements of 11 U.S.C. § 365. In addition, because ABC must be approved by
HHS as a qualified participant as a precondition to its acquisition of the provider
number, the Trustee asks to extend the period of inactivity for billing under the provider
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1Although no final accounting has been done, the United States asserted that the
amount of the recoupment is closer to $10,000.
3
number from six months to such time as it may take for ABC’s approval to be completed
and the sale to be consummated. The Trustee also asks that the Court not consider
HHS’ objection as it was filed two business days after the deadline for filing objections
to the sale.
ABC further urges approval of the sale on equitable grounds. It alleges that the
amount of the overpayment is unliquidated but asserts that the numbers bandied about
suggest the overpayment could be as high as $800,000.1 It asserts that no one will
acquire the asset with this liability attached so terminating HHS’ right of recoupment is
the estate’s only hope for obtaining value for the asset. Furthermore, it notes it is not
purchasing the Debtor’s receivables so HHS would be free to assert its recoupment
rights against those funds. Finally it argues that it has not taken over responsibility for
any of the Debtor’s former patients; it is not a continuation of the Debtor’s business.
The United States filed a partial objection, albeit, two business days late. It
argues that its lateness should be excused because it only received the motion to sell
one day before the objection deadline. It apparently has no objection to extend the
period of inactivity for billing under the provider number from six months to such time as
it may take for ABC’s approval to be completed, provided that HHS retains its ability to
approve or deny ABC’s application to qualify as a Medicare provider under HHS’
regulations. Its objection lies solely with the Trustee’s attempt to terminate what it
asserts is its right to recoup overpayments to the Debtor from ABC. It alleges that the
Medicare Provider Agreement is an executory contract. It notes that courts, with the
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exception of the BDK court, have concluded the Medicare contract is executory. But
even if Court does not agree it is an executory contract, the United States argues that §
363 of the Bankruptcy Code cannot extinguish its right of recoupment as this action
would impair the Medicare scheme created by Congress.
DISCUSSION
The Opposition to the Late-Filed Objection
As an initial matter, the Court must determine whether HHS’ objection should be
stricken as untimely. Rule 9006(b)(1) of the Federal Rules of Bankruptcy Procedure
provides, with exceptions not relevant to the instant matter:
... when an act is required or allowed to be done at or within
a specified period by these rules or by a notice given
thereunder or by order of court, the court for cause shown
may at any time in its discretion ... (2) on motion made after
the expiration of the specified period permit the act to be
done where the failure to act was the result of excusable
neglect.
“Congress plainly contemplated that the courts would be permitted, where appropriate,
to accept late filings caused by inadvertence, mistake, or carelessness, as well as by
intervening circumstances beyond the party's control.” Pioneer Investment Services Co.
v. Brunswick Associates, Ltd., 507 U.S. 380, 388, 113 S.Ct. 1489, 11495, 23 L.Ed.2d 74
(1993). Under the excusable neglect standard, there must be both neglect, which
includes leaving an act undone or unattended, especially through carelessness, and the
neglect must be excusable. The determination of whether the neglect is “excusable”,
the second prong of the test, “is at bottom an equitable one, taking account of all
relevant circumstances surrounding the party's omission. These include ... the danger of
prejudice to the [non-movant], the length of the delay and its potential impact on judicial
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proceedings, the reason for the delay, including whether it was within the reasonable
control of the movant, and whether movant acted in good faith.” Id., 507 U.S. at 395,
113 S.Ct. at 1498.
Although the United States did not file a separate motion to permit the late filing,
the objection itself includes such a request. Specifically the United States averred that it
did not receive a copy of the motion until September 18, 2008, one day before the
objection deadline established by the Court, when a copy of the motion was forwarded
from HHS to office of the United States Attorney for the District of Massachusetts. The
United States noted that it needed additional time “to ascertain the position of all
relevant agency authorities...” and that it unsuccessfully sought the Chapter 7 Trustee’s
assent to extend the objection deadline.
The certificate of service indicates that the United States Attorney was properly
served with the motion at the same time HHS was served. Therefore the delay in
responding cannot be attributed to incomplete service. Nevertheless the Motion to Sell
was not heard until October 2, 2008, some nine days after the objection was filed.
Moreover ABC filed its statement in support of the sale, one day before the hearing, in
response to the objection and addressed the substantive arguments raised by the
United States. Therefore the harm to the proponents of the sale is non-existent while
the prejudice to the United States, namely a severance of HHS’ asserted right to recoup
overpayments from the buyer, is too great to overrule the objection on the grounds that
it was two business days late.
The Right to Recoup Overpayments
The parties have framed the issue as whether the Bankruptcy Code permits the
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2The parties did not address the structure of the Medicare program in any of their
pleadings, leaving the Court to parse the statute, regulations, and case law dealing with
the Medicare program.
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sale of a Medicare provider number free of any claims for recoupment against the
successor and agree that this is a case of first impression in this circuit. In fact, the
case law addressing this issue is scant and contradictory. Some courts hold that the
provider number arises under an executory contract while others conclude that
reimbursement is a statutory entitlement. The split appears to be driven by the context
and arena in which the question originates with a majority of bankruptcy courts
concluding the provider number arises out of an executory contract. Often there is little
discussion of the issue of what the provider number is and how it arises. Complicating
the analysis is the complex Medicare scheme set forth in the Title XVIII of the Social
Security Act and the regulations promulgated thereunder. Some basic understanding of
the Medicare program is helpful to understand the Court’s analysis of the issue.
The Medicare Program 2
Medicare is a federally-subsidized health insurance program for the elderly and
certain disabled persons. See generally 42 U.S.C. §§ 1395 et seq. It consists of two
parts: Medicare Part A , codified at 42 U.S.C. §§ 1395c-1395i-4, and Medicare Part B,
codified at §§ 1395j-1395w-4. Medicare Part A authorizes direct payment to a
Medicare provider for covered services that are often described as “hospital covered
services,” while Medicare Part B is a form of medical insurance for which the
beneficiary-patient pays an annual premium. Both Parts A and B provide payment for
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3For example, Medicare Part A covers up to 100 home health visits following a
hospital stay of at least three days while Part B covers home health visits not preceded
by a hospital stay and visits over the 100-day Part A limit. Participation in Part B is
voluntary and Medicare beneficiaries pay a premium for Medicare Part B coverage.
4 The parties have not identified the Debtor’s fiscal intermediary or whether it
received notice of the motion to sell. This omission is not material to the Court’s
decision.
7
home health services although each part provides somewhat different coverage.3
The Medicare program is administered by the Centers for Medicare and Medicaid
Services ("CMS"), formerly known as the Health Care Financing Administration
("HCFA"), which is a component of the United States Department of Health and Human
Services ("HHS"), formerly known as the Department of Health, Education and Welfare
(“HEW”). CMS, in turn, contracts with regional providers, called fiscal intermediaries, to
review, process, and pay Medicare claims. Payment to providers such as the Debtor is
actually made on an interim basis under a system of prospective reimbursement. 42
C.F.R. § 413.60. This results in payments to a provider prior to a determination that the
services rendered are covered and the costs reasonable. Because the Medicare
program mandates that only the reasonable cost of covered services be paid, however,
these same fiscal intermediaries also audit claims for reimbursement to determine the
appropriateness of payments requested and made. 4 If, after completion of the audit,
the fiscal intermediary determines that a provider is overpaid, HHS has the right to
recover the overpayments from the provider. 42 U.S.C. § 1395g(a)(“The Secretary shall
periodically determine the amount which should be paid under this part to each provider
of services with respect to the services furnished by it, and the provider of services shall
be paid ... with necessary adjustments on account of previously made overpayments or
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5 Rodney A, Johnson, Healthcare Regulatory Concerns Involved in the
Acquisition and Sale of Insolvent Healthcare Companies, American Health Care
Attorneys, seminar materials, February 2001 , available on Westlaw at AHLA-Papers
P02050115, provides a concise synopsis of the timetable involved in finalizing these
interim payments.
Although interim payments are made throughout the
provider’s fiscal year, no sum is truly due and owing a
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underpayments....”). “The Secretary's regulation permits the intermediary, in an
overpayment situation, either to seek to recover the full extent of prior overpayments-
threatening to suspend a provider's participation in Medicare if it does not pay-or to
enter into an agreement with the provider (which is what occurred here) whereby the
provider continues its services with appropriate deductions for the past overpayments.
See 42 C.F.R. § 405.373(a)(2).” U.S. v. Consumer Health Services of America, Inc.,
108 F.3d 390, 396, 323 U.S.App.D.C. 336, 342 (Fed. Cir. 1997).
Medicare reimbursement payments are made
on a continuing basis throughout the year
based upon claims filed by the provider and
are called “interim payments.” Annually, the
provider must file a Provider Cost Report with
the Fiscal Intermediary to permit the
Intermediary to audit the claimed costs and
determine whether the costs claimed are
proper. Once adjustments are made, the FI
determines whether the provider has been
overpaid or underpaid for the costs allowable
for the year.
In re United States v. White, 492 F.3d 380, 388 (6th Cir. 2007). See also 42 U.S.C §
1395g. The interim payments are in reality estimates of the reimbursement due.
“[U]nderpayments and overpayments are an expected and inevitable result of this
payment system.” Sims v. United States Department of Health & Human Services (In re
TLC Hospitals, Inc.), 224 F.3d 1008, 1012 (9th Cir, 2000).5
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provider until such time as the provider submits its fiscal
period year cost report and the reasonable cost
determination has been made by the fiscal intermediary. To
accomplish this reasonable cost determination, the provider
is required to file with the fiscal intermediary its annual cost
report within five (5) months of the end of the cost reporting
period. Through the cost report process, payments are
reconciled with actual reimbursement due the provider on a
yearly basis. See 42 C.F.R. Part 413, Subpart E. When the
intermediary has finished its review of a cost report, it issues
the Notice of Program Reimbursement (NPR), which
identifies any adjustments and states the amount of any
Medicare underpayment and reimbursement due the
provider, or the amount of any overpayment and
reimbursement owed to the program. See See 42 U.S.C. §
1395g; 42 C.F.R.§413.60 and § 405.1803.
If, after audit, a provider is dissatisfied with the outcome, it must exhaust its
administrative remedies beginning with the Provider Reimbursement Review Board.
Although there is no statute of limitations for the completion of the audit although the
court in Secretary. Mount Sinai Hospital of Greater Miami, Inc. v. Weinberger, 517 F.2d
329, 342 (5th Cir. 1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176
(1976), found the three year statute of limitations found in 42 U.S.C. § 1395gg (a
section generally prohibiting recovery of overpayments from Medicare beneficiaries)
applicable to recoupment of overpayments from a provider.
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Enrolled Medicare Providers
Reimbursement for services under Medicare may only be made to a provider
enrolled as a medicare provider. 42 U.S.C.A. § 1395cc. 	In order to become enrolled
as a Medicare provider, a provider must submit an enrollment application on the
enrollment application form prescribed by CMS, submit to whatever survey and
certification or accreditation process deemed necessary by CMS, and meet additional
requirements set forth in the regulations, including those relating to the accuracy of the
information on the completed application and the requirement to report changes to the
information contained on the application. See 42 C.F.R. § 424.510(a) and (c); §
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6The essential elements of the provider agreement are set forth in 42 C.F.R. §
489.20.
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424.515; and § 424.520(b). Upon determination that an applicant is qualified to be
enrolled in the Medicare program, CMS provides written notice of its decision along with
two copies of a provider agreement. 42 C.F.R. § 489.11(a). If the applicant chooses to
enroll, it must sign and return both copies of the agreement, along with a written
statement regarding past or pending insolvency proceedings. 42 C.F.R. § 489.11(b). If
the agreement is accepted by CMS, it returns one copy, which specifies the effective
date of the agreement. 42 C.F.R. § 489.11(c). 6 Once enrolled, the provider is issued a
valid billing number, 42 C.F.R. § 424.505, and may commence submitting claims for
reimbursement of covered goods and/or services under the Medicare program.
The Sale of a Provider Number
As ABC has indicated, the process by which an entity or individual becomes an
can be lengthy. A transfer of the provider number from one entity to another eliminates
any gap in the billing process.
42 C.F.R. § 424.550 provides:
A provider or supplier is prohibited from selling its Medicare
billing number or privileges to any individual or entity, or
allowing another individual or entity to use its Medicare
billing number.
The applicable regulations, however, permit the assignment of the provider
number as part of a change in ownership. 42 C.F.R. § 489.18. Upon a change of
ownership of the provider number, the existing provider agreement is automatically
assigned to the new owner. 42 C.F.R. § 489.18(c). 	The new owner takes the provider
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7Triad involved the sale of five facilities previously owned by an entity the court
identified only as “Mariner.” Triad, 563 F. Supp. at 8. This Court notes that Mariner
Post-Acute Network, Inc. and its related affiliates filed bankruptcies in the United States
Bankruptcy Court for the District of Delaware in January 2000, Case No 00-00113, et al.
The decision does not address whether the sale occurred as part of the bankruptcy.
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agreement subject to the same terms and conditions as the previous owner, 42 C.F.R.
§ 489.18(d). Outside of the bankruptcy arena at least, when a change of ownership
occurs and the new owner accepts the prior owner’s provider agreement, overpayments
to the previous owner may be recovered from the new owner. United States v.Vernon
Home Health, Inc, 21 F.3d 693 (6th Cir.), cert denied 513 U.S. 1015, 115 S.Ct. 575
(1994); Triad at Jeffersonville I, LLC v. Leavitt, 563 F. Supp.2d 1, 18 (D.D.C. 2008)(“A
sales agreement stipulating that the new owner is not liable for the overpayments made
to the previous owner is not evidence enough for recovery from the new owner to not
occur ... If the new owner assumes assignment of the Medicare agreement, Medicare
will attempt to recover from the new/current owner regardless of the sales agreement”).7
But the transaction contemplated by the Chapter 7 Trustee and ABC does not
involve any transfer that would bring the sale of the Medicare provider number within
the definitions of change of ownership set forth in 42 C.F.R. § 489.18(a). Indeed ABC is
clear: it does not want to be viewed as a continuation of the Debtor’s business.
Therefore the Court must confront the question of whether a provider number, standing
alone, may be sold by the Debtor.
The Trustee and ABC assert that the BDK case is on all fours with the instant
case. In BDK, the buyer offered to purchase substantially all of the debtor’s assets, not
just the provider number. The letter of intent, however, did include an express provision
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that the sale was to be free and clear of all liens, claims and encumbrances, including
any rights of HHS or HCFA to seek recoupment of overpayments made to the debtor
from the buyer. HHS objected on the grounds that the provider numbers are executory
contracts that must first be assumed before they could be transferred. The court
overruled the objection “based on the argument of counsel, the appropriate and the
evidence accepted by this Court.” Id. at 3. In rejecting HHS’ argument that the sale
was an impermissible attempt to transfer executory contracts, the court stated that “[t]he
rights and duties of a health care provider and HHS are set forth not in provider
numbers but rather in the Medicare Statutes and Regulations....HHS’ entitlement to
recoup overpayments is similarly statutory and does not arise under these
arrangements.” Id. at 6. The court specifically pointed out that HHS had not introduced
any evidence of the provider agreement or its terms. Moreover, it distinguished those
cases cited by HHS for the proposition that the arrangements between HHS and its
providers are executory contracts by noting that none of the parties in those cases
challenged HHS’ assertion; in fact virtually all the parties agreed.
The decision also rests on equitable grounds, namely that the sale would
preserve the going concern value and that the buyer’s principal testified that absent the
termination of the right of recoupment against the buyer’s future medicare income, it
would not proceed with the sale. In attempting to fashion some remedy, the court left
HHS with a claim against the sale proceeds.
As the BDK court recognized, however, a majority of bankruptcy court
considering the Medicare-provider relationship conclude that the Medicare provider
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agreement, with its attendant benefits and burdens, is an executory contract. See In re
University Medical Center, 973 F.2d 1065, 1075 and n. 13 (3d Cir. 1992)(concluding
that HHS’ offset of postpetition funds against prepetition overpayment violated the
automatic stay because debtor had not yet assumed or rejected its provider
agreement); In re Advanced Professional Home Health Care, Inc., 94 B.R. 95 (E.D.
Mich. 1988)(In permitting postpetition recoupment of prepetition overpayments, the
court stated “the relationship between the Secretary and Advanced is governed by a
complex statutory scheme. Under that scheme, Advanced could not continue as a
provider following the filing of a petition for reorganization on November 12, 1986 unless
it effectively assumed the obligations of the provider agreement under which it had
previously been operating. 42 U.S.C. § 1395 et seq.”); In re Memorial Hospital of Iowa
County, Inc. 82 B.R.478 (W.D. Wis.), appeal dismissed, 862 F.2d 1299 (7th Cir. 1988);
In re Tri County Home Health Services, Inc., 230 B.R. 106, 111 (Bankr. W.D.
Tenn.1999)(“Recoupment is generally allowed in cases involving a single contract which
called for advance payments based on estimates, subject to correction at a later time....
Indeed, this is precisely the nature and character of Medicare reimbursement to health
care providers. See, 42 U.S.C. § 1395g(a).”); In re Tidewater Memorial Hosp., Inc., 106
B.R. 876, 883 (Bankr. E.D.Va.1989).
In In re Holyoke Nursing Home, Inc., 372 F.3d 1, 4 (1st Cir. 2004), the court of
appeals concluded that HHS was exercising its right of recoupment when recovering
past overpayments from current payments and thus did not violate the automatic stay or
receive preferential payments. In so holding it stated:
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We ... hold that the HCFA recovery of ... overpayments
previously made to Holyoke constituted a transaction in the
nature of a recoupment, rather than a setoff. As such, it was
neither a voidable preferential transfer nor a violation of the
automatic stay. Both the Medicare statute and the provider
agreement--by contemplating HCFA's payment of estimated
costs, corrective audits, and retroactive adjustments or
partial adjustments for overpayments and underpayments in
determining HCFA's net liability for current cost-year
services--strongly indicate that the contractual relationship
between HCFA and Holyoke constitutes one, ongoing,
integrated transaction. [Emphasis added].
Although Holyoke Nursing Home does not directly address the issue before this Court,
the above-quoted dicta suggests that this circuit, if confronted with the issue, would view
the issue much as the Advanced Professional Home Health Care court did: the
provider number and the provider agreement are part and parcel of a complicated
statutory scheme. It appears that the provider agreement, the statute, and the
regulations form an arrangement that imposes both benefits and burdens on the
provider. It cannot accept the benefits without the attendant burdens.
Moreover the Court is mindful of the principle of statutory construction that “when
two statutes are capable of co-existence, it is the duty of the courts, absent a clearly
expressed congressional intention to the contrary, to regard each as effective.” Morton
v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483 (1974). “The courts are not at
liberty to pick and choose among congressional enactments.” Id.
The outcome urged by the Trustee and ABC renders HHS’ right to recoup
overpayments a nullity and thwarts a fundamental principle of the Medicare scheme,
namely providing health care to the elderly and disabled while protecting the public fisc.
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8Although the fiscal intermediary performs annual audits of the cost reports, it is
unclear when its determination of any over or underpayments will be finalized.
Moreover a Medicare provider, if the amount in controversy is $10,000 or more, has
additional administrative appellate rights it may pursue with the Provider
Reimbursement Review Board. Upon exhaustion of its administrative remedies, the
Medicare provider may pursue judicial review. 42 U.S.C. § 1395oo; 42 C.F.R. Part 405,
Subpart R. While the appeals are pending, recovery of the overpayment is not stayed.
42 C.F.R. § 405.1803(c).
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[HHS] is charged with protecting the interests of Medicare
beneficiaries and with the effective management of the
public funds entrusted to the Medicare program. HHS “has a
critical interest in maintaining the integrity of the Medicare
program for the benefit of all, including the taxpaying public.”
Neurological Associates-H Hooshmand v. Bowen, 658
F.Supp. 468, 473 (S.D.Fla.1987). Depletion of the Medicare
trust fund by continuing to pay a Medicare provider to whom
an excess has already been paid violates HHS' public
charge to effectively administer the Medicare Trust Fund.
Tri County Home Health Services, 230 B.R. at 113. Requiring the provider agreement
to be assumed prior to its sale, however, harmonizes both the Medicare and Bankruptcy
statutes.
Yet the Court is aware of the factual conundrum in this case. While HHS has a
right to recover overpayments, whether the right to reimbursement is viewed as a
contractual right or a statutory entitlement, the amount of the overpayment, if any, which
the United States and HHS would urge be viewed as the cure amount, is not yet fixed
and the amount ranges from $10,000 to $800,000. 8
The Court is sympathetic to the Trustee’s desire to maximize recovery for the
benefit of creditors even as it is mindful of the Holyoke Nursing Home court’s
admonition
the equitable powers of the bankruptcy court do not accord it
“a roving commission to do equity,” In re Ludlow Hosp.
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Soc'y, Inc., 124 F.3d 22, 27 (1st Cir.1997) (citation omitted),
nor “authorize courts to create substantive rights that are
otherwise unavailable under the Code, or to expand the
contractual obligations of parties.” Id. (quoting Official,
Unsecured Creditors' Comm. v. Stern ( In re SPM Mfg.
Corp.), 984 F.2d 1305, 1311 (1st Cir.1993)). As we conclude
that Congress contemplated that the Medicare provider
agreements would constitute a single, ongoing, and
integrated transaction, the equitable powers of the
bankruptcy court do not entitle it to second-guess
Congress's implicit policy choices. Both by statute and by
contract, the HCFA has the unqualified right to recoup these
overpayments in full, and to return the funds to the public
fisc, where they can be used to fund other facilities providing
care to Medicare beneficiaries. In our view, public policy
would be ill-served by permitting insolvent providers-like
Holyoke-a windfall at the expense of other Medicare
providers which have managed their facilities prudently to
avoid chapter 11.
Holyoke Nursing Home, 372. F.3d at 5.
Without rewriting the Bankruptcy Code or ignoring HHS’ charge under the
Medicare program, the Court ultimately concludes that the sale should be approved but
that the parties be aware of the priority under which this Court believes HHS may
recover any overpayments. First, HHS may recoup overpayments from any payments
due to the Debtor’s estate from HHS; next it may recoup against funds held by the
Trustee if such funds were generated by the past interim Medicare payments; next
against any sale proceeds generated by the sale of the provider number; and finally to
the extent there remains any overpayments to be recovered, HHS may proceed against
the entity to which the Debtor’s provider number is assigned. Nothing herein shall be
interpreted, however, as terminating HHS’ right to file a claim against the Debtor’s
estate or the Trustee’s right to object thereto.
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CONCLUSION
For the reasons set forth herein, the Trustee’s Motion to Authorize the Sale of
Property of the Estate (namely, the Debtor’s Medicare provider number), Free and Clear
of Liens, Claims, and Encumbrances (#75) is ALLOWED on the terms and conditions
set forth herein.
A separate order has issued.
Dated: October 29, 2008 	__________________________
Joel B. Rosenthal
United States Bankruptcy Judge
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