The Medicare Provider Agreement: Is It a Contract or Not? And Why Does Anyone Care?
Samuel R. Maizel and Jody A. Bedenbaugh, 71(4): 1207-1240 (Fall 2016)
The article first considers the conflicting positions taken by the United States Government regarding whether the Medicare Provider Agreement is an executory contract in and outside of bankruptcy court. It examines whether the Government’s positions can be reconciled, and if the Government should be barred by preclusion and estoppel principles from asserting in bankruptcy court that a Provider Agreement is an executory contract. The article then discusses whether the Provider Agreement should be treated as an executory contract in bankruptcy, and the implications of such treatment on a bankrupt provider’s ability to transfer its Provider Agreement to a purchaser under the Bankruptcy Code and related issues, such as the Government’s setoff and recoupment rights and successor liability.