The Potential and Pitfalls of the Bankruptcy Court as a Forum for Provider/Payor Disputes

Over the last several years, distressed healthcare providers have increasingly looked to the protections of the Bankruptcy Code⁴ and bankruptcy courts in a last ditch effort to address reimbursement disputes with payors and effectuate a sale or restructuring transaction.⁵ A critical issue in many of these bankruptcy cases is whether a payor’s asserted overpayments to the provider prior to the bankruptcy case may be recouped by the payor from amounts payable for services to be rendered by the provider after the bankruptcy filing. While the Bankruptcy Code affords a debtor powerful rights not otherwise available outside of a bankruptcy case, those rights are not without limitations imposed by applicable healthcare regulations.⁶ Any provider contemplating bankruptcy, whether due primarily to a reimbursement dispute or other factors, must be mindful of both the unique benefits and risks attendant to a healthcare bankruptcy filing.

1. Overview of the Medicare and Private Insurance Payment Process⁷

Generally, in order for a healthcare entity providing services to Medicare and/or Medicaid patients to qualify as an eligible provider under the Medicare Act and applicable state law, the entity must first enter into a provider agreement with the Department of Health and Human Services (HHS) or its state agency equivalent. Although the specific payment procedure varies depending on provider type, services provided, and the applicable program, in a typical Medicare Part A reimbursement scenario, HHS, through a “fiscal intermediary” – typically a large, private insurance company – makes interim reimbursements to the provider based on the estimated cost of the care provided to Medicare/Medicaid patients.⁸ At the end of each fiscal year, following an audit of the provider, the intermediary makes a determination whether, based on the actual costs incurred by the provider and the amount of interim reimbursement paid, the provider has been over or underpaid.⁹

In the private payor context, the reimbursement process, including the amount of reimbursement paid, is governed by the terms of a contract between the provider and the applicable insurance company. Unlike the Medicare reimbursement system for participating providers where payments are generally made based on monthly or quarterly estimates, private insurers typically reimburse the healthcare provider on a procedure-by-procedure or patient-by-patient basis after the provider has submitted the requisite documentation. Like the government, private insurers also conduct audits to identify errors or other circumstances that may have resulted in overpayments to a provider.

2. Recovery of Overpayments Outside of Bankruptcy - Setoff, Recoupment and Suspension

Both government and private payors have two principal means to recover overpayments: setoff and recoupment.¹⁰ As discussed in further detail below, the distinction between setoff and recoupment is important, particularly after a provider has filed for bankruptcy relief.

Generally speaking, setoff allows a party to use an obligation owed to it by a counterparty (such as an overpayment) to reduce the obligations it owes to that same counterparty.¹¹ For setoff to apply, there is no requirement that the obligations arise from the same transaction, merely that the obligations are owed by the same parties. Recoupment similarly allows a party to reduce the obligations it owes to a counterparty in an amount equal to the obligations owed to it by the counterparty. However, unlike setoff, for recoupment to apply both the party’s claim and the counterparty’s claim must arise from the same contract or transaction.

a.  Government Payor Remedies

When the government determines that an overpayment has been made, the government may use setoff or recoupment to recover that overpayment against other reimbursement amounts owed to the provider, thereby reducing the provider’s future collections. Because recoupment is generally a more advantageous remedy than setoff in the bankruptcy context, as discussed below, the ability to characterize the recovery of an overpayment as a recoupment, rather than a setoff, is often critical. A majority of courts have held that the government’s recovery of an overpayment through subsequent reimbursement deductions to participating providers that have entered into a provider agreement constitutes recoupment on the grounds that the government’s payments to the provider are part of a single “integrated transaction.” However, in the context of an overpayment to a nonparticipating provider, the government may have a more difficult time establishing that the overpayments were part of a single integrated transaction in the absence of a provider agreement.

In addition to the government’s rights of setoff and recoupment of asserted overpayments, the government has broad authority to suspend payments. Specifically, the government may suspend payments (1) subject to certain procedural requirements, if there is “reliable information that an overpayment exists”;¹² and (2) even in the absence of a determination that an overpayment exists if there is “reliable evidence” that insolvency proceedings (such as a bankruptcy filing) will “shortly be instituted.”¹³

b. Private Payor Remedies

Subject to the terms of their reimbursement agreements, private insurers also generally have a right to exercise setoff and/or recoupment with respect to overpayments. Following a private insurance company’s determination that it has made an overpayment, the insurer will often resort to unilateral setoff/recoupment to recover the overpayment by decreasing future payments to the provider. However, as discussed below, private insurance payments are generally less likely to be considered part of a single, integrated transaction and, therefore, commercial payor withholdings are more likely to be characterized as a setoff rather than a recoupment.

Given that government and private insurance collections are the primary source of revenue for most healthcare providers, a provider faced with a suspension of payments or an exercise of setoff/recoupment with respect to any material claim is likely to experience an immediate cash flow crisis, and may have few options other than to commence a bankruptcy proceeding.

3. The Impact of Bankruptcy on Provider/Payor Reimbursement Disputes

a. A Threshold Question: Does the Bankruptcy Court Have Jurisdiction to Consider a Reimbursement Dispute?

Claims arising under the Medicare Act are governed, in part, by 42 U.S.C. § 405(h), which provides that “[n]o action against the United States, the [Secretary of HHS] or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.”¹⁴ Outside of bankruptcy, there is no question that § 405(h) requires that a provider contesting a government pay suspension or reimbursement determination exhaust the HHS administrative appeal process prior to litigating the dispute in federal court.¹⁵ The time and cost associated with contesting a reimbursement determination within the HHS administrative hierarchy may be overwhelming for some providers.¹⁶ As a result, a number of providers have attempted to avoid the administrative appeal process by filing for bankruptcy relief and litigating these claims in bankruptcy court, raising the question of whether § 405(h) bars a bankruptcy court from exercising jurisdiction over a Medicare claim dispute until all applicable administrative remedies within the Medicare system have been exhausted.

A majority of courts have held that 42 U.S.C. § 405(h) does bar bankruptcy courts from exercising jurisdiction over a Medicare claim dispute until the provider has completed the HHS administrative appeal process.¹⁷ Most recently, the Eleventh Circuit joined the majority position adopted by the Third, Seventh and Eighth Circuits, holding:

[w]hile we are not unsympathetic to the argument [that unless the bankruptcy court can take jurisdiction over the provider agreements Bayou Shores would cease to exist as a going concern long before the HHS administrative appeals process could complete], the choice of whether the bankruptcy court or HHS is best positioned to adjudicate Medicare claims is a policy decision that the bankruptcy court was not empowered to make …. § 405(h) and (g) restricts the role of district courts to a limited review of final HHS decisions, thus reflecting Congressional policy to let HHS adjudicate those claims in the first instance.¹⁸

In contrast, the Ninth Circuit has held that § 405(h) does not preclude a bankruptcy court from exercising jurisdiction over claims “arising out of the government’s setoff of Medicare overpayments.”¹⁹ In Town & Country Home Nursing, the Ninth Circuit, relying on the plain language of the statute, held that “405(h) only bars actions under 28 U.S.C. §§ 1331 [i.e. federal question jurisdiction] and 1346 [i.e. suits against the federal government]; it in no way prohibits an assertion of jurisdiction under section 1334 [i.e. bankruptcy jurisdiction].”²⁰

In June 2017, the U.S. Supreme Court declined to hear the debtor’s appeal of the Eleventh Circuit’s decision in Bayou Shores. Accordingly, there remains a split of authority on the issue.

While disputes with private insurers do not raise the same jurisdictional issues as disputes relating to Medicare/Medicaid reimbursements, many reimbursement agreements include arbitration provisions or other alternative dispute resolution procedures. A provider-debtor should be prepared to address a private insurer’s argument that, notwithstanding the bankruptcy filing, any reimbursement dispute should be adjudicated through arbitration rather than by the bankruptcy court. Courts have generally held that, while arbitration provisions are enforceable in “non-core” matters, in matters where the bankruptcy court has “core” jurisdiction,²¹ the bankruptcy court has the discretion to not enforce an arbitration provisions if doing so would conflict with the underlying policies of the Bankruptcy Code.²² To the extent a reimbursement dispute can be characterized as a core matter, a provider-debtor will have a stronger argument that the dispute should be decided by the bankruptcy court despite the existence of a contractual arbitration clause.

b. Setoff and Recoupment of Healthcare Receivables in Bankruptcy

i. The Important Distinction Between Setoff and Recoupment in Bankruptcy

Setoff is explicitly permitted by Bankruptcy Code § 553. Recoupment, on the other hand, while not explicitly provided for in the Bankruptcy Code, is a recognized equitable doctrine that may be exercised against a Chapter 11 debtor.²³ While both setoff and recoupment are still available to the creditors of a debtor-in-possession, a bankruptcy filing changes the analysis in important ways. For example, the petition date (the date the bankruptcy is filed) acts as a dividing line that cannot be crossed when applying setoff. Therefore, a creditor may setoff a prepetition²⁴ obligation it owes to the debtor against a prepetition obligation owed to it by the debtor. A creditor may not, however, use a prepetition obligation owed by the debtor to setoff against a postpetition obligation the creditor owes to the debtor. Recoupment, on the other hand, is not affected by the petition date and may therefore be used to apply a prepetition obligation owed by the debtor (such as an overpayment) against a postpetition obligation owed to the debtor.²⁵

Another important factor affecting the application of setoff and recoupment in the bankruptcy context is the “automatic stay.” Upon the filing of a bankruptcy petition, Bankruptcy Code § 361 imposes an “automatic stay” which makes it unlawful for creditors to pursue most collection actions, actions to recover property, and various other activities. The enforcement of a right to setoff is subject to the automatic stay, and therefore a creditor seeking to assert a claim for setoff must first seek relief from the automatic stay. Unlike setoff, most courts have held that a creditor may apply recoupment without seeking relief from the automatic stay.²⁶ Additionally, a creditor seeking to preserve a setoff right must file a proof of claim with the court asserting the setoff right or it will lose its setoff right. Filing a proof of claim asserting a right to setoff effectively elevates an otherwise unsecured claim to a secured claim to the extent of the setoff right.²⁷

Because rights to recoupment are generally much more advantageous than setoff rights within the bankruptcy context, recoupment is often litigated in bankruptcy. A key issue in most recoupment disputes is whether both the creditor’s claim and the amount owed to the debtor arise from a single contract or transaction.²⁸ What constitutes a single contract or transaction has not been clearly defined by the courts, and courts typically focus on the specific facts of the case. Two primary tests have arisen, the “logical relationship” test and the “integrated transaction” test.²⁹ The “integrated transaction” test is a much more stringent inquiry and courts adopting that test are less likely to find recoupment applicable. Because a determination of whether two debts arise from the same transaction is a fact-specific inquiry, “creditors would be wise to seek relief from [the automatic stay] to effect setoff, even if they believe they have a claim for recoupment, as a precautionary measure”³⁰ particularly in a jurisdiction that applies the “integrated transaction” test or a jurisdiction without circuit level authority on the issue.

ii. Setoff and Recoupment in the Medicare Reimbursement Context

A majority of courts, including the First,³¹ Ninth,³² and D.C. Circuits,³³ have held that the government may recoup overpayments against a participating provider-debtor’s postpetition reimbursement rights. In contrast, the Third Circuit has more narrowly construed the government’s right of recoupment against a participating provider in bankruptcy.³⁴

In In re University Medical Center, HHS had withheld Medicare payments owed to the debtor hospital for postpetition services. The Third Circuit, applying the more stringent “integrated transaction” test, held that the doctrine of recoupment should be “narrowly construed.”³⁵ It reasoned that the ongoing relationship between Medicare and the debtor did not meet the integrated transaction test because the debtor’s current and future reimbursements were “independently determinable” and “completely distinct” from the overpayments made by Medicare in the past.³⁶ The court concluded that “a mere logical relationship is not enough: the fact that the same two parties are involved, and that a similar subject matter gave rise to both claims does not mean that the two arose from the same transaction.”³⁷

iii. Setoff and Recoupment in the Context of Reimbursement Agreements with Private Insurers

Many reimbursement agreements with private insurers explicitly include recoupment and setoff rights. However, including those rights in the contract does not eliminate the application of the automatic stay in bankruptcy, nor does it eliminate the party’s obligation to establish its recoupment right under the applicable legal standards. Therefore, in order to exercise its right to setoff against a provider-debtor, a private insurer must file a proof of claim and seek stay relief in the provider’s bankruptcy case. Moreover, even if the private insurer believes that it has a valid right to recoupment, it may need to seek relief from the bankruptcy court before exercising recoupment, particularly if the provider-debtor has filed in a jurisdiction that follows the “integrated transaction” test.

4. Provider Strategies for Utilizing the Bankruptcy Court to Resolve Reimbursement Disputes

With careful planning, some of the uncertainty surrounding the treatment of reimbursement disputes in bankruptcy can be mitigated, and bankruptcy can be an effective tool to bring the parties to the negotiating table. At the outset of the bankruptcy case, the provider-debtor should attempt to address government and private insurance reimbursement issues, including setoff and recoupment, through the entry of appropriate cash collateral and/or debtor-in-possession financing orders – the orders which permit the debtor to use the cash proceeds of receivables (if they are pledged as collateral) and to obtain post-bankruptcy financing (which is typically secured, at least in part, by a lien on postpetition receivables). For example, the provider-debtor should consider seeking approval of provisions that prohibit a governmental unit or private insurer from exercising recoupment rights or asserting a lien in the provider-debtor’s receivables or other assets. Alternatively, the provider-debtor can seek approval of language requiring governmental units and private insurers to give notice to the provider-debtor before exercising recoupment rights or provisions requiring notice to the provider-debtor of the existence of a reimbursement dispute. Importantly, this allows the provider an immediate opportunity to begin negotiating with its payors and to bring the reimbursement dispute to the attention of a bankruptcy judge.

Another key consideration is venue. As previously discussed, there is a split of authority as to whether a bankruptcy court has jurisdiction to adjudicate Medicare claim disputes, which may weigh into a provider-debtor’s selection of filing venue. Similarly, if recoupment is an issue, a venue that has adopted the “integrated transaction” test may be preferable to one that applies the “logical relationship” test.

The provider-debtor may also consider utilizing Section 525 of the Bankruptcy Code, which prohibits a governmental unit from revoking, suspending, or refusing to renew a license solely because the provider has filed for bankruptcy.³⁸ The provider may argue that the government’s termination of the provider agreement or withholding of postpetition reimbursements violates the anti-discrimination provisions set forth in § 525.³⁹

Finally, the provider-debtor should carefully monitor reimbursement revenues in order to identify any attempts by the government or a private insurer to exercise recoupment rights. If the provider-debtor believes that recoupment is being improperly applied, it should consider filing a motion to enforce the automatic stay or a lawsuit seeking turnover, an injunction, or other declaratory relief.

5. Conclusion

While bankruptcy is not a cure-all for everything that may ail a healthcare provider, bankruptcy does provide a range of tools and protections that can make an otherwise fatal reimbursement dispute more manageable. However, bankruptcy may also present unique challenges that place additional strain on a provider if not properly addressed. With careful planning by the provider and its advisors, a provider can anticipate and address many of the challenges posed by a bankruptcy filing while leveraging the substantial tools and protections available to Chapter 11 debtors to effectuate a successful restructuring transaction.

1.  Healthcare providers often also need additional financing in the form of a line of credit secured by the provider’s receivables.
2.  Many providers will also have some percentage of self-pay (i.e. individual) receivables. The mix of receivables varies by provider, but for any provider that accepts Medicare/Medicaid patients, the timely collection of both its government pay and commercial pay receivables will be critical to the business.
3.  Title XVIII of the Social Security Act, 42 U.S.C. §§ 1395-1395ccc.
4.  11 U.S.C. §§ 101, et seq.
5.  See Bankruptcies, the Affordable Care Act, and What’s Next for the Health Care Industry (March 9, 2017), available at www.epiqsystems.com/the-epiq-angle/healthcare-bankruptcies-obamacare (“… by the following year [2014], 16 health care businesses had filed for bankruptcy. They were followed by a steady wave of Chapter 9 and Chapter 11 filings that continued to hit healthcare in 2015-2016 …”); Ayla Ellison, 22 Healthcare Bankruptcies So Far in 2017 (September 15, 2017), available at www.beckershospitalreview.com/finance/20-healthcare-bankruptcies-so-far-in-2017-091517.html (listing 22 healthcare bankruptcy cases filed as of September 15, 2017).
6.  In addition to the non-bankruptcy healthcare regulations applicable in healthcare provider bankruptcy cases, the Bankruptcy Code itself imposes certain additional duties on a “health care business,” which is broadly defined to include “any public or private entity [profit or not for profit] that is primarily engaged in offering to the general public facilities and services for: (i) the diagnosis or treatment of injury, deformity, or disease; and (ii) surgical, drug treatment, psychiatric, or obstetric care.…” 11 U.S.C. § 101(27)(A).
7.  The discussion of the government payment process in this article is meant to provide an overview of the typical Medicare Part A reimbursement process only, not a comprehensive explanation of the Medicare payment process generally. This article does not attempt to address state-specific government payment regulations or practices. The term “provider” used in this article refers to a healthcare entity that would qualify as a “provider” under 42 U.S.C. § 1395g and/or 42 C.F.R. § 405.371 (e.g. a provider of inpatient hospital or long-term care services).
8.  See 42 U.S.C. § 1395g; 42 C.F.R. §§ 413.60, 413.64.
9.  As discussed below, the government may determine that an overpayment exists based on the results of an annual audit or other “reliable information” that an overpayment has been made.
10.  See 42 U.S.C. § 1395g(a) (the provider shall be paid “with necessary adjustments on account of previously made overpayments…”).
11.  The elements a creditor must typically satisfy to exercise a right to setoff are (i) the creditor has a prepetition claim against the debtor, (ii) the creditor owes a prepetition debt to the debtor, (iii) both the claim and the debt are valid and enforceable, and (iv) the debts are mutual (i.e. the same party that owes the debt is also the party that holds the claim).
12.  See 42 C.F.R. § 405.371.
13.  See 42 C.F.R. § 413.64(i).
14.  See 42 U.S.C. § 405(h).
15.  The Medicare appeal process involves four steps prior to judicial review in U.S. District Court: (1) redetermination by a Medicare Administrative Contractor, (2) reconsideration by a Qualified Independent Contractor, (3) Administrative Law Judge hearing or review by the Office of Medicare Hearings and Appeals, and (4) review by the Medicare Appeals Council.
16.  According to statistics released by HHS, in the third quarter of fiscal year 2017 the average time for the Office of Medicare Hearings and Appeals, the entity which handles Medicare appeals, to process such appeals exceeded 1,082 days, or nearly three years. See https://www.hhs.gov/about/agencies/omha/about/current-workload/average-processing-time-by-fiscal-year/index.html (last accessed December 5, 2017).
17.  See Fla. Agency for Health Care Admin. v. Bayou Shores SNF LLC (In re Bayou Shores SNF LLC), 828 F.3d 1297 (11th Cir. 2016); Nichole Med. Equip. & Supply Inc. v. TriCenturion Inc., 694 F.3d 340 (3d Cir. 2012); Midland Psychiatric Assocs. v. U.S., 145 F.3d 1000 (8th Cir. 1998); Bodimetric Health Servs. Inc. v. Aetna Life & Casualty, 903 F.2d 480 (7th Cir. 1990).
18.  Bayou Shores, 828 F.3d at 1324-25.
19.  See Sullivan v. Town & Country Home Nursing Servs., Inc. (In re Town & Country Home Nursing Servs. Inc.), 963 F.2d 1146, 1154 (9th Cir. 1991).
20.  Id. at 1155.
21.  See 28 U.S.C. § 157 and 28 U.S.C. § 1334.
22.  See Cont’l Ins. Co. v. Thorpe Insulation Co. (In re Thorpe Insulation Co.), 671 F.3d 1011, 1020-1021 (9th Cir. 2012).
23.  See Univ. Med. Ctr. v. Sullivan (In re Univ. Med. Ctr.), 973 F.2d 1065, 1079 (3d Cir. 1992).
24.  Technically, setoff may also be applied to reduce a creditor’s postpetition debt to the debtor if the creditor holds a qualifying postpetition claim against the debtor. However, a prepetition debt cannot be used to setoff against a postpetition claim and vice-versa. In other words, the applicable claim and debt must both fall on the same side of the petition date for setoff to apply.
25.  See Sacramento Mun. Util. Dist. v. Mirant Ams. Energy Mktg. (In re Mirant Corp.), 318 B.R. 377, 381 (Bankr. N.D. Tex. 2004); see also Kosadnar v. Metro. Life Ins. Co. (In re Kosadnar), 157 F.3d 1011, 1014 (5th Cir. 1998); Holford v. Powers (In re Holford), 896 F.2d 176, 179 (5th Cir. 1990) (“[T]o the extent the damages equal or exceed the funds withheld, the debtor has no interest in the funds and, therefore, the stay has not been violated.”) (citation omitted).
26.  See Kosadnar, 157 F.3d at 1014.
27.  See Lee v. Schweiker, 739 F.2d 870, 875 (3d Cir. 1984) (“Setoff, in effect, elevates an unsecured claim to secured status, to the extent that the debtor has a mutual, pre-petition claim against the creditor.”) (citing 11 U.S.C. § 506(a)).
28.  See Kosadnar, 157 F.3d at 1014.
29.  See Fischbach v. Ctrs. For Medicare and Medicaid Servs. (In re Fischbach), 464 B.R. 258, 262 (Bankr. D.S.C. 2012) (“In discussing recoupment and setoff, several courts have addressed what constitutes a single transaction and have defined ‘transaction’ differently. Two primary tests have developed: the ‘logical relationship’ test and the ‘integrated transaction’ test. The ‘logical relationship’ test, used by the Ninth Circuit, is the less strict of the two standards and allows for a series of occurrences to be part of the same transaction, depending on the occurrences’ logical relationship. The Third Circuit, which utilizes the ‘integrated transaction’ test, has stated, ‘For the purposes of recoupment, a mere logical relationship is not enough: the fact that the same two parties are involved, and that a similar subject matter gave rise to both claims,...does not mean that the two arose from the same transaction. Instead, both debts must arise out of a single integrated transaction so that it would be inequitable for the debtor to enjoy the benefits of that transaction without also meeting its obligations.) (cites and quotes omitted). See also In re Sweet N Sour 7th Ave. Corp., 431 B.R. 63, 71 (Bankr. S.D.N.Y. 2010) (quoting Westinghouse Credit Corp. v. D’Urso, 278 F.3d 138, 147 (2d Cir. 2002) (noting that even if the relevant obligations arose from a single contract, the obligations may not be considered part of an integrated transaction if the contract “contemplates the business to be transacted as discrete and independent units, even claims predicated on a single contract will be ineligible for recoupment.”).
30.  In re Schafer, 315 B.R. 765, 771-73 (Bankr. D. Colo. 2004).
31.  See Holyoke Nursing Home, Inc. v. Health Care Fin. Admin. (In re Holyoke Nursing Home, Inc.), 372 F.3d 1 (1st Cir. 2004).
32.  See Sims v. U.S. Dep’t of Health & Human Servs. (In re TLC Hosps., Inc.), 224 F.3d 1008 (9th Cir. 2000).
33.  See U.S. v. Consumer Health Servs. of Am., Inc., 108 F.3d 390 (D.C. Cir. 1997).
34.  See Univ. Med. Ctr. v. Sullivan (In re Univ. Med. Ctr.), 973 F.2d 1065 (3d Cir. 1992). See also In re Fischbach, 464 B.R. at 263-264 for a discussion of the controlling authorities in the various circuits that have addressed the issue of the government’s right to recoupment in the Medicare reimbursement context.
35.  In re Univ. Med. Ctr., 973 F.2d at 1081.
36.  Id.
37.  Id.
38.  See 11 U.S.C. § 525(a).
39.  See Hiser v. Blue Cross of Greater Phila. (In re St. Mary Hosp.), 89 B.R. 503, 504 (Bankr. E.D. Pa. 1988) (in light of § 525(a), “the debtor cannot be compelled to pay prepetition obligations to [HHS] as a condition for continued participation [in the Medicare program]”); but see Parkview Adventist Med. Ctr. v. U.S., 842 F.3d 757 (1st Cir. 2016) (CMS’s “termination [of provider agreement] had nothing to do with Parkview’s prepetition debts, and Parkview cannot assure CMS that Parkview will bring itself back into compliance with the Medicare statute. CMS’s termination of the Provider Agreement was not impermissible discrimination.”).