Emory Bankruptcy Developments Journal

Volume 32Issue 1

Killing the Patient to Cure the Disease: Medicare’s Jurisdictional Bar Does Not Apply to Bankruptcy Courts

Samuel R. Maizel, Michael B. Potere | 32 Emory Bankr. Dev. J. 19 (2015)

The Social Security Act requires an exhaustion of administrative remedies prior to judicial review through 42 U.S.C. §§ 405(g) & (h). A hospital’s appeal from a claim of overpayment by the government can take years, forcing hospital closure due to a lack of continued Medicare payments. Historically, some bankruptcy courts, looking to legislative history, have found that they lack jurisdiction over Medicare claims prior to the exhaustion of administrative remedies. However, in In re Bayou Shores, SNF, LLC and In re Nurses’ Registry and Home Health Corp., the bankruptcy court found that under the plain language of § 405(h) it did have jurisdiction of Medicare claims. This Article argues that courts should continue to adopt a plain language interpretation of § 405(h), which is consistent with the purpose of the Code.

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The Risk-Shifting Effect of Business Bankruptcy: A Statutory Solution to Provide Additional Protections for Personal Guarantors of Debts by Closely-Held Business Ventures

Jason Gordon, Robert J. Landry, III | 32 Emory Bankr. Dev. J. 67 (2015)

Startups often require personal guarantors when securing credit relationships. Often, third parties enter into guarantee agreements unaware of the detrimental effect bankruptcy filing has on their rights. A primary bankruptcy protection goal is to shift risk associated with debt arrangements among interested parties to allow for the equitable distribution of assets among creditors of a bankrupt individual or entity. Filing for bankruptcy may increase risk to the guarantor beyond what he or she anticipated at the time of personally guaranteeing the debt. This Article explores the preference liability of personal guarantors of a closely held business in bankruptcy and makes a statutory proposal to remedy the inequitable risk-shifting effect of the bankruptcy of a closely-held business.

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