Health Care Provisions

Increased Duties

The bills amend various sections of the Bankruptcy Code to provide for increased duties for the trustee in health care bankruptcies.

Patient Records

• The proposed bills set forth a procedure for disposing patient records when the estate does not have enough funds to pay to store the records.
• The bills add §351, requiring the trustee to publish notice of its intent to destroy patient records that are not claimed by either patients or their insurance carriers within 365 days after the notice is published.
• After the 365-day period has run and if the records have not been claimed, the trustee is required to either shred or burn written documents or, if the records are stored electronically, to destroy the records so that they can never be retrieved.

Health Care Closing Costs

• The bills provide for administrative expense priority under a new §503(b)(8) for the costs associated with closing a health care business.
• Such costs can include the costs associated with disposing of patient records and moving patients to alternative facilities.
• Trustees and federal agencies are entitled to such administrative expense claims.

Appointment of Ombudsman

• The bills provide for the appointment of a disinterested ombudsman to act as a patient advocate.
• The ombudsman will be appointed within 30 days after the commencement of the case.
• The role of the ombudsman is to monitor and report to the court on the quality of patient care.
• The ombudsman is required to keep confidential all information relating to patient records.

Additional Trustee Duties

• Trustee duties under the bills include the duty to "[u]se all reasonable and best efforts to transfer patients from a health care business that is in the process of being closed."
• What constitutes "reasonable and best efforts" for an administratively insolvent estate is not self-evident.

Sale of Assets by Nonprofits

• The bills require that any sale of estate assets involving a nonprofit debtor comply with otherwise applicable law.
• Health care bankruptcy experts observe that this may significantly complicate the disposition of assets in health care cases involving nonprofit debtors.

Exception to Automatic Stay

• The bills create an exception to the automatic stay, allowing the Secretary of Health and Human Services to exclude the health care debtor from Medicare.
• Health care bankruptcy experts observe that this provision may conflict with the anti-discrimination provisions of §525.

Asset-backed Securitizations

New Rules for Securitizations

• In an asset-backed securitization, a company transfers certain of its assets (accounts receivable, for example), to a bankruptcy remote vehicle in exchange for value.
• One goal of an asset securitization is to lower borrowing costs by ensuring that the transferred assets securing the financing are not estate property in the bankruptcy of the transferor.

Bankruptcy Attacks

• The validity of asset securitizations are presently unclear.
• Some argue that under present law, the assets transferred are not property of the estate.
• Others argue that the assets remain property of the estate or, if not, the transfer itself is subject to attack under the avoidance powers.

Carve-out of Bankruptcy Estate

• Under the bill, estate property will not include assets that are transferred pre-petition to a bankruptcy remote vehicle in connection with an asset-backed securitization.
• The bill validates asset-backed securitizations to the extent that they purport to effectuate a pre-petition transfer of the debtor's assets. New §541(b)(8) provides that property of the estate does not include:

  [a]ny eligible asset (or proceeds thereof), to the extent that such eligible asset was transferred by the debtor, before the date of commencement of the case, to an eligible entity in connection with an asset-backed securitization, except to the extent such asset (or proceeds or value thereof) may be recovered by the trustee under §550 by virtue of avoidance under §548(a).

Meaning of "Eligible Asset"

• In order to qualify for the exclusion, a transferred asset must be an "eligible asset" within the meaning of the new definition that is included in new §541(f).
  • Inventory is not included within that definition.
  • Consumer and trade receivables are included in the definition.

Bankruptcy Attacks that May Survive Enactment

• An involuntary case may be commenced against a bankruptcy remote vehicle (BRV) notwithstanding any agreement to the contrary.
• A BRV may be subject to a substantive consolidation order.
• A transfer of assets to a BRV may constitute an actual fraudulent transfer.