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United States Court of Appeals,
Fifth Circuit.
No. 93-4621.
UNITED STATES of America, Plaintiff-Appellee,
v.
VERNON HOME HEALTH, INC., et al., Defendants,
Vernon Home Health Care Agency, Inc., Defendant-Appellant.
June 1, 1994.
Appeal from the United States District Court for the Eastern
District of Texas.
Before KING and SMITH, Circuit Judges, and KAZEN,* District Judge.
JERRY E. SMITH, Circuit Judge:
Vernon Home Health Care Agency, Inc. ("Vernon II"), a
purchaser of the corporate assets of a medicare provider, Vernon
Home Health, Inc. ("Vernon I"), appeals a summary judgment in favor
of the government for repayment of medicare overpayments made to
Vernon I. Finding that the Social Security Act and federal
regulations preempt state corporate law in this regard, we affirm.
I.
In March 1985, Vernon I, a Texas non-profit corporation, sold
its assets to Vernon II, a Texas corporation. Under the terms of
the purchase agreement, Vernon II paid $23,051.96 for the assets of
Vernon I and assumed no liabilities.
Vernon II provides home health care to Medicare patients.
Pursuant to the provisions of Medicare, a provider number is
*District Judge of the Southern District of Texas, sitting
by designation.
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assigned to each participant in the Medicare programs. Vernon I
held Provider No. 45-7124, which was automatically transferred to
Vernon II in October 1985.
The government filed a civil action in federal court alleging
Medicare overpayments to Vernon I in the amount of $30,072.08 for
the fiscal year ending June 30, 1984. The district court granted
summary judgment, finding Vernon II jointly and severally liable
with Vernon I for the overpayments.
II.
A.
We review a grant of summary judgment de novo. Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th
Cir.1992). Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." FED.R.CIV.P. 56(c). The party
seeking summary judgment carries the burden of demonstrating that
there is an absence of evidence to support the non-moving party's
case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548,
2554, 91 L.Ed.2d 265 (1986). After a proper motion for summary
judgment is made, the non-movant must set forth specific facts
showing that there is a genuine issue for trial. Hanks, 953 F.2d
at 997.
We begin our determination by consulting the applicable
substantive law to determine what facts and issues are material.
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King v. Chide, 974 F.2d 653, 655-56 (5th Cir.1992). We then review
the evidence relating to those issues, viewing the facts and
inferences in the light most favorable to the non-movant. Id. If
the non-movant sets forth specific facts in support of allegations
essential to his claim, a genuine issue is presented. Celotex, 477
U.S. at 327, 106 S.Ct. at 2555.
Both the government and Vernon II filed affidavits of expert
witnesses. John Singer, Vernon II's expert witness, stated that he
did not know of any policy that would obligate the purchaser of
assets of a provider for overpayments made to the prior provider.
He claimed that representatives of Health Care and Financing
Administration had made statements to him that such a policy would
seriously disrupt health care services.1 John Eury, the
government's expert, claimed in his affidavit that the purchaser of
assets does become liable for overpayments made to the prior
provider.
Vernon II claims that these conflicting affidavits create a
genuine issue of material fact that cannot be resolved on summary
judgment. We disagree. The affidavits express opinions about
legal issues that we must resolve de novo. International Ass'n of
Machinists & Aerospace Workers v. Texas Steel Co., 538 F.2d 1116,
1119 (5th Cir.1976), cert. denied, 429 U.S. 1095, 97 S.Ct. 1110, 51
1Because we conclude that the interpretation of the statute
and regulations is a legal issue that we must resolve at this
stage, we do not reach the issue of whether the affidavit
violates FED.R.CIV.P. 56(e), requiring affidavits to be made "on
personal knowledge" and not on what the affiant "heard" from
someone else. See Leonard v. Dixie Well Serv. & Supply, 828 F.2d
291, 295 (5th Cir.1987).
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L.Ed.2d 542 (1977).
B.
Vernon II argues that the purchaser of corporate assets does
not assume any liabilities under Texas corporate law because the
imposition of liability would amount to a prohibited de facto
merger. See Mudgett v. Paxson Mach. Co., 709 S.W.2d 755, 758
(Tex.App.--Corpus Christi 1986, writ ref'd n.r.e.). And as Vernon
II paid Vernon I a reasonable value for the assets, the sale is not
subject to attack as a fraudulent transfer. TEX.BUS. & COM.CODE ANN.
ch. 24. Thus, Vernon II concludes that the government is not
entitled to recover against Vernon II for the overpayments.
Regardless of the result under state corporate law, federal
law governs cases involving the rights of the United States arising
under a nationwide federal program such as the Social Security Act.
United States v. Jon-T Chems., 768 F.2d 686, 690 n. 6 (5th
Cir.1985) (citing United States v. Kimbell Foods, 440 U.S. 715, 99
S.Ct. 1448, 59 L.Ed.2d 711 (1979)), cert. denied, 475 U.S. 1014,
106 S.Ct. 1194, 89 L.Ed.2d 309 (1986). The authority of the United
States in relation to funds disbursed and the rights acquired by it
in relation to those funds are not dependent upon state law.
Kimbell Foods, 440 U.S. at 726, 99 S.Ct. at 1457. Moreover, when
a dispute involves the validity of an agency action, the preemptive
force of the action does not depend upon express congressional
authorization to displace state law. NCNB Texas Nat'l Bank v.
Cowden, 895 F.2d 1488, 1494 (5th Cir.1990). Instead, if Congress
has authorized an administrator to exercise his discretion,
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judicial review is limited to determining whether the administrator
has exceeded his authority or acted arbitrarily. Fidelity Fed.
Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 154, 102 S.Ct.
3014, 73 L.Ed.2d 664 (1982). See First Gibraltar Bank, FSB v.
Morales, 19 F.3d 1032 (5th Cir.1994). Similarly, when the
administrator promulgates regulations that preempt state law, the
court's inquiry is limited to whether the regulations are
reasonable, authorized, and consistent with the statute. Id.
The regulations were promulgated pursuant to the Social
Security Act, and there is no question that they preempt state law
in this area. Thus, the only question is whether the regulations
unambiguously require the purchaser of a provider agreement to
assume liability for Medicare overpayments made to the prior
provider.
C.
The controlling regulation is Title 42 C.F.R. � 489.18(d)
which requires: "An assigned agreement is subject to all
applicable statutes and regulations and to the terms and conditions
under which it was originally issued...." Thus, any purchase of
assets that involves the assignment of the provider agreement is
subject to the relevant statutory and regulatory conditions. One
of these conditions is that adjustments are made for overpayments,
pursuant to 42 U.S.C. � 1395g(a): "The Secretary shall
periodically determine ... necessary adjustments on account of
previously made overpayments...." See Beverly Enters. v. Califano,
460 F.Supp. 830 (D.D.C.1978) (holding purchaser of stock of
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corporate owners of nursing home liable for medicare overpayments
to corporation); see also In re Metro. Hosp., 131 B.R. 283, 291
(E.D.Pa.1991) (holding that the Secretary's right to offset
overpayments is mandated by 42 U.S.C. � 1395g, which serves as a
limitation on the assignment in bankruptcy of the provider
payments).
We also note that the Secretary's interpretation of the
regulation and statute is eminently reasonable. By encompassing a
system of interim payments on an estimated cost basis, subject to
year-end accounting, the program ensures Medicare providers a
steady flow of income sufficient to provide service. The assignee
of a provider number is subject to this accounting procedure in
order to provide continuous service.
The operative effect of section 498.18(d) is that all assigned
provider agreements are subject to the rules and regulations of the
Social Security Act. Thus, the state corporate law provisions
recognizing Vernon II's right to purchase only assets is preempted
by the federal law mandating that all assignments of provider
agreements be subject to federal terms and conditions.
Vernon II could have chosen not to accept the automatic
assignment of the provider agreement. Indeed, the government
acknowledges that the case would be different if Vernon II had not
assumed Vernon I's provider number. In that case, Vernon II would
have had to apply as a new applicant to participate in the Medicare
program. But Vernon II accepted the automatic assignment because
it did not want a break in service while it awaited approval.
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Provider No. 45-7124 was automatically assigned to Vernon II
pursuant to 42 U.S.C. � 1395cc. By accepting that assignment,
Vernon II agreed (albeit unknowingly) to accept the terms and
conditions of the regulatory scheme. Thus, it is liable for the
overpayments.
AFFIRMED.

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