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The April 2010 Seger v. Tank Connection decision is important from the standpoint that it reinforces the discovery defendants have begun engaging in post passage of the MMSEA.  The Medicare, Medicaid and SCHIP Extension Act ("MMSEA") of 2007 was signed into law by then President Bush in December of 2007.  See Pub. L. No. 110-173; 42 U.S.C. § 1395y(b)(7) and (8).  The MMSEA amended the Medicare Secondary Payer Act to require liability insurers and self insured to provide CMS with very detailed information regarding all liability settlements with Medicare beneficiaries or open claims with ongoing responsibility for medical treatment for a Medicare beneficiary.  According to Seger, Medicare hopes that imposing this mandatory reporting requirement increases "its ability to identify individuals who received Medicare payments" and recover those payments from primary payers or other responsible entitites (including the plaintiff or plaintiff counsel).  So under the MMSEA, primary payers must notify Medicare of claimants who are entitled to Medicare benefits and have received or will receive payments from the primary payer. The information must be submitted "after the claim is resolved through a settlement, judgment, award or other payment.  Entities who fail to report are subject to a $1,000 daily fine for late reporting.

Per a previous blog post, CMS set up a query system to enable defendants that are responsible for reporting to see if someone is a Medicare beneficiary or not by using a computerized Medicare database.  The information that is needed for the query is the client's SSN or Medicare Health Insurance Claim Number (HICN), name, date of birth and gender of the injured party.  The defendant in Seger attempted to get the information necessary to do the query through the following interrogatory posed to the plaintiff:

Interrogatory No. 4: If the answer [to Interrogatory No. 3 regarding enrollment in Medicare] is in the affirmative, state the following:

a. Medicare Claim Number;

b. Social Security Number;

c. Date of Birth;

d. Sex;

e. Current address; and

f. Attach a true and correct copy of your Medicare or Medicaid

card.

Interrogatory No. 9: Attached to these Interrogatories is a Social Security Administration Consent of Release for Information. Will you consent to release of the Social Security Administrator information? If so, sign the Consent for Release of Information and return same to counsel for defendant Roundtable Engineering Solutions, LLC.

The plaintiff objected to the interrogatory request and refused to provide an answer on the grounds that the request was irrelevant, immaterial, and not calculated to lead to the discovery of admissible evidence.  The defendant filed a motion to compel Seger's responses to the interrogatories.  The defendant argued that the answers it sought may "lead to admissions, medical findings or other evidence admissible at trial" and without the information it would have difficulty evaluating Seger's claims as "they do not have access to the amount Medicare has paid."

The Seger court ruled in favor of the defendant.  The pertinent parts of the holding follow.  The court found that the defendant "met its burden of proving the relevance of the requested information. Although the Extension Act does not require this information be submitted to CMS until after a final settlement or judgment is issued, there is no harm to the plaintiffs in providing the information sooner. The court does not agree that this information is necessary to negotiate a settlement. The defendant does need to know what the outer limits of Mr. Seger's medical expenses might be even though that information can be gleaned from medical records already provided. Mr. Seger has not met his burden of proving that providing the requested information is unduly burdensome. To the contrary, he has simply refused to provide the information. As Mr. Seger will be required to provide the requested information eventually, and as providing the information could reasonably bear on the issues in the case, the court finds Mr. Segershould respond to Interrogatories Nos. 4 and 9 to the extent he must provide identifying information along with either his Medicare Health Insurance Claim Number or his Social Security Number in order that Roundtable's insurance company may comply with the Extension Act."

An important note is that the MMSEA's reporting requirements have not gone into effect yet.  In February of 2010, implementation was delayed again until 1/1/2011.  To learn more about the MMSEA and implementation go to http://www.cms.gov/MandatoryInsRep/01_Overview.asp#TopOfPage