In a decision out of the Superior Court of Connecticut, Silver v. Miliford Medical Center Associates, 2017 Conn. Super. LEXIS 899 (May 11, 2017), a defendant medical provider filed a motion to compel the Plaintiff to respond to supplemental discovery so that its insurer could comply with the requisite requirements of MMSEA Section 111. Essentially, the medical provider’s insurer, which was not a party to the litigation, by way of supplemental discovery requested: whether the Plaintiff had ever received or been eligible to receive Medicare benefits, and if so, the date he became entitled for such benefits, his Medicare claim number, his social security number, and date of birth. The proposed request for production also sought, among other things, a copy of the Plaintiff’s Medicare card and copies of the documents and communications concerning payments or reimbursements made by Medicare for any medical expenses involving the plaintiff’s treatment for injuries relating to this lawsuit. The request for production also requested the Plaintiff to complete and return a form regarding his Medicare status.

The defendant contended that because the MMSEA Section 111 places reporting requirements on its insurer and imposes civil penalties on it if these requirements are not met, the insurer has standing to acquire the discovery sought by the motion. The court disagreed and found that the defendant’s insurer was not a party to the action. Despite the requirements placed on the defendant’s insurer by MMSEA Section 111, the insurer’s standing was to be determined by whether it is a proper party to request the information in this particular action, and not by whether it had a legitimate interest in acquiring the information.

The defendant also further protested to the court that not being able to obtain this information would delay settlement and that such information would be necessary for the parties to commence a settlement. The court rejected this notion as well, finding it conjectural and that no settlement discussions were even being had by the parties currently. The parties were not scheduled for trial for 16 months from now in September 2018. Even if the information is required at settlement, it is not unusual for parties to include conditions precedent in settlement agreements, which could include the Plaintiff being required to provide this information before the settlement could be truly finalized.

Commentary: The defendant lost its motion here on a procedural issue; however, the outcome here could have been different. It is without dispute that the insurer in this litigation, as a Responsible Reporting Entity (RRE), has an obligation to comply with MMSEA Section 111 once settlement takes place, and requires this information from the Plaintiff to determine whether there is a reporting obligation. However, since the insurer was not a party to the litigation it did not have procedural standing to bring this issue.

Why did the defendant medical provider not raise that it had a duty to ensure Medicare was reimbursed if Medicare had made conditional payments? ALL parties to the settlement- Plaintiffs, defendants, plaintiff attorneys and even medical providers, have responsibility under the Medicare Secondary Payer (MSP) Act to ensure Medicare is reimbursed for conditional payments. The defendant would need the Plaintiff’s Medicare status to determine if Medicare conditional payment research and reimbursement would be needed. Perhaps this would have been a more legally solid ground for the defendant to raise to compel the Plaintiff to provide this information and the defendant may have won its motion if this reasoning was raised.

In the end, as the court noted, the defendant has somewhat of an “upper hand” as it can make the production of this information a condition precedent to a settlement check being considered final. The defendant was doing the right thing by trying to obtain this information early on. If Medicare or Medicare Advantage has made conditional payments on this Plaintiff’s behalf, payment is due within 60 days of settlement or a double damages private cause of action can accrue. The insurer RRE is also subject to $1000 per day/per claim penalty if they fail to comply with MMSEA Section 111. In the end, the insurer RRE should not rest and should not finalize the settlement until this information is provided, or it may be faced with penalties and conditional payment demands.

Ultimately, the outcome of this case likely would have been different if the parties were actually contemplating settlement. This decision is a strong reminder of the importance of specific settlement language to address MSP and MIR obligations. Our MSP legal experts can assist with best MSP/MIR strategy and the crafting of release language. Contact us at engage@francosignor.com to learn more.


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