Opinion
No. KNL-CV-09-5012261S
February 3, 2011
MEMORANDUM OF DECISION RE MOTION FOR PERMISSION TO SERVE NONSTANDARD DISCOVERY (NO. 121)
The defendant seeks permission to file additional discovery requests so that it may comply with federal law relating to the disclosure of settlement or judgment payments to Medicare. The plaintiff objects to the disclosure of this information. For reasons stated below the court grants the defendant's motion conditioned upon an order restricting the disclosure of this information and authorizing the use of the information solely for the purposes of compliance with the applicable federal law.
FACTS
The plaintiff, Nona E. Smith, brought this action against the defendant, Sound Breeze of Groton Condominium Association, Inc., seeking damages as a result of injuries allegedly sustained on the defendant's property. On December 17, 2010, the defendant filed a motion for permission to serve nonstandard discovery. On December 29, 2010, the plaintiff filed an objection to the defendant's motion.
The defendant argues that the standard Connecticut discovery requests are inadequate as they do not allow the defendant's insurer, Vermont Mutual, to comply with federal law and do not adequately allow the defendant to investigate the plaintiff's damage claims. Specifically, the defendant contends that the nonstandard discovery is necessary so that its insurer may comply with the Medicare, Medicaid, and SCHIP Extension Act of 2007, 42 U.S.C. § 1395y (Extension Act). According to the defendant, this act requires all liability insurers and self-insurers to provide detailed information regarding all liability settlements or open claims. Accordingly, the defendant seeks the plaintiff's name, address, social security number, date of birth and gender.
The plaintiff objects to the defendant's motion on the ground that the nonstandard discovery is beyond the scope of permissible discovery. The plaintiff argues that she has not received medicare benefits and, therefore, the defendant's request is overly broad and serves no other purpose but to obtain otherwise nondiscoverable private information. Additionally, the plaintiff argues that the reporting requirement may only apply to cases that are settled. In the present case, the defendant has not offered any settlement proposals. According to the plaintiff, if the defendant proposes a settlement then it can condition the acceptance of that settlement upon disclosure of the plaintiff's social security number.
DISCUSSION
Practice Book § 13-6 provides that a litigant may move for permission to file nonstandard discovery requests. "The court, in order to grant such a motion, must determine that such interrogatories [or requests for production] are inappropriate or inadequate in the particular action . . . Clearly, the court must first make a determination as to the adequacy and appropriateness of the standard discovery requests as they pertain to the instant case." (Citation omitted; internal quotation marks omitted.) Lucht v. Castiglioni, Superior Court, judicial district of Middlesex, Docket No. CV 9680177 (March 12, 1998, Arena, J.) [ 21 Conn. L. Rptr. 412].
42 U.S.C. § 1395y(b)(8)(c) requires an insurer to "determine whether a claimant (including an individual whose claim is unresolved) is entitled to benefits under [Medicare] on any basis before disbursing any settlement funds." (Internal quotation marks omitted.) Hackley v. Garofano, Superior Court, judicial district of New Haven, Docket No. CV 09 5031940 (July 1, 2010, Silbert, J.) [ 50 Conn. L. Rptr. 208]. It is the defendant's position that this federal law requires it to determine whether the plaintiff, a potential recipient of a settlement, is Medicare eligible by obtaining her social security number. "Although the statute does not require this method of assuring an insurer's compliance with the statute," the Centers for Medicare and Medicaid Services (CMS) "developed a query process whereby [an insurer] can determine a claimant's Medicare status electronically, and without authorization, as long as the [insurer] has access to the claimant's name, date of birth, gender and Social Security number or Medicare Health Insurance Claim Number. Based on the law, 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 (regardless of whether or not there is a determination or admission of liability)." (Internal quotation marks omitted.) Id.
The plaintiff argues that the reporting requirement may only apply to cases that are settled, that the defendant has not offered any settlement proposals, and that if the defendant proposes a settlement then it can condition the acceptance of that settlement upon disclosure of the plaintiff's social security number. Moreover, the plaintiff argues that she has not received Medicare benefits and thus, the request is overly broad.
The plaintiff's arguments are unpersuasive. "[A]mong the purposes of the statute was avoiding having insurers at the mercy of plaintiffs when the time comes to ascertain Medicare eligibility. Rather than having to rely on plaintiffs' representation, the statute expresses a preference for a standardized procedure based on social security numbers or Medicare Health Insurance Claim Numbers with which the insurer can make the determination itself electronically." (Internal quotation marks omitted.) Id.
The court in Hackley relied on Seger v. Tank Connection, LLC, Docket No. 8:08CV75 (D.Neb. 2010), finding that the U.S. District Court of Nebraska's reasoning was persuasive. The Seger court held that a plaintiff was required to provide his social security number or medicare health insurance claim number as well as the other requested identifying information, finding that the defendant's discovery request was relevant under Federal Rules of Civil Procedure 26(b)(1) and 33(a)(2). "Discovery requests should be considered relevant if there is any possibility the information sought is relevant to any issue in the case and should ordinarily be allowed unless it is clear the information sought can have no possible bearing on the subject matter of the action." Seger v. Tank Connection, LLC, supra, Docket No. 8:08CV75. The Seger court explained that "although the Extension Act does not require this information be submitted to CMS until after a final settlement of judgment is issued, there is no harm to the plaintiffs in providing this information sooner." Id. The court also noted that "[t]he Social Security Number or Health Insurance Claim Number is essential to the administration of the Medicare program. Collection of the SSNs for the purpose of coordinating benefits with Medicare is a required, legitimate and necessary use of the SSN under federal law and is thus permitted by HIPAA." Id.
Federal Rule of Civil Procedure 22(b)(1) permits parties to "discover any relevant, unprivileged information that is admissible at trial or is reasonably calculated to lead to admissible evidence." Seger v. Tank Connection, LLC, supra, Docket No. 8:08CV75. Federal Rule of Civil Procedure 33(a)(2) provides: "An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time."
In the present case, the court finds that the information requested by the defendant is relevant. See Practice Book § 13-2. Moreover, requiring the plaintiff to furnish the requested information is in line with this court's policy of promoting settlements of disputes without trial. This case cannot be settled without the requested information. See Hackley v. Garofano, supra, Superior Court, Docket No. CV 09 5031940 (a defendant can "condition a settlement on the provision of a plaintiff's social security number").
Nonetheless, the court is sympathetic to the plaintiff's concern that the defendant may use her social security number to obtain otherwise nondiscoverable private information. Consequently, this court believes that the plaintiff is entitled to a protective order pursuant to Practice Book § 13-5. See Coss v. Steward, 126 Conn.App. 30 (2011) ("[t]he [trial] court's inherent authority to issue protective orders is embodied in Practice Book § 13-5 . . . The use of protective orders and the extent of discovery is within the discretion of the trial judge." (Citation omitted; internal quotation marks omitted)). As such, to protect the plaintiff's interests, the court imposes the following protective order: The plaintiff's social security number shall remain confidential except as necessary for the defendant to comply with the Medicare, Medicaid, and SCHIP Extension Act of 2007, 42 U.S.C. § 1395y. The defendant shall not use, or cause to be used, the plaintiffs social security number for any other purpose except compliance with the Medicare, Medicaid, and SCHIP Extension Act of 2007, 42 U.S.C. § 1395y. The information sought to be obtained by way of the requested discovery may not be disclosed to any person, natural or legal, or entity not a party or an insurer of a party to the present action.
Accordingly, the defendant's motion for permission to serve nonstandard discovery is granted subject to the terms of the protective order.