Quixotic Confidentiality Term of MMSEA Disclosure

Medicare Set-Aside Blog on July 16, 2012 | Posted by


In an opinion published in Maine last week regarding a Joint Motion to Resolve Settlement Dispute in a $5,000 settlement reached during a settlement conference, one of the issues in dispute was the Medicare compliance provisions. The parties agreed that the handwritten agreement created during the settlement conference would be followed by a more formal settlement agreement. The plaintiffs, however, refused to sign defense’s more formal version and drafted their own, which of course defense refused to sign and back to court they all went. What makes this story interesting is not that the parties failed to discuss Medicare issues during the settlement negotiation, probably because the plaintiff is not now nor expected to become a Medicare beneficiary any time soon nor does it appear that he sustained any physical injury. No, here the story gets even more inane.

There are actually two issues in dispute in the attempt to enforce this settlement. Aside from the Medicare issues, there is also a confidentiality provision that the defendant apparently violated in his discussion with the Cumberland Country District Attorney’s office regarding his related criminal change. You see, the tortious conduct in question is the defendant’s act of stealing the plaintiff’s social security number and using it to illegally view plaintiff’s credit report. This is most likely why the plaintiff is just a little concerned about disclosing personal information, even if defendant’s insurer insists that it needs it and will keep it safe. Of course, you might note that defendant is apparently already in possession of the social security number in question as well as sufficient other data elements needed to run a MMSEA Section 111 query. Regardless, the court found that defendant’s need for the information (despite the settlement not needing to be reported whether the plaintiff is proven to be a Medicare beneficiary or not) and its offers to safeguard the information reasonable and the plaintiff’s refusal to provide it unreasonable. The unresolvable issue was actually the confidentiality provision for which the parties were sent back to the table to renegotiate.

Although the case is of little value from an MSP perspective, here’s the cite just in case curiosity gets the best of you and you want to read it for yourself:

EDWARD LIBBY, Plaintiff v. ERIC LAKE, et al., Defendants
No. 2:11-cv-152-JAW
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
2012 U.S. Dist. LEXIS 97539
July 13, 2012, Decided