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Do I have to Give a Social Security number for my case?

Posted by Benjamin P. Melnick | Jun 28, 2019 | 0 Comments

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There is no good answer to this question. On the one hand, you may be uncomfortable giving out private information, or information you don't have.  On the other hand, the law may require you to provide the information or the insurance company will refuse to deal with you.  Even in this office, there is some debate over how necessary it is to provide a Social Security Number for personal injury cases.

We live in an era when privacy for personal information is recommended at every turn. There are TV commercials that tell us how important it is to not give out Social Security information; the news tells us about rampant and sophisticated identity theft and fraud schemes. Meanwhile, auto insurance carriers are asking for the Social Security number of every person who wants to make a claim, whether it is to the at-fault driver's carrier, or to the injured person's own insurance.

Do you have to give that information up?  Why are they asking for it in the first place?  What gives?  The short answer is that it is Medicare's fault, and in my opinion, most people probably are not strictly required to disclose any Social Security information at all. Those who are required to disclose that information can limit what info they provide.

In 2007, Congress amended the Medicare laws to require liability insurance carriers, no-fault insurance carriers (this includes PIP and med pay), and Worker's Compensation carriers, to all be mandatory reporters for Medicare reimbursement. Medicare is a secondary payer; in other words, what is called an insurer of last resort. In addition, it has a statutory right to be reimbursed for any expenses paid where there is liability insurance that should be responsible for those amounts.

Through time, those primary payers mentioned above have worked with the Federal Government to develop a system for meeting its mandatory reporting requirements. Because this reporting requirement is to protect Medicare, the system really only wants to know about claims where there is a primary payer for Medicare recipients. To identify whether a person is a Medicare recipient, and ensure that the claim is reported properly, the injured person typically has to provide private information.

For Medicare recipients, some information must be provided. This includes the last five digits of the individual Social Security number, first initial, last name, date of birth, and gender. Federal law is clear that Medicare recipients must give at least that information, although it is preferred that the entire social security number or Medicare health insurance claim number is used.

The story is a little less clear for non-Medicare recipients. Because this reporting requirement is only to find out about reimbursing Medicare for eligible recipients, it is my opinion that providing written confirmation to the insurance carrier that the person is not on Medicare will suffice. The law merely requires that the reporting entities document their attempts to learn certain information.  Written proof that they rely on, asserting a specific individual is not on Medicare, should be enough. Without question, there are those who disagree with this interpretation, and there is risk involved in this approach.

The elephant in the room's persons without a Social Security number. Given the recent immigration and customs enforcement activities for those affected individuals, and the potential chilling effect it may have on both the criminal and civil justice systems, this is an equally valid concern. We have recently explained new developments in the law around immigration status being admissible or discoverable in civil cases. The transmission of this information to an insurance company for a limited purpose should, ideally, if it must be made, at least come with a promise of confidentiality, even for an adverse insurance carrier.

In the event that a Medicare reporting requirement is missed, the attorney representing the injured person, the reporting insurance carrier, and the individual all may be subject to significant fines, back payments, and other civil penalties. In the event you choose to elect this option, you should be aware of the potential consequences.

Still, given the privacy expectations and security precautions many people are taking these days with their Social Security numbers, credit information, and other private data, it is worth considering whether the risk is worth the potential consequences. Although we handle primarily personal injury cases here, we do have some experience in dealing with Medicare-related claims in the context of our clients' cases.

However, dealing with Medicare issues, reimbursements, and future benefits planning is complicated.  The law on that topic is in a state of development and fluctuation. We are not experts in that field. We encourage you, if you have any such issues, to seek advice from a Medicare expert.

About the Author

Benjamin P. Melnick

Ben Melnick joined the firm in 2018. He graduated from Washington State University with a Bachelor's degree in 2010, and went on to earn his Juris Doctorate from Gonzaga University School of Law. In 2016, he was named as the Clark County Bar Association's Rising Star. His practice focuses on personal injury, auto accidents, biking accidents, wrongful death, and insurance disputes. Outside work, Ben likes spend time with his wife outdoors—mostly running, hiking, and skiing—and playing soccer.

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