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United States ex rel. Martino-Fleming v. South Bay Mental Health Center, Inc.

United States District Court, D. Massachusetts

July 23, 2019



          DONALD L. CABELL, U.S.M.J.


         Federal Rule of Civil Procedure 33(d) allows a party responding to an interrogatory to refer the interrogating party to records, if the answer may be determined by examining those records and if the burden of ascertaining the answer will be substantially the same for either party. This motion concerns whether defendant South Bay Mental Health Center (South Bay) properly invoked Rule 33(d) in providing business records to Interrogatory No. 2 of relator Christine Martino-Fleming's (Fleming) First Set of Interrogatories to South Bay Mental Health Center, Inc. (D. 207-3). Fleming contends otherwise and moves pursuant to Fed.R.Civ.P. 37(a)(3)(B)(iii) to compel South Bay to produce a complete answer to the interrogatory. Following briefing, hearing and a review of the documents provided, the court finds that South Bay has properly invoked Rule 33(d) but must clarify and potentially supplement some of the information provided.


         Fleming alleges in the underlying complaint that South Bay filed improper claims with MassHealth for services rendered by therapists who were not properly credentialed or supervised under federal regulations. Interrogatory No. 2 requests the following information for January 1, 2009 to present:

         Identify each of Your unlicensed and licensed counselors, social workers, supervisors, clinical directors, and regional directors at each South Bay facility, including the following information:

a. Their title, dates of employment, employment status (full or part time), dates holding each title, the specific South Bay facility at which they worked, whether they provided or supervised services provided to MassHealth members, or were otherwise associated, and the dates they provided or supervised services at each South Bay facility listed;
b. The qualifications possessed by each identified person during their employment by or association with You, including post-secondary education history, degrees awarded (including the field in which the degree was awarded), licenses, board certifications and/or eligibility, work history, supervised clinical experience (including in an administrative capacity), internship experience, and the dates of the foregoing;
c. The specific dates during which each counselor, social worker, supervisor, clinical director, and regional director was licensed or unlicensed while employed by or affiliated with South Bay;
d. The supervisor, if any, of each counselor, social worker, supervisor, and clinical director, including the specific dates during which the supervisor supervised the counselor, social worker, supervisor, and clinical director;
e. The dates of each counselor, social worker, supervisor, and clinical director's first 90 days of employment or association with You (“90-day introductory period”).


         In response, South Bay invoked Rule 33(d) and provided business records in lieu of a narrative response. The number of documents was substantial, approximately 180, 000 pages (D. 212-14), but South Bay claims that it worked in good faith to provide the information in as much of a well-organized state as possible. (D. 212-1). South Bay also gave the relator the Bates numbers of documents and document ranges containing responsive information. (D. 212-11; 212-12; 212-13).

         The relator objected to many of these documents and in particular objected to a large volume of handwritten supervisory documents. The relator claimed that many of the documents were vague or indecipherable, often providing only the first names for supervisors, for example. (D. 212-14). South Bay responded that: the relator had barely examined the documents before objecting to them; it had previously cautioned the relator that the vast majority of its supervisory records were in hardcopy format only; and the fact that some documents might be difficult to decipher did not render South Bay's answer insufficient. (D. 212-15). The relator filed the present motion when the parties were unable to resolve their disagreements.

         At a hearing convened by the court, the relator argued in addition that some documents were inconsistent, that South Bay had not identified the specific information each Bates-stamped category of documents contained, and that South Bay had not affirmed that the requested information could be found in the documents provided. The relator urged that South Bay should be required to answer the interrogatory either in narrative form or a table form similar to one used in United States et al. ex rel. Escobar v. Universal Health Services, Inc., C.A. No. 11-CV-11170 (D. Mass. June 27, 2018).[1]

         South Bay demurred. It argued that it had affirmed that the information could be found in the documents provided, and had already borne a substantial burden to categorize the documents to the best of its ability. South Bay also produced for the first time a detailed index breaking down Interrogatory No. 2 by subcategory and listing the Bates-stamped batches responsive to each category of requested information. (D. 227-2).

         At the close of the hearing, the court requested that South Bay file with the court any spreadsheets, indices, or other documents it had provided or would be providing to the relator. South Bay subsequently filed the following materials, which it represented had been provided to the relator prior to the filing of the motion, with the exception of numbers 2 and 8:

1. Emails and letters identifying responsive documents by Bates number.
2. An index to all responsive documents identified by Bates number range and the subpart of Interrogatory No. 2 to which they are responsive.
3. A roster spreadsheet covering employees from 1986-2016 that includes employee name, job title, location, department, hire and termination date, reason for termination, rehire if applicable, contact information, and license name, number, effective date, and expiration.
4. An employee list spreadsheet generated by the Credible behavioral software system (Credible)[2] and providing employee name, title, employment status, home office location, credentials, license number and expiration date, hire and termination date, and program information.
5. A company roster spreadsheet for employees hired from 1990-2018 that provides employee name, hire date and rehire date (if applicable), department, location, employee status, title, contact information, who the employee reports to, and whether the employee has a manager role (SB00537184).
6. A supplement to the termination report spreadsheet, covering employees from 1986-2018 and including employee name, title, location, department, job family, manager, contact information, and hire date, rehire date (if applicable), termination date, and last day worked (SB00537185).
7. A Credible supervision report spreadsheet that provides employee name and identification number, program, home office, credentials (degree), supervisor, licensed supervisor, full time status, and service date for unlicensed clinicians with a billable service between November 1, 2015 and August 31, 2018 (SB00153160).
8. A Credible “ghost data” spreadsheet[3] containing restored supervisor data manually paired with other Credible data (SB00537187). The spreadsheet lists services provided from November 2015 to February 2019, and provides patient name, service number, claim identification number, service type and date, CPT code, CPT modifier (if any), employee name and identification number, employee title, employee credentials, employee supervisor and licensed supervisor, payor name, and amount paid.
9. Two additional Credible supervision records spreadsheets covering November 2015 to August ...

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