Section 38-71-190 of the South Carolina Code grants the insured the right to petition the Director of Insurance for a hearing on the fairness of subrogation by an insurer. Section 38-33-50 grants HMO enrollees the same right. This statute's application is limited to insurers and HMOs regulated by the department. It does not apply to self-insured entities, health plans governed by ERISA, etc.
The Director typically appoints a hearing officer to the matter to conduct the proceedings; certify the record; report findings of fact, conclusions of law, recommendations, and a proposal for decision in accordance with the applicable statutes and regulations governing administrative proceedings and the Rules of Civil Procedure. In short, the hearing officer determines whether subrogation will be allowed and, if so, the amount. Appeals are made to the South Carolina Administrative Law Judge Division. By statute, the insurer must pay attorney fees and costs from the amounts recovered.
The Department does not charge a filing fee but the service of process fee does apply. By statute, the insurer must pay attorney fees and costs from the amounts recovered.
A formal Petition with appropriate supporting documentation as if it were a complaint in equity must be filed with the Director. Please submit three complete copies of the Petition including any supporting documentation. Simultaneously, the same Petition must be served upon the insurer or HMO.