Section 111 Reporting: ORM Termination Dates in South Carolina
If a claimant in a workers’ compensation claim is a current Medicare beneficiary, the carrier has certain reporting obligations to the Centers for Medicare and Medicaid Services (CMS). Under Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA), the carrier’s Responsible Reporting Entity (RRE) must not only report any settlement as fulfillment of its Total Payment Obligation to Claimant (TPOC), but also whether the carrier has any obligation to provide medical compensation, or Ongoing Responsibility for Medicals (ORM). The carrier’s ORM is indicated to CMS as either “yes” or “no,” reflecting whether responsibility for payment of medicals under the workers’ compensation claim is admitted or denied. Once ORM is indicated as “yes,” CMS will assume any and all medicals arising out of the accident that are the responsibility of the workers’ compensation carrier as primary payer, or debtor. This ORM will trigger ongoing reviews for any Medicare conditional payments, with the Commercial Repayment Center (CRC) seeking reimbursement for these Medicare conditional payments, as necessary.
Terminating ORM in South Carolina
In South Carolina, there are two important statutes of limitation that may, in general, allow a workers’ compensation carrier to terminate ORM. Under Section 42-15-60(B) of the South Carolina Workers’ Compensation Act, a one-year statute of limitations limits the claimant’s ability to seek additional medical care after the last payment of medical or indemnity compensation in certain cases, as follows:
(1) When a claim is settled on the commission’s Agreement for Permanent Disability/Disfigurement Compensation form, the employer is not required to provide further medical treatment or medical modalities after one year from the date of full payment of the settlement unless the form specifically provides otherwise.
(2) Each award of permanency as ordered by the single commissioner or by the commission must contain a finding as to whether or not further medical treatment or modalities must be provided to the employee. If the employee is entitled to receive such benefits, the medical treatment or modalities to be provided must be set forth with as much specificity as possible in the single commissioner’s order or the commission’s order.
(3) In no case shall an employer be required to provide medical treatment or modalities in any case where there is a lapse in treatment of the employee by an authorized physician in excess of one year unless:
(a) the settlement agreement or commission order provides otherwise; or
(b) the employee has made reasonable attempts to obtain further treatment or modality from an authorized physician, but through no fault of the employee’s own, is unable to obtain such treatment or modalities.
(c) In cases in which total and permanent disability results, reasonable and necessary nursing services, medicines, prosthetic devices, sick travel, medical, hospital, and other treatment or care shall be paid during the life of the injured employee, without regard to any limitation in this title including the maximum compensation limit. In cases of permanent partial disability, prosthetic devices shall be furnished during the life of the injured employee or for as long as such devices are necessary.
S.C. Code Ann. § 42-15-60 (1976 & Supp.)(emphasis added). The carrier may use this one-year period from the last payment of medical or the last payment of indemnity, whichever is later, to diary when ORM should be terminated. When the diary date has been reached, the carrier may then determine whether it is appropriate to actually terminate ORM by verifying (1) that the one-year period has lapsed and (2) there is not an Order or Agreement providing for ongoing medical treatment.
A party may also apply for a change in condition within one year of the last payment of compensation. Section 42-17-90 provides as follows:
(A) On its own motion or on the application of a party in interest on the ground of a change in condition, the commission may review an award and on that review may make an award ending, diminishing, or increasing the compensation previously awarded, on proof by a preponderance of the evidence that there has been a change of condition caused by the original injury, after the last payment of compensation. An award is subject to the maximum or minimum provided in this title, and the commission immediately shall send to the parties a copy of the order changing the award. The review does not affect the award as regards any monies paid and the review must not be made after twelve months from the date of the last payment of compensation pursuant to an award provided by this title.
(B) A motion or application for change in condition involving a repetitive trauma injury must be made within one year from the date of the last compensation payment for the repetitive trauma injury. Any filing not made within this one-year period shall be considered untimely and shall not be reviewed.
(C) A motion or application for change in condition involving an occupational disease must be made within one year from the date of the last compensation payment for the occupational disease. Any filing not made within this one-year period shall be considered untimely and shall not be reviewed.
S.C. Code Ann. § 42-17-90 (1976 & Supp.)(emphasis added). The carrier may also use this one-year period from the last payment of compensation under an award to diary when ORM may be terminated. After expiration of the one-year period, the carrier may provide an updated position on ORM to CMS, as appropriate, if future medical is not included in the Order or Agreement.
Practice Tip for Carriers
Determine whether future medical is provided as part of a Form 16A Settlement, Order, or Agreement and Release (clincher). If not, diary the one-year date after which the claimant may no longer be entitled to medical treatment to determine whether an updated position on ORM is appropriate. In open, admitted cases that have had no determination of future medical, calendar the last date of medical treatment and, after one year has lapsed, determine whether denial of future medical is appropriate and, if so, prepare an updated position on ORM.