The end of assumption of approval! - Federal Social Court of Germany backpedals at patients’ expense
Part of the legislator’s intention behind the Patient Rights Act at the beginning of 2013 was the noble objective of compelling statutory health insurance providers to make decisions more quickly. Since then, they must take decisions on applications within 3 weeks or 5 weeks (after obtaining an expert report). If this deadline is missed, the so-called “assumption of approval” comes into effect. The service is then deemed to have been approved as applied for.
A comparable arrangement was adopted for all rehabilitation insurers in the Federal Participation Act (BTHG) as well as in volume nine of the German Social Security Code (SGB IX), the law on rehabilitation and participation of people with disabilities.
Particularly where children and adolescents are involved, the time that elapses between application for a technical aid and its delivery is extremely important. Children and adolescents are still growing, continuing their development, and therefore require prompt provision for each one’s specific needs appropriate for their age.
What has happened now?
For years, the Federal Social Court of Germany (BSG) has acknowledged this to the benefit of the patient, regardless of whether or not patients have procured the service applied for, e.g. the required technical aid, themselves or the statutory health insurance providers had to be obligated to provide the benefit in kind.
Unnecessarily, and at the expense of patients, the BSG abandoned this positive jurisdiction in its rulings on 26.05.2020 (B 1 KR 9/18 R) and 18.06.2020 (B3 KR 13/19 R). The assumption of approval now only creates a provisional legal position. In simplified terms, this means the patients’ option of procuring the required aid themselves ends as soon as the statutory health insurance provider makes a decision, even if the deadline has passed.
Rapid independent procurement at own expense impossible for families
Based on the example of the provision of technical aids, lawyer Jörg Hackstein, chairman of rehaKIND, explains: “In order to use the assumption of approval, patients must now obtain a technical aid quickly at their own expense in the period between the expiry of the deadline and the belated decision of the statutory health insurance company, in other words, at their own risk and with up-front financing. The entitlement to benefits in kind, i.e. procurement by the patient and the insurance company must pay afterwards, no longer applies. In some cases, it takes a lengthy opposition and appeal procedure to establish whether the purchase was justified.
It can be assumed that only a few families will be willing and financially able to take on this financial risk. The BSG has thus significantly undermined patients’ rights. If the legislator continues to have an interest in strengthening patients' rights and in particular in quick decisions by the statutory health insurance providers, it must effectively sanction the funding agencies' non-adherence to decision deadlines to the benefit of patients and assure this above all for claims for benefits in kind. Very few patients can afford to obtain services themselves at their own risk.”
Jörg Hackstein, lawyer and specialist solicitor for procurement law