BSG: Poorly insured would otherwise be disadvantaged
If health insurance companies do not make a decision on a benefit application in due time, this is considered to be approved by law. As the Federal Social Court (BSG) in Kassel decided on Tuesday, November 7, 2017, the health insurance companies cannot simply withdraw such "fictitious approval" later (file number: B 1 KR 15/17 R and B 1 KR 24/17 R). This contradicts the legal requirements and would also disadvantage disadvantaged insured persons.
Specifically, the BSG awarded two insured persons to the Knappschafts-Krankenkasse surgeries for abdominoplasty. In one case, the patient and in the other, the doctor applied for reimbursement.
According to the law, the health insurance companies have to decide on an application for benefits "quickly, at the latest within three weeks". If an opinion from the Medical Service of the Health Insurance Funds (MDK) is required, the health insurance fund must inform the applicant of this and the deadline is extended to five weeks. There are longer deadlines for dental treatments. If the fund cannot meet these deadlines, it must also inform the insured. "If no reason is given, the benefit is considered approved after the deadline," says the Social Security Code.
Already on March 8, 2016, the BSG had decided that this also applies to benefits to which insured persons would not have been entitled if the decision had been made in good time - with the exception of only applications that the insured person is clearly outside the health insurers' obligation to pay (ref .: B 1 KR 25/15 R, JurAgentur report from the judgment day).
In the new cases, the health insurance company had rejected the applications late. Before the insured lay on the operating table, however, she withdrew the fictitious permits.
But that is not permitted, the BSG judged. According to the law, the withdrawal of a favorable decision is only permitted if it is unlawful. A fictitious approval is created by law; It cannot therefore be illegal from the outset.
In addition, wealthy insured would be preferred, the Kassel judges further emphasized. Because they could make advance payments and have the treatment carried out immediately after the deadline. They could be reimbursed later. This is not possible for poor insured people. You would therefore be much more exposed to the risk of a withdrawal.
The BSG did not have to decide whether there could be exceptions to the obligation to such fictitious permits. Exceptions to this would be conceivable in the event of abuse or if it is known that the treatment poses health risks in individual cases.
On the sidelines of the negotiation, cash representatives made it clear that they considered the deadlines to be very tight - especially if applicants did not immediately submit all the necessary documents. Insured persons must therefore increasingly expect health insurance companies to reject an application rather than accept a missed deadline.
The BSG jurisprudence does not apply to rehabilitation benefits because there is a special legal regulation here, and also not for cash benefits, such as sickness benefits. Otherwise, it applies to all benefits in kind provided by statutory health insurance for which an application is required. mwo / fle