Eligibility of medicines

01/09/2013

The eligibility for expenditure on medicinal products was not limited to the basic amounts of the statutory health insurance under the old federal state aid law applicable until September 2012. This has to be decided by the Federal Administrative Court. The old law has no legal basis for such a limitation.

The applicants are pensioners and, in the event of sickness, are entitled to official allowances under official rules amounting to 70% of the eligible expenditure. The defendant granted the applicants for pharmaceuticals aid only up to the amount of the statutory health insurance fixed amounts. The plaintiffs sought to enforce a claim for higher subsidies based on pharmacy sales price.

The lower courts had differing views as to whether limiting the eligibility of pharmaceutical expenditure to fixed amounts was legal. The VGH Kassel and the VGH Mannheim denied this. They responded to the plaintiffs' request. The OVG Schleswig affirmed, however, the legality of the restriction.

BVerwG: No legal basis for restriction to fixed amounts
The BVerwG has now confirmed that the restriction of the eligibility of expenditure on medicinal products to fixed amounts under old law was unlawful due to lack of legal basis. Neither the Federal Aid Regulation (BBhV), as amended on 13.02.2009, nor the general administrative regulation of 14.02.2009, which was issued on that occasion, set certain fixed amounts for medicinal products. § 22 para. 3 BBhV a. F. has merely authorized the Federal Ministry of the Interior to fix fixed amounts in administrative provisions as ceilings on the eligibility of expenditure on pharmaceuticals. The General Administrative Regulation has laid down further details of a corresponding determination of the fixed amount, without making any such provision itself.

The new § 22 (3) BBhV now provides for an explicit restriction of the eligibility of expenditure on medicinal products to fixed amounts. (Ref .: BVerwG 5 C 2.12, BVerwG 4.12 and BVerwG 6.12)

Picture: HHS