Fictitious cash register approval also for medical cannabis

SG Aachen accords pain patients care
An application for medical cannabis care is also considered "fictitiously approved" if the health insurance company does not decide on it in time. The health insurance company can not subsequently limit this authorization and then refuse further benefits, as the Social Court (SG) Aachen in a decision currently published on 20 February 2018 decided (Ref .: S 13 KR 476/17).

The Federal Council has given the green light for the release of cannabis regulations in exceptional cases. (Image: Africa Studio / fotolia.com)

It thus addressed an insured person with the supply of medicinal cannabis flowers. He suffers from chronic nerve pain caused by the syphilis pathogen Treptonema pallidum and headaches that are untreatable with conventional medicines.

At his health insurance, he applied for the reimbursement of medical cannabis flowers. His application was received by the health fund on March 28, 2017, and only on April 20, 2017, ie after three weeks and two days, she informed the insured that she wanted to obtain an opinion from the Medical Service of the Health Insurance (MDK). Based on the report, she refused the reimbursement on 9 May 2017.

By law, the health insurance companies have three weeks to process a claim for benefits. If you get an MDK certificate, you must inform the insured within the three-week period and then have five weeks. Other reasons for delay are possible, but only with information from the insured. If the deadlines are not met, the application is deemed to be "fictitiously approved".

On the claim of the insured admitted here the health insurance, the delay and agreed to a reimbursement until July 31, 2017 retroactively. On this date, she lifted the "fictitious approval" but again and refused further benefits.

The Federal Social Court (BSG) in Kassel ruled on 8 March 2013 that the statutory "fictitious approval" also applies to benefits to which the insured are actually not entitled, unless this is also obvious to the insured person (Ref .: B 1 KR 25/15 R; JurAgentur notification from the day of the judgment). In the case of aids, the BSG also decided in two further judgments of 7 November 2017 that the health insurance company can not simply take back such a "fictitious approval" (Ref .: B 1 KR 15/17 R and B 1 KR 24 / 17 R).

According to the judgment of the SG Aachen, this also applies to medicinal products and in particular also to medicinal cannabis. Here the health insurance company neither decided within the three-week period nor informed the insured about the report. Therefore, the application was fictitiously approved after three weeks, with effect from 18 April 2018. Even the five-week period, the cash register then did not comply.

The application was also not obviously unfounded from the perspective of the insured; he was allowed to consider the supply of medicinal cannabis flowers necessary.

According to the BSG case-law, a fictitious approval, which occurred because of missed deadlines, is also considered lawful, emphasized the SG. Therefore, according to the law, it can only be withdrawn if new facts arising after the approval justify it. However, the health insurance fund did not explain such a change in the circumstances here. mwo / fle