Health insurance companies can not take back fictitious performance approval

BSG: Unpaid insured otherwise would be disadvantaged
If health insurance companies do not decide in due time on a benefit application, this is considered by law to be approved. As on Tuesday, 7. November 2017, the Federal Social Court (BSG) decided in Kassel, the coffers can not take back such a "fictitious approval" later (Az .: B 1 KR 15/17 R and B 1 KR 24/17 R). This would contradict the legal requirements and would also penalize destitute insured.

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Specifically, the BSG so that two insured the Knappschafts-Krankenkasse surgery for abdominoplasty. In one case the patient had applied for a reimbursement in the other.

According to the law, the health insurance funds have to decide on a benefit application "swiftly, at the latest until the expiration of three weeks". If an opinion from the Medical Service of the Health Insurance Funds (MDK) is required, the health fund must inform the applicant and the period is extended to five weeks. There are longer deadlines for dental treatment. If the fund can not meet these deadlines, it must also inform the insured. "If there is no notification of a sufficient reason, the service after the deadline is considered approved," it says in the Social Code.

As early as 8 March 2016, the BSG had ruled that this also applies to benefits to which insured persons would not have been entitled if the decision were made in good time - except for applications that are clearly beyond the compulsory health insurance coverage of the insured person (Ref .: B 1 KR 25/15 R, JurAgentur notification from the day of the judgment).

In the new cases, the health insurance had rejected the applications late. However, even before the insured lay on the operating table, she took back the fictitious permits back.

But that is inadmissible, judged the BSG. By law, the withdrawal of a favorable decision is permissible only in so far as it was unlawful. A fictional approval, however, arises by force of law; Therefore, it could not be unlawful from the outset.

In addition, otherwise wealthy insured preferred, emphasized the Kassel judges on. Because these could come in advance and have the treatment carried out immediately after the deadline. The costs could be reimbursed afterwards. This is not possible for the deprived. They would therefore be much more exposed to the risk of redemption.

Whether there can be exceptions to the binding of such fictitious permits, the BSG did not have to decide. It would be conceivable exceptions in the case of abuse or if it is known that in individual cases health risks arise from the treatment.

On the sidelines of the trial, cashiers made it clear that they think the deadlines are very tight - especially if applicants do not immediately submit all necessary documents. Insured persons must therefore increasingly reckon with the fact that health insurance companies prefer to refuse an application rather than to accept a missed deadline.

The BSG case law does not apply to rehabilitation benefits, because there is a special statutory regulation, and not for cash benefits, such as sickness benefit. However, it otherwise applies to all benefits in kind provided by the statutory health insurance, for which an application is required. mwo / fle