Additional contribution at the DAK ineffective?
Berlin Social Court: The DAK has not adequately informed about the special right of termination
Can 4.5 million insureds hope for a repayment of the additional contribution already paid? The Berlin Social Court has decided in three cases and in the first instance that the additional contribution of the German Employees' Health Insurance Fund (DAK) is ineffective. In a cover letter the health insurance company had not pointed out in an appropriate form the possibility of the special right of termination. The DAK rejected media reports in which it is already assumed that all insured persons will now receive the additional contributions. Finally, the legislature has not clearly identified in what form the health insurance companies have to inform.
Another recent judgment of the Social Court in Speyer (Az: S 11 KR 226/10) came in a model dispute to another decision. There the procedure of the DAK had been approved. The way in which the health fund drew attention to the right of special termination was perfectly adequate, according to the Social Court. The judges ruled that the note on the back of the information letter referring to the special right of termination was sufficient in the sense of the § 175 paragraph 4 SGB V is. Because „a form for the hint is not required by law. In that regard, the court considers that a written reference is sufficient“, said the then social justice.
But the Berlin Social Court now declared the collection of additional contributions in three cases to be ineffective. Again, the insured were not on the first page of the letter, but only on the back „in a much smaller font“ pointed to the possibility of cash change. In addition, the extraordinary notice was received only from point 6. Accordingly, the hint could have been overlooked. (File reference: S 73 KR 2306/10, S 73 KR 15/11)
Since 2010, the fund raises an additional contribution of eight euros per month from its members. However, in the opinion of the Berlin Social Justice, the plaintiffs are only obliged to pay from the date on which a clear letter on the right of special termination is given in a clear form. That had only been the case with the notice of opposition issued in November and December 2010.
In a statement of the DAK one points out that in the cover letter „visually different“ as the already closed City BKK, in addition in the member newspaper as well as on the in-house Internet presence in detailed form over the additional contribution and over the special notice had clarified. In addition, the media had also reported widely on the subject. Chief Judge Eckhard Bloch therefore refers to the opinions of other courts. The legislator had not clearly referred to the form of information. For this reason, consider the „The German Federal Insurance Office (BVA) as competent supervisory authority for the nationwide health insurers agrees that the DAK insured sufficientwere informed about the special right of termination.
The health insurance now reserves the right to appeal. First, you want to have the verdict and then discuss further steps. Already now it should be clear that a confirmation of the judgment in the upper instances could lead to a harsh financial. Because only the health insurance companies make an additional contribution that does not get along with the allocations of the health fund. Since the introduction of the additional contribution, some 300,000 members have left the fund (as of the first quarter of 2011). If the DAK had to pay back all additional contributions retroactively, this could at least aggravate the cash register situation. The verdict is not yet legally binding. (Sb)
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Picture credits: Claudia Hautumm