… at least potential for ways up to the constitutional court

… at least potential for ways up to the constitutional court

dgd – Even if health minister Ulla Schmidt (SPD) wiegelt, doubt (not only right) politicians of the Union parliamentary group, the liberals and the Greens in the Bundestag further at the constitutionality of the health reform.

Like other legal politicians of the CDU/CSU and the opposition, vice chairman of the CDU/CSU parliamentary group Wolfgang Bosbach (CDU) assumes that the Federal Constitutional Court will decide on the reform. Like Schmidt, however, Bosbach does not believe “that the constitutional concerns are so strong that the health reform will ultimately fail because of them”.

In contrast, for the former Federal Minister of Justice and legal policy spokeswoman of the FDP parliamentary group, Sabine Leutheusser-Schnarrenberger, “the encroachments on the contractual autonomy and property rights of those currently privately insured (editor’s note: this refers to the planned basic tariff in private health insurance and the portability of old-age provisions when switching to private health insurance) as well as the one-sided tax subsidies for the children of those with statutory health insurance “provoke a failure in Karlsruhe”. In addition to these three points, constitutional concerns are also being raised about the obligation to insure agreed in the latest grand coalition reform compromise (see also dgd, page 10), which the doctor of law Johannes Fiala (law firm Fiala, Freiesleben & Weber) and the expert for actuarial mathematics in private health insurance, Peter A. Schramm, articulate in a witty polemic, documented in the wording:

Compulsory insurance for all! Health Care Reform as an Entry Point into the Totalitarian Welfare State?

A truck driver who sits behind the wheel for 13 hours at night is immediately taken out of circulation, if he hasn’t already woken up in the ditch. The renewed compromise on health care reform probably came about in a similar way with a comparable result. Compulsory health insurance for all (as an introduction to general citizens’ insurance) is now intended to dispel the concerns of private health insurers (PKV) that the basic tariff will only be selectively taken out by the uninsured when they become ill. With such Verschlimmbesserungen one should consider oneself as a PKV federation whether one may still risk Meckern. After all, no one will complain about headaches anymore if the guillotine is threatened as an adequate solution. Above all, compulsory insurance for all appears to be constitutionally questionable.

Finally, the private autonomy of the citizen is curtailed more than necessary. It means not only social security, but depending on the clientele possibly private health insurance – presumably you can not simply choose. This would be a first – and not only in social security. If this were permissible, then old-age provision in social or private pension insurance could also be made compulsory, even abolishing any alternative form such as occupational pension schemes. Again, constitutionalists would doubt the necessity and appropriateness.

What does “for all” mean: all those living in Germany, all Germans, all gainfully employed persons and their dependents, really all of them, or at least all of them whom the German justice system can apprehend? Are you then not allowed to enter Germany at all without proof of health insurance?

In the case of foreign au pairs, compulsory health insurance has been a de facto reality for decades – according to the level of benefits, the premium starts at 22 euros/month. The basic tariff, however, at a high benefit level of the statutory health insurance for all would be allowed to cost up to approx. 530 EUR per month. Or do you no longer get an ID, a work permit, a business registration, or get a fine -and if you don’t pay it, a jail cell if you don’t adequately meet your insurance obligation? Will the lawyer be disbarred if he is without health insurance, or will the private builder have to check that the builder also has health insurance?

Are you no longer allowed to cancel your health insurance and neither is your health insurer if you don’t pay your premiums? In private compulsory long-term care insurance, for example, the health insurer is already not allowed to terminate if only this is not paid – the deficits are then compensated within the private health insurance. There are, for example, so-called “Heilfürsorgeberechtigte” who -of the police, fire brigade or Bundeswehr ~ are fully cared for in case of illness -these have no health insurance at all today. The Krankenversorgung der Bundesbahnbeamten (KVB) and the Postbeamtenkrankenkasse are neither social health insurance funds nor private insurance companies – but those insured against illness there need neither statutory nor private health insurance.

The “Werk gegenseitiger Hilfe im Verein Pfälzischer Pfarrerinnen und Pfarrer e.v.”, the professional association of pastors of the Protestant Church of the Palatinate, is also a social self-help institution that does not fall under either statutory or private health insurance – similar institutions also occur elsewhere. The Insurance Supervision Act explicitly exempts them from insurance supervision.

So what alternative insurance against the event of illness will remain permissible in future and mean that those concerned will remain unaffected by the newly introduced general health insurance obligation? The question then arises as to whether the scope of compulsory health insurance cover is also prescribed. A duty without any prescribed minimum scope would practically run into the void – that is why, for example, in the motor vehicle liability insurance, a statutory minimum scope is also prescribed bindingly, without which no motor vehicle is registered or even compulsorily immobilised. If, in the future, one only has to take out health insurance to the extent that it corresponds to the statutory health insurance, then, for example, only outpatient benefits with a EUR 20,000 deductible and possibly with further exclusions or a daily sickness allowance of EUR 5 would be sufficient – for the current employer’s allowance (which is not also based on comparability with the statutory health insurance) this would be sufficient in any case.

If, however, the minimum scope is prescribed, then further constitutional concerns arise – just as they have already been expressed against the basic tariff going beyond an absolute minimum. The constitutional lawyer will look at every compulsory service component, and for each of them the question of the prohibition of excess will arise, from the point of view of the citizen: “Politics for 82 million people” also means a remarkable potential for going all the way to the Constitutional Court.

Even a complaint in only one instance is sufficient to stay the proceedings and to appeal to the Constitutional Court if the judge considers the statutory provision to be unconstitutional. Or is, for example, private health insurance that only reimburses 50% or 70% of the costs sufficient to meet the future insurance obligation? Should a 100 % coverage and this also be prescribed for comprehensive service areas? Then perhaps even many today privately insured would have to increase your insurance expensive, which so far a lower protection is enough. But is a dental prosthesis, which even in a luxury version costs only 20,000 EUR (comparable to the price of a simple new car), really an existential life risk that cannot be financed by anyone and against which everyone would have to take out compulsory insurance? Even the statutory health insurance only pays a percentage subsidy here, which is also based on the most economical health insurance version.

Doctors do not necessarily need protection against outpatient doctor’s fees because of treatment by colleagues and pharmacists do not need protection against drug costs, dentists do not need protection against dental treatment costs or dentures – as can be seen from corresponding private health insurance offers. And for glasses, the legislature has already determined that everyone can well pay for them themselves, and has therefore largely removed them from the benefits catalogue of the GKV. In addition, there is the allowance – those entitled to an allowance only need supplementary cover anyway, up to a maximum of the amount exceeding the percentage reimbursement (e.g. 50 %, 70 % or 80 % in the case of children) of the allowance.

Up to now, the general legal opinion has been that civil servants are free to take out additional insurance cover, e.g. through their own assets instead of additional private insurance. Should he now be required to take out 100% private insurance to cover the entire difference? This can also be a constitutionally intolerable special sacrifice on the part of the private health insurers, because the obligation to include customers who are no longer insurable in private health insurance in corresponding tariffs often means certain losses for the insurer – and thus the limit of the social obligation of property may have long been exceeded. But also complaint-joyful officials become such a Entmündigung – as however unsuccessfully already with the compulsory introduction of the nursing care insurance – possibly. all the way to the Federal Constitutional Court. Those insured by the KVB (Krankenversorgung der Bundesbahnbeamten – health insurance for civil servants of the German Federal Railways) receive from there partly 100 %, partly only 90 % with further restrictions. Most of the people insured there do not have and do not need any additional private cover – should this change or is only 90% still sufficient in some cases? Aid is not only available for civil servants, but every employer is free – and this is also practised – to grant his employees (e.g. also those who are not compulsorily insured) aid in the event of illness. e.g. along the lines of the civil servants’ allowance.

This is expressly provided for under SGB V, for example for teachers at private schools, and is also practised to a large extent and even promoted by the state as part of the constitutionally required financing of private schools. The abolition of this possibility of enabling teachers at increasingly sought-after private schools to enjoy conditions comparable to those for teachers at public schools would possibly even interfere with the constitutionally expressly prescribed right to exist of these forms of school. Are private schools – which may be disliked by some politicians – to be pushed back by making it more difficult for them to recruit suitable teachers on terms comparable to the public sector? Should such possibilities of liberal voluntary provision for the event of illness be abolished or should those entitled to aid – who may already be adequately covered in this way – also be forced to take out compulsory private or social insurance to a prescribed extent?

The suspicion arises that, as a substitute for lost market opportunities, new sinecures are to be secured for private health insurance by forcing additional groups of people who were previously covered by other means to take out private health insurance – at the expense of previously widespread liberal other forms of cover. Is the PKV to be compensated in this way for lost customers elsewhere? Furthermore, it would be an additional advantage for the private health insurance companies if every insured person were also forced to take out a comprehensive minimum level of insurance that is not required in individual cases – e.g. a minimum level of health insurance that is not required at all. For example, percentage and absolute deductibles or the waiving of certain benefits would only be permitted to a limited extent.

The additional premium income from this could compensate for the decline in new entrants due to the stricter requirements for exemption from insurance in the SHI system – total exemption from insurance would be abolished anyway. Nevertheless, experts expect that some private health insurance providers will be forced to withdraw from the market for economic reasons. This raises far-reaching practical implementation questions and constitutional concerns. For example, the questions of equal treatment and the limits of permissible expropriation are affected. As long as the health care reform was only intended to create regulations for private and statutory health insurance, these questions that are now arising could be left out of the equation. However, compulsory insurance “for all” – and this only in the statutory or private health insurance – affects wide areas of currently existing models outside these two forms of insurance, which cannot simply be abolished in favour of statutory or private health insurance without raising new constitutional concerns.

One can almost assume that the private insurance industry -which has already demanded a legally obligatory private old-age provision for everyone- sees a state coercion, possibly underpinned by fines, a call for wanted persons and the threat of imprisonment, to conclude private insurance contracts as even desirable -a way into the totalitarian welfare state (into which private insurers can then also be integrated in order to survive). The fact that the economy is won over by granted advantages in such political developments has also been experienced in the past. Maybe one day, in order to secure the social totalitarian welfare state, the three-child family will be prescribed and singles who are labeled as pathologically antisocial will be sent to family training camps secured by barbed wire and electric fences?

(Expert’s office Peter A. Schramm, graduate mathematician, actuary DAV, expert for actuarial mathematics, publicly appointed and sworn by the IHK Frankfurt am Main for actuarial mathematics in private health insurance, Am Rauschenberg 7, 0-56355 Diethardt, Tel.: 06772 I 9625 68, Fax: 06772 I 96 25 69, info@pkv-gutachter.de, http://www.pkv-gutachter.de)
(The yellow service issue 02/2007, 11)

Courtesy of www.vincentz-berlin.de.

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About the author

Dr. Johannes Fiala
PhD, MBA, MM

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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