Health care reform has passed. Obviously, however, the reformers made mistakes in their work, because they did not understand how “exclusions” and insurance itself work. With serious consequences for the insured, which employers should definitely point out to employees who are willing to switch, as the authors Dr.
Johannes Fiala and Peter A. Schramm mean
In future, everyone will be obliged to insure themselves against the risk of illness under the new health reform (the “Competition Strengthening Act”). In private health insurance, the so-called basic tariff will be available for this purpose. Every insurer must accept every eligible person – voluntarily insured persons with statutory health insurance, uninsured persons, persons with private health insurance – irrespective of their state of health and may neither levy risk surcharges nor carry out exclusions for pre-existing conditions. But if the legislator thinks that now even sick people can insure themselves accordingly, he is mistaken. For the sick person, the basic tariff can lead to an unexpected disappointment when he finds out that he does not receive any benefit at all for his illness. Today, those who are healthy could already switch to private health insurance and between companies. Existing pre-existing conditions that are not fully healed are problematic. So, for example, a spinal injury that causes occasional discomfort and then needs to be treated until the discomfort subsides in each case will result in a risk surcharge or exclusion for that pre-existing condition.
A house on fire is not insured either …
However, despite the risk surcharge and the inclusion of the pre-existing illness, the insurance does not cover, for example, the ten massages just prescribed before the application was made, nor does it cover burning houses. The pre-existing conditions – or their consequences – are not “excluded”, but it is an ongoing insured event that had already occurred before the start of the insurance. This is about the nature of insurance in general – you can’t insure something that is not uncertain at all, but certain, because it has already occurred before the insurance started. So, in general, spinal disease is not excluded, but no benefits are paid for the current claim until it is terminated. Even the renewed health reform does not change this – the fact that no exclusions are allowed goes nowhere. You don’t need express exclusions where there is already no duty to perform by law. According to the Insurance Contract Act (VVG) as well as the Insurance Supervision Act (VAG), it is part of the core of every private insurance contract that uncertain future damages must be involved: Thus, if private health insurers were forced to co-regulate certain known damages, this would be a special sacrifice that is obviously no longer constitutionally proportionate. Would this still be “socially” justified for an insurance company? In health insurance, the insured event – according to § 1 of the model conditions of the Association of Private Health Insurance – is the medically necessary treatment. It therefore begins conditionally with the treatment and ends only when there is no longer a need for treatment. It is therefore a so-called “stretched” insurance claim. If there is a need for treatment until the end of life, then the insured event also extends until then. As long as this is the case, there is no obligation to pay benefits for the insured event that occurred before the start of the insurance – even if the previous illness was not excluded or – after the new health reform – may not be excluded at all. “No benefits will be paid for insured events that occurred before the start of the insurance cover”. – This is clearly stated in § 2 of the model conditions for medical expenses and daily hospital allowance insurance. In the case of the spinal injured person, therefore, there is a pre-existing condition that is not excluded, but if the patient is treated for it before the insurance begins, this insured event is excluded until the doctor determines that – for the time being – there is no need for further treatment. In the case of the chronically ill, however, the situation is different. The diabetic or dialysis patient constantly needs further treatment – there is often no end to the need for treatment. If medication has to be taken continuously – possibly for life – for the same illness, this insured event does not end until death.
disappointments are inevitable
If this patient, trusting in the health reform and the government’s promise that sick people would also be admitted “without exclusions”, switches to the basic tariff of private health insurance, he is admitted initially without risk surcharge and without exclusions. But if he then wants benefits for his chronic illness, he rightly does not receive them. He will then feel deceived by everyone – especially the legislators and those in charge. The government is thus luring people who were previously insured elsewhere and even forcing previously uninsured people into a basic tariff, for which they have to pay contributions but then receive no benefits at all for their existing chronic illnesses. The PKV cannot pay for these chronically ill people voluntarily – this would ultimately have to be financed at the expense of those already insured today, who also have rights worth protecting. The promise to give also the sick person an insurance possibility in the private health insurance is not redeemed so at all. The really sick person can continue not to change. The government’s intended goal of strengthening competition, also with regard to those who are not healthy, is missed in a glaring – but only recognizable on closer inspection – manner. It hardly seems credible that this fact could have escaped the attention of those responsible in the Ministry of Health. But if it is known there that the goal of enabling even the sickest person to switch to the basic tariff will not be achieved at all, then what is the goal of this health reform with regard to private health insurance? Do they want to harm them negligently – as is assumed there – without benefiting anyone – especially the sick – by doing so? Why is there such a glaring discrepancy between the aspirations of the reform and its actual impact? Should perhaps even chronically ill people be lured into private health insurance, so that there is then an outcry of indignation over compulsory denials of benefits, which can then be used to finally eliminate private health insurance?
Dr. Johannes Fiala | Dipl.-Math. Peter A. Schramm
(rationell reinigen 3/2007, 75)
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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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