The Regional Social Court of Berlin-Brandenburg (ruling of 30 November 2017, file no. L 1 KR 446/15) ruled that civil servants “are to be regarded as entitled to state aid without restriction and thus otherwise secured”.
Since 01.01.2009, it has been up to each civil servant to decide whether to take out a private health insurance contract for supplementary insurance cover, § 193 VVG. In any case, the “other coverage” of the allowance alone means that compulsory insurance in private and statutory health insurance is regularly ruled out. The appeal against this LSG judgement was rejected by the BSG (judgement of 15.06.2018, Ref. B 12 KR 7/18).
No harassment by aid bodies requiring insurance of residual costs
Aid regulations which require a (supplementary) insurance obligation according to the motto “if you do not provide evidence of private residual cost insurance, you will not receive any aid” are invalid due to lack of authorisation by the legislator (BVerwG 5 C 1.12, VG 7 K 235.09, judgement of 19.07.2012). Such aid regulations are contrary to the reservation of the law.
Health support fund instead of residual cost insurance
The aid reimburses 50-80% of the medical costs. For the remainder, the civil servant can build up reserves himself (“self-insurance”), take out private residual cost insurance, or join a health support fund. Prices and services differ considerably.
Increase of the aid at any time, up to 100% by taking out a private health insurance policy
Concerning the insurance of residual costs with a private health insurer (PKV), the basic tariff, § 193 VVG, requires the insurer to contract at any time. However, “other coverage by means of assistance” also means, conversely, that a person who has become a civil servant is to be released from his or her previous private or statutory health insurance upon application or termination of employment without proof of a new statutory or private health insurance. This basic tariff can be obtained by any civil servant, at any time, and always without risk surcharges. The guaranteed access to this residual cost insurance in the basic tariff (for a maximum of 50% and in retirement 30% of the average maximum SHI contribution) is also often unknown to “specialist brokers”, courts and lawyers.
Opening campaign for new civil servants, civil servants with statutory health insurance, and relatives
Far more than a dozen private health insurance providers have committed themselves (without any legal obligation, voluntarily) to include, among other things, civil servants who are new to the civil service in the normal civil service tariffs in addition to their allowance when applying within six months. The special features are: “No risk exclusions, no rejection of applications on health grounds, if necessary a premium supplement limited to 30% of the tariff premium”. If a risk surcharge comes into question, the insurer (BoD) will have a duty to inform and advise – unless a broker is involved; with duties to advise.
So-called anonymous advance inquiries are not possible here. Some intermediaries overlook the fact that the request would have to refer explicitly and in due time to the “opening action”.
Broker liability by missing the deadline for participation in “opening action”?
Again and again there are intermediaries or brokers who do not know the alternatives for new civil servants. After the deadline expires, young civil servants then remain (voluntarily, without employer’s contribution) in the SHI system unnecessarily for the time being. The difference between the SHI contribution and private health insurance residual costs (often up to more than €300 per month) can accumulate to more than €200,000 by the end of the civil servant’s life, a potential liability loss. However, an expert appointed before the court could have pointed out the possibility of reducing the damage by means of the always possible basic tariff – perhaps down to almost zero point zero.
No documentation – no proof of advice?
Some brokers are of the opinion that if no insurance contract is concluded, nothing should be documented. Courts do not follow this, but conclude that even then the burden of proof is reversed, to the disadvantage of the broker (and his liability insurance).
Another trap is the broker’s promise to really take care of all existing contracts and risks of the client, including support. If an uninsured loss then occurs, the question of broker liability immediately arises. Then documentation is required that the customer has been clearly advised of the possibility of insurance cover for this and has refused to do so in full awareness of the consequences.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.experten.de (published on 12.10.2018)
Link: https://www.experten.de/2018/10/12/beamte-sind-weder-in-der-pkv-noch-in-der-gkv-pflichtversichert/
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Dr. Johannes FialaPhD, 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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