The PKV does not cease to invoke an alleged disadvantage of the statutory health insurance. There, the legislature could reduce benefits at any time by legislative decree. He had also made use of this time and again in order to keep an increase in contribution rates within limits. In private health insurance, on the other hand, the benefits are contractually guaranteed. In fact, the PKV is not forced to pay reasonable premiums. If benefits increase, premiums can always be increased accordingly. Strictly speaking: They must be increased in accordance with the law.
The statutory option to reduce the contractual services instead, e.g. due to a change in the circumstances in the health care system as a result of a sharp rise in costs, pursuant to Section 203 (1) of the German Civil Code (HGB), is not applicable. 3 VVG has hardly been used to date.
“If, in the case of health insurance within the meaning of the first sentence of paragraph 1, the insurer’s ordinary right of termination is excluded by law or contract, the insurer shall be entitled, in the event of a change in the circumstances of the health care system which is not to be regarded as merely temporary, to adjust the General Conditions of Insurance and the tariff provisions to the changed circumstances if the changes appear necessary to adequately safeguard the interests of the policyholders and an independent trustee has reviewed the prerequisites for the changes and confirmed their appropriateness.”
However, this statutory possibility of amending insurance terms and conditions only applies to the terms and conditions specified in section 203 para. 1 VVG, whereas the benefits of health insurance policies of the non-life type cannot be reduced. Premium increases of, for example, 36 percent from one year to the next, or of more than 100 percent within eight years, are not uncommon – the basis for this is then § 203 VVG, § 8 b MB/KK and § 12 b VAG together with the Calculation Ordinance.
The policyholder has the option – if offered by the insurer – to change to a tariff with similar insurance cover in accordance with § 204 VVG, taking into account the age reserves acquired from the previous contract. Or, for example, to cancel according to § 205 VVG, which in fact often means a change to the basic tariff.
Legislator intervenes in existing contracts
However, the legislator itself is also free to amend the Insurance Contract Act. Thus he has decreed that those insured under the substitutive health insurance scheme must pay for the sick, the old and the poor in the basic tariff, as well as all those who cannot or simply do not want to pay their contributions, namely with a surcharge on top of their contribution.
The Constitutional Court justifies the permissibility of such legal interventions by the special need for protection of insured persons in substitutive health insurance, which is why, for example, it is no longer permissible to terminate insurance even in the case of late payment. At the same time, it has instructed the legislator to continue to monitor private health insurance and to intervene in the event of negative developments – especially if premiums should rise too sharply.
In principle, however, the situation is no longer different from that for statutory health insurance. In the case of the basic tariff, the legislator has specified the benefits for all insurers in a uniform manner exactly in accordance with SGB V, so that statutory changes in benefits for statutory health insurance even have a direct effect on the basic tariff. This can, of course, even be an advantage here because, for example, new life-sustaining aids are also covered as in SHI, whereas many insureds in normal tariffs are restricted to the exhaustive list in a catalogue of aids. This is because benefit-improving AVB changes are generally inadmissible in trustee proceedings because they would increase premiums.
The legislator expects the PKV to solve its own problems first. However, it turns out that the PKV is often no longer able to do this, even if this is partly due to the changes previously imposed by the legislator. Not only did the PKV successfully make representations to the legislature regarding the limitation of commissions and the extension of liability periods to five years, but also, for example, regarding the payment obligations for expensive spin-offs of private clinics, it approached the legislature seeking help. Ultimately, the latter cannot refuse to rescue a private health insurer seeking help because it has a constitutional duty to care for those with private health insurance.
The means of choice for stabilising premiums in private health insurance is for the legislator to restrict benefits. The prerequisite for this is that the PKV cannot get to grips with the problem of rising premiums itself and therefore calls on the legislator. Then the latter can legally restrict benefits for private health insurance in exactly the same way as he has long practiced for statutory health insurance. Although it would be possible for each individual private health insurer to reduce benefits in the trustee procedure, hardly any individual insurer would dare to do so for competitive reasons.
A new generation of insurance managers and lobbyists no longer attaches great importance to independence from state intervention. Where banks can be rescued – and with them, incidentally, the investments of insurers – insurers no longer have any qualms about calling on the state for help. And the latter is happy to help, especially since the Constitutional Court has obliged it to do so for substitutive private health insurance.
This is also the case when it comes to saving private health insurance companies from excessive claims for benefits by their policyholders, to which they would actually be contractually obliged. If the state then intervenes, the contractual agreements no longer count. Just as the state itself declares existing contractual agreements for commission rates above nine monthly premiums (MB) simply invalid by law as of a cut-off date, it can likewise declare contractual performance obligations above a newly imposed limit invalid overnight, even for existing contracts.
Intermediaries are liable if they promise their customers more security than can actually be guaranteed. An advertising slogan “Contractual agreements are safe” cannot replace proper mediation advice. Basing a comparison with SHI on such supposed differences is particularly fraught with liability.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
published in Performance, issue 11.2011
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About the author
Dr. Johannes Fiala
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. »More about Dr. Johannes Fiala
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