Federal Social Court restricts offer of optional tariffs by health insurance companies

– Why optional tariffs and more are nevertheless being extended by health insurance companies –

The BSG judgement of 30 July 2019 (file number B 1 KR 34/18 R) has shown that the problem of the optional tariffs offered by the health insurance funds, for example for abroad, optional services in hospitals or supplementary dental services in the competition between statutory (GKV) and private health insurance (PKV) cannot be solved. Before politicians are asked whether they see a need for action on this issue and therefore want to create the legal basis for the optional tariffs, in private or statutory health insurance: there is a third, even far better way. And that already today, with solutions for even more problems. A civil liberty solution independent of politics, but closely linked to the individual health insurance company. And this can promptly offer a seamless 1:1 replacement for the electoral tariffs affected by the ruling of the 1st Senate of the Federal Social Court.


Sickness support fund of the health insurance scheme

Already today there are so-called health support funds (KUK) – e.g. in the form of a foundation – which offer additional protection to the statutory health insurance according to different health plans (as tariffs are called there). Comparable to a private health insurance, but free of supervision and thus far more flexible – also in sales without any regulation of brokers – and so far already without a health check.


No one is too ill or too old for a health support fund

Exactly this can also be set up as a sickness support fund for the health insurance scheme (KUK GKV). This not only makes all optional tariffs possible, but also makes it easier to replace cooperation with private health insurance. Health support funds can also be founded on the initiative of statutory or private health insurers or their insured persons – this also opens up many opportunities for cooperation.


Guaranteed permanently safe admission to the health support fund

If a good portfolio mix can be expected and the corresponding prerequisites for benefits and calculation are met, waiting periods can be dispensed with, as in the case of optional tariffs, pre-existing conditions can be automatically included and age-independent contributions can be levied. Restrictive regulations for the calculation of the private health insurance simply do not apply to a KUK. The KUK GKV is therefore a simpler, better, more flexible and more precisely fitting alternative for elective tariffs of the GKV. It can even be specially tailored to the needs of a particular health insurance fund, even as its “own health support fund”, also as a self-help facility for health insurance fund members or employers, without any official involvement of the health insurance fund itself.

In the case of company health insurance funds, it also makes sense for the initiative to come from the employer himself by providing the company health insurance fund and the company health support fund (bKU), with a stronger identification and binding effect than any so-called company health insurance fund (bKV) could have, and with greater tax advantages than only their limited non-cash wage regulations.


How the Krankenunterstützungskasse not only promotes health insurance

Since health support funds – insofar as uncertain life risks are concerned – may not offer any formal legal entitlement despite having provided a de facto reliable service for many decades, they are not supervised and are therefore more flexible than insurance companies. Their mediation is not subject to any regulation as insurance mediation – there are no restrictive impediments to this from legal obligations. Tens of thousands of Germans are already more likely to rely on the services of a health insurance company than on a private health insurance company fulfilling its obligation to provide services without any problems – the lack of a formal legal entitlement to the promised services is in fact irrelevant.

It can be designed as a group support fund across health insurance companies or as a KUK specifically assigned to a certain health insurance company or health insurance type, also as a self-help institution and even using its name component.

This does not require the official involvement of the health insurance fund – but managers and members of the self-governing bodies of the health insurance fund (formally also simply as individual members) can be personally appointed to the advisory board of the foundation, and even be co-founders themselves. Nobody will want to implement this against the interests of the health insurance company, even if it could not formally prevent this. Before implementation, it should therefore be given the opportunity to exert informal influence, and it should do so on an ongoing basis later.

By making health plans of the KUK GKV conditional on the existence of membership in a particular health insurance fund, precisely the desired new members are won and kept for the health insurance fund. This can also be achieved by means of ongoing commissions paid by the KUK GKV, but also by canvassing for new members, network marketing or structured sales by laypersons who are not subject to any obstructive insurance agency regulation.

KUK GKV service offers can be designed much more simply and flexibly – as optional tariffs of the GKV – and the effort for a supervisory approval is eliminated. The offer can be extended without any problems.


Supplementary tariffs of the PKV can be replaced or integrated

However, even supplementary tariffs (if desired, unchanged from already established cooperations) of the private health insurance can be integrated as reinsurance policies of the KUK GKV, whereby the health insurance member or his co-insured persons are directly covered by the KUK GKV as “insured persons” in the group tariff of the private health insurance, instead of in a supplementary tariff/supplementary insurance directly concluded in the private health insurance as policyholder.

The health insurance company then no longer has to act as an insurance broker for the private health insurance company, i.e. it no longer needs a broker licence. And also, for example, the information obligations and the legal relationship as a whole will be considerably simplified. The KUK can transform the premium structure of the supplementary private health insurance tariff by, for example, levying age-independent contributions or contributions calculated according to other social criteria, even though as a policyholder it pays age-related risk-adequate contributions to the private health insurance for each individual.

It can also supplement the private health insurance services with its own additional services itself, e.g. if not everything is 100% covered by private health insurance. And thus modify private health insurance tariffs individually, without the need for a specially adapted private health insurance tariff. But also offer their own optional tariffs without an underlying private health insurance tariff, as was previously the case with the statutory health insurance with its optional tariffs, and far beyond.

The person insured in the health insurance fund only declares his or her membership in the KUK GKV and the latter, as the policyholder, registers him or her in the corresponding private health insurance tariff – only if reinsurance is at all useful or desired there. This means that it is no longer a matter of regulated insurance mediation, since the policyholder (the KUK GKV) concludes the insurance for the insured person alone, even without an intermediary. Aggravating regulations on insurance mediation will simply no longer apply.

Since there is no “separation of lines of business”, the KUK GKV can even offer additional services from other “lines of business” such as death benefits, patient legal protection or “luggage/household effects insurance”, for example in hospitals, with or without reinsurance from an insurance company.


Advertising with advantage partners again permitted

The KUK GKV of the Statutory Health Insurance Fund (since formally not affiliated with it) may of course also advertise such benefits with which the health insurance fund itself is not allowed to advertise according to the further ruling of the Federal Social Court of 30 July 2019 (B 1 KR 16/18 R). For example, the KUK GKV website can be used to advertise services that health insurance policyholders can take advantage of at preferential conditions with “advantage partners” selected by the health insurance company, such as discounts at the gym.


PKV has the disadvantage

In all cases, the reference to the individual health insurance company can be placed in the foreground – the identification and loyalty to the health insurance company is thus better promoted. This would not be possible at all with additional tariffs of the private health insurance – they can therefore be optimally replaced.

The expectation of the private health insurance companies that the health insurance companies, to whom even the optional tariffs have been spoiled in lengthy processes, will now come to them as petitioners for compromise, can therefore not only be disappointed, but the private health insurance companies could also lose out in the market in which they previously thought they had a unique position: in those additional tariffs that were not previously permitted as optional tariffs in the statutory health insurance or were not economically viable.

Some health insurance companies were unable to offer certain optional tariffs themselves due to a lack of sufficient stock. This is also because every three years its independent economic viability had to be proven by an expert report. However, a health insurance fund can also carry out risk balancing across several health plans and insurance funds, as it is not required to calculate each individual health plan/tariff in a risk-appropriate manner. It has an advantage over private health insurance not only for this reason, but for many others.


Krankenunterstützungskasse can also compensate for “systemic disadvantages” of the PKV

Auch PKV tariffs often have gaps in benefits, which make it difficult to switch to them despite favourable premiums. For example, in the standard tariff of the private health insurance, usual doctor and dentist bills are reimbursed at the level of the statutory health insurance only up to a lower fee rate – and additional insurance for optional services in the hospital may not exist alongside it. In this case, a KUK – which is not an insurance company – can take over the invoice amounts not reimbursed in the standard tariff and reimburse optional hospital services in corresponding health plans.

Other private health insurance tariffs can also be made more attractive by supplements via KUK, and overall they can be far cheaper than if a corresponding high-performance private health insurance tariff were chosen.

The KUK can even make advance payments in the event of refusal to pay private health insurance benefits and voluntarily offer legal protection for suing for private health insurance benefits, also through cooperating lawyers.

A KUK can be more flexible and more humane in the way it organizes benefits, and can make decisions on a case-by-case basis – it does not have to calculate a firmly defined benefit commitment on a risk-appropriate basis.

This makes KUK a potential partner for a win-win situation for statutory and private health insurance.


by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm


by courtesy of

www.experten.de (Published on 20.08.2019)

Link: https://www.experten.de/2019/08/20/bundessozialgericht-schraenkt-angebot-von-wahltarifen-durch-krankenkassen-ein/

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About the author

Dr. Johannes Fiala 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.
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