No unlimited obligation to perform

Many private health insurance tariffs contain limits for certain services in the form of maximum rates. Brokers who now believe that an insurer with a so-called unlimited benefit commitment will pay more risk an advisory error.

No insurer writes in its GCI that it will pay every bill up to any amount. If, however, no specific amount has been firmly agreed, the insurer shall nevertheless only be liable for that which the patient himself is obliged to pay. However, the latter does not owe the practitioner more than the usual price. What that is, however, could become contentious. Example massage: Physiotherapists usually charge around 21 euros for private patients. However, some insurers only reimburse 13.80 euros. They limit physical therapy services to the eligible rates. This is because they are of the opinion that for 90 per cent of patients with statutory health insurance in Germany the usual price of a massage is based on the GKV rates, which are around ten euros for a massage. As a gesture of goodwill, privately insured persons are then reimbursed the eligible rate of 13.80 euros. Although no such limitation is explicitly recognizable from the AVB, an own contribution of the insured person of a good third is introduced in this way.

However, the Federal Court of Justice (judgement of 15.12.2003, file no. IV ZR 278/01) has ruled that a private health insurance insurer cannot simply “limit its obligation to pay benefits to the cheapest method of treatment” without a clear regulation of the conditions. If the physiotherapist demonstrably provides a higher quality of work for private patients than is usual for SHI patients, this in itself justifies a higher fee. The insurers argue, however, that therefore only the same remuneration can be usual for the same service.

Whether this is lawful is ultimately decided by a supreme court, in this case the BGH. But no such judgment has ever come to pass. And the lower courts decide quite differently: some see their own usual price for private patients, others follow the insurers and consider a higher price for physiotherapy for the same service than is paid by the GKV not to be the usual price. Still others leave it to the court appraiser to determine the going rate.

The insurance broker could, for example, refer to a judgement of the district court Frankfurt/Main of 30.03.2009 (file no. 29 C 2041/07-86), in which the court rejected the limitation to the maximum rates eligible for assistance – without a correspondingly clear regulation of the conditions – by the insurer: According to the court, the benchmark is “customary and reasonable”, explicitly for the group of privately insured persons. If necessary, the customer also needs legal protection insurance in cross-selling and the insurance broker needs a good knowledge of the different regulation practices of the private health insurers. This, however, can also change.

In any case, it is unlawful if an insurer attempts to subsequently insert a restriction on the reimbursement of costs in its General Terms and Conditions (BGH judgements of 12.12.2007, ref. IV ZR 130/06 and 144/06). Such rulings are often only issued in individual cases, so that the insurers concerned say to themselves: “Then let every customer sue us first, we won’t change anything in our settlement practice using invalid GCI for the time being. And if the customer notices the ineffectiveness, we still refer to the usualness of only the GKV rates.

Ceilings are not a guaranteed commitment

The usual maximum limits for benefits in insurance terms and conditions cannot preclude the fact that the insured person nevertheless owes the practitioner only the usual price, irrespective of how high the insurer would in principle pay. The latter is therefore not prevented from reimbursing the invoice only up to the usual price, despite an expressly higher maximum limit. A benefit commitment “up to” does not change this at all. However, the AG Frankfurt/Main (judgement of 15.11.2001, Az. 32 C 2428/98-84) has decided that an insurer who advertises a maximum of benefits owes private patients more than, for example, those insured by the GKV or those entitled to aid are reimbursed. This is because those with private health insurance – including physiotherapists – can expect better treatment, which may then also cost more.

Those who can read insurance conditions have an advantage. The fact that medically unnecessary services are not provided is taken for granted, without giving any concrete thought to the consequences. For example, one insurer was asked what right it actually had to limit veneers to certain areas of teeth. The answer should make some brokers think: Veneers are generally not medically necessary, since they are not required for the restoration of the ability to chew. Therefore, it is at the discretion of the insurer whether to voluntarily reimburse veneers and for which teeth.

Policyholders can be referred to little more than the wording of the GCI. A binding declaration of intent – beyond a non-binding declaration of knowledge – as to what is then to be understood by this in certain individual cases, will hardly be received from an insurer. Accordingly, the broker should be reluctant to translate insurance terms and conditions into “plain language” for his client – and then be liable for them. For example, if the broker claims that the insurer provides “unlimited” coverage for certain treatments, he may soon have to pay some of his clients’ submitted bills himself.

Dr. Johannes Fiala
Peter A. Schramm

(Performance 10/2011, 52-53)


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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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