Why brokers should not blindly trust insurance conditions: Continuation of the proven series by lawyer Johannes Fiala and private health insurance expert Peter A. Schramm on common or typical consulting errors in the mediation of private health insurance.
According to § 193 para. 3 VVG, every person domiciled in Germany who is not insured against illness in the GKV or otherwise is obliged to take out health insurance with an insurance company licensed to do business in Germany for himself and for the persons legally represented by him, insofar as these cannot conclude contracts themselves, with a specified minimum cover. Insurers must provide insurance cover at least in the basic tariff from the time of adoption at the latest, even without risk surcharges. But what if the basic protection does not suit you?
Section 198 of the Insurance Contract Act provides for the subsequent insurance of children:
“(1) If health insurance exists for at least one parent on the day of birth, the insurer is obliged to insure his newborn child from the completion of the birth without risk surcharges and waiting periods, if the application for insurance is made retroactively no later than two months after the day of birth. This obligation exists only to the extent that the newborn’s requested coverage is no greater and no more comprehensive than that of the insured parent.
(2) The birth of a child shall be equivalent to adoption, provided that the child is still a minor at the time of adoption. If there is a higher risk, the agreement of a risk surcharge is permissible at most up to the simple premium amount.
(3) As a condition for the insurance of the newborn or adopted child, a minimum period of insurance of the parent may be agreed. This may not exceed three months.” This thus seems to ensure that better insurance cover than in the basic tariff can also be applied for.
The model conditions of the medical expenses insurance add to this in § 2:
“(4) In the case of newborns, insurance cover shall commence without risk surcharges and without waiting periods from the completion of the birth if, on the day of the birth, one parent has been insured with the insurer for at least three months and the application for insurance is made retroactively no later than two months after the day of the birth. Coverage may not be higher or more comprehensive than that of an insured parent.
(5) The birth of a child shall be deemed equivalent to adoption, provided that the child is still a minor at the time of adoption. With regard to an increased risk, the agreement of a risk surcharge up to the simple premium amount is permissible.”
Therefore, practically nothing is added to the adoption, not even in part II of the conditions. The adopted child is therefore immediately privately insured with the adoption, if it is registered in time. Pre-existing conditions are also included, for which the permitted risk surcharge is also limited to 100 percent. Of course, a risk assessment is also carried out for this purpose.
Current insured events are excluded
Clearly § 2 para. 1 MB/KK “No benefits will be paid for insured events that occurred before the start of the insurance cover.” Such an insurance case, for which then if necessary even lifelong after the adoption is not paid, can be very extensive. Because § 1 para. 2 of the standard terms and conditions states “An insured event is the medically necessary treatment of an insured person due to illness or the consequences of an accident. The insured event begins with the medical treatment; it ends when, according to medical findings, the need for treatment no longer exists. If the treatment has to be extended to an illness or consequence of an accident which is not causally related to the previously treated illness or consequence of an accident, a new insured event shall arise in this respect.” Thus, if treatment for an illness has already taken place before the adoption, then all subsequent treatment is even excluded for life until there is no longer a need for treatment. The basic tariff is an exception – here, according to § 2 of its terms and conditions, insurance cases already in progress at the time of adoption are also included from the time of adoption, just as is generally the case in the GKV.
Adoption foster care is a kind of intermediate stage on the way to adoption and serves to bring the child and adopter closer together and to integrate them into the family. It begins on the day on which the future adoptive parents take in the child and ends when the family court pronounces the adoption and the decision becomes final. If the child lives in the household with the aim of adoption, the future parents are liable for maintenance and must also provide health insurance. During the adoption foster care period, they can file a notarized adoption petition with the family court. Only after the adoption care period has expired does the court decide on the adoption. And only then is the private health insurer obliged to provide the child with insurance cover. Before that, it may not be possible to obtain private health insurance cover, or only under much less favourable conditions than those provided for adopted children after adoption. Of course, a lack of health insurance will be reason enough for the Youth Welfare Office to deny consent to the adoption.
The legal representation of the child lies for the duration of the adoption care time as a rule with the youth welfare department. And thus the child is exactly not legally represented by the future adoptive parents, which, however, is a prerequisite for the compulsory insurance pursuant to § 193 para. 3 VVG would be. Nevertheless, the insurer is obliged to accept the insurance, at least in the basic tariff. The PKV insurance broker is well advised to compile a summary of specialist information on duties, in particular obligations, for his clients. It is not uncommon, for example, for (adopted) children to overlook the two-month deadline for notifying the PKV insurer after the event (birth or adoption). If the parents are insured differently (GKV or PKV), the (adoptive) child is to be co-insured with the parent who has the higher income, provided that at least one parent’s income is above the compulsory insurance limit. Of course, this can no longer be arranged in retrospect (e.g. in agreement with an employer). It is also problematic if the income situation shifts after the birth or adoption, because this does not entitle to a simple subsequent insurance in the PKV.
Even in the case of subsequent insurance of children, insurance cover does not commence until the birth is completed (cutting of the umbilical cord). There is no permanent obligation to pay benefits for claims requiring treatment before the start of the insurance. If the insured event occurs before the start of the insurance in the case of children (e.g. birth defects, congenital anomalies or hereditary diseases) or if such an event already exists at the time of adoption, the decisive factor according to the MB/KK is whether and, if so, when the disease will be cured or no longer require treatment – unless the tariff provides for benefit improvements in this respect. Not taking such differences into account when brokering private health insurance (without children) can be the insurance broker’s undoing even after up to ten years.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.performance-online.de (published in Performance 09/2011, page 44-45)
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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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