The health reform: Suspicion of an unconstitutional stillbirth and other deficits for the citizens

Health care reform was once supposed to lower the cost burden, but the opposite is likely to be the case. Not only the private health insurers, with whom about 10% of the population is insured, but also other parties involved do not tire of referring to a multitude of legal opinions of renowned professors in order to defend themselves:


In it, health care reform is certified unconstitutional to the present. In addition, however, there are deficits that have received little attention so far and which continue to burden the citizen. Compulsory insurance for all? More than 200,000 German citizens are without health insurance cover – this is to change, in that everyone is entitled (but not obliged) to insure themselves with a health insurance fund at any time. The level of this protection for those entitled to private health insurance – in the so-called basic tariff – is oriented towards today’s GKV level – even above the current standard tariff in private health insurance (PKV) according to § 12 VAG. In fact, the insurers have been forced by § 257 V SGB V since 1995 to offer such a tariff as a full insurer, because this is a prerequisite for an employer subsidy to the privately insured employees.


Constitutionally, however, this level of insurance (incl. cures, psychoanalysis, etc.) is quite obviously not necessary to achieve the goal of providing basic health care for every citizen, if the standard of SHI coverage is considered to be already high enough to provide care for almost everyone. After all, the new system is likely to increase contributions by 20-30% (the basic conditions of the basic tariff alone are likely to increase them by up to 10% and more), which alone suggests that this can no longer appear reasonable or justifiable. Nor does the new system in any way strengthen competition in the desired way.


This is not only intended to lump together good and bad risks in private health insurance as well, but also the cross-financing within the basic tariff group (within an insurance company, as well as via the “risk structure equalisation” as a third-party levy) can be interpreted as a special sacrifice. Not only can anyone who can be assigned to private health insurance as a customer register for the basic tariff for the first time at any time without risk assessment and at income-dependent premiums subsidised by the other private health insurance customers, but also every current private health insurance customer can switch to the basic tariff at the expense of the dwindling number of those remaining in the other tariffs if risk surcharges or the premiums ultimately increased by the intended measures no longer appear acceptable to him or his income decreases.


Both can violate the principle of equality of the constitution, art. 3 GG. Parts of the insurance industry could disappear from the market as a result of forced structural change due to economic burdens, just as this is a declared political goal for the SHI sector. One point here is the obligation to contract, which effectively leaves the insurer’s right to terminate for premium default empty. And why should you still pay premiums when you can always re-insure yourself cheaply if you need to and in a pinch? This trend is reinforced by the fact that voluntarily SHI-insured persons could primarily opt for the financially more favourable PHI tariff. On the other hand, a trend towards GKV will persist if and as long as the non-contributory family insurance still intervenes. And finally, good risks will seek to leave the basic PKV tariff in order to obtain full insurance. It is also doubtful whether everyone wants and has to afford this basic insurance package, because the citizen is constitutionally entitled to private autonomy, § 2 I GG. Why shouldn’t a citizen be able to opt for a lower benefit content? In view of the coming difficulties, it will be an interesting option to remain uninsured and bear one’s own medical costs or to voluntarily join health support funds that are not regulated by the state.


And what about insured persons who already have statutory or private insurance abroad? Can they then cancel their insurance cover abroad because they are always covered by basic insurance if they are resident in Germany?


GP tariff a curse or a blessing?

To contain costs, there are already models whereby the premium is cheaper if the insured person goes to the family doctor first. Now, however, it can unfortunately happen that in the event of a heart attack the citizen on holiday, for example in Majorca, has to see a specialist straight away – there is no time from the holiday resort to visit the family doctor first. However, this is when the insured event occurs, which means that in some private health insurance policies only 75% of the costs for this illness are borne by the insurer for life. Stay abroad without insurance cover!

To date, social security agreements have not been concluded with all countries, so that persons with statutory insurance abroad do not receive benefits from the GKV, even in the case of a professional transfer. If a pensioner wants to spend his old age in Brazil, for example, he is simply deregistered from his GKV. Without a place of residence in Germany, Germans abroad continue to live without insurance cover in some places – even that provided by the health reform.


There are also usually corresponding gaps in the area of private health insurance:

Spending old age in Italy proves to be a case for insurance broker liability with the vast majority of policies, as only a temporary stay of a few months will be covered by private health insurance here. There is currently no real freedom of movement in health insurance. But anyone who falls ill and then returns to Germany is apparently to be given an insurance option immediately – paid for, if necessary, at the expense of the others. PKV change as a bargain at the expense of insurers? Those who already have private health insurance can change to any private health insurance and take their age reserves for the basic tariff with them. This will inevitably lead to “good risks” being oriented towards price – because the tariffs in statutory health insurance do not know any calculation according to risk and age of entry, while the tariffs in private health insurance do not know any calculation according to income, i.e. ability to pay.

If an insured person would become a social case due to the premium level, the insurer may only charge half in the basic tariff. This will have an impact on the calculation for all persons insured under private health insurance. A premium calculation according to risk reaches its limits here, the area of the insurance business is left – so that the legislative competence of the federal government is also doubted by the legal experts. The compulsory association of private health insurance and the state’s specification of a premium level seem to inevitably burden the remaining supplementary and fully insured persons. Not all legal experts for private health insurance are of the opinion that the transfer of ageing provisions from one private health insurance company to another is even constitutionally required. However, legal scholars are unanimous in the fact that the co-payment when changing from private health insurance to statutory health insurance is unconstitutional in any case.

This is already obvious because the statutory health insurance will not as a rule provide any age reserves in the reverse case, i.e. when switching to private health insurance. This, after all, has been averted as manifestly unconstitutional in the course of the legislative process to date. Increasing competition among private health insurance providers in the area of full coverage will indeed take place, even if only the old-age provisions are passed on at the level of the basic tariff.

Outside the basic tariff, the private health insurance provider is not obliged to conclude a contract. This may also qualify as unconstitutional unequal treatment, Art. 3 GG. Poaching of one insurer from another from and into the basic tariff will apparently remain the exception. But insurers with new low-cost rates will poach customers from other insurers’ existing rates. You can choose the healthy customers. As a result, the sick remain with the previous insurer. Although this is already a problem today, it will become even more so in the future due to the transfer of the ageing reserve, because switching will also be interesting for those who have been insured for a longer period of time. The first insurers are already practicing taking on healthy new customers without any age limit. The remaining sick people in the tariff will have to pay for this, because if the healthy people go to the “competition” together with their ageing provision, their premiums will increase more and more for their risk, which is increasing on average.

The consequence: the well-known segregation or “greying”, because now everyone who can still do so will save himself – a spiral of increasing risk deterioration, rising prices and further migration is created. This segregation is not compensated for in any way in the industry, because the customers concerned are not in the basic tariff at all – only for the latter would the industry-wide compensation system be provided, which is intended to compensate for the segregation consequences exclusively in the basic tariff in retrospect between the companies. But they have already paid for this farewell to the healthy with the ageing provision – because the calculation of the ageing provision alone results in premium increases of up to 20% and more. The more healthy people leave, the more the premiums of the existing tariffs increase.

Those who then cannot save themselves to the competitor company because of pre-existing conditions (but who are also threatened with the same fate at some point) are left with the basic tariff. Ultimately, the sick person who – as yet – does not want to pay the basic tariff will have to pay this. This kind of harmful competition – mutual hounding of the healthy – is therefore a consequence of the health reform. The PKV insurer who is committed to cannibalism survives longer for some time. Abolition of medical freedom of therapy? Already today there are considerations in medicine that a “new” donor liver should not be worthwhile for a 70-year-old – for a 40-year-old, who has enjoyed the same with corresponding consequences too often with too much Chianti, it is. There is little known ethical reappraisal of this. Doctors are now to be prohibited from prescribing innovative or expensive drugs from the fields of biotechnology and genetic engineering without consulting a “designated” second doctor.

Economic efficiency is apparently to take precedence over therapy – a reinforcement of the trend towards first- and second-class care? Unfortunately, similar ideas have already been heard from the private health insurance sector. Cost Monopoly? The new contribution rate of the GKV is to be fixed by the government – but nobody knows how high possible contribution refunds will be later with its cash or even an additional contribution, which the cash must compute. It is foreseeable that this new type of competition cannot be survived by a good part of today’s health insurance companies.



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


by courtesy of (published in Der gelbe Dienst issue 23/2006, page 10)

and (published in 1/2007, page 7 under the headline: The health reform: suspicion of an unconstitutional stillbirth and other deficits for the citizen).


From www. (published in Dental Tribune 1+2/2007, 10 under the headline: Suspected unconstitutional stillbirth and other deficits for the citizen).


From (published in

PROPRAXIS Oncology/Hematology November / December 2006, page 62 under the heading: Suspicion of an unconstitutional stillbirth

Propraxis Gynecology Nov+Dec 2006, page 42, under the headline: Suspicion of an unconstitutional stillbirth

PROPRAXIS Cardiology November / December 2006, page 54 under the heading: Suspicion of an unconstitutional stillbirth

PROPRAXIS Orthopaedics/Rheumatology November / December 2006, 34 under the heading: Suspicion of an unconstitutional stillbirth

Vita Nov/Dec 2006, page 50, under the heading: Suspicion of unconstitutional stillbirth).

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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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