/dpa
Berlin – In the dispute over the transformation fund to finance hospital reform, the National Association of Statutory Health Insurance Funds is preparing a legal opinion on the constitutionality of the planned fund.
The Federal Ministry of Health (BMG) wants to fund the transformation fund with half of the health fund between 2026 and 2035, with 2.5 billion euros to be withdrawn annually. The federal states should pay the other half. The resources will be used for construction projects and modernizations needed to transform the hospital landscape.
It defends itself against the withdrawal of the liquidity reserve of the health fund and thus the contributions to the statutory health insurance (GKV), which are financed by the insured and the employers National Association of Statutory Health Insurance Funds then.
It commissioned a report on the constitutionality of the planned transformation fund, which is intended to promote the use of tax resources rather than contributions in the political debate.
The result of the analysis: Tax resources are needed for tasks that affect society as a whole and not for social security contributions. Because “according to the case law of the Federal Constitutional Court, these are strictly earmarked and cannot be used to finance the general state budget,” says the report by Dagmar Felix from the University of Hamburg. Felix is also a member of the government commission for hospital reform.
Given the current design of the transformation fund, there is no doubt that financing the transformation is such a task. “Efficient hospitals are of crucial importance to everyone in Germany,” writes Felix. It is therefore necessary to finance the transformation from tax revenues.
The money withdrawn from the liquidity reserve is therefore not used to fulfil the duties of health insurers according to Book V of the Social Security Code, Félix continued. The quality-assured implementation of benefit claims for insured persons requires a “suitably efficient hospital setting”.
It is necessary to assess whether this reference to the Social Security Code is sufficient to distinguish between the tasks of health insurance companies and those of society as a whole. In his view, “the mandatory participation of private health insurers” in the transformation fund “does not solve the financing problem”, Félix continued.
This link between SGB V and the financing of hospital transformation cannot be proven. It is not enough that “people with statutory health insurance also benefit from a better hospital structure”. Therefore: “There is much to be said for the fact that the legislator is financing a task for society as a whole through the health fund and thus violating the equality of burden protected by fundamental rights”, said Felix in a conclusion.
In his report, Felix also uses the so-called BZgA decision from May 2021: The Federal Constitutional Court ruled that social security contributions are “subject to strict earmarking” and must therefore not be used for state tasks.
At the same time, the report shows that hospital financing has fundamentally had a turbulent history, but that “there are no requirements for hospital financing” in the Basic Law.
“In this regard, there is no regulation that stipulates that the costs of maintaining hospitals are borne by the states, nor a rule that explicitly provides for financing through tax revenues”, writes Félix.
However, it cannot be concluded from this that the federal government is authorised to access the health fund of the statutory health insurance to finance individual measures, he continues. Félix rejects the idea of increasing the federal subsidy to the health fund by the required 2.5 billion euros per year from tax revenues as “alien to the system”.
Instead, it speaks in favor of “designing an independent financing model from federal and state funds that has nothing to do with the OGE V and its financing.” This financing model can still be used by the Federal Secretariat of Social Security (BASE) administrator.
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The interesting question is who among the ranks of the GKV could sue the transformation fund if it were implemented in its currently planned form. Felix explains that individual members of the GKV can take legal action before the social court.
It is “doubtful” that the health insurers themselves, the social insurers or the National Association of Statutory Health Insurance Funds itself could take legal action against the fund. Because: “These are not funds from the leading association; and the individual health insurer only acted as a collection point,” writes Félix.
However, with regard to the decision of the Federal Social Court on the BZgA decision from 2021, “it would be worth considering allowing individual health insurance companies and the umbrella association of the Federation of Health Insurance Funds to bring legal action despite their lack of fundamental rights.” That is, if a social court finds the action admissible, the route could be taken all the way to the Federal Constitutional Court.
The National Association of Statutory Health Insurance Funds discussed the report at a board meeting in late June. During the discussion, health insurance company trustees were divided on whether legal action should be taken quickly.
A Board resolution states that “more specific options for legal action are being examined in parallel because: “At the moment, policy discussions and communication are focused on preventing financing by statutory health insurance.” © bee/aerzteblatt.de