Investment amounts in accordance with Section 76 (2) SGB XII can be increased retroactively to the time of the start of negotiations by agreement or arbitration board ruling BSG: Retroactive effect to the time of the start of the hearing is permissible

If a provider of integration assistance negotiates with the KVJS about the investment amounts of newly built facilities before they are put into operation, the actual or ultimately recognizable construction and other initial costs are usually not yet known at this time. The necessary operating investment costs to be recognized under performance law are usually only finally and bindingly determined by the proof of use to be provided as part of the funding procedure. For this reason, in practice the service providers often initially agree notional investment amounts with the KVJS on the basis of the planned construction costs, taking into account the construction price index. However, if the actual construction costs ultimately exceed the planned indexed construction costs, the fictitious investment amount leads to a considerable financing deficit. Such a financing deficit can be compensated for by increasing the investment amount retroactively to the start of negotiations by means of an arbitration award or an agreement.

BSG: Retroactive effect to the time of the start of negotiations is permissible

The admissibility of such retroactivity was last confirmed again by the BSG in 2014 (BSG of 23.02.2014, B8 SO 2/13 R). In particular, such a retroactive effect does not violate the principle of "prospectivity" of the benefit and remuneration agreements. Pursuant to Section 77 para. 1 SGB XII, benefit and remuneration agreements must generally be concluded "before the start of the respective financial period for a future period (agreement period)". "It is not permissible to agree or set remuneration retroactively before this point in time", according to the express wording of the law. Nevertheless, according to the established case law of the Federal Social Court, this principle of "prospectivity" laid down in the statutory provisions only prohibits "compensation for periods prior to the actual negotiation period". According to the BSG, there is "no statutory prohibition of retroactive entry into force".

Recommendations for practice

The investment amount is part of the remuneration agreements in accordance with Section 76 (2) SGB XII. If the actual construction costs of a facility are not yet known, it is generally possible to reach an agreement with the KVJS on a discount on the investment amount for the transitional period between commissioning and the final determination of the construction costs in the proof of use under funding law. In such an advance payment agreement, however, it should be made clear that the amount of the investment sum is only provisional and will be recalculated on the basis of the actual construction costs and agreed retroactively once these actual construction costs are known and have been finally determined. If such an interim agreement is not reached, the arbitration board should be called upon immediately as soon as the actual construction costs and other operationally necessary investment expenses have been bindingly determined by the proof of use in the funding procedure. According to the BSG case law, the arbitration board must then also make a retroactive decision on the amount of the investment amount from the time of the start of negotiations.

§ Section 76 para. 2 SGB XII reads: "Compensation for the services in accordance with para. 1 consists at least of the flat rates for board and lodging (basic flat rate) and for the measures (flat rate for measures) as well as an amount for facilities necessary for operation including their equipment (investment amount)."

Date: 30. Jan 2017