BSG grants protection of legitimate expectations against reimbursement of expense allowances paid before January 1, 2015

On July 16, 2020 - 1 KR 15/19 R, the BSG fortunately confirmed that there is no retroactive effect of the BSG's decisions and that hospitals can invoke the protection of legitimate expectations with regard to the flat-rate expense allowances paid before January 1, 2015. It is only from January 1, 2015 that it can be assumed that hospitals were aware of the BSG's decision of July 1, 2014, meaning that the interest worthy of protection only ceased to apply from this date.

The ruling gives some hope that, under the new chairmanship of the first senate, the BSG will find its way back to a more balanced jurisdiction between health insurance funds and hospitals.

The downer, however, is that the BSG continued to suggest that the unconditional payment of flat rates by health insurance funds after a factual and mathematical accuracy check after 2014 and at least until the judgment of 25.10.2016 - B 1 KR 22/16, when it "extensively" "specified" its case law on the factual and mathematical accuracy check, did not result in an exclusion of claims. In doing so, it is probably going against the Reutlingen Social Court, which in its decision of 13.11.2019 - S 1 KR 2623/18 clearly denied such claims by the GKV. The Reutlingen Social Court stated that the health insurance funds, as public corporations, are subject to stricter requirements in terms of knowledge of current supreme court rulings and that a reclaim is therefore ruled out in the event of unconditional payment. As this decision was not the subject of the ruling of 16.07.2020, the detailed reasons for the ruling remain to be seen in order to conclusively assess the period after 2014.