Digitization of elective service agreements Former written form requirement
However, a change in the law now allows elective service agreements to be digitized in text form, which can simplify and streamline the hospital's contract management.
Previous written form requirement
Previously, the written form was mandatory for elective service agreements and the corresponding pre-contractual information. This required each contracting party to sign a written document in their own hand (Section 126 BGB). The optional service agreements could therefore not be digitized. A signature on a tablet could not satisfy the statutory written form requirement. If the written form requirement was breached, the elective services agreement was null and void. Payment for services provided could not be demanded.In order to simplify matters for hospitals, the legislator has relaxed the written form requirement:
The so-called text form is now sufficient
Since 19.12.2019, the written form is no longer mandatory. Instead, optional service agreements can now also be concluded in text form. This results from Section 17 (2) KHEntgG. It states:"Elective services must be agreed in writing before they are provided; the patient must be informed in writing of the charges for the elective services and their content in detail before the agreement is concluded. By way of derogation from sentence 1, elective services may also be agreed in text form prior to provision if the patient is informed in advance in an appropriate manner in text form about the charges for the elective service and its content in detail."This means that the elective service agreements and the required pre-contractual information can be digitized in text form.
What does the text form require?
Text form is defined in Section 126b BGB. Text form is fulfilled if a legible declaration is made in which the person making the declaration is named. The declaration must be made on a durable medium. Section 126b BGB further states:"A durable medium is any medium thatThis includes, for example, stored e-mails, faxes or text messages. Furthermore, storage media such as USB sticks. In particular, a handwritten signature is no longer required.1. enables the recipient to store or save a declaration addressed to him personally on the data carrier in such a way that it is accessible to him for a period of time appropriate to its purpose, and
2. is suitable for reproducing the declaration unchanged."
However, it is not sufficient if the information or contracts are only offered for download on a homepage. This is because the conclusion of the optional services agreement still requires two corresponding declarations of intent, which must be received by the respective contracting parties (patient and hospital). The receipt of the declarations of intent and the pre-contractual information to the patient must be proven by the hospital and must therefore be technically ensured.
Design options for optional service agreements
It would be possible, for example, for the patient to first sign or confirm the pre-contractual information and then the optional services agreement on a tablet and for these documents, together with a corresponding declaration of intent from the hospital, to be sent to the patient as an attachment to an email. Of course, other arrangements are also conceivable.A hybrid form between text and written form would also be conceivable: in the event that the patient is unable or unwilling to provide an email address, the optional services agreement and pre-contractual information can also be sent to them in writing. This is because a written document also fulfills the above-mentioned requirements for text form. This would still give the hospital the advantage of having its own documents digitized.
Stumbling blocks
The changeover from written elective service agreements to text form must not be done rashly. Mistakes can still be made in text form. For example, it may not be possible to ensure that the hospital's declaration of intent (email, etc.) is received. In addition, the conclusion of the contract and the announcement of the pre-contractual information must be technically designed in such a way that access can be proven in case of doubt.The digitalization of the optional services agreement is an important building block for the digitalization of contract management during patient admission. We would be happy to advise you on the switch to text form or on the overall legal implementation of your digitalization strategy in your hospital.