Fee increases in the care home contract only with the consent of the resident
Background
In nursing homes, the amount of the nursing home fee is primarily determined by the care rate and fee agreements that the home operators negotiate and agree with the cost bearers in accordance with the provisions of SGB XI. In inpatient facilities for the disabled, the corresponding service and remuneration agreements apply in accordance with the provisions of SGB XII. These service-related fee agreements only have a direct effect in the relationship between the care home providers and the cost bearers. In the relationship between the care home provider and the residents, the care home fees must always be agreed separately in the care home contract.
If the home operator negotiates higher care rate or fee agreements with the cost bearer as a result of cost increases, the home operator can generally also demand a corresponding fee increase from the home resident in accordance with the German Residential and Nursing Care Contract Act (WBVG). Until now, however, there has been controversy in case law and literature as to whether this fee increase can be made unilaterally by the home provider or whether the consent of the resident is required.
Fee increase in the care home contract only possible with the consent of the resident
In the case of care home residents who are not entitled to social benefits and who pay for their care home fees with their own funds (so-called "self-payers"), the prevailing view was that the consent of the care home resident was necessary for the fee increase to take effect. In contrast, however, the consent of care home residents entitled to social benefits should be dispensable. After all, the social benefit providers had already agreed these home fees with the home operators in accordance with the provisions of SGB XI or XII, which is why additional consent from the residents was not necessary.
However, the BGH did not agree with this view in its most recent decision, but instead expressly clarified that not only self-payers, but also those care home residents who receive benefits in accordance with SGB XI or XII, must always agree to an increase in fees in the care home contract in order for it to be effective.
Practical implications of the new BGH ruling
With its decision of May 12, 2016, the BGH has created another significant hurdle for care home providers in practice. In addition to the lengthy care rate and fee negotiations with the cost bearers, there is now also the requirement to agree this negotiation result separately with each individual care home resident in the care home contract - and anew for each fee increase.
If the care home resident expressly refuses to give their consent, the care home provider would have no choice but to take legal action. In the event that a resident does not respond to the request for an increase, it may be possible to "feign" consent through conclusive behavior. However, the care home contract should contain appropriate provisions for this, which must also be compatible with the law on general terms and conditions.
For those care home residents whose care home fees are covered by the cost bearers, there is also the hope that these cost bearers will approve the fees negotiated and agreed by themselves with the care home providers even if the care home resident has not (yet) given their consent to the fee increase in the care home contract. However, it remains to be seen whether this approach will prevail.
In any case, the decision of the BGH has triggered a need for action on the part of care home providers:
It is now undoubtedly clear that provisions in care home contracts that provide for a unilateral increase in fees are invalid. In return, however, there are now possibilities for a fictitious consent in the contract. Care home providers are therefore required to amend their contracts in any case.
The consent of all residents must now be obtained for all future fee increases. In particular, the special requirements of the WBVG must be complied with (in particular written justification, presentation of the basis of assessment and cost items as well as a comparison of the old and new fee components).
Status: 06.07.2016