Compensation payments for doctors in the corona crisis under the COVID-19 Hospital Relief Act and the protective shield of the Baden-Württemberg Association of Statutory Health Insurance Physicians I. COVID-19 Hospital Relief Act
I. COVID-19 Hospital Relief Act
Compensation payments pursuant to Section 87a (3b) SGB V In accordance with the newly introduced Section 87a (3b) SGB V, the Association of Statutory Health Insurance Physicians (KV) can make a compensation payment in the event of a more than 10% reduction in the total fee of a panel doctor compared to the same quarter of the previous year, which is due to the decline in case numbers as a result of a pandemic, epidemic, endemic, natural disaster or other major loss event. This must be limited in time. This regulation is intended to compensate for losses in turnover that may result from the discontinuation of check-ups, vaccinations, outpatient surgery, etc.
The wording of the law indicates that the granting of the compensation payment is at the discretion of the KV. This is because the KV "may" make a compensation payment if the requirements are met. The doctor concerned can therefore only demand a discretionary decision from the KV, but does not have an enforceable claim to the compensation payment. It is unclear whether and to what extent the KVs will implement these compensation payments on the basis of this ambiguous legal situation, and this is also criticized by some professional medical associations. This "optional" provision also has an impact on legal protection in the event that the KV refuses to make a compensation payment: the court only examines discretionary errors, in particular whether the KV has exercised its discretion or whether it was guided by irrelevant or irrelevant considerations.
This compensation payment is limited to services that are provided outside of the morbidity-related total remuneration and can be remunerated in accordance with Section 87a (3) sentences 5 and 6 of the German Social Code, Book V (SGB V). In addition, there are services that are subject to the agreed total remuneration but are remunerated separately in order to promote them in particular or because they are necessary for medical reasons or due to special features in the initiation and provision of the service. For the individual practice, the decisive factor will therefore be how high the practice's share of the total extrabudgetary remuneration is.
Practices with a high proportion of private doctors may have to accept high losses, as the private doctor's part is excluded from the compensation claim; purely private practices are completely excluded from protection.
Reduction of the compensation payment if other benefits are received
If the contracted medical service provider receives compensation under the Infection Protection Act or financial assistance on the basis of another entitlement, the compensation payment must be reduced accordingly. Here, for example, the protective shield of the KV Baden-Württemberg should be considered. In a nutshell: If patients for whom services are provided outside the morbidity-related total remuneration and billed in accordance with Section 87a (3) sentences 5 and 6 SGB V no longer come to the practice due to the corona pandemic and this results in a loss of turnover of more than 10 percent compared to the same quarter of the previous year, the KV can decide to make a compensation payment to the person concerned. The amount of the payment is reduced if the doctor receives payments under the Infection Protection Act or another regulation to mitigate the consequences of the coronavirus pandemic, such as emergency aid from the state or federal government. The health insurance funds are obliged to reimburse the KVs for the compensation payments.
Rescue payment in accordance with Section 87b (2a) SGB V
§ Section 87b (2a) SGB V is also being introduced. According to this, the KV, in cooperation with the health and substitute funds, must promptly create regulations for the distribution scale as soon as the number of cases falls so low as a result of a pandemic etc. that continuation is at risk.
Unlike the equalization payment, this is not a discretionary rule. If the conditions are met, the KV is obliged to take measures together with the health and substitute health insurance funds. The law does not define when there is a decline in case numbers to an extent that endangers the practice. This is a highly undefined legal term. However, it can be concluded from the meaning and purpose of the amendment to the law, which is to enable doctors to continue to carry out their care mandate (BT-Drs. 19/18112, p. 32), that the practice must not yet be on the verge of insolvency. However, at the latest when the running costs (staff, rent, current loans) can no longer be covered, the performance of the care mandate is also at risk. Irrespective of this, it should be defined in the short term when a decline in the number of cases "jeopardizes the practice" in order to achieve legal certainty. Furthermore, the question also arises as to whether it is sufficient to use falling case numbers alone as a benchmark or - taking up the criticism of some professional medical associations here - whether case values should also be included, as practices that often still treat many patients are currently often able to bill less.
The KV Baden-Württemberg has so far announced that the monthly payments on account will remain unchanged for quarter 2/2020, so it is unlikely that, at least in quarter 2/2020, the number of cases in a practice in Baden-Württemberg will fall to such an extent as a result of the coronavirus pandemic that the continuation of the practice is at risk. For the calculation, the KV Baden-Württemberg will continue to refer to the billing guideline, which bases the calculation on the previous year's quarter. Reductions would only be considered if the cases had nothing to do with the coronavirus crisis. An announcement by the GKV-Spitzenverband (National Association of Statutory Health Insurance Funds in accordance with Section 217 a SGB V) was not available by 06.04.2020.
No restriction to the COVID-19 pandemic
In general, it should be noted with regard to the compensation payment and the rescue in the event of a decline in case numbers that the regulations are not limited to the application of the current COVID-19 pandemic. In future, the compensation payment can also be demanded if the doctor's practice has to close as a result of an earthquake or a flood disaster (both natural disasters within the meaning of the regulation), for example, and the total fee is reduced as a result.
New regulation of Section 105 (3) SGB V
§ Section 105 (3) SGB V - which was previously repealed - is also covered by a new provision. This concerns the financing of the provision of care by SHI-accredited physicians during an epidemic situation of national scope in accordance with Section 5 (1) of the Infection Protection Act. The health insurance funds must reimburse the costs of measures required to ensure this, unless they are already included in the budget of the KV or are financed from other funds paid by the health insurance funds on the basis of agreements and resolutions in accordance with SGB V.
II Protective shield of the KV Baden-Württemberg
The KV Baden-Württemberg has promised - initially only for quarter 1/2020 - to set up a protective shield for its members to cushion all revenue losses caused by the coronavirus. It is also providing a guarantee of 90% of the total fee earned by the practice from the collective agreement in the previous quarter. The KV Baden-Württemberg has announced that it will send a corresponding application form with the notification of fees in July/August 2020.
Competing claims to regulations of the COVID-19 Hospital Relief Act
There is a competition of claims between the (voluntary) compensation by the KV Baden-Württemberg and the relief regulation of the COVID-19 Hospital Relief Act due to the above-mentioned reduction in compensation payments when claiming other financial aid. The contract doctor concerned can only claim one of the selected support services.
To date, the KV Baden-Württemberg has maintained its measures within the scope of the protective shield despite the financial assistance from the COVID-19 Hospital Relief Act. However, it remains conceivable that the KV Baden-Württemberg may restrict or even cancel the protective shield created due to the provisions of the COVID-19 Hospital Relief Act. It is also possible that the KV Baden-Württemberg will maintain the protective shield unchanged, but will not grant any compensation payments in accordance with the COVID-19 Hospital Relief Act on the grounds that the protective shield can be used. Further developments remain to be seen.