Problems with adjusting salaries to the standard pay scale in outpatient intensive care What should I bear in mind when negotiating remuneration?

As is well known, providers of outpatient intensive care conclude contracts with the health insurance funds (currently still individually, in future jointly and uniformly with the health insurance funds) on the provision of services, in which the remuneration is then also regulated. In accordance with. § Section 132l (5) sentence 2 SGB V new version (Section 132a (4) sentence 7 SGB V old version), the payment of salaries up to the level of collectively agreed remuneration and corresponding remuneration in accordance with church labor law regulations cannot be rejected by the health insurance funds as uneconomical. As a result, this means that service providers are entitled to pay their employees salaries up to the level of collectively agreed remuneration and that this must be refinanced by the health insurance fund.

Many intensive care services are therefore considering - also due to the tense personnel situation on the labor market - either significantly aligning their salaries with the collective agreement level or joining a collective agreement altogether. However, it should be borne in mind that in many collective agreements, the bonuses (e.g. for night shifts) are significantly lower than has been customary in non-clinical intensive care to date. In the past, all legally permissible and often tax-privileged regulations for paying the highest possible bonuses for night shifts were frequently exhausted in order to attract staff for this activity. As a result, the nursing service may find it unattractive to be fully aligned with a collective wage agreement (e.g. TVöD), as this would primarily increase basic salaries, but the instrument of high bonuses would be much less effective. It should also be borne in mind that a fixed link to a collective agreement would always mean that the increase in the collectively agreed wage would also have to be tracked, irrespective of whether an increase in refinancing by the health insurance funds is already guaranteed.

In terms of negotiation tactics, there are various possibilities: On the one hand, an attempt can be made to even out the existing gap between the salaries currently paid and the collectively agreed level by means of multiple increases that exceed the basic wage increase. The legislator has made it legally clear that an increase over and above the basic wage increase is possible ("Section 71 SGB V does not apply in this respect"). However, it is also possible to implement the tariff level in one step, either by adopting a tariff, by following a tariff or by creating an in-house tariff. In these cases, the health insurance funds often demand proof of the actual implementation and payment of salaries based on the collective agreement. However, the problem here is that it is often not possible to conduct remuneration negotiations with all health insurance funds at the same time, so that there is often the problem of when a reference to collectively agreed wages can actually be implemented and thus proof can be provided to the health insurance funds. This problem must be addressed in the remuneration negotiations, as otherwise it may not be possible to fulfill a verification clause with a deadline.

This problem will probably only change if the health insurance funds - as provided for in the IPReG - negotiate jointly and uniformly with the service providers (Section 132l (5) SGB V). In future, these contracts are to be concluded at state level as collective contracts by the state associations of health insurance funds or the Association of Substitute Health Insurance Funds according to the same standards and with the same framework conditions.

However, the contracts according to Section 132a (4) SGB V will continue to apply until they can be replaced by contracts according to Section 132l (5) and (6) SGB V (according to IPReG). The law provides for the following sequence:

Within 12 months of the promulgation of the law, the Joint Federal Committee shall adopt guidelines in which, in addition to the personnel and structural requirements, principles of remuneration, remuneration negotiations and evidence are regulated.
Within a further 12 months, framework recommendations are then adopted at federal level in which these guidelines of the Federal Joint Committee are implemented.
The old contracts in accordance with Section 132a (4) SGB V will continue to apply for a maximum of 12 months after the framework recommendations have been agreed.

From this legal system, it can be concluded that the joint and uniform negotiations of the health insurance funds in accordance with the requirements of the framework recommendations can be started at the latest in 2 years after the promulgation of the law, i.e. in October 2022 at the latest, as only then will the health insurance funds have the requirements from the GBA guidelines and the new framework recommendation on remuneration, remuneration negotiations and evidence. Until then, we will continue to operate under the previous regulatory regime of Section 132a (4) SGB V with the problems described above.

Date: 20. Nov 2020