Structural checks
1 Background and context of the structural audit guideline
Even when the MDK Reform Act came into force on January 1, 2020, the inspection of structural characteristics in accordance with Section 275d SGB V was viewed with scepticism in addition to the inspection quotas in accordance with Section 275c SGB V. While the structural features were previously examined on a case-by-case basis, in future, according to the legal concept, "structural audits" will generally determine in advance whether the structural features are present.
Certain services can no longer be billed without a prior assessment by the MD and the respective certification of the result. The structural audits by the MD were actually supposed to be carried out by December 31, 2020, but due to the coronavirus pandemic, this deadline was extended to December 31, 2021
The basis for this assessment by the MD - which is particularly important for larger hospitals - is a directive in accordance with Section 283 (2) sentence 2 no. 3 SGB V. This guideline - issued by the MD - regulates the details of these assessments, including the technically required intervals for the assessment and the consequences if structural characteristics can no longer be met.
According to the legal concept, this directive should actually have been issued by February 28, 2021. However, the draft of this directive was with the Federal Ministry of Health for a long time, so that the directive was not published until May 27, 2021. Applications were supposed to be received by June 30, 2021; hospitals would therefore only have had around one month to submit applications for a large number of OPS.
This in turn led to an outcry among hospitals. As a result, the MDS extended the deadline for applications for OPS structural reviews to be submitted by hospitals - in its letter to the German Hospital Federation e.V. dated June 14, 2021 - to August 15, 2021.
2 Which deadline applies now?
In principle, the MDS has therefore extended the application deadline by six weeks to August 15, but there are still the following uncertainties if you rely on the extended deadline of August 15, 2021:
2.1 Timely processing and receipt of the certificate by 31.12.2021
On the one hand, the MDS states that applications received by June 30, 2021 will be processed in a timely manner in accordance with the directive and that the certificate can therefore generally be submitted by December 31, 2021.
For applications received by August 15, 2021, the MD reserves the right to complete the review by the end of 2021 or the beginning of 2022, so that a certificate may not be submitted until the beginning or middle of 2022. This could lead to uncertainties in the billing of OPS codes at the beginning of 2022 - even if the MD were to issue the certificate with retroactive effect to January 1, 2022 upon completion of the audit in 2022. This is because the services cannot be billed without the confirmation.
2.2 Adaptation of the guideline at the next revision
Secondly, the guideline will not be adapted to the MDS letter of June 14, 2021 until the next revision at the end of 2021, so that the possibility of extending the application will not be legally reflected until then. Until then, this is a "goodwill provision" of the MDS.
'It remains uncertain whether the possibility of claiming the extended deadline is open to every hospital or whether it is linked to conditions that the hospitals must subsequently fulfill. In the last section of the MDS letter, it is pointed out that only hospitals that are particularly burdened will be able to submit an application by August 15, 2021. However, it is not clear from the letter what is meant by this vague term "particularly burdened hospitals". It will only become clear in subsequent disputes what the MDS meant by this. This creates considerable uncertainty for hospitals.
2.3 Conclusion
From a legal perspective, we therefore recommend submitting the applications by June 30, 2021 if possible, as the law expressly states in Section 275d (4) SGB V that hospitals that do not meet the structural requirements can neither agree nor bill the services. Only in the event that hospitalsdo not receive the certificate of compliance with the structural characteristicsuntil after December 31, 2021, for reasons for which they are not responsible, can these hospitals continue to agree and bill for services provided to date until a structural review has been completed. In the event of delays in the MD - for applications received by June 30, 2021 - the hospital is therefore protected by this transitional regulation. However, if the deadline of August 15, 2021 is used, it must presumably be assumed that there is a reason for which the hospital is responsible within the meaning of Section 275d (4) SGB V. This is because the following passage can be found in the explanatory memorandum to the law in this regard
"However, a very late commissioning of the MD by the hospital to carry out a structural audit in the course of 2020, which does not allow the audit to be completed on time, may lead tothe result of the audit not being available for reasons for which the hospital is responsible."
(BT-Drs. 19/14871, p. 106)
Accordingly, if the application documents are submitted after June 30, 2021, it could be held against the hospital that the result of the examination is not available for reasons for which the hospital is responsible and therefore the services can initially - until the certificate is received by the respective hospital - neither be agreed nor billed. This consequence should be avoided by submitting the applications in good time.