What's next for out-of-hospital intensive care? 1. section 37c SGB V new entitlement to outpatient intensive care
1. section 37c SGB V new entitlement to out-of-hospital intensive care
Section 37c SGB V establishes a new entitlement to out-of-hospital intensive care for insured persons and thus separates this from home nursing care in accordance with Section 37 SGB V.
Non-hospital intensive care must be prescribed by a panel doctor who is specially qualified to care for these insured persons.
Paragraph 3 also stipulates that if non-clinical intensive care is provided in a full inpatient care facility, the entitlement also covers the care-related expenses including the expenses for care and the expenses for medical treatment services in the facility, the investment costs necessary for operation and the fees for accommodation.
This makes the actual aim of the law clear: the accommodation of people in need of intensive care in an inpatient facility as a rule. This is because the extensive relief from co-payments provided by this law creates considerable incentives for this, while the co-payments are to be higher at home and board and lodging are still to be borne by the insured person.
2. regulations for providers of out-of-hospital intensive care in Section 132l SGB V - conflict with state legislation?
The new regulations for service providers are anchored in Section 132l SGB V. According to this, the National Association of Statutory Health Insurance Funds, the association of providers of full inpatient care facilities at federal level and the umbrella organizations responsible for representing the interests of care services and service providers at federal level are to agree uniform and comprehensive framework recommendations on the provision of out-of-hospital intensive care .
According to the law, these newly agreed framework recommendations should include the following aspects
the staffing requirements for nursing care, including the principles for determining staffing requirements,
the structural requirements for residential units ("intensive care shared flats") including structural quality requirements,
details on the content and scope of the cooperation between the service provider and the prescribing contract doctor,
quality assurance measures,
Principles of the economic efficiency of the provision of services, including their review,
Principles of the procedure for reviewing the health insurance funds' obligation to provide services and the billing procedure,
principles of remuneration and its structures, including transparency requirements for remuneration negotiations to prove the actual wages or salaries paid, and
measures in the event of breaches of contract.
It will also be interesting to see whether the health insurance funds even want to negotiate the IC rate for intensive care places in fully inpatient care facilities.
The fact that construction and staffing requirements are to be set here could lead to considerable practical problems. These are areas that fall under home regulation law and are therefore the responsibility of the federal states. Baden-Württemberg, for example, has already made legal provisions on this in the WTPG and the implementing ordinances. In the area of shared flats in particular, a conscious decision has been made in favor of low structural requirements and certain personnel requirements. It is therefore to be feared that problems will arise at the interface between the WTPG/LPersVO and the framework recommendations.
3. 2 years + x No new service providers?
The state associations of health insurance funds and the substitute funds should continue to conclude joint and uniform contracts with reliable service providers on outpatient intensive care and its remuneration and billing.
The contracts in accordance with Section 132a (4) SGB V are therefore to be replaced by contracts in accordance with Section 132l (1) SGB V, in which the contents of the new framework recommendations to be agreed are set out. The existing contracts in accordance with Section 132a (4) SGB V are to continue to apply for a maximum of twelve months after the new framework recommendations in accordance with Section 132l (1) SGB V have been agreed. At the same time, the self-administration has two years to develop framework recommendations.
This inevitably raises the question of how inpatient service providers should start a new intensive care project in a timely manner or whether new start-ups and business transfers of outpatient intensive care services are still possible at all as long as the framework recommendations do not yet apply. Because without these, the health insurance funds will probably not conclude any contracts in accordance with Section 132l SGB V nF, which in turn are tantamount to approval to provide services. There is no need to be a prophet to predict that these two years will probably be exhausted and, based on previous experience from negotiations in outpatient intensive care, subsequent arbitration proceedings are not unlikely, which could certainly take up to another six months.
Does this mean that no new intensive care projects can/may be developed for three years? Or will § 132a SGB V be used as a temporary solution with regard to contracts for providers of inpatient facilities?
4. only one contract in accordance with § 132l SGB V
Previously, a separate care contract had to be concluded with each health insurance fund and the remuneration negotiated separately. This had advantages and disadvantages. Now there is only one negotiation, which increases the disparity in negotiating power between cost bearers and individual service providers. This makes it all the more important for service providers to have efficient controlling in future, which is geared towards the special features of out-of-hospital intensive care, in order to be able to provide the necessary evidence in remuneration negotiations.
The plan is for the respective state associations of health insurance funds to negotiate. However, it was omitted that this does not automatically include health insurance funds that are open nationwide and belong to a different state association. Whether you have to negotiate with them separately or approach their state association is unclear! In any case, patients from such funds may not be admitted until this has been clarified!
5. no more central, permanent arbitrator?
In Baden-Württemberg in particular, it was seen as an advantage that the self-governing partners at state level had agreed to create a permanent arbitration board within the meaning of Section 132a SGB V. There was no need to reach an agreement each time and time-consuming supervisory procedures were unnecessary. Legislators should take this as an example and provide for permanent arbitrators at state level. This would also create legal certainty for the negotiating parties for future meetings.
It is incomprehensible why the responsibility for appointing the arbitrator was changed from state to federal supervision by the Health Committee without justification. Since negotiations are to take place at state level, the state supervisory authority is also the more appropriate one.
6. distinction between children and adolescents up to the age of 18 and young adults up to the age of 27
It should be emphasized here that for the first time in the law, a distinction is made in these paragraphs between children and adolescents up to the age of 18 and young adults up to the age of 27 in whom a clinical picture of childhood and adolescence persists or a typical clinical picture of childhood and adolescence newly emerges or a level of psychomotor development corresponding to childhood is present. It therefore makes it clear that children and adolescents cannot be schematically assigned to adult care from the age of 18.
However, at least for Baden-Württemberg, this is then only partially consistent with the home regulation law of the WTPG, to which - with varying degrees of intensity - both inpatient care facilities for adults in need of care and (provider-managed) outpatient assisted living communities for adults with support and care needs, i.e. so-called care flat-sharing communities, are subject. This is because these so-called supportive forms of living, which (also) include people of legal age in their target group, are subject to home regulation law under the WTPG - with all structural, personnel and other content. This consequence must be considered from the outset, particularly in the case of outpatient intensive care services aimed at adolescents between the ages of 18 and 27, and must be included in the respective conceptual considerations and decisions.
7. demarcation between SGB V/SGB XI and care services in kind in outpatient care?
Up to now, those who have been cared for at home have had to have the associated basic nursing care tasks taken into account for 24-hour care, for example, which means that 141 minutes are deducted from 24 hours in care level 5 and have to be covered by long-term care insurance, often including a considerable personal contribution. With the new law, this deduction will probably no longer apply in the case of inpatient care, but it will hardly be justifiable from the point of view of equality rights that this distinction will remain for patients in their own homes.
8. no short-term intensive care?
The Health Committee has removed the originally envisaged possibility of short-term care facilities also offering intensive care, as it would not be worthwhile to create the personnel and material requirements for this and bridging care could also be offered at short notice in long-term facilities. However, this seems short-sighted, especially in such stressful situations, when relatives are in need of intensive care for many years, the possibility of recovery phases is of particular importance. The possibility of creating such temporary offers in long-term care facilities will not be easy to implement under civil law with the WBVG.
9. jeopardizing the VAT exemption?
With the large number of consequential changes in the draft bill, the link to tax law has probably "slipped through" to the specialist politicians. The management of home nursing care and thus also of outpatient intensive care are exempt from VAT in accordance with § 4 no. 16 lit. c) UStG are exempt from VAT. This is linked to the fact that the facility has a contract in accordance with Section 132a SGB V. However, if the service is now provided on the basis of new contracts in accordance with Section 132l, the exemption is no longer fulfilled, at least in terms of the facts. The standard exemption under Section 4 no. 18 UStG also does not apply in this case.
10 A first look into the future of out-of-hospital intensive care
It remains to be hoped that the federal states in the Bundesrat will be able to mitigate the inconsistencies.
Outpatient intensive care services will therefore be confronted with new framework recommendations again in the future, but these should not only regulate the quality requirements - as has been the case to date - but also the principles of remuneration and its structures, including the transparency requirements for the negotiation of remuneration for the wages or salaries actually paid. However, a lot of time will probably pass before the parties have agreed on such comprehensive framework recommendations and numerous questions of doubt will have to be clarified in the meantime.
Providers of inpatient care facilities should consider taking a closer look at the special features of outpatient intensive care and could then possibly discover this as a (new or renewed) opportunity for a service and business area for themselves.
Outpatient intensive care services should be prepared for the fact that, once the IPReG comes into force, the trend will be towards outpatient intensive care in inpatient care facilities. The future should therefore lie in seeking and creating or expanding new forms of cooperation between inpatient care facilities and outpatient intensive care services. It will be particularly interesting to see whether "intensive care flat-sharing communities" will subsequently become a discontinued model and whether the trend will be towards intensive living groups in inpatient facilities or even towards "micro homes" that specialize completely and exclusively in outpatient intensive care. In the latter case - and depending on the specific concept in each case - it may also be possible to use some of the advantages of argumentation in comparison to "normal-sized" inpatient care facilities within the framework of home regulation law.