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German legislation to protect inpatient care during the Covid-19 pandemic
D+B Rechtsanwälte, Berlin
D+B Rechtsanwälte, Berlin
Against the background of the World Health Organization (WHO) classifying Covid-19 as a pandemic on 11 March 2020, and rising infection figures in Germany in early March, Germany initially reacted by introducing drastic measures. The primary aim of containing the Covid-19 was to slow down the spread of infection, and especially to prevent overloading of the healthcare system. This was achieved by imposing far-reaching restrictions on public life, such as banning contact between people and closing shops.
Another focus of the legislative measures was in the area of inpatient care. As a reaction to the increasing number of people tested positive for SARS-CoV-2, including those requiring hospital treatment, the primary objective of legislation in Germany was to, provide the capacity to care for Covid-19 patients with severe respiratory diseases in hospitals; and avoid Covid-19-related loss of revenue and deficits to hospitals, ensuring short-term liquidity of hospitals.
To achieve these goals, scheduled, non-urgent operations were postponed and a financial rescue package was implemented for hospitals.
Cancellation of non-urgent operations
On 12 March 2020, the Federal German Government and the Federal German States (Bundesländer) agreed in a joint meeting to postpone and suspend all scheduled admissions, operations and interventions at all hospitals from 16 March 2020 for an indefinite period, insofar as this is medically justifiable.
However, these measures, which have been politically coordinated between the federal government and the federal states, only became binding when the individual measures were implemented in the respective 16 federal states. The reason for this is Germany’s federal structure, according to which responsibilities are divided between the federal government and the federal states. Protection against infection is the subject of competing legislation (article 74 (1) No. 19 of the Basic Law). This means that the federal states can only enact their own laws provided that the federal government has not itself enacted a law.
With the enactment of the Infection Protection Act (IfSG), the federal government created a legal basis for the restriction of basic rights ‘to prevent transmissible diseases in humans, to detect infections at an early stage and to prevent their further spread’ (section 1, IfSG). The IfSG’s measures are taken by the federal states in detail. Among other things, the federal states are authorised to adopt ‘protective measures’ by statutory order (section 32 IfSG). On the basis of the IfSG, measures to contain the coronavirus have also been implemented in the federal states, for example, by means of general orders or ordinances.
Germany has subsequently succeeded in significantly reducing the number of new infections per day through drastic restrictions. The federal government and federal states have therefore decided on initial steps to open up the system in a telephone conference on 30 April 2020. Part of these opening-up measures is that a larger amount of hospital capacity can now be made available again for routine operations. One of the decisive factors behind this was the consideration that, according to the DIVI Intensive Care Register, about 40 per cent of intensive care beds were kept free at this time.
At the end of April, Federal Minister of Health Spahn presented a plan for the gradual development of a ‘new everyday life’ in hospitals. Among other factors, the plan contains proposals on how many hospital and intensive care beds should be kept available for Covid-19 patients and how hospitals can react flexibly to occurrences of infections.
As the number of new infections has remained low, the federal government and the federal states agreed on further opening-up steps on 6 May 2020, and 26 May 2020. Against this background in the meantime, the federal states have adapted their legal Covid-19 regulations. Further changes are expected in coming weeks.
Compensation of Covid-19-related financial burdens
The Act on the Compensation of Covid-19 Conditional Financial Burdens of Hospitals and Other Healthcare Facilities (Covid-19 Hospital Compensation Act) of 27 March 2020, which came into force on 28 March 2020, the legislator created a financial rescue package for hospitals to mitigate the financial consequences of measures taken to combat the pandemic. The regulations were partly adapted and supplemented by the Second Act for the Protection of the Population in the Event of an Epidemic Situation of National Significance (Second Covid-19 Population Protection Act) of 19 May 2020, which came into force on 23 May 2020.
The following regulatory points are of particular importance.
Compensation for loss of income
Hospitals licensed to care for Social Health Insurance (SHI) patients receive compensation payments for loss of revenue caused by the postponement or suspension of scheduled admissions, interventions or operations (section 21 KHG). The amount of the compensation depends on the extent to which the current number of patients receiving full or partial inpatient treatment differs from the average number of patients receiving full or partial inpatient treatment per day in 2019. The number of beds kept free by the approved hospital must be reported to the relevant authority on a weekly basis. The hospital receives €560 per bed kept free per day.
The legislator has made improvements under the Second Covid-19 Population Protection Act. The possibility is now opened-up – through corresponding provisions in the statutory ordinance of the Federal Ministry of Health (BMG) – to structure the fixed amount of the compensation differently. The compensation can be differentiated for groups of hospitals according to the number of hospital beds or other hospital-related criteria, such as the average case severity (casemix index). In the view of the legislator, such differentiation is appropriate if the average costs of different groups of hospitals vary and a uniform fixed amount leads to an over- or under-coverage of the average costs.
The creation of ICU beds with artificial respiration
Hospitals licensed to care for SHI patients which, with the approval of the relevant authority, create additional intensive care treatment capacities with machine ventilation facilities by installing beds or by including beds from other units, will receive a single amount of €50,000 from the liquidity reserve of the health fund (section 21, paragraph 5 KHG) for each bed installed or provided by 30 September 2020.
Additional costs for personal protective equipment
For additional costs, in particular for the procurement of personal protective equipment for doctors and nursing staff (including mouthguards, breathing masks, protective gowns and glasses, gloves), hospitals will receive a surcharge of €50 per patient from 1 April to 30 June 2020. This can be extended and increased if necessary in accordance with the legal ordinance of the BMG (section 21 paragraph 6 KHG). The surcharge will be invoiced to the patient or their SHI funds.
Strengthening the financing and liquidity of hospitals
The German parliament has also adopted changes to the usual regulations governing hospital financing via budgets and the processing of hospital invoices in order to improve the liquidity situation of the hospitals and enable them to get through the crisis. For example, a temporary shortened payment period for hospital invoices of five days has been introduced.
In Germany, there is a differentiated system for checking the accuracy of hospital invoices. For example, the SHI system uses a separate audit service (MD) to check whether inpatient treatment was necessary and cost-effective in each individual case. The hospitals on the one hand and the health insurance funds on the other regularly come to contradictory results, leading to legal disputes. At the beginning of the year, the legislator reformed the auditing system and stipulated, among other things, that in 2020 ‘only’ 12.5 per cent of a hospital invoices may be subject to an audit. During the period of Covid-19 legislation, the quota was reduced to five per cent for the years 2020. A reduced audit quota of five per cent will cut the bureaucratic burden on hospitals when auditing invoices.
Whether these measures are sufficient to guide hospital locations through the crisis cannot yet be reliably assessed. Feedback from many hospitals is giving rise to doubts. The Federal Ministry of Health (BMG) will examine the effects of the above regulations on the economic situation of the hospitals by 30 June 2020. An advisory board of representatives from specialist circles has been set up for this purpose.
1. An overview of these measures is available at https://www.bundesregierung.de/breg-en/search/gegen-corona-pandemie-1753880.
7. German Federal Government press release, ‘Telephone conference between Federal Chancellor Merkel and the Heads of Government of the Länder’, 30 April 2020, available at: https://www.bundesregierung.de/resource/blob/973812/1749952/8c502a1351b207c96ad3a12227900160/2020-04-30-beschluss-bund-laender-eng-data.pdf?download=1.
9. German Federal Government statement, ‘New everyday life for clinics in Germany’, 27 April 2020, available at: https://www.bundesgesundheitsministerium.de/fileadmin/Dateien/3_Downloads/C/Coronavirus/Faktenpapier_Neuer_Klinikalltag.pdf.
11. German Federal Government statement, ‘The federal and state governments agree on how to proceed with contact restrictions’, available at: https://www.bundeskanzlerin.de/bkin-de/aktuelles/bund-und-laender-einigen-sich-auf-weiteres-vorgehen-bei-kontaktbeschraenkungen-1755466.