SG Aachen awards care to pain patients
An application for the supply of medical cannabis is also considered “fictitiously approved” if the health insurer does not make a decision in good time. The health insurance company cannot limit this approval retrospectively and then reject further benefits, as the Social Court (SG) Aachen decided in a recently published judgment of February 20, 2018 (file number: S 13 KR 476/17).
It awarded an insured person the supply of medicinal cannabis flowers. He suffers from chronic nerve pain caused by the syphilis pathogen Treptonema pallidum and headache that cannot be treated with conventional medicines.
He applied to his health insurance company to cover the costs of medicinal cannabis flowers. His application was received by the health insurance fund on March 28, 2017, and it was only on April 20, 2017 - i.e. after three weeks and two days - that she informed the insured that she wanted to get an opinion from the Medical Service of the Health Insurance (MDK). Based on the expert opinion, she refused to assume the costs on May 9, 2017.
According to the law, health insurance companies have three weeks to process a benefit application. If you get an MDK report, you must inform the insured within the three-week period and then have five weeks. Other reasons for delay are also possible, but always only with information from the insured. If the deadlines are not met, the application is considered “notionally approved”.
In response to the insured's complaint, the health insurance company granted the delay and agreed to a reimbursement of costs until July 31, 2017. On this date, however, she canceled the “fictitious approval” and refused to provide further services.
The Federal Social Court (BSG) in Kassel had decided on March 8, 2013 that the statutory “fictitious approval” also applies to benefits to which the insured are not actually entitled, unless this is also obvious to the insured himself (ref .: B 1 KR 25/15 R; JurAgentur report from the day of judgment). In the case of aids, the BSG had also ruled in two further judgments of November 7, 2017 that the health insurance company cannot simply withdraw such "fictitious approval" (ref .: B 1 KR 15/17 R and B 1 KR 24 / 17 R).
According to the judgment of the SG Aachen, this also applies to medicinal products and especially medical cannabis. Here, the health insurance company had neither made a decision within the three-week period nor informed the insured about the report. Therefore, the application was fictitiously approved after three weeks, at the end of April 18, 2018. The box office also failed to meet the five-week deadline.
From the insured's point of view, the application was also not obviously unfounded; he should have considered the supply of medicinal cannabis flowers to be necessary.
According to the BSG jurisprudence, a fictitious approval that occurred due to failure to meet the deadline was also considered legal, the SG emphasized. According to the law, it can therefore only be withdrawn if new facts that have arisen after approval justify this. The health insurance company did not explain such a change in circumstances here. mwo / fle