The competition is healthy in every way
Competition report criticizes instruments and the coffers
Dr. Robert Paquet
25 years ago, with the introduction of free choice of insurance and risk structure compensation (RSA), the health insurers were "released into competition". The Federal Insurance Office (BVA) is using this “anniversary” as an “opportunity” to make a “contribution to the further development of the legal framework” for the competition. This is what it says in the BVA's press release on the publication of its “Special Report on Competition in Statutory Health Insurance”. In the report itself, however, there is no longer any “jubilation” about the competition. The proposed “further development” consists of a massive reduction in competitive leeway and (even) stricter regulatory control of the coffers.
The real reason for the "special report" However, this should not be the "anniversary": In the discussion about the reform of the RSA, especially the funds subject to the supervision of the BVA raised the accusation that Differences in supervisory action are a major cause of the existing Distortions of competition between the registers. The BVA reacts to this, deals with the recognizable differences between federal and state supervisory authorities and makes specific proposals for changes to the law. Here is the one political explosiveness of the report. The argument about bonus programs and optional tariffs is just a spectacle for the general public. So let's start with the essence of the report.
Divergences in supervisory practice
In the Status quo description of regulatory law, there are two interesting reasons for “divergent interpretations” by the authorities. On the one hand, this "its reason in the use of indeterminate and thus interpretable legal terms by the legislature, but not least also in the not always clearly formulated legal norm as a whole."On the other hand, for the" different supervisory practice ", the"respective resources"Held responsible by the supervisory authorities:"While that Federal Insurance Office With 63 cash registers currently to be supervised, they can fall back on a differentiated supervisory apparatus with employees who are particularly qualified and highly specialized in the individual supervisory fields in all legal and economic issues Ministries of the federal states In view of the small number of health insurances to be supervised, only a few employees deal with all the sometimes very complex questions of supervision. In some cases, for reasons of resources, not all relevant topics can be dealt with in the depth and breadth that would be necessary."(P. 130).
In this context it is even explicitly mentioned that the Politically functionalized supervision can be: "Ultimately, a federal state can have an increased political interest in "its" health insurance companies, in particular the AOK's as pension funds in the state. "While the BVA is an" independent federal authority "and" according to the law expressly subject to general instructions from the ministries when exercising its supervisory rights ", the state authorities have other" leeway "when it comes to" interpreting the law ". (P. 131)
In a separate chapter (based on documents and the expert interviews) the "Differences in the testing practice of the federal and state governments“Considered (p. 139ff.). Thereby differences are found especially in the examinations according to § 274 Abs. 1 SGB V and § 46 Abs. 6 SGB IV. When auditing the “business, accounting and operational management”, despite common test guidelines and a coordinated “audit topic catalog”, “a uniform audit level and uniform audit intensity are not always guaranteed” (p. 141). In the opinion of the BVA, this is also due to the high level of specialization at the BVA. On the other hand, the federal states could “not implement a corresponding differentiation to the same extent due to lower personnel capacities” (p. 140). Finally, it is stated in the chapter: "The Organizational structure of a test facility is an essential factor for the success of the test. ... The thematic design of the test as well as the depth of the test are the responsibility of the respective test service and to this extent have an impact on the cash competition. ”(P. 143).
Despite such clear statements, however, the report cannot come to equally clear conclusions: "However, the Federal Insurance Office does not see any fundamentally different supervisory practice. "The" specific individual cases of different supervisory practice "are"There is still no evidence of serious systematic distortions of competition with decisive relevance to competition. ”(P. 131).
BVA reform proposals
When dealing with the reform proposals currently being discussed (sole supervision by the BVA, functional division between federal and state supervision, sole supervision by the states) it is then correctly established that all of these options are one Amendment to the Basic Law presuppose. A sufficient majority is not seen for this. Instead, the Role of the BVA as the implementing authority of the RSA set. There are different ones simple legal Suggestions that could lead to a standardization of supervisory practice (by the BVA).
First of all, it is established that the RSA strategies "Developed both federal and state-direct health insurances to optimize income below the radar of the supervisory authorities“Had. “In the absence of corresponding submission, notification or approval obligations”, this also applies to “the resulting contractual arrangements”. Only gradually did you notice, "that individual health insurances have inadmissibly and permanently obtained massive financial advantages at the expense of all others. ”(P. 135). After this Self-exculpation of the office several measures are proposed. So would the introduction of the "Full model" at the RSA (flanked by “uniform Coding guidelines") Reduce the" incentive to manipulate ". This would require “one significant expansion of testing competencies“Of the BVA. Instead of "only being able to make retrospective corrections", the BVA must "in the future will be able to avoid illegal data collection in advance. In this context, the Federal Insurance Office must be solely responsible for To assess supply contracts uniformly with regard to their RSA relevance. "For this purpose, e.g. a"Expansion of information rights"Of the BVA" especially "towards" the organizations of the service providers ... indispensable ". (P. 137).
In addition to the appeal to the legislature to make more precise laws (e.g. "Avoidance of indefinite legal terms"), the conclusion is: "A conceivable way to standardize the RSA-relevant framework conditions would be a Expansion of testing and sanctioning competencies of the Federal Insurance Office as the RSA implementing authority."(P. 139).
Structure of the report ...
The others Chapter of the report are essentially the responsibilities of the supervisory authority aligned. The topics in which the cash registers (must) have to do with the office and vice versa characterize the individual sections. Even in the first sentence, the BVA is amazed at the development over the past 25 years: "In its administrative and supervisory practice, the Federal Insurance Office is confronted with a major change in the self-image of the statutory health insurance funds. “Today, the porters understand each other rather than Companiesthat are based on the “operating result”. The relationship with the insured has also changed, etc. (p. 6). In order to get on the track of these changes, the office "evaluated in-house databases" and with interview guidelines an (unnamed) number of "Expert interviews" guided. We spoke to the patient commissioner of the federal government, state and federal health insurance companies, working groups and state supervisory authorities, etc.
The cash registers moved in "one Field of tension between public service and administrative mandates and individual POS marketing strategies for positioning in competition." On the one hand, they are in" solidarity-based competition ", on the other hand, they are obliged to cooperate under the Social Security Code. The main task of the BVA is to avoid risk selection (p. 7). Against this background, the supervisory authorities of the federal and state governments have developed “common competition principles” to “a uniform competitive behavior of health insurances at the federal and state level. ”(p. 9). However, it is stated somewhat resignedly: "Due to the federal supervisory responsibility and the scope for interpretation of the supervisory authorities, however, it cannot be avoided that there are different assessments of facts in individual cases."(Ibid.)
This introduction already shows that all assessments of individual issues are on unsteady ground and are shaped by regulatory perspectives and preferences. Consequently, the BVA also regrets “that the GKV competition model is not a self-contained set of rules” (p. 10). In its striving for a “closed” worldview, the BVA regularly resolves the “tension” in each individual assessment in the direction of stricter legal requirements and supervisory rights. Diversity is a horror for the supervisor. Consequently, the "Concentration of the health insurance market“Praised. At the federal level, this is not a problem despite the “considerable decline in the number of health insurance companies”; there are still enough options. "At the national level, however, the market leadership mostly lies with the AOKs." (P. 18). But even this statement does not raise any concerns among the authors.
... and general skepticism about competition
As a result, the areas in which the cash registers have individual design leeway are processed. Be like that Statutory services (P. 28ff.) Definitely relevant to competition. "On the other hand, the opening up of additional design options for the cash registers against the background of competitive pressure also means Risks. Because it can be assumed that the effectiveness, quality assurance and cost-effectiveness of the services usually play a subordinate role. ”The additional offers would“ favor selection processes ”. The But BVA is powerless: Since the examination of the BVA "In the case of the approval of amendments to the statutes and amendments to the statutes, limited to questions of legality, there is no possibility, due to the current legal situation, to refuse the assumption of costs for services that may be ineffective or not assessed by the Federal Joint Committee (this means in particular osteopathy and homeopathy - the author). From a local point of view, a significant improvement in supply with regard to a quality competition appears questionable. "(P. 43). It is admitted that there are statutes of direct state health insurance companies that the Federal Insurance Office would not approve. However, there are only very few regulations for small health insurers that are not relevant in competition (p. 40f.).
Even with the different ones Selective contracts (P. 43ff.) The cash registers are very active. The design leeway is used less to “develop new, innovative supply concepts”, but rather to “aggressively” Marketing purposes"(P. 52). Here, too, the office complains of selection instruments that have become known from "supervisory practice", such as "discriminatory participation restrictions", which are used from an advertising perspective Risk selection can serve (p. 51). The “focus of care” is less about integration care than about “individual services” that are useful for “marketing purposes”. These include, for example, “homeopathic first and follow-up anamneses and professional tooth cleaning” (p. 53).
Naturally, the office criticizes the "Misappropriation of selective contracts“For Maximization of diagnostics as part of the "so-called. Supervision structure contracts ”(p. 54). Also with the GP contracts watch it: "From the point of view of the Federal Insurance Office ... it can be stated that the contracts ... are also used by the health insurance companies to influence their allocations from the morbidity-oriented risk structure compensation and thus to gain a competitive advantage on their income side."The payment of the so-called"Chronic lump sum“There are usually no (additional) medical services. In this respect, according to the BVA, the construction is "illegal". “Unfortunately, no agreement could be reached with the state supervisory authorities on this point.” (P. 46).
In addition, the BVA apparently believes the only one Evaluation of such a contract (for the AOK Baden-Württemberg), and demands more "Confirmed knowledge ... whether this form of care actually leads to an improvement in care for the insured. "(Ibid.). The supervisory authorities are "endeavoring" to act as uniformly as possible in this regard. "It should be noted, however, that a complete alignment of supervision is difficult to achieve at this point, since the individual supervisory authority has leeway in interpreting the laws and must also make the decision on a case-by-case basis within the scope of its respective discretionary exercise as to whether it is determined in the case of an established Infringement actually intervenes. ”(P. 59). As a result, the office demands Selective contracts in general according to the "Regulations for model projects" evaluate and the "Reintroduction of an obligation to notify". (P. 145).
A similar picture emerges for the office in the case of the Optional tariffs (P. 59ff.). It makes the criticism its own that some of these tariffs are de-solidarizing and hardly disguised advocates theirs abolition (Pp. 67 and 146). "In the approval practice, it can be stated that the state authorities approve optional tariffs which, in the opinion of the Federal Insurance Office, are unlawful. For example, the Federal Insurance Office considers optional tariffs for reimbursement of costs for individual services (e.g. dentures, single and double rooms, stay abroad, hospital co-payment and supply of visual aids) to be unlawful, since Section 13 (2) sentence 4 SGB V restricts the choice of reimbursement only to whole Performance ranges.“(P., 65).
Both Bonus programs (P. 68ff.) This assessment is repeated: Here, too, there is “an occasional different approval practice by the federal and state governments” (p. 74), even if it is only a matter of individual cases with smaller insurers. In addition, the profitability of these programs is "determined differently" and overall not convincingly demonstrated. Also for Prevention is critically stated: "The health insurance competition tempts the health insurance companies to invest in behavior-related individual leisure and wellness offers in order to attract new and above all young, healthy and well-paid insured persons. "(P. 82). In summary, the BVA suggests “to think about the continuation of the legal regulations for the development of bonus programs” (p. 147).
Liability association and contractual structures
It is noteworthy that the BVA (cautiously) opposes the proposal of the RSA Advisory Board to abandon the liability associations related to the type of fund. The advisory board "recognizes", "that the conversion of the subsidiary liability into a primary liability of the National Association of Statutory Health Insurance Funds represents a far-reaching intervention in the liability architecture of the statutory health insurance system, which first of all requires a detailed examination of the possible effects."(P. 103). It is entirely true that the "health insurance companies are in competition and competition regardless of the type of insurance they belong to" and "the financial sustainability of the liability of one type of insurance company in the event of large health insurance companies being closed is questionable. ”(P. 104). Against the elimination of the insurance-type-related liability but say: "The "social control", the pressure in "own camp" of the cash register type, which plays a decisive role in preventing liability, would be eliminated. Experience also shows that the liability prevention of the types of health insurance company represents valuable support from the supervisory authority, since the supporting health insurance companies, thanks to their in-depth knowledge of the actual health insurance companies on site, contribute indispensable practical experience."(P. 105). - An assessment by the BVA, which the author considers to be unrealistic from his own experience and can only be derived from the deep longing of the BVA to maintain the status quo of the cash register types and their regional associations.
Even when considering the "Contracts with service providers“The BVA has a peculiar understanding of the competition and the Preference for a "common and uniform" contract design. For example, it is stated uncritically: "Due to the regional orientation of the AOK’s with a market share of over 40 percent in a region, this type of health insurance company is particularly successful in concluding economic contracts. ”(P. 108). And praised: "Many health insurance companies work together in the supply contract business and in concluding discount contracts in order to bundle their potential demand vis-à-vis service providers and manufacturers. This regularly has a positive influence on price negotiations. "(Ibid.). The resolute advocacy of the BVA for the controversial supply contracts with aid providers according to Section 127 SGB V (and against tenders and open-house contracts) ultimately leads to a Standardization and uncompetition this performance area (p. 109ff.).
Effects on the insured
In a separate chapter, the report deals with the "Effects of competition on the relationship between health insurers and insured persons" (p. 119). In conclusion it is stated: "The possibility of free choice of health insurance company has definitely contributed to the improvement in the type of communication between health insurance companies and their insured persons. ”There are, however, numerous Violations against administrative, social and data protection requirements. Various activities of the cash registers were aimed at Risk selectionwhich "contradicts the principles of solidarity-based competition" and "at the same time violates the principle of equality" (p. 128).
The Changes in communication therefore also have their downsides. The office points to the increase in complaints from insured persons, contradictions and social court proceedings. The reasons for "cannot be explained by the insured's increased emancipation or aspirations alone.“ Administrative standards are increasingly being neglected. „Many health insurance companies use a simplified and thus supposedly more customer-friendly official language, which, however, often obscures the possibility of an administrative-intensive and expensive objection procedure."(P. 120). In the case of notices, for example, the mandatory written form is always missing Legal remedies. Insured persons can often no longer understand the rejection notices from the health insurances etc. (p. 121).
In the Member recruiting notes the office “in the supervisory practice that health insurance companies in a certain way Risk selection operate. "Target group agreements between health insurance companies and external advertisers are based, for example, on Contribution margin ratios (P. 123). Insured persons with supposedly good risks often received even illegal benefits “out of goodwill”. Also the Appointment services some health insurers had a selective and thus “de-solidarizing” effect (p. 125). After all, wear increasing usage digital forms of communication to the "indirect risk selection at ”(in favor of young and healthy insured persons), while at the same time the number of branches of the health insurance companies is“ drastically ”decreasing (p. 125).
The practice of supervision naturally results in a Perception of competition, in which legal problems and anti-competitive behavior by health insurers are in the foreground. In this respect, the statement in the “Outlook” of the report has the effect that the “Competitive design of the GKV system ... basically proven according to the assessment of all health care experts“Put something on. However, the sum of the findings presented in the report and the Office's conclusions point in a different direction. Above all, the BVA lacks the understanding that competition, the does not lead to noticeable differences in cash handling, pointless is. Almost all of the Office's proposals therefore restrict the options for differentiation and structuring of the funds, instead of expanding them, which is compatible with the solidarity-based competition regime.
On the other hand, they are shown in detail Differences in supervisory practice between the federal and state governments in conclusion downplayed. Presumably out of political considerations, the top of the statements (broadly quoted above) are broken off; As a result, it is asserted, without further examination, that these differences are not decisive for competition after all. The critics of the current RSA will see it differently and find good arguments for their position in the report.
Finally, it is noteworthy that the office - here apparently without major reservations - at his politicalReviews lean very far out of the window. If the legislature's intentions, which are often quoted in the report, of giving the competition between the health insurance funds greater leeway, were taken seriously, other proposals would have been expected. The opposite is the case. The political forces who want to abolish competition between the cash registers in principle will find rich material for their position in the report.
The competition report identifies the competition itself predominantly as de-solidarizing and useless for the insured. The quintessence of the office is accordingly and pro domo: "It is the task of the supervisory and auditing authorities of the federal and state governments to prevent anti-competitive behavior on the part of the health insurance companies. To do this, they need sufficient human and material resources as well as efficient supervisory resources.“(P. 153, last sentence of the report). If the Office's proposals were implemented, it would not have to write another competition report.
 also page 119 etc.
 The specialist discussion is about the "solidarity-based competition order". The formula of “solidarity-based competition”, which is used throughout the report and is known to be nonsensical, must already be read as an expression of the BVA's generally derogatory attitude towards competition between the health insurance companies.
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