Anti-Corruption Law in Health Care

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Basic data
Title: Anti-Corruption Law in Health Care
Type: Federal law
Scope: Federal Republic of Germany
Issued on the basis of: Art. 74 para. 1 no. 1 and no. 12 GG
Legal matter: Criminal law , social security law
Issued on: May 30, 2016
( BGBl. I p. 1254 )
Entry into force on: 4th June 2016
GESTA : C080
Weblink: Text of the law
Please note the note on the applicable legal version.

With the law to combat corruption in the health care system , bribery and corruption in the German health system are to be countered with the means of criminal law .

With the law , the legislature closed a criminal liability loophole that had become visible in 2012 through a decision by the Grand Senate in criminal matters by the Federal Court of Justice . At the time, the Grand Senate decided that established doctors who were licensed to provide statutory medical care could not prosecute themselves for bribery under current law. He justified this with the fact that contract doctors were neither public officials within the meaning of §§ 331 ff. StGB nor agents of the statutory health insurance companies within the meaning of § 299 StGB. Therefore, even if they act in an obviously corrupt manner, they cannot be prosecuted.

content

The law to combat corruption in the health care system was legally designed as an article law , i.e. the law only changed and supplemented other laws, namely the Criminal Code (StGB), the Courts Constitution Act (GVG) and the fifth book of the Social Code - Statutory Health Insurance - (SGB V) .

Changes in the Criminal Code

By Article 1 of the law have been added to the Penal Code § 299a and § 299b and amended § 300 and § 302 of the Criminal Code.

The new § 299a StGB makes bribery in the healthcare system a punishable offense. This is to ensure that prescription, dispensing and supply decisions in the medical profession are made free from undue influence. The penalty is imprisonment of up to three years or a fine. Section 299a of the Criminal Code is a so-called special offense : the perpetrator can only be someone who is a member of a health care profession “who requires state-regulated training in order to exercise or use the professional title”. This includes members of the academic health professions, in particular doctors and pharmacists , as well as people who work in so-called health professions, e.g. health and nurses , occupational therapists , speech therapists and physiotherapists . The National Regulatory Control Council assumes that in future around 300 suspects will be investigated annually on suspicion of corruption in the healthcare system.

As a mirror image of Section 299a of the Criminal Code, the new Section 299b of the Criminal Code stipulates that bribery in the healthcare system, i.e. bribery of a member of a medical profession, can be punished with imprisonment of up to three years or a fine.

Was amended § 300 of the Criminal Code. According to this provision, particularly serious cases of corruption and bribery in the health care system can be punished with imprisonment from three months to five years. Previously, the provision only applied to serious cases of commercial bribery.

According to Section 302 of the Criminal Code, which has also been amended , the state can use extended forfeiture to access objects that a perpetrator has obtained through a particularly serious corruption offense, in particular bribes.

Further changes

Article 2 , through an addition to Section 74c of the Courts Constitution Act, stipulates that the commercial criminal chambers ofthe regional courts are responsiblefor corruption offenses in the healthcare system.

Article 3 amended and supplemented Book Five of the Social Code. The statutory health insurance associations and the federal associations of statutory health insurancephysicians areobliged to take additional anti-corruption measures through the amended Section 81a of the Book V of the Social Code, the health insurance funds, their regional associations and the Central Association of Health Insurance Funds through the amended Section 197a of the SGB ​​V. The institutions mentioned were given a transition period until January 1, 2017 granted

Article 4 regulates the entry into force of the law on the day after its promulgation. Apart from the transitional provisions for the associations of statutory health insurance physicians and the health insurance companies, the law does not contain a general transition period. The criminal provisions mentioned have been in effect since June 4, 2016.

history

As a reaction to the decision of the Grand Senate, the SPD-led state governments of Hamburg and Mecklenburg-Western Pomerania introduced a draft of a criminal law amendment to the fight against corruption in the health sector in the Federal Council in May 2013 . This draft provided for the creation of a new Section 299a of the Criminal Code - corruption and bribery in the health care system. The Bundesrat approved the draft and introduced it to the German Bundestag as a legislative initiative. There it was no longer dealt with conclusively before the end of the legislative period in autumn 2013 - allegedly under pressure from the FDP. The legislative initiative was thus initially done.

In January 2015, the Free State of Bavaria made a new push for an anti-corruption law. The content of the Bavarian draft of a law to combat corruption in the health care system of January 15, 2015 essentially corresponded to the first draft law from 2013. Due to corruption in the health care system, only “members of a medical profession for which professional chambers have been set up throughout Germany”, - in particular doctors and pharmacists - can be traced. Healthcare professionals would not have been affected by the new criminal offense. The offenses of bribery and corruption were designed as official offenses , ie the public prosecutor's offices should investigate suspected corruption in the health care system without filing a criminal complaint . The draft law was discussed in the Federal Council and then referred to the responsible Federal Council committees for further processing.

Almost at the same time, the federal government launched a draft law to combat corruption in parliament. Among other things, this draft dealt with the criminal liability of corruption in business dealings (Section 299 of the Criminal Code) as well as the corruption and bribery of foreign and international public officials (Section 335a of the Criminal Code), but completely excluded the health care system.

On August 14, 2015, the federal government then presented a draft law to combat corruption in the healthcare system . On the one hand, this draft was more far-reaching than the Bavarian draft in that it expanded the circle of potential perpetrators of corruption to include the non-academic medical professions. On the other hand, the government bill stipulated that bribery in the health care system should not be prosecuted ex officio, but only upon request. The chambers of doctors and pharmacists and private and statutory health insurances should be eligible to apply.

In the ongoing legislative process, however, the requirement to file a criminal complaint has been deleted from the federal government's draft law. This was justified by the fact that the "integrity of medical professional decisions [...] is a supra-individual legal asset of great importance". The commission of a criminal offense of corruption or bribery in the health care system always affects the interests of the general public, not only the interests of chambers and insurance companies.

On April 14, 2016, the German Bundestag voted with the majority of votes from the CDU / CSU and SPD coalition groups for the modified version of the federal government's draft law. The members of the parliamentary group Die Linke voted against the draft; the members of the Bündnis 90 / Die Grünen parliamentary group abstained.

The draft law passed the Federal Council on May 13, 2016 without objection. In a resolution , however, the regional chamber pointed out that it did not consider it appropriate "that the legislative resolution [...] only covers competition-related actions, while the patient protection-related modality of action of 'breach of professional obligations'' is omitted and the essential content and protective purposes of the law are thus omitted ". In addition, the "restriction of the law to the procurement and prescription of drugs and medicinal products as well as medical products would [lead] to entire professional groups, especially those of pharmacists, falling out of the scope of the law".

The law was promulgated on June 3, 2016 in the Federal Law Gazette and came into force on June 4, 2016.

literature

  • Hauke ​​Brettel, Elmar Mand: The new criminal offenses against corruption in the healthcare system. In: Medicines and Law . No. 3 , 2016, p. 99 ff .
  • Rainer Frank, Sebastian T. Vogel: Fighting corruption in the healthcare system - symbolic and (un) good. In: Lawyer Gazette . No. 2 , February 2016, p. 94–100 ( anwaltverein.de [PDF; accessed September 7, 2016]).
  • Michael Kubiciel: The criminal offenses against corruption in the healthcare system: Constitutional, appropriate and effective in terms of criminal policy? In: Journal of the White Collar Criminal Law Association . No. 1 , 2016, p. 1–11 ( arge-medizinrecht.de [PDF; accessed on September 7, 2016]).
  • Beate Bahner: Law to Combat Corruption in the Health Care System. The practical manual . MedizinRechtVerlagHeidelberg, Heidelberg 2017, ISBN 978-3-00-051824-9 .
  • Hans Lilie, Marcel Reuter: Anti-Corruption Act - The scope for interpretation has yet to be revealed. In: Deutsches Ärzteblatt . No. 41 , October 14, 2016, p. 1790–1797 ( aerzteblatt.de [PDF; accessed April 14, 2017]).

Web links

Individual evidence

  1. ↑ a b c d German Bundestag: Draft law to combat corruption in the healthcare system. (PDF; 0.9 MB) In: Bundestag printed matter 18/6446. October 21, 2015, accessed August 14, 2016 .
  2. ↑ Federal Court of Justice: Order of March 29, 2012 - GSSt 2/11 -. (PDF; 0.7 MB) March 29, 2012, accessed on August 14, 2016 .
  3. ↑ Federal Council: Draft of a ... Criminal Law Amendment Act to Combat Corruption in the Health Care System. (PDF; 430 kB) In: Bundesrats-Drucksache 451/13. May 30, 2013, accessed September 8, 2016 .
  4. ^ German Bundestag: Draft of a ... Criminal Law Amendment Act to Combat Corruption in the Health Care System. (PDF) In: Bundestag printed matter 17/14575. August 14, 2013, accessed September 8, 2016 .
  5. ^ Federal Council: Draft law to combat corruption in the health care system. (PDF; 719.2 kB) In: Bundesrat-Drucksache 16/15. January 15, 2015, accessed July 31, 2015 .
  6. ↑ Federal Government: Draft Law to Combat Corruption. (PDF; 1.06 MB) In: Bundesrat-Drucksache 25/15. January 23, 2015, accessed August 24, 2015 .
  7. ^ Committee on Legal Affairs and Consumer Protection of the German Bundestag: Recommended resolution and report on the draft law to combat corruption in the health care system. (PDF) In: Bundestag printed matter 18/8106. April 13, 2016, accessed September 8, 2016 .
  8. ↑ a b Federal Council: Resolution on the law to combat corruption in the healthcare system. (PDF; 79.7 kB) In: Bundesrats-Drucksache 181/16 (B). May 13, 2016. Retrieved August 14, 2016 .