Hamburg model (rehabilitation)

Former form for prescribing gradual reintegration

The gradual reintegration ( § 74 SGB V , § 44 SGB IX ) into the working life (§ 27 Abs. 2 Satz 2 Nr. 3 SGB III) is colloquially referred to as the "Hamburg model". The reason for the introduction of § 74 SGB V was the so-called "Hamburg model" practiced by the health insurance companies from the 1970s to 1988. Section 44 of Book IX of the Social Code applies to all institutions that are responsible for medical rehabilitation services, i. H. for the health insurance companies, the statutory accident insurance providers, statutory pension insurance, war victims' benefits, youth welfare and social welfare since 2001 (Section 6 SGB IX). There are few published statistics on StW with number of cases - only for individual areas and years (DRV: 55,536 cases for 2014). This measure is often recommended in rehabilitation or hospital treatment after a long period of incapacity for work and is noted in the discharge report. This enables gradual reintegration (StW) into working life after a long period of inability to work due to illness . It can be used by both employees and civil servants.

In Germany, the reintegration program is only intended for members of statutory health insurance (GKV). However, members of a private health insurance (PKV) - and thus often civil servants - can strive for a similar procedure. If a similar program has not yet been regulated at their place of work, those affected must deal individually with their health insurance, the treating doctor and the employer in order to reach a separate agreement between all parties involved. If there is a works agreement for the StW, a contractual agreement with the employer is not required.

Medical rehabilitation The StW is regulated in § 74 SGB V and the same wording for the case of disabled people or people who are specifically at risk of disability in § 44 SGB IX. It is a legally standardized medical rehabilitation model with therapeutic goals. Contrary to section 1.3 of the “Working aid for gradual reintegration in the work process” 2020 developed by the SFA , the gradual reintegration itself is to be understood as an independent rehabilitation service by law.

Control In the event that control should already have taken place from the statutory health insurance during the StW , contrary to the earlier misjudgment of the Federal Employment Agency, there is basically a legal entitlement to unemployment benefit I during the duration of the StW according to the BSG 2007 with the following official guiding principle: "The unpaid work for one Employers in the context of a gradual reintegration do not establish an employment relationship excluding unemployment. "

Step-by-step plan

Forecast : The employee agrees with his doctor on an integration plan (also called a step-by-step plan) that corresponds to the employee's recovery progress. The medical certificate for the regulation of the StW on the new Form 20 (the outdated KBV forms 2014 may no longer be used) must include the reintegration plan (how many hours a day, duration of the stages, how long, special features, restrictions ...). In the brief notes on the new, simplified Form 20 for doctors, version 1.2019, all major changes are shown with aids to fill out the form. Occasionally, however, the doctor does not want to give a prognosis and notes here: “Not yet foreseeable” or “depending on the course of reintegration” etc.: The rehab provider will not accept such “step-by-step plans” for them StW, because not properly (without a specific medical prognosis) according to permanent BAG jurisprudence. If necessary, the medical prescription of the StW also includes the exact number of days of the week. Work can begin with a few hours a day (for example, with two or three hours) and gradually increase to full working hours. There is no legal basis for the sometimes held view that a StW is generally only possible from four hours per working day. The duration of the measure is usually between six weeks and six months, which should not be exceeded. The consent of the employer and the health insurance company (for civil servants, the consent of the health insurance company is not necessary) is required before the start of the measure.

During the measure, the employee continues to receive sick pay from his or her health insurance company or transition allowance from the pension insurance. Even if there is a period of several months between the end of (inpatient) medical rehabilitation and the beginning of a gradual reintegration as medical rehabilitation in the company, a direct connection of the gradual reintegration to the previous medical rehabilitation services within the meaning of Section 51 (5) SGB IX (§ 71 Paragraph 5 SGB IX new version). In exceptional cases, a reintegration measure must also be borne by a statutory accident insurance or the employment agency. In addition, there is no further statutory entitlement to remuneration according to case law. In the case of civil servants, in contrast to employees, the salaries are usually still paid in full.

During the reintegration measure, the employee is still deemed to be unable to work. This means that no vacation can be taken during this time. Civil servants, on the other hand, are considered (limited) fit for work during this time - with all rights and obligations (vacation, incapacity for work due to illness, etc.). This view is not uniformly regulated. In the case of federal civil servants, for example, the period of gradual reintegration is considered to be incapacity for work. B. no vacation is granted.

The employer is therefore not entitled to work. In the case of civil servants, however, the employer has full entitlement to the civil servant's work in the appropriate time frame.

In principle, the employer is not obliged to conclude an agreement with the employee that enables the employee to reintegrate. He does not have to justify a rejection (exception applies to severely disabled employees and employees with equal status, see: Section 164 (4) sentence 1 no. 1 SGB IX). In-company integration management (BEM for short) , however, plays an important role . This was introduced in 2004 to protect employees who have been or are ill for a long time (for those interested in law: new version of Section 84 (2) SGB IX, now Section 167 (2) SGB IX 2018), and stipulates that the employer an employee who is unable to work for six weeks - permanently or collectively for over a year - has to offer a BEM clarification promptly. If there is a works agreement for the StW, a contractual agreement is not required.

The agreement made by the employee and the employer does not constitute a (part-time) employment relationship that has already been changed, because it does not consist in the exchange of performance and consideration (work for remuneration) that is characteristic of an employment relationship. Rather, only the rehabilitation is the subject of the agreement, which enables the employee to provide the previous services at his previous workplace in a previously determined time-reduced scope.

The reintegration measure can be canceled by all contract parties (health insurance company, doctor, affected person, employer). If the person concerned does not take part in the measure for seven days for health reasons (AU), it is deemed to have failed. In individual cases, the aim can be to continue the measure beyond the 7-day rule if there is a prospect of a positive conclusion to the gradual reintegration.

Guidelines

In the "Guideline on the assessment of incapacity for work and the measures for gradual reintegration" (work incapacity guideline) of the Federal Joint Committee there are "Principles of gradual reintegration" (§ 7) with "Recommendations for the implementation of gradual reintegration" (Annex), last changed with effect from February 4, 2020.

NEW According to § 7 paragraph 2 of the amended work incapacity guideline, medical findings on the StW have to be made "on the basis of a medical examination" according to § 74 sentence 2 at the latest from a period of inability to work of six weeks in connection with every certificate of incapacity according to § 5 of this guideline SGB V nF

Travel expenses

It is not uncommon for rehabilitation providers such as GKV and DRV to systematically refuse the reimbursement of necessary travel costs during the rehabilitation phase, although according to the established case law of the BSG and literature and BMAS and DVfR , gradual reintegration is an independent main rehabilitation service of medical rehabilitation (BMAS: "The gradual reintegration is a measure of medical rehabilitation") and not a supplementary benefit in the sense of § 64 SGB IX - contrary to DRV view and BAR view and GKV view. Since 2016, rehabilitation providers have therefore been regularly sentenced by the social courts to reimburse the necessary travel costs, for example

SG Düsseldorf, September 12, 2016, S 9 KR 632/15 (GKV),

SG Kiel, November 4, 2016, S 3 KR 201/15 (GKV),

SG Neuruppin, January 26, 2017, S 22 R 127/14 (DRV),

SG Berlin, November 29, 2018, S 4 R 1970/18 (DRV),

SG Dresden, June 17, 2020, S 18 KR 967/19 (GKV).

Likewise, Rehadat Lexicon for professional participation in travel expenses (travel expenses). A distinction between services for medical rehabilitation (Section 42 of Book XI of the Social Code) and gradual reintegration (Section 44 of Book IX of the Social Code), as is often used by the service providers to justify when they fail to reimburse travel expenses, is not permitted. Likewise, Prof. Düwell, news on gradual reintegration, NZA 12/2020, 767, footnote 13.Current TIPS in the case of rejection of travel costs by rehabilitation providers in the newsletter of the Main Severely Disabled Representative (HSBV) Berlin No. 08-2019, page 3 in many cases the Federal Social Security Office ( BAS ) in Bonn or otherwise a state authority.

LIMITATION: The right to reimbursement of travel costs as a social benefit expires four years after the end of the calendar year in which it was incurred according to Section 45 SGB I.

EXAMPLE: According to this, the reimbursement of travel costs for the gradual reintegration of the insured would be compared to GKV or DRV from the calendar year 2016 grds. expire on December 31, 2020.

Daily sickness allowance insurance

According to the Federal Court of Justice, judgment of March 11, 2015, IV ZR 54/14, there is no entitlement to payments from a private daily sickness allowance insurance if and to the extent that benefits are excluded according to the insurance conditions for the duration of a tax. Conclusion: read the so-called "small print".

“Almost two thirds of the tariffs in the Tomorrow and Tomorrow ratings only achieve an average result. The experts see a need to catch up, especially with regard to reintegration into work. To this end, many offers - if at all - only contain limited measures such as gradual reintegration. It is therefore all the more important for interested parties to carefully check the services specified in the contract. "