Service provision right

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The service provision law regulates in particular the legal relationships between the service providers and the service providers in social law . One example is the licensing system for contract doctors and their reimbursement by the health insurance companies .

In contrast, benefit law primarily regulates the requirements and content of the social benefits to be provided by the service providers to the beneficiaries .

In the area of ​​inpatient and semi-inpatient social assistance benefits , the right to provide benefits is shaped by the legal relationships between the social service providers who are obliged to provide benefits, non-profit or private service providers and those in need of assistance to whom the social service providers fulfill their service obligations through the service providers. The so-called triangular social law relationship symbolically represents the legal relationships between the service provider, the service provider and the beneficiary. This constellation is referred to by recent jurisprudence as the provision of benefits in kind .

The triangular relationship under social welfare law describes the totality of legal relationships when social welfare benefits are not provided by the social welfare provider itself, but the latter uses the services of third parties to provide services, for example in the case of day-care or in-patient services for integration assistance ( Section 54 (2) SGB ​​XII ), but also for the home education ( § 34 SGB VIII ). As the long-term care insurance funds are generally not allowed to operate their own facilities and services, they have to conclude supply contracts with suitable service providers in order to fulfill their security mandate, in which the type, content, scope and remuneration of home care are specified ( § 69 , § 73 SGB ​​XI).

The legal relationships can be imagined as an equilateral triangle. There are

  • a public social law relationship (basic relationship) between the beneficiary and the service provider, in which certain social benefits are approved by administrative act ,
  • a contract under private law (performance relationship) between the beneficiary and the service provider, from which the beneficiary is exposed to payment claims of the service provider for the contractual services provided and
  • A contract under public law (service provision relationship) between the service provider and the service provider, which contains service, remuneration and examination agreements (for example: Section 75 Paragraph 3, Section 79 SGB ​​XII). Payment is made directly to the institution without going through the beneficiary.

From Section 17, Paragraph 1 of Book I of the Social Code , the social welfare agency has a comprehensive "structural responsibility" that goes beyond ensuring the provision of services in individual cases and that the literature ascribes at least a reflex effect in favor of the individual beneficiary. From this, at least a legally relevant interest of the individual beneficiary is derived in that the social welfare institution fulfills its obligation standardized in this provision. The overall responsibility of the public youth welfare organizations for fulfilling the tasks of child and youth welfare is expressly regulated , for example, in Section 79 of Book VIII of the Social Code.

With regard to the legal process opened in the event of a dispute, the civil fulfillment relationship according to § 13 GVG by the civil courts, on public law disputes arising from the basic or service provision relationship, however, to decide by the social courts ( § 51 para. 1 No. 6a SGG ).

After adjudication is to background ratio a claim of the beneficiary cumulative assumption in the resultant to meet the demand charges against the support of social welfare ( assumption of debt by administrative with third effect ) to assert a commitment action . The service provider must be invited to the process if the beneficiary does not request payment to himself but to the facility.

literature

  • Felix Welti , Harry Fuchs, Philipp Köster: The service provision law of SGB IX: Legal framework for contracts between services and facilities and rehabilitation providers (§ 21 SGB IX) . Legal opinion (without year)
  • Michael Götz: The contractual conception of the right to provide benefits for social long-term care insurance. With special consideration of public procurement and antitrust law problems . Hamburg 2018. ISBN 978-3-339-10090-0

Web links

Individual evidence

  1. ↑ Service provision law Rechtslexikon.net, accessed on June 27, 2019
  2. ↑ leading case: BSG, judgment of 28 October 2008 - B 8 SO 22/07 R paragraph. 17; as a result: W. Schellhorn in Schellhorn / Schellhorn / Hohm, SGB ​​XII , 17th edition 2006, § 75 SGB XII No. 11; probably also Roscher in LPK-SGB XII , 8th edition 2008, § 10 RdNr 25; aA Adolph in Linhart / Adolph, SGB ​​II / SGB XII / AsylbLG , § 75 SGB XII RdNr 50a, status October 2007, Schoenfeld in Grube / Wahrendorf SGB ​​XII , 2nd edition 2008, § 75 RdNr 9, Streichsbier in Grube / Wahrendorf SGB ​​XII , 2nd edition 2008, § 10 No. 5, which assumes a benefit in kind for a home operated by the social welfare agency itself, otherwise a cash benefit, and Baur in Mergler / Zink, Handbuch der Grundsicherung und Sozialhilfe , § 75 SGB XII No. 42, as of August 2008; aA probably also Münder in LPK-SGB XII , 8th edition. 2008, before §§ 75 ff RdNr 2, according to which when adopting elements of SGB V it was not considered that the social welfare was characterized by the cash benefit principle.
  3. ↑ Angela Busse: The principle of the provision of benefits in kind of integration assistance - from reason to potential 2011
  4. ↑ cf. Andreas Kurt Pattar: Triangular relationship under social welfare law - legal relationships between those in need, social welfare providers and institutions. Introduction to the legal basis. Sozialrecht aktuell 2012, pp. 85–99
  5. ↑ Changes in contract law between service providers and service providers by the BTHG: "Framework contracts as well as service and remuneration agreements from the legal perspective of service providers" project "Implementation support for the Federal Participation Act" of the German Association for Public and Private Welfare, February 28, 2019
  6. ^ Matthias Frommann: Social assistance by arrangement. Deregulation and legal threat in the triangular relationship under social law. German Association for Public and Private Welfare , Frankfurt am Main 2002, p. 60 f.
  7. ↑ BSG, judgment of October 28, 2008 - B 8 SO 22/07 R, para. 12, 13, 25
  8. ↑ BSG, judgment of February 2, 2012 - B 8 SO 5/10 R no. 10