Health care regulation

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Basic data
Title: Ordinance on the implementation of Section 1 Paragraphs 1 and 3, Section 30 Paragraph 1 and Section 35 Paragraph 1 of the Federal Supply Act
Short title: Health care regulation
Abbreviation: VersMedV
Type: Federal Ordinance
Scope: Federal Republic of Germany
Issued on the basis of: Section 30 (17) BVG
Legal matter: Social law
References : 830-2-19
Issued on: December 10, 2008
( BGBl. I p. 2412 )
Entry into force on: January 1, 2009
Last change by: Art. 27 G of December 12, 2019
( BGBl. I p. 2652, 2706 )
Effective date of the
last change: 		January 1, 2024
(Art. 60 G of December 12, 2019)
GESTA : G026
Please note the note on the applicable legal version.

The supply Medicine Ordinance (VersMedV) released the January 1, 2009 evidence of the medical expert activities in the social compensation law and after Schwerbehindertenrecht from (AHP).

Motives of the legislature

In jurisprudence and literature, the topicality and the standard quality of the AHP had repeatedly been criticized. The clues were processed by the Medical Advisory Board - Health Care Section - at the Federal Ministry of Health. Both the Federal Constitutional Court and the Federal Social Court had criticized that there was "neither for the AHP itself nor for the organization, the procedure and the composition of the expert committee that developed and constantly reviewing this set of rules ... a legal basis in the sense of a substantive law".

For this reason, the legislature had created a remedy with the law amending the Federal Pension Act and other provisions of the social compensation law of December 13, 2007 ( Federal Law Gazette I, p. 2904 ) by creating a relevant statutory authorization in Section 30 (17) BVG , which came into effect on December 21, 2007. Accordingly, the Federal Ministry of Labor and Social Affairs was empowered "in agreement with the Federal Ministry of Defense and with the consent of the Bundesrat to draw up the principles by means of a statutory ordinance which are decisive for the medical assessment of the consequences of damage and the determination of the degree of the consequences of damage within the meaning of paragraph 1 , as well as to set up the principles for the recognition of a health disorder according to § 1 Paragraph 3 and the criteria for the evaluation of helplessness and the levels of the care allowance according to § 35 Paragraph 1 and to regulate the procedure for their determination and further development. "

At the same time, the concept of reduced earning capacity (MdE) was replaced by the new legal concept of the degree of damage consequences (GdS). This is to express that there must be a causal relationship between the damage to be compensated and the damage to health to be compensated . The change was initially only made in the Federal Supply Act; for the area of statutory accident insurance , where the MdE is also used to measure the compensation after the occurrence of an insured event , it should take place in a later legislative process.

The statutory ordinance to be issued in this regard had yet to be created.

Legislative process

The draft ordinance was introduced to the Federal Council in October 2008 . At the meeting on November 28, 2008, the Federal Council approved it with minor changes. The ordinance was then issued on December 10, 2008 and promulgated in the Federal Law Gazette I p. 2412 No. 57 of December 15, 2008. It came into force on January 1, 2009.

Updates

Since then, five amending ordinances have been issued in quick succession from 2010 to 2012. A sixth change is pending. However, this has stalled after widespread violent criticism from the DBR, the DGB, from representatives of the severely disabled and via petition with over 26,000 signatories to the 2018 draft amendment. The partially immature draft was also criticized in specialist literature because it was incompatible with higher-level legal law.

Content of the regulation

Advisory Board

The Medical Care Ordinance (VersMedV) initially stipulates that the Federal Ministry of Labor and Social Affairs will form an “independent Medical Expert Advisory Board for Supply Medicine” ... which will advise the Federal Ministry of Labor and Social Affairs on all health care matters and further development of the system prepared according to the current state of medical science and health care requirements ”( § 3  VersMedV). The more detailed composition of the advisory board consisting of health care physicians and the appointment procedure as well as further requirements for the advisory board are regulated there. The members of the advisory board work on a voluntary basis and cannot be represented. The advisory board decides with a simple majority if at least 12 members are present ( § 4  VersMedV).

This standard was last changed on January 1, 2018, according to which at least nine votes are always required for a resolution, as follows: "The resolutions of the Advisory Board are passed with a simple majority of the members appointed according to § 3 Paragraph 2."

Health care principles

The more detailed "health care principles" according to which the assessment of the degree of damage is measured and which have since replaced the earlier "indications" are contained in the appendix to § 2 of the ordinance. They should reflect the "current state of medical science using the principles of evidence-based medicine " when it was announced and should be continuously developed by the advisory board in the future. These were - with minor cutbacks - the same principles that were already contained in the reference points from 2008.

Application of the "health care principles"

The case law had given the evidence the status of an "anticipated expert opinion". As a result, an appraisal based on it could not be attacked with an expert opinion in individual cases. One could therefore usually only proceed against an assessment by complaining that the AHP could no longer be reconciled with the current state of medical science, that an outdated version was used as the basis for the assessment. It can be assumed that this jurisprudence will also continue to apply to the “principles of medical care”.

literature

  • Stefanie Vogl: Social pension law: "Degree of damage consequences" now determines the pension entitlement. "Health care principles" replace "clues" - even when determining a degree of disability . In: SozSich . 2009, p. 353 .
  • Manfred Benz: The determination of the total GdB (severely handicapped rights) and the total MdE (statutory accident insurance) . In: The social justice . 2009, p. 353 .

Web links

Individual evidence

  1. ^ Gerhard Igl and Felix Welti : Social law . 8th edition. Werner Verlag, Neuwied 2007, ISBN 978-3-8041-4196-4 (§ 73 Rn. 3 mwN).
  2. ↑ BVerfG: Decision of March 6, 1995 - 1 BvR 60/95 . In: NJW . 1995, p. 3049 .
  3. ↑ BSG: Judgment - B 9 SB 3/02 R. September 18, 2003, accessed on September 20, 2010 .
  4. ^ Federal Council: BR-Drs. 541/07. (PDF; 651 kB) August 10, 2007, p. 1 , accessed on September 20, 2010 .
  5. ^ Federal Council: BR-Drs. 541/07. (PDF; 651 kB) August 10, 2007, p. 2, 80 , accessed on September 20, 2010 .
  6. ^ Federal Council: BR-Drs. 541/07. (PDF; 651 kB) August 10, 2007, p. 2 , accessed on September 20, 2010 .
  7. ^ Federal Council: BR-Drs. 767/08. (PDF; 651 kB) October 17, 2008, accessed on September 20, 2010 .
  8. ^ Federal Council: Stenographic report. 851st meeting. (PDF) October 17, 2008, p. 410f. , accessed September 20, 2010 .
  9. ↑ Amendment regulations to VersMedV
  10. ↑ DBR of April 30, 2019
  11. ↑ DGB of November 28, 2018
  12. ↑ Online petition 2019
  13. ↑ Düwell, jurisPR-ArbR 19/2019 note 1
  14. ↑ Article 18 of the law of July 17, 2017
  15. ↑ Stefanie Vogl: Social pension law: "Degree of damage consequences" now determines the pension entitlement. "Health care principles" replace "clues" - even when determining a degree of disability . In: SozSich . 2009, p. 353, 356, 357 .
  16. ↑ BSG: Judgment - B 9 SB 3/02 R. September 18, 2003, accessed on September 20, 2010 : “According to the case law, these are anticipated expert reports whose relevance in specific administrative and court proceedings results on the one hand that the application of the law in accordance with the general principle of equality is only guaranteed if the various disabilities are assessed according to the same criteria; on the other hand, according to the experience of the BSG, the AHP 1996 (as well as its predecessors) represent a suitable assessment structure based on empirical values ​​of the care administration and knowledge of medical science for the assessment of the GdB (see BSGE 72, 285, 286 f = SozR 3- 3870 § 4 No. 6; BSGE 75, 176, 177 f = SozR 3-3870 § 3 No. 5; BVerfG SozR 3-3870 § 3 No. 6). In this respect, the AHP have a similar effect to the norm. Their general correctness can therefore not be refuted by individual reports. However, they are to be checked - like subordinate legal norms - for their compatibility with the law and the constitution, for taking into account the current state of knowledge of social medical science and for gaps in special cases that have to be assessed separately due to the individual circumstances. "