BSG 06.11.2018/XNUMX/XNUMX: Fictitious approval in the event of not timely notification of the involvement of the MDK

In its last session on November 06.11.2018, 1, the Federal Social Court again passed two interesting judgments on the subject of fictitious approval (file number B 30 KR 18/1 R, formerly B 3 KR 17/1 R; file number B 13 KR 17/XNUMX R). This is about the constellation that the health insurance company only informs about the intervention of the MDK after the statutory three-week period has expired. Or that an assessment date only takes place after the statutory five-week period has expired.

If your my article for Approval fiction have read, you still know the two relevant deadlines.

Approval fiction in the event of failure to inform the health insurance company about the involvement of the MDK on a claim for benefits - three weeks without the involvement of the MDK, five weeks with the involvement of the MDK.

To this end, the relevant health fund must ensure that information is given promptly. This also works in most cases. But there have been and are many cases where one Notification only after the three-week period of Section 13 Paragraph 3 a SGB V has taken place. Another group of cases concerns the constellation that the applicant has a Appraisal date at the MDK only after Had expired five weeks. Here it was extremely controversial whether in such cases a permit fiction can occur.

The health insurance side and some voices in the judiciary were in agreement. They argued that there was no fiction at all here, since a decision had been made within the deadline. In the event of notification after the three-week period has expired, the five-week period is decisive, i.e. the decision on time. Shut up, monkey dead (if this metaphor is too harsh for you, I would like to point out that very hard bandages are often used in court).

Assessment at the MDK after the five-week period has expired and without an effective period extension

In this constellation, too, some believe that a fiction should not work. The deadline would be automatically extended in the absence of an assessment date.
The 1st Senate of the Federal Social Court has now opposed these views: Information about the involvement of the MDK must take place within the three-week period. Appraisal appointments after the five-week period do not automatically extend the statutory period.

Please note here:

If legal proceedings are currently suspended as a result, the proceedings can be resumed.

If you have a case from the past, it can be reopened with an application in accordance with Section 44 SGB X.

What is also interesting:

In the second case, the BSG confirms its view that this should be “subjectively considered necessary” by the applicant. A breast and abdominal plastic surgery as well as a liposuction of the thighs were requested. The health insurance companies often refer to the fact that something should have been clear to the applicant. It is not a service that can be covered by statutory health insurance. In this respect, the BSG once again confirms that lipedema patients may also consider their surgical treatments to be subjectively necessary.

With this in mind, more about this and many other topics on this blog,

Best regards,
Your Ruth Leitenmaier.

ruth laitenmaier lipoedem fashion lawyer

Author: Ruth Leitenmaier

My focus is on social and medical law, tax law, inheritance law and senior law. I myself am a lipoedema patient, had an operation in 2016 and I am grateful that I escaped a less than good fate. Besides my family, art and literature are my constant companions. I like being in the great outdoors and I also have my balance in sports.

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  • Hallo,
    Thank you very much for this report.
    I actually won in court because of fictitious approval, but Barmer now doubts the Lipoclinik bills and will have to go to court again. The imminent judgment is therefore highly dependent on the interests of the judge responsible. If he deals with the topic and the bills correctly, the chances are pretty good. Does he not feel like referring to judgments that have already been passed and we are left with no money despite fictitious approval. Then we could sue the Lipoclinik and it remains to be seen whether that would turn out well.
    Long live the Barmer

    • Hello Antje

      Oh dear, Barmer too ...

      I'm curious how it will turn out for me in 1 1/2 weeks 🙁

      Best regards,

  • thanks

    I find your column very informative,

    do you have something about applying for REHA?

    I think I saw a comment about this once - too much German for me today

    many thanks for your help