Elective medical services: opportunities and risks

In addition to general hospital services, hospitals usually also offer elective services by physicians (ärztliche Wahlleistungen) and accommodation services (Wahlleistung Unterkunft) in accordance with sec. 2 para. 2 German Hospital Fee Act (Krankenhausentgeltgesetz - KHEntgG). However, there are also so-called elective medical services (medizinische Wahlleistungen), which have hardly been offered by hospitals so far.

The legal requirements for elective medical services are complex, particularly with regard to the distinction between elective medical services and general hospital services.

I. Definition and delimitation of elective medical services

1. The law only provides for a negative definition of elective services (Böhnke in: BeckOK KHR, Dettling /Gerlach, 10th edition, as of: 01.12.2024, KHEntgG sec. 17 Rn. 5). According to sec 17 para. 1 sentence 1 KHEntgG, elective services are services that differ from general hospital services. According to sec 2 para. 2 KHEntgG, general hospital services are those services that are medically appropriate and sufficient with regard to the type and severity of the illness to ensure the care of the patient.

   In addition to elective services by physicians and accommodation services, elective medical services represent a further category of elective services involving the use of a particular method or the use of a particular product (Bender in: Rieger/Dahm/Katzenmeier/Stellpflug/Ziegler, Arztrecht Krankenhausrecht Medizinrecht, 98th delivery, 11/2024, 5485 Wahlleistungen Rn. 208). In sec 17 para. 1 sentence 2 KHEntgG, for example, the provision of diagnostic and therapeutic services is expressly recognized as a special elective medical service (BGH, III ZR 85/14, judgment of October 16, 2014, para. 21).

2. A key challenge, especially with regard to qualitative treatment alternatives (e.g. higher-quality medical devices), is the distinction between general hospital services and elective medical services.

   This distinction is particularly relevant for hospitals, since an incorrect assessment can have an impact on both remuneration and liability. Unlike general hospital services, elective medical services cannot be billed for via the DRG system, meaning that if a service is incorrectly assessed as a general hospital service, the costs will not be covered by the statutory health insurance funds (Heil in: MPR 2013, 109, 112). According to sec. 12 para 1 German Social Security Code V (Sozialgesetzbuch V - SGB V), the statutory health insurance funds are only obliged to provide services that are “sufficient, appropriate and economical” and “do not exceed what is necessary”; on the other hand, “optimal care” from the point of view of the insured patient is not owed (Heinz in: Schlegel/Voelzke, Juris PK-SGB V, 4th ed. 2020, Section 12 SGB V, para. 78).

   On the other hand, the hospital and the treating physician may face civil or criminal consequences if a general hospital service is incorrectly offered as an elective medical service (Heil, loc. cit., 109, 112).

   One indication of the existence of an elective medical service is if the corresponding services have not yet been included in the relevant medical guidelines and have not yet been examined by the Joint Federal Committee (Gemeinsamer Bundesausschuss - G-BA) in accordance with sec. 137c SGB V (Bender, loc. cit., para. 227, whereby sec. 6 para. 2 KHEntgG must be observed here with regard to the so-called new examination and treatment methods (Neue Untersuchungs- und Behandlungsmethoden - NUB)). If a G-BA directive pursuant to section 137c para. 1 SGB V stipulates that services cannot be provided at the expense of the health insurance funds because they are not considered necessary for the appropriate care of the insured with regard to their medical necessity and economic efficiency, such a service can usually be offered as an elective medical service (Patt/Wilde in: Huster/Kaltenborn, 2nd ed. 2017 , Section 8, para. 29).

   However, it is important to check whether the service actually offers added value for the patient. This is because even an elective medical service must have an additional benefit to the patient (Bender, loc. cit., 5485 Wahlleistungen, para. 223). Additional benefits are excluded if the G-BA has come to the conclusion that the additional service has no scientifically proven medical benefit (Patt/Wilde, loc. cit., Section 8, para. 29). In such a case, the hospital is not allowed to offer this service as an elective medical service either (Bender, loc. cit., 5485 Wahlleistungen, para. 223).

   Recently, the transplantation of a donor meniscus was recognized in court rulings as an elective medical service because the insured patient is only entitled to a knee endoprosthesis or conservative therapy as a standard benefit. Although, according to the court's findings, the transplant in the case at issue represented the most optimal care and also the most sensible treatment option for the patient to be permanently free of pain, the standard benefit, which would have led to a short- and medium-term improvement in the symptoms, was regarded as a sufficient treatment method for the next few years, so that any treatment going beyond that was not absolutely necessary and therefore not a standard benefit (Local District Court Mosbach, MedR 2019, 395, 396 (2 C 97/17)).

II. Legal requirements

1. General conditions for optional services

   The legal basis for elective service agreements (Wahlleistungsvereinbarungen) is set out in sec. 17 KHEntgG.

   Fees for elective services may only be charged if the general hospital services are not affected by the elective services and separate billing has been agreed with the hospital. Such agreement must be made in writing prior to the provision of the elective services. It is legally necessary to inform patients in writing prior to the conclusion of the agreement about the fees for elective services and their content in detail. Finally, the elective services must not be disproportionate to the type of service and the competent state authority must be notified in advance (Dettling, in Saalfrank, MedR-HdB, 10. ed. August 2022, Section 6, para. 314).

2. Special features of optional medical services

   In the case of elective medical services, in contrast to elective services by physicians, the person of the physician providing the service is not decisive. The only decisive factor is the application of a specific method or a special product, and not the service provided by a specific physician (controversial, Stürzer in: Spickhoff, MedR, 4th ed. 2022, sec. 17 Rn. 1). The wording of sec. 17 para 1 sentence 2 KHEntgG, which merely stipulates that elective diagnostic and therapeutic services must be provided by a “physician”, already contradicts the partially expressed view that elective medical services are only possible if elective services by physicians are also provided at the same time (Dettling, loc. cit., section 6 para. 313).

   Furthermore, the duty to provide information in the context of elective medical services is of particular importance due to the difficult demarcation from standard services. It is recommended, above all, to explicitly inform patients why the service offered is not recognized as a standard service and why this service goes beyond what is medically or economically necessary (Dettling, loc. cit., sec. 6 Rn. 334).

III. Conclusion

In summary, elective medical services represent a win-win situation for hospitals and patients alike.

Elective medical services not only provide hospitals with an opportunity to secure their economic stability by tapping into an additional source of income, but also to strategically position themselves as modern, high-quality care providers.

Offering elective medical services can optimize patient care, improving the chances of recovery and thus increasing patient satisfaction, despite the fact that patients are required to bear the costs.

However, a legally compliant implementation that, in particular, meets the requirements for proper information and documentation is essential to avoid (financial) risks.

This article was created in collaboration with our legal clerk, Rabia Ayhan.