Update Health Care 1/2025
Optional medical services: opportunities and risks
In addition to general hospital services, hospitals usually also offer optional medical services and accommodation services in accordance with § 2 para. 2 KHEntgG. However, there are also so-called optional medical services, which have hardly been offered by hospitals so far.
The legal requirements for medical elective services are complex, particularly with regard to the distinction between medical elective services and standard services.
Definition and delimitation of medical elective services
The law only provides for a negative definition of optional services (Böhnke in: BeckOK KHR, Dettling /Gerlach, 9th edition, as of: 15.09.2024, KHEntgG § 17 Rn. 5). According to § 17 para. 1 sentence 1 KHEntgG, optional services are services that differ from general hospital services. According to § 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 medical elective services and accommodation, 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 Section 17 (1) sentence 2 KHEntgG, for example, the provision of diagnostic and therapeutic services is expressly recognized as a special medical elective service (BGH, III ZR 85/14, judgment of October 16, 2014, para. 21).
In general, optional medical services may include additional services such as extended laboratory diagnostics, nursing care, provision of medication, remedies and aids, alternative treatment methods or the complementary use of naturopathic methods (Bender, loc. cit., 5485 optional services, para. 224 et seq.).A key challenge, especially with regard to qualitative treatment alternatives (e.g. higher-quality medical devices), is the distinction between general hospital services and optional medical services.
This distinction is particularly relevant for hospital operators, since an incorrect assessment can have an impact on both remuneration and liability. Unlike general hospital services, optional medical services cannot be billed for via the DRG system, meaning that if a service is incorrectly assessed as a standard service, the costs will not be covered by the statutory health insurance funds (Heil in: MPR 2013, 109, 112). According to Section 12 (1) of the German Social Security Code 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 standard benefit is incorrectly offered as a chargeable medical elective service (Heil, loc. cit., 109, 112).
One indication of the existence of a medical elective 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 (G-BA) in accordance with § 137c SGB V (Bender, loc. cit., para. 227, whereby § 6 para. 2 KHEntgG must be observed here with regard to the so-called new examination and treatment methods (NUB)). Even if a G-BA directive pursuant to section 137c subsection (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 optional 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 real added value for the patient. This is because even an optional medical service must be of clear additional benefit to the patient (Bender, loc. cit., 5485 optional services, 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 optional medical service either (Bender, loc. cit., 5485 Wahlleistungen, para. 223).
Recently, the transplantation of a donor meniscus was recognized in court rulings as an optional 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 at least lead to a short- and medium-term improvement in the symptoms, was to be 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 (Mosbach District Court , MedR 2019, 395, 396 (2 C 97/17)).
Legal requirements
General conditions for optional services
The legal basis for optional service agreements is set out in § 17 KHEntgG.
Fees for optional services may only be charged if the general hospital services are not affected by the optional services and separate billing has been agreed with the hospital. This agreement must be made in writing and before the optional service is provided. A central legal element in the area of optional services is the obligation to inform patients. Before the agreement is concluded, the patient must be informed in writing about the fees for optional services and their content in detail. Finally, the optional service must not be disproportionate to the type of service and the competent state authority must be notified in advance (Dettling, loc. cit., Section 6, para. 314).Special features of optional medical services
In the case of optional medical services, in contrast to optional medical services, 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 an optional physician (Str., Stürzer in: Spickhoff, MedR, 4th ed. 2022, § 17 Rn. 1). The wording of section 17 (1) sentence 2 KHEntgG, which merely stipulates that optional diagnostic and therapeutic services must be provided by a “physician”, already contradicts the partially justifiable view that optional medical services are only possible if optional medical services are also provided at the same time (Dettling, loc. cit., section 6 para. 313).
Furthermore, the duty to provide information in the context of medical optional services is of particular importance due to the difficult demarcation from standard services. It is recommended, above all, to explicitly inform patients why the offered service is not recognized as a standard service and why this service goes beyond what is medically or economically necessary (Dettling, loc. cit., § 6 Rn. 334).
Conclusion
In summary, medical elective services represent a win-win situation for hospitals and patients alike.
Medical elective 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 medical elective 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.
