TSVG Restricts Investors’ Engagement in Ambulant Medical Care Sector

| |


The draft bill of Federal Health Minister Jens Spahn’s legislative initiative, the so-called Termin- und Versorgungsgesetz (TSVG), passed on 14 March 2019 and places additional restrictions on financial investors that acquire hospitals with the goal of establishing or acquiring Medical Care Centres (MCCs). The TSVG’s amendments regarding legal entitlement to found MCCs primarily affect investors in the dental care sector.

In Depth

Quota per Hospital:
Admitted hospitals’ ability to found dental MCCs will be linked to the number and size of dental MCCs that the hospital already operates in the planning area (Planungsbereich) of the State Dental Statutory Health Insurance Association (Kassenzahnärztliche Vereinigung) (KZV). The TSVG specifies a maximum number of dental statutory health permissions (vertragszahnärztliche Sitze) per planning area for MCCs owned by a hospital . Investors will still be allowed to own or invest in more than one hospital, as the quotas remain applicable per hospital. Under the new quota rule, a hospital may only establish new dental MCCs or expand its existing dental MCCs if its dental services do not comprise more than 10 percent of dental services provided in the planning area. In other words, a hospital’s dental statutory health permissions (vertragszahnärztliche Sitze) may make up no more than 10 per cent of all permissions issued in the respective planning area.

In KZV planning areas with an undersupply of dental medical services – i.e., with 50 per cent or less of the number of dental care providers deemed necessary to effectively meet the needs of the planning area’s residents – a hospital’s maximum percentage of dental statutory health permissions may increase to 20 per cent, or at least five dental statutory health permissions. In planning areas where more than 10 per cent of the required dental care providers are admitted to treat patients in the statutory health care system (oversupply), a hospital may hold only 5 percent of the area’s dental statutory health permissions. Private medical practitioners who are not eligible to treat patients insured in the statutory health insurance system do not count toward a hospital’s quotas, even if the practitioners are employed in a hospital-owned MCC.

Protection of Existing Status:
The TSVG excludes retroactive loss or restrictions on the entitlement to operate dental MCCs already owned by a hospital. Accordingly, it will still be possible for a hospital to employ new dentists to fill a vacant dental statutory health care permission, even if doing so exceeds the hospital’s maximum number of dental statutory health permissions applicable under the TSVG. The new quota rules limit hospitals’ ability to increase or expand the number of dental statutory health permissions in their dental MCCs in the future, however, if the maximum number of dental statutory health permissions is already reached or exceeded.

Human MCCs:
The new quotas do not affect MCCs in the area of human medicine. Additionally, the TSVG does not authorise the State Dentist Admission Panel (Zulassungsausschuss) to re-assess the necessity of granted dental statutory health permissions in case of vacancy, as was originally planned. MCCs therefore remain entitled to refill vacant permissions without risk of loss.

The ability of non-medical dialysis service providers to found MCCs will be restricted to MCCs in medical fields that are “professionally closely linked” (fachbezogen) to dialysis services. The TSVG does not specify what the term “professionally closely linked” means. The Health Committee of the First Chamber of Parliament (Gesundheitsausschuss des Bundestages) provided some clarification during the legislation process by inserting a further sub-clause noting that a “professionally close link” is present in case of “related medical services in the context of complex care for dialysis patients”. The TSVG legislative reasoning mentions primary care; internal medicine; and urological, cardiological and radiological services as examples of professionally closely linked medical services. These professionally closely linked medical services do not have to be offered in the same facility, as the legislator originally planned.

Next Steps:
The TSVG draft bill that passed on 14 March 2019 will be submitted to the Second Chamber of Parliament (Bundesrat) in April 2019. Because the amendment does not require Bundestag approval, the TSVG’s main provisions likely will become law at the beginning of May 2019.

It remains to be seen whether a review will be conducted as to the lawfulness of the dental care sector quota rule under constitutional and European law. Since the GKV-Versorgungsstrukturgesetz became law in 2011, Parliament has expressed concerns about the alleged risk that medical decisions could be influenced by capital interests, but has never attempted to substantiate this alleged risk. Additionally, Parliament has not justified the different legal rules for dental MCCs and human MCCs. Any argument that there is a need to differentiate between “good and bad” investors is legally dubious.