The eligibility of expenses for pharmaceuticals was not limited to the fixed amounts of the statutory health insurance under the old federal state aid law that applied until September 2012. This has to be decided by the Federal Administrative Court. The old law had no legal basis for such a limitation.
The plaintiffs are beneficiaries of pensions and, in the event of illness, are entitled to civil servants' benefits in the amount of 70% of the eligible expenses. The defendant only granted the plaintiffs for medication aid up to the amount specified in the statutory health insurance law. The plaintiffs wanted to assert higher aid based on the pharmacy sales price.
The lower courts disagreed as to whether it was lawful to limit the eligibility of drug expenditure to fixed amounts. VGH Kassel and VGH Mannheim denied this. They granted the plaintiffs' request. In contrast, the OVG Schleswig affirmed the legality of the restriction.
BVerwG: No legal basis for limitation to fixed amounts The BVerwG has now confirmed that the limitation of the eligibility of expenses for pharmaceuticals to fixed amounts according to old law was illegal due to the lack of a legal basis. Neither the Federal Aid Ordinance (BBhV) in the version dated February 13, 2009, nor the general administrative regulation issued on February 14, 2009, had stipulated certain fixed amounts for medicinal products. Section 22 (3) BBhV a. F. had only authorized the Federal Ministry of the Interior to fix fixed amounts as upper limits for the eligibility of drug expenditure in administrative regulations. The general administrative regulation had regulated further details of a corresponding fixed amount provision without making such a decision itself.
The new Section 22 (3) BBhV now provides for an explicit limitation of the eligibility of expenses for pharmaceuticals to fixed amounts. (Ref .: BVerwG 5 C 2.12, BVerwG 4.12 and BVerwG 6.12)
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