#Hospitals and public health insurance companies have been arguing for some time about the treat-ment or audit period from which it is permissible to set so-called “penalty payments” in the context of reviewing hospital invoices. Whenever there is a reduction in invoices following an #audit proce-dure by the Medical Review Board (MD), § 275c (2) sentence 2 SGB V stipulates that, in addition to repaying the invoice difference, the #hospital concerned must also pay a further surcharge – the so-called “penalty payment” – to the health insurance fund. The provision literally states:

“From 2022, a health insurance fund shall be subject to a quarterly audit quota per hospital for the audit of final invoices for full inpatient hospital treatment by the Medical Service, depending on the proportion of unobjected invoices per hospital in accordance with paragraph 4 sentence 3 number 2. The date on which the audit is initiated shall be decisive for the allocation of an audit to a quarter and to the relevant quarterly audit quota.”

Since the law is not clearly formulated in this respect “From the year 2022(…)” and “The date of initia-tion of the audit is (…) decisive”, it remained disputed until the BSG decision here whether the penal-ties to be set apply to treatments that only began in 2022 or whether treatments that took place be-fore 2022 but for which the audit was only initiated from 2022 onwards are also relevant.

The health insurance funds have always been of the opinion

• that the penalty payments could be claimed for those case reviews for which the decision on benefits was communicated from 1 January 2022.

The clinics concerned have always taken the view that the penalties may only be charged for cases

• in which the inpatient treatment did not begin until 1 January 2022, or
• the audits were not initiated until 1 January 2022.

The #BSG has now provided clarity and ruled that penalties may only be imposed if the respective health insurance fund has issued the inspection order to the MD in 2022. All other cases may not be penalised with a penalty payment. The BSG derives this legal consequence from § 275c (1) SGB V in conjunction with § 6 PrüfvV. According to this, only the time at which the MD is commissioned by the health insurance fund is decisive for the penalty payments.

The following distinction must be made: A distinction must be made between the initiation of an au-dit procedure in accordance with § 4 PrüfvV, which may be followed by a case dialogue, and the commissioning of the MD to carry out an audit in accordance with § 6 PrüfvV.

What are the consequences for hospitals of the judgement, which has so far only been issued in the form of a forward notification?

1. if the health insurance funds have received the fixed penalty payments from a hospital through payment or offsetting, this payment can be reclaimed in full.
2. in cases where a penalty payment has so far only been announced, it is urgently recommended that hospitals continue to refuse this payment and refer to the BSG judgement.