1. The Right to Health as Impulse for Innovation
The Jurisdiction of the Federal Constitutional Court in view of the Incentives of Innovation in the German Healthcare System
By Prof. Dr. Astrid Wallrabenstein

2. Introduction The 2005-Case of the Federal Constitutional Court:
Patient
Public Health Insurance
Duchenne Muscular Dystrophy
desires Magnetic Resonance Therapy
No appropriate treatment
in the catalogue of approved provisions of the public health insurance system
Immediate Constitutional Right
Social Rights in the German Constitution
2010: Immediate constitutional guarantee of a subsistence minimum that is in line with human dignity

3. Introduction Proposition: Structure:
Right to health is a catalyst for innovation
Structure:
Innovation in Healthcare Provision
Two Types of Innovation
Framework: The German Healthcare System
Public and Private Health Insurance
The Incentives für Innovation in the German Healthcare System
Private Health Insurance?
Leeways of the Public Health Insurance?
Inpatient Care?
Innovation as a Function of the Right to Health
Federal Constitutional Court
Legislature
Legal Practice

4. Innovation in Healthcare Provision
Two Types of Innovation
Novelty-oriented
Risky and inefficient at the beginning
Efficiency-oriented
Improvement of methods etc.
In Healthcare
Example: Vaccination
Novelty: New Chance of Prevention
Efficiency: Wide Distribution
Right to Health
Article 12 ICESCR Para 2 lit. d)
States Parties have to take steps for „the creation of conditions which would assure to all medical service and medical attention in the event of sickness“

5. The German Healthcare System
Public Health Insurance – GKV
90% of the population
Financing
Members pay income-related contributions to Central Health Fund
Fund distributes lump sums for every insured person to 100 health insurance providers
Health insurance providers pay healthcare providers for services

6. The German Healthcare System
Public Health Insurance – GKV
Insurance provider
Diagonsis-related lump sum
Hospital
Treatment
Insured patient
Central fund
Service provider association
Global Payment
Score-based Payment
FJC
catalogue
Physician
Treatment

7. The German Healthcare System
Public Health Insurance – GKV
Outpatient care
Individual providers deliver services to insured patients
Bill the health insurance providers
Services are defined in catalogue of provisions by the Federal Joint Committee
New methods of treatment require approval by the Federal Joint Committee
Inpatient care
Contract between hospital and health insurance provider
Diagnosis-related fee-per-case system
Individual agreement on unregistered cases
No restrictions on new methods of treatment

8. The German Healthcare System
Private Health Insurance – PKV
Insurance
Service Provider
Contract
Patient and Insured
Reimbursement
Statutory fee schedule

9. The German Healthcare System
Private Health Insurance
10% of the population
Financing
Individual ‚risk-adjusted‘ premiums
Interest rates are supposed to cover costs in old age
Procedure
Individual contract between service provider and patient
No restrictions
Patient pays for treatment
Statutory fee scedule
Reimbursement of costs by the private insurer

10. The Incentives for Innovation in the German Healthcare System
Private Health Insurance – an innovation-friendly insurance system?
From the perspective of the service providers:
non restricted and better paid
Critique: two-tier-system
Innovation
First: available to smaller groups but higher return
If successfull: taken over by Public Health Insurance
Today: Assimilation of private and public health insurance
Loss of innovation-oriented competition between public and private health insurance

11. The Incentives for Innovation in the German Healthcare System
Creative Leeway of the Public Health Insurance – potential of innovation?
Selective contracts between health insurance provider and healthcare provider
Innovative treatments
Programme has to be self-supporting financially
Insurance customers sign in to programme
Instrument of competition between insurers
Innovation Potential
More efficieny
Better financial results for providers and insurers
Benefits for the insured by additional services
No novelty-oriented innovation

12. The Incentives for Innovation in the German Healthcare System
Inpatient Care – openness to innovation?
Diagnosis-related lump sum
Fosters efficiency-oriented innovation
No novelty-oriented innovation
Conclusion
Incentives for innovation still exist
But clearly oriented toward efficiency

13. Innovation as a Function of the Right to Health
Federal Constitutional Court
In general:
public health insurance system is efficiency-oriented
Exemption:
In case of life-threatening, regularly terminal disease
When regular treatment has been of no avail
Conclusion:
Innovation should be financed by public health insurance when
Treatment catalogue lacks sufficient option
Objective of the innovation is to save life or to grant palliative relief

14. Innovation as a Function of the Right to Health
Legislature
Statute of 2011
Confirmation of the jurisdiction of the Federal Constitutional Court
Extention to comparably severe diseases
Conclusion
Innovation should be financed by public health insurance also when
Objective of the innovation is to treat severe diseases

15. Innovation as a Function of the Right to Health
Legal practice / Social Courts
Right to extraordinary treatment is a significant claim

16. Innovation as a Function of the Right to Health
Legal practice / Social Courts
Right to extraordinary treatment is a significant claim
Main criterion: type of illness
Example: aggressive and difficult-to-treat tumour
Social Court jurisdiction: right to extraordinary treatment in ‚rare‘ cases
Due to rarity no approval of specific treatment is possible
Off-label and extraordinary treatment is the most efficient way to grant health care
Critique: that might help in the individual case but does not help to close the gap in innovation

17. Innovation as a Function of the Right to Health
Conclusion
The deeper meaning of the Federal Constitutional Court‘s decision
Because of the strictly efficiency-oriented public healthcare system
encouraging (some specific) novelty-oriented innovation as well