Criminal corruption or advantageous cooperation? – Part 1
Cooperation is indispensable in the health care system for modern, standard health care. However, where different players in the healthcare system cooperate – as in the case of dental technicians and dentists – there can also be undesirable forms of it. As early as 2016, therefore, new criminal provisions on bribery and corruption in the healthcare sector were created in the form of Sections 299a and 299b of the German Criminal Code (StGB), which are intended to prevent certain models of cooperation.
It is a declared goal of the legislature to anchor competitive elements in the healthcare system. For example. the law for the strengthening of the competition in the legal health insurance [1] this intention already in the name. However, if competition is impaired by undesirable agreements, this can have a financially detrimental effect on the financing of the health care system.
In addition, patients can no longer rely on the correctness of a medical decision if they have to fear that promised benefits – and not medical aspects – are guiding the decision-making process. Even before the aforementioned criminal law provisions existed, there were social and professional law provisions that were intended to exclude such influence (e.g., the law on the protection of the rights of employees, the law on the protection of the interests of employees, and the law on the protection of the rights of employees).B. § 73 para. 7 SGB V and the prohibitions on referral in the professional regulations). However, such regulations can also inhibit medical innovations if cooperation partners refrain from an in itself sensible cooperation for fear of sanctions [2].
Before dealing with the constellations relevant to the field of dentistry and dental technology, a brief look will be taken at the criminal offences under Sections 299a and 299b of the German Criminal Code (StGB). This facilitates a classification of the practically relevant facts in the following.
Meaning and Purpose of Sections 299a and 299b StGB
In essence, the purpose of a threat of punishment is to protect certain legal interests that the legislature considers worthy of protection from impairment [3]. Knowledge of the legal interests protected by a criminal law norm is therefore helpful in interpreting and understanding the regulation in legal terms. Particularly in the case of disputes, indications can be derived from this as to what the legislator specifically considers to be worthy of punishment.
In the case of §§ 299a et seq. StGB, the protected legal interests result from the legislative materials: first, fair competition in the health care system is to be protected [4]. It is obvious that corruption has a negative impact on competitive mechanisms. In addition, §§ 299a et seq. StGB are intended to protect patients' trust in the integrity of decisions made by the health care professions [5].
The aforementioned integrity means that medical decisions must be based on medical – and not primarily financial – criteria. The scope for medical decision-making is to remain free of purely pecuniary interests.
This intention is not new. Numerous social and professional law provisions also pursue this aim, especially the so-called "social guidelines". Prohibitions on allocation such as z.B. § 73 para. 7 SGB V [6]. With the entry into force of Section 299a of the German Criminal Code (StGB), however, in addition to disciplinary sanctions, there is now a threat of criminal prosecution-. Professional consequences also criminal sanctions.
The potential group of perpetrators
In a (successful) corruption always two sides are involved, one "bribing" and one "bribed", which is reflected in the facts of §§ 299a ("bribe") and 299b StGB ("bribery"). Perpetrators of § 299a StGB can only be members of a medical profession that requires state-regulated training for the practice of the profession or the use of the professional title. This includes dentists whose training is governed by a licensing regulation.
However, this does not include the health crafts. In addition to dental technicians, this category also includes opticians, audiologists and orthopedic technicians. Their activities are a craft subject to licensing [7], but not a medical profession [8].
Thus, from the very wording, they cannot be perpetrators of § 299a StGB, but they can be perpetrators of § 299b StGB [9]. For the "bribing" side, according to the law, does not presuppose any special requirements for the offender.
The wrongful act agreement
The criminal corruption according to §§ 299a ff. StGB presupposes a wrongful agreement. It is the "heart" [10] of a corruption and the "decisive threshold of punishability" [11]. In it, an advantage is linked to an (unfair) preference in competition [12].
The prerequisite of § 299a StGB is that the health care professional demands, allows himself to be promised or accepts the advantage in return for unfairly favoring another in competition. The first consequence of this is that the mere acceptance of a benefit does not yet lead to criminal liability [13]. Rather, a link must be established between this benefit and a preference that should be given in return.
This does not have to be explicitly agreed or written down. Potential perpetrators of corruption will rarely put their intended course of action in writing anyway. However, even an implied act is sufficient to reach an agreement of wrongdoing.
In this context, the preferential act in the case of §§ 299a ff. StGB with
– a prescription (of medicines, remedies or medical devices), – a purchase of medicines or remedies or medical devices, each of which is intended for direct use by the health care professional, or – a supply of patients or examination material.
The structure of this injustice agreement makes one thing clear: A criminal liability according to §§ 299a et seq. StGB only comes into consideration where the health care professional has room for maneuver in making a selection decision in connection with a prescription, reference or supply and uses this possibility in favor of a particular provider. Here it is always necessary to look closely. Thus, although z.B. a specialist in ear, nose and throat medicine ies prescriptions for hearing aids, but this does not designate a specific hearing care professional.
The prescribing decision cannot, therefore, be corrupted in this respect. It is conceivable, however, that the specialist could influence his patients to select a particular hearing care professional. Then a supply could be agreed in exchange ratio to a granted advantage.
Thus, each cooperation has its peculiarities that must be taken into account. In the case of cooperation z.B. between dentists and dental technicians: dentists do not ie prescriptions for dental services. You can also not supply patients to a dental laboratory, unlike in the example just given. Because they – and not the patient – decide with which laboratory to cooperate [14].
Therefore, only an act of preferential treatment remains in the case of the purchase of medical products, which usually includes dental technical services. The basic constellation of an injustice agreement in this relationship is thus as follows: There is an exchange relationship between a preference in the purchase of dental services and the granting of an advantage in return.
Practical implications and relevant case studies
Inquiries from dental practices show: There is often uncertainty about whether or not criminal corruption already exists in certain case constellations. Although there are a number of court decisions in the area of social, professional and competition law that deal with behavior relevant to corruption and can thus provide guidance, there are also a number of cases in which a dentist may be susceptible to noise or nausea. However, the boundaries to criminal corruption are not always crystal clear for every form of cooperation.
This applies bspw. for corporate investments. Since it always depends on the individual case, i.e. there are no fixed limits, these uncertainties cannot be completely eliminated. In the following, we will take a closer look at some constellations from the dental and technical field in which there are frequent inquiries.
Discounts in the procurement of materials and the remedy advertising law
Uncertainty exists in the dental profession, especially in the area of material procurement. Here it has long been common practice that dental deposits o.a. Offering benefits such as rebates or additional services.
This is not inadmissible in principle; however, Section 7 of the German Drug Advertising Act (HWG) has long laid down precise guidelines as to which advertising gifts are permissible and which are not. The regulation contains a general prohibition of advertising with exceptions [19].
Nevertheless, this provision occupies the courts to no small extent [20] because it is not always observed. This is unsettling to the dental clientele and, in some cases, provides legitimate reason to question the legitimacy of some of the perks offered.
The granting of price discounts in particular is legally permissible and also not fundamentally unfair in the sense of the legal system [21]. This also applies in principle to the purchase of materials in the dental field. For example, the SGB V only specifies maximum prices for dental services (§§ 57 para. 2 sentence 3 and 6, 88 Abs. 2 sentence 2 SGB V).
So from these can be deviated downwards. In this respect there is no price. § 7 Abs. 1 sentence 1 para. 2 lit. a HWG only requires with regard to the admissibility of a pecuniary benefit that it must consist "in a certain amount of money or in a certain way to be calculated", i.e. that it must be calculated without aids when ordering [22].
A distinction must be made, however, between the questions of whether discounting per se is permitted and who may retain the benefit from it. Just because a discount may be permissible, it doesn't have to mean that the dentist taking the discount gets to keep it.
In the dental field, for example, there are z.B. The provision of § 9 para. 1 GOZ, according to which the dentist may only charge the actual costs incurred for dental technical services. Since a discount granted effectively reduces the costs, this must be taken into account when invoicing the patient.
A violation of this can be punishable by law if necessary. Be prosecuted as fraud [23]. The obligation to pass on the discount is to be assessed differently e.g. where material costs are already taken into account in the dental fee schedule, e.g. in the case of a dental surgery. with brackets. Since dental technology is not billed separately in this case, a discount can be withheld [24].
The acceptance of a discount does not lead yet automatically to a criminal corruption. This is also the amption of the legislator of §§ 299a et seq. StGB (German Criminal Code), which states in the explanatory memorandum to the law that in the case of "rebates and discounts customary in the trade and generally granted" there may be a lack of a criminal unlawful agreement [25].
A unilateral violation of § 7 HWG, for example by accepting an impermissible advertising gift, does not yet fulfill the elements of the crime of § 299a StGB. However, it should be noted that even a unilateral violation of Section 7 HWG under Section 15 para. 1 para. 4a HWG can be prosecuted as an administrative offense.
An unlawful agreement exists only if the granting of the advantage (in the form of a price discount) is intended in return for preferential treatment in competition. This is bspw. the case when there is an agreement that the discounts will only be granted on the condition of follow-up orders, thus leaving other market suppliers out in the cold. reminders are called. In this case, a dental trading company purchased dental services abroad at a favorable price. Sold these to dentists at domestic prices with a corresponding profit. In this case, a dental trading company purchased dental services abroad at a favorable price. Sold these at domestic prices with a corresponding profit to dentists. These represented the costs (initially) incurred in this respect patients or. cost bearers in the invoice.
In retrospect, however, the dentists received part of the profit as reimbursement – also known as kick-backs – which was not paid out to the insured or health insurers [27]. Due to the non-disclosure, this was punished as fraud. Sections 299a et seq. StGB did not exist at that time. According to today's legal situation, however, these are also likely to apply here.
Because there was the (at least implied) agreement that in return for follow-up orders, kick-back payments would continue to flow, which the dentist would retain. Effectively, the dentist has earned money from the dental technician by paying less "on balance" than shown on the invoice.
– . © Pixabay/Peggy_Marco
Discounts on payment of the laboratory invoice
A sub-case of discounting, which is frequently addressed in practice, is the cash discount. A is a discount that is granted upon adherence to a timely payment deadline. In practice, this often plays a role in the relationship between dentists and dental technicians.
It is not uncommon for the possibility of a discount to be granted on the laboratory invoices. There is talk of a (permissible) cash discount if a period of up to 14 days is granted as a payment term and the discount for this amounts to 2 to 3% [28]. In principle, a discount may first be granted [29].
However, the far more important question for the dentist is whether he can keep this cash discount. It is recognized that this is – in deviation from the basic obligation to pass on discounts just described – exceptionally the case [30]. For the contractual dental sector, this also results from § 23 Para. 2 sentence 2 lit. a BMV-Z.
According to this, the contract dentist must submit a declaration with the billing of services via the Association of Statutory Health Insurance Dentists, which u.a. also includes that the billed material and laboratory costs of the commercial laboratories have actually been incurred and that price discounts, rebates, etc. have been granted. have been passed on. However, cash discounts, which also include cash discounts, are expressly excluded from this. This exception is justified by the fact that the dentist makes advance payments until the patient pays the invoice.
The dentist pays the dental technician, but usually receives compensation for this from the patient at a later date. This causes him to incur costs, which in turn are charged to the dentist in accordance with § 9 para. 1 GOZ costs to be invoiced (in lump-sum form here) can be taken into account. As a result, a discount granted by the dental technician can be retained by the dentist; the latter is not obliged to pass it on to the patient.
A violation of the principles outlined, e.g. by agreeing on a discount rate beyond 3%, could be a cause for investigation for law enforcement authorities. In addition to fraud on the part of the dentist pursuant to Section 263 of the German Criminal Code (StGB) by not passing on the excessively high discount, an agreement with the dental technician could also be suspected here, which would constitute a criminal unlawful agreement within the meaning of Sections 299a et seq. StGB includes.
Preliminary conclusion and outlook
Criminal proceedings in connection with §§ 299a et seq. StGB have occupied the courts to a manageable extent even more than 5 years after the regulations came into force. Court decisions on this are only to be found sporadically [15]. According to the Federal Criminal Police Office, the number of crimes registered by the police under Section 299a of the German Criminal Code (StGB) in Germany in 2020 will be 165.
The number has increased compared to the previous year, although some cases appear to involve investigations of the same nature in Lower Saxony relating to prescriptions for drugs and medicines [16]. The fact that there are not more proceedings is probably also due to the fact that corruption usually takes place in secret and that, for this reason alone, the criminal prosecution authorities often do not succeed in proving corruptive agreements, or only at very high expense. Nevertheless, the signal effect of such regulations should not be underestimated.
The mere threat of punishment can lead to certain forms of cooperation not being entered into at all, as can be seen from the example of the so-called. Partner factoring can show. This type of cooperation, as well as those associated with aligner treatments, will be discussed in the 2. Part of the article (ZTM 2, 2022) received. In addition, different forms of company participation are to be brought into focus – starting with the basic problems up to the concrete case examples of the practice laboratory and the participation in commercial laboratories.
