For a long time now, the German statutory health insurance scheme (Gesetzliche Krankenversicherung – GKV) has been trying not to leave the distribution of contract physicians to the market, but to control it by means of demand planning. However, the instruments intended for this purpose are apparently not very effective to this day. With the aid of the “Law to Strengthen Care in Statutory Health Insurance", the legislator has put the task of ensuring improvements into the hands of the Joint Federal Committee (Gemeinsamer Bundesausschuss – GBA). The GBA is the central player in the neo-corporatist negotiation and regulation arrangement that still characterises the German healthcare system today. It is responsible for issuing the Demand Planning Directive, which specifies all relevant and very openly defined legal provisions for demand planning. The GBA was obliged to "make the necessary adjustments to ensure that demands are met" with effect from 1 January 2017. Yet, it was not before January 2017 that it commissioned an external evaluation regarding the implementation of changes to a consortium that includes researchers from the Max Planck Institute for Social Law and Social Policy, as well as researchers from Ludwig Maximilian University Munich, the University of Bonn, the University of Greifswald and the Scientific Institute for Health Economics and Health System Research in Leipzig. The evaluation was completed in the first half of 2018.
On the basis of this evaluation, the GBA revised the Demand Planning Directive and fulfilled its legal mandate to adapt it with resolutions of 16 May and 20 June 2019. Major innovations result from the changed morbidity factor, which also leads to systematic changes in the ratios through the introduction of so-called basic ratios (§§ 8 and 9 of the Demand Planning Directive (Bedpl-RL)). The GBA took up the suggestions of the experts insofar as the billing data of SHI-accredited medical care is used for the calculation, but the calculation as such has been changed. This is based on the assessment that a sufficient increase in accuracy can also be achieved with a simpler procedure. The consideration of the social structure required by law in § 101 Para. 2 No. 3 Social Code Book V was not implemented. However, regarding its restraint the GBA could refer to the external evaluation according to which, in view of the current data situation, the inclusion of "aggregated socio-economic variables in the proposed modelling" was not recommended.
The legal part of the evaluation deals with three main topics: (1) the description, systematisation and analysis of existing instruments and steering options resulting from Social Code Book V, the Medical Practitioners' Authorisation Regulation and the Demand Planning Directive, (2) the elaboration of the legal requirements for the positive legal design of demand planning and their concrete significance; (3) the legal assessment of possible reform options as they result from the other parts of the evaluation dealing with the supply-policy-related, geographical, medical and economic aspects.
Since their inclusion in Social Code Book V, the regulations on demand planning have undergone numerous and far-reaching changes. They illustrate the changes in the legislator's objectives from the former attempts to avoid oversupply ("glut of doctors") to the fight against undersupply in rural areas. To this end, a number of parameters are defined with a view to demand planning. However, the actual goal to be achieved, namely "demand-oriented care provision", is not defined by law. This is left to the two-tier process of demand planning. In a first step, the Demand Planning Directive determines the uniform ratios specific to each physician category, and forms the physician categories relevant to planning as well as the planning areas. In a second step, the planning specifications are implemented. First of all, the responsible actors have to determine a shortage or an oversupply in order to effect medical licence restrictions (§ 103 Para. 1, Sent. 2 Social Code Book V) and further steering instruments. The steering instruments can be systematised in various ways, namely in relation to (1) steering intensity, steering programmes and modes; (2) the players involved, differentiated according to actors and addressees; (c) legal structures, forms of action, and effects.
The maintenance of an effective health care system is a social, welfare state obligation and is therefore a constitutionally prescribed task that is to include adequate medical care provision. In fulfilling this obligation, both the basic rights of insured persons and those of service providers must be observed. In line with decisions made by the Supreme Court, it is permissible to intervene to a reasonable extent in order to enforce demand planning, whereby the GBA shall be given discretion as to defining the conditions to be observed for this purpose. However, its decisions do not only require substantiation, but must also be based on a sound foundation of sufficient data and expertise. In addition, its role in demand planning has also been called into question by two recent decisions of the Federal Constitutional Court, in which constitutional limitations of the GBA's involvement as a standard setter are pointed out. All of this is related to the density of legal requirements, whose configuration and interpretation are essential for the legal assessment of development options.
The legal part of the evaluation contributes to the further development of demand planning at several levels. Systematisation, analysis, and assessments help to understand existing instruments and steering options for outpatient medical care in the overall context of demand planning. At the same time, it sets out the legal framework in which the proposals for the further development of medical requirements planning drawn up in the other parts of the evaluation can operate. It is ultimately intended to contribute to further improving the basis for the decision making of the GBA and to developing steering instruments for better requirements planning regarding the distribution of contract physicians in order to ensure a comprehensive supply of contract physician services throughout Germany that is accessible to all insured persons.
