The proposals of the government commission on hospital reform violate the legislative competence of the Länder enshrined in the constitution. In addition, the right of private and non-profit hospital operators to participate in remuneration and planning in conformity with the principle of equality must be respected. These are the findings of a legal opinion commissioned by the Länder of Bavaria, North Rhine-Westphalia and Schleswig-Holstein, which was published on 20 April.
The author is Ferdinand Wollenschläger, Chair of Public Law, European Law and Public Economic Law at the University of Augsburg. The core results of his expert opinion are:
The Basic Law does not provide the federal government with comprehensive legislative competence for the health or hospital sector. The Länder must retain independent and considerable scope for planning, especially in the case of abstract-general frameworks.
According to the constitutional order of competences, there is no federal responsibility for implementing the recommendations of the government commission, as these excessively restrict the planning authority of the Länder.
There are various possible solutions for the realisation of the hospital reform:
- Remuneration regulation with renunciation of structural specifications that excessively curtail the planning sovereignty.
- Autonomous implementation of the reform proposal by the Länder.
- Framework requirements for state hospital planning.
- Detailed control of hospital care with comprehensive powers of deviation in favour of the Länder.
Sufficiently long transitional arrangements are necessary.
Based on an article published on the BDPK website