Statutory healthcare is regulated for all groups of refugees in the Asylum Seekers Benefits Act. However, the law does not define the specific benefits that need to be provided, which in practice has often led to ambiguity and incorrect interpretation. By now, there are clear indications and clarifications how to interpret the legal provisions. Based on the legal wording, these will be laid out in the following.
1. Who is eligible for healthcare?
Entitled to benefits are all persons who receive basic benefits according to §§ 1, 3 AsylbLG, that usually means within the first 15 months of their residence in Germany. After this period, since the 1 March 2015, according to § 2 AsylbLG, persons are entitled to benefits based on the current welfare provisions, this includes regular statutory health insurance. 1
The following statements regarding the scope of provision, therefore, only refer to refugees that have stayed in Germany for less than 15 months.
2. Scope of provision
The scope of provision is set out in § 4 and § 6 of the Asylum Seekers Benefits Act. In the case of illness (for acute illnesses and pain) medical and dental care needs to be provided, including the provision of medicines and bandages, and other benefits necessary for recovery, improvement or alleviation of diseases or sequalae. Additionally, officially recommended vaccinations and all services for pregnancy and childbirth (see § 4 AsylbLG) are included. Moreover, according to the flexibility clause § 6 AsylbLG “other benefits […] in particular […] if they are indispensable in individual cases for the safeguarding […] of a person’s health”, can be claimed.
The social welfare offices in charge are obliged to ensure the benefits (so called “securing task”) (results from § 4 para. 3 sentence 1 AsylbLG).
The vague definition of the legal terms “acute illnesses” and “pain”, as § 4 AsylbLG words it, leads in practice regularly to uncertainty. Therefore, in the following, after a general overview for the specific medical treatment, a detailed compilation on how to interpret the legal provision has been laid out.
- always with acute illnesses, i.e. sudden, rapid and severe illnesses
- always in cases that require acute treatment (in particular chronic conditions!),
- always with conditions associated with pain,
- always when the treatment of the acute illness or pain cannot be separated from treatment of the underlying disease,
- without any restrictions (according to SGB V): benefits for pregnancy and childbirth, including midwife assistance and nursery,
- always with chronic conditions that otherwise would turn into acute ones
- without any restrictions: officially recommended vaccinations and medically required preventative check-ups
- always with illnesses which need to be treated in order to safeguard a person’s health; this could include, for instance, chronic and in particular mental health conditions (§ 6 AsylbLG)
- all necessary benefits are made without cost sharing of the beneficiaries (co-payments, fixed amounts or alike) 2
→ Put succinctly, this corresponds largely with the scope of provision of the SGB V, the statutory health insurance and has successfully been implemented in the so-called Bremen Model for many years.
1) Provisions according to § 4 AsylbLG
a) Acute illnesses
The term “acute illness” is not defined by law. According to the Pschyrembel Clinical Dictionary and the latest jurisprudence 3 it is supposed to be understood as a sudden, rapid and severe illness as opposed to a chronic condition. The distinction between acute and chronic conditions needs to be medically evaluated on a case-by-case basis; only an attending physician can make this judgment. 4 The treatment of a chronic illness needs to be guaranteed if they are accompanied by acute conditions requiring immediate treatment. The treatment of the chronic condition (according to § 4 para. 1 S. 1 AsylbLG) can also be requested, if the treatment of the acute condition or pain cannot be separated from the treatment of the underlying chronic condition. 5
b) Painful conditions
Equally, the term “pain” is not legally defined; medical terminology understands it as a “complex sensual perception of varying sort (e.g. stabbing, pulling, burning, pressing), which usually through disruption of well-being serves as a vital symptom” 6. In the legal sense according to § 4 para. 1. S. 1 AsylbLG, it needs to be understood as an unpleasant sensual and emotional state linked to actual or potential tissue damage, requiring medical or dental care for medical reasons. 7 The interpretation of the legal provision includes an entitlement for treatment of acute (for instance, in cases of injuries or toothache) as well as chronic pain (e.g. migraines or cancer); the differentiation between chronic – meaning slowly increasing – and instantly occurring pain cannot be relevant in the presence of symptoms. 8
When in pain, patients are always entitled to the necessary treatment, regardless of whether the pain is acute or chronic. “Acute” in the legal sense of the provision only refers to illnesses, not to pain. 9
With chronic illnesses, in addition to the acute and painful symptoms, the severity and extent of the illness should also be established, as well as the possible negative health effects of denial of treatment (short- or long-term prognosis). Depending on the result of the assessment, adequate treatment needs to be given. A legal basis for provision can be not only § 4 paras. 1 and § 6 AsylbLG (compare 2 below) and also § 6 AsylbLG, which often in the medical practice goes unheeded. 10
Generally, the scope of provision has to be in accordance with the general rules of the statutory health insurance law, which stipulates that the treatment has to follow the rules of medical standards and needs to be sufficient and appropriate (see § 28 para. 1 sentence 1 SGB V), be economically feasible and not exceed the necessary means (§ 12 para. 1 SGB V).
c) Provision of medicines and bandages
All medically required medicines and bandages need to be provided analogously to the services of the statutory health insurer (§ 31 SGB V). It needs to be observed here, that all necessary medicines and bandages need to be made available without cost sharing by the beneficiaries (co-payments, fixed amounts or alike). 11
d) Benefits necessary for recovery, improvement or alleviation of diseases or sequelae
These benefits can include, for instance, the provision of remedies and aids (e.g. wheelchair, glasses, prosthesis, etc.), necessary therapeutic cures for recovery, measures of in-house care and domestic help, medical and additional benefits for rehabilitation such as covering the cost of inpatient care – for instance of a severely handicapped child in a facility for disabled people 12. Equally, travel expenses are also part of healthcare 13, as well as interpreting costs, which in practice are often disregarded 14
e) Dental prostheses
The supply of dental prosthesis according, to para. 1 sentence 2, is only permitted if this cannot be delayed, meaning it is urgently necessary. Medical reasons alone determine the necessity of a dental prosthesis; the attending dentist is responsible for making this decision, the competent welfare authority are only formally in charge. However, a medical certificate by a public health officer (Amtsarzt/Amtsärztin) can be requested. 15
f) Care during pregnancy and birth
According to a special provision, pregnant women and new mothers receive comprehensive and effective care during pregnancy and childbirth. This includes all services according to the standard of statutory health insurers: standard medical services by established physicians and hospital stays, all screenings for mother and child, midwife assistance as well as medication and remedies. 16
Officially recommended vaccinations (according to recommendations of The Standing Committee on Immunization (STIKO)) are completely included in the payable benefits (§ 4 Para. 3 Section 1), and have to be offered by the competent authority. However, there is no duty to be vaccinated for the persons concerned: here they have the same rights as all other German citizens. 17
h) Preventive medical check-ups
Medically indicated preventative check-ups have to be payed for, these include cancer screenings (according to § 25 para. 2 SGB V) and pediatric examinations (according to § 26 SGB V). Medical examinations as part of prenatal care and in order to determine a pregnancy ae already mandatory under § 4 para. 2 AsylbLG 18
2) “Other” benefits according to § 6 AsylbLG
Next to the restriction of benefits according to § 4, attention needs to be paid to the opening clause of § 6 AsylbLG, which states that “other benefits can be granted, in particular, if they are indispensable in individual cases to safeguard […] the health” of patients. The vague term health needs to be interpreted in the biological/physiological sense and also encompasses mental health and well-being. 19
a) Chronic conditions
In individual cases, the treatment of a chronic condition and the supply of medication can be regarded as additional benefits as laid down in § 6 AsylbLG. However, in practice this often goes unheeded. 20
b) Mental health conditions
To assess the extent and intensity of a condition generally causes problems in legal practice, in particular when it comes to mental health conditions. If a mental health condition does not already fall under § 4 AsylbLG (acute and psychologically excruciating mental health diseases), then in individual cases it needs to be established, if § 6 AsylbLG can be applied. The medical situation needs to be investigated, for instance, through obtaining reports by the attending physicians. The legal interpretation is of particular importance when it comes to the impeding health impacts when benefits are refused. 21
c) Other additional benefits
Further necessary medical aids can be claimed as “other benefits” (in accordance with § 33 para. 1 SGB V), if these are not already covered in § 4 AsylbLG. The condition for the payment of these benefits is that the aid is urgently required in order to prevent damages resulting from illness or an increased risk of accident (e.g. hearing aid, glasses, prostheses and orthopedic aids). 22
The payment of costs for a temporary stay at a women’s shelter is another benefit essential for safeguarding health that comes into question, in particular if the women concerned is subject to further danger from the perpetrator. In order to provide anonymous protection from further attacks and to safeguard their physical integrity, women, who are subjected to domestic and sexual violence, and their children, cannot only be granted the payment of accommodation costs, but on a case-by-case basis also the costs for further support (therapeutic measures, counselling etc.). 23
3) Conclusion: Health benefits largely conform to statutory health insurance
Especially in the context of the decision of the Federal Constitutional Court (Bundesverfassungsgericht – BVerfG ) 24 that a decent minimum standard of living needs to be guaranteed – which also includes health benefits– the flexibility cause of § 6 AsylbLG is of paramount importance. 25 If medical care according to § 4 AsylbLG proves insufficient and a fundamental right might be infringed (physical integrity), the entitlement to “other benefits” is mandatory in order to safeguard the health of the person concerned.
In conclusion, it can be stated that §§ 4 combined with 6 AsylbLG should be interpreted in conformity with the constitution in the sense that the standard of health benefits is supposed to largely conform to the statutory health insurance law according to the SGB V. 26 In particular for people in specific need of protection – amongst others, minors, pregnant women and people with disabilities – almost the whole scope of medical provision to statutory care needs to be rendered. 27
References and further reading
- Birk (2008): § 4 AsylbLG Leistungen bei Krankheit, Schwangerschaft und Geburt. In Münder. SGB XII, 8 Aufl.
- Birk (2015): Das neue Asylbewerberleistungsgesetz, info also 2015, 51-53; Kaltenborn, Die Neufassung des Asylbewerberleistungsgesetzes und das Recht auf Gesundheit, NZS 2015, S. 161-165.
- Burmester (2015): Medizinische Versorgung der Leistungsberechtigten nach §§ 4 und 6 AsylbLG über eine Krankenkasse, NDV 2015, S. 109-114
- Classen (2008): Sozialleistungen für MigrantInnen und Flüchtlinge. Handbuch für die Praxis. Herausgegeben von PRO ASYL
- der Paritätitsche Gesamtverband (2015): Arbeitshilfe. Überblick zu den Änderungen
im Asylbewerberleistungsgesetz zum 1. März 2015 mit Beispielen und Hinweisen für die Beratungspraxis
- Eichenhofer (2013): Gesundheitsleistungen für Flüchtlinge. In ZAR 2013, S. 169-175
- Farahat (2014): Rechtsunsicherheiten beim Zugang zur Gesundheitsversorgung von Migranten. In ZESAR 2014, S. 269-278
- Frerichs (2014): § 4 AsylbLG Leistungen bei Krankheit, Schwangerschaft und Geburt. In juris Praxiskommentar SGB XII 2. Aufl.
- Frerichs (2015): § 6 AsylbLG Sonstige Leistungen. In juris Praxiskommentar SGB XII 2. Aufl.
- Kellmann (2013): Sozialrechtliche Rahmenbedingungen für besonders Schutzbedürftige. Anspruch und Rechtsschutz während des Asylverfahrens und danach. In ASYLMAGAZIN 6/2013, S.186–195
- Hohm (Hrsg.) (2015): Gemeinschaftskommentar zum Asylbewerberleistungsgesetz (AsylbLG). Luchterhand
- see Frerichs (2014): § 4 AsylbLG. Juristischer Kommentar In jurisPK ↩
- see Classen 2008:115f.; Frerichs 2014:Rn. 38ff. ↩
- LSG Nordrhein-Westfalen v. 06.05.2013 – L 20 AY 145/11 ↩
- see Payment of psychotherapy: OVG Niedersachsen v. 22.09.1999 – 4 M 3551/99 ↩
- see here Hohm in: AsylbLG, § 4 Rn. 31 zu OVG Niedersachsen v. 22.09.1999 – 4 M 3551/99.80 ↩
- Pschyrembel Klinisches Wörterbuch „Schmerz“ ↩
- Frerichs 2014: Rn. 42 ↩
- Frerichs 2014: Rn. 43 nach VGH Baden-Württemberg v. 04.05.1998 – 7 S 920/98 – juris Rn. 24 – FEVS 49, 33 ↩
- see Kellmann 2013, S. 190 nach VGH Baden-Württemberg, Decision of 4th May 1998, FEVS 49, 33. ↩
- see Frerichs 2014: a.a.O. Rn. 69f. ↩
- see Frerichs 2014: Rn. 46, 48 ↩
- VG Hildesheim – 3 B 1553/97 – unpublished ↩
- VG BE – 8A 366/97 – unpublished; LSG Sachsen-Anhalt v. 09.03.2015 – L 8 SO 23/14 B ER- juris Rn. 27. ↩
- see Birk 2008: Rn. 4; Frerichs 2014: Rn. 47f. ↩
- see Frerichs 2014: Rn. 49f. ↩
- see Frerichs 2014: Rn. 55; der Paritätische Gesamtverband 2015: S. 16 ↩
- see Frerichs 2014: Rn. 1, 18, 61, 63 ↩
- see Frerichs 2014: Rn. 62 ↩
- SG Frankfurt v. 16.01.2006 – S 20 AY 1/06 ER – juris Rn. 21 ↩
- Frerichs 2015: Rn. 62f. ↩
- Frerichs 2015: Rn. 67f. ↩
- see Frerichs 2015: Rn. 73 ↩
- Frerichs 2015: Rn. 75f. ↩
- BVerfG v. 18.07.2012 – 1 BvL 10/10, 1 BvL 2/11 – juris. ↩
- see Eichenhofer ZAR 2013: S. 169 ↩
- see Frerichs 2014: Rn 24 ; der Paritätische 2015: S. 16 ↩
- Der Paritätische 2015: S. 16 ↩