A key issue currently being faced by Long COVID sufferers is whether it matters from an insurance law perspective that their diagnosis is not based on standard clinical criteria, i.e. that the condition has not yet been named and coded by the World Health Organization. This article aims to provide a bit of clarity about the associated legal issues.
It’s all about the social insurance schemes
Let’s start by identifying the legal frameworks involved. Switzerland essentially has two different types of insurance schemes: social insurance schemes and private insurance schemes. Social insurance schemes include compulsory health insurance, invalidity insurance (IV/AI) and accident insurance.
Private insurance schemes: major differences
Social insurance schemes are often supplemented with private schemes, such as supplementary insurance that is taken out in addition to compulsory health insurance. The benefits provided under private insurance schemes depend on the basic policy framework, and in particular on the general policy conditions. Due to the wide variety of private policies on offer, it is pretty much impossible to make any general statements regarding the benefit entitlements of policyholders. This is why this article focuses solely on social insurance schemes.
Under law, there is no need for an unwell person to have a clear diagnosis.
The legal bases that govern the social insurance schemes are set out in the relevant laws. Art. 3(1) of the GSSLA (Federal Act on General Aspects of Social Security Law) sets out a standard definition of “illness” that applies under all social insurance law. An illness is defined as any impairment of physical, mental or psychological health that is not caused by an accident and that requires medical examination or treatment or incapacitates a person for work.
No need for an official diagnosis
The wording of this definition clearly shows that the impairment of physical, mental or psychological health does not have to be linked to an official diagnosis.
This means that there are two criteria that have to be met in order for the legal definition of illness to apply:
- A person’s physical and/or mental health has to be impaired relative to what is considered normal (medical element) and
- There has to be a need for an examination or treatment or an incapacity to work (performance element).
However, there is still a lot that remains unclear about Long COVID from a medical point of view, which is not surprising considering that it is such a new condition. As a result, medical research has so far not yet brought us to a stage where we have official standardized and generally recognized diagnostic criteria covering the wide range of associated symptoms.
There is still a lot that remains unclear from a medical perspective. And this is perfectly normal for a new condition.
The latest version of the International Classification of Diseases (ICD-10-GM Version 2021) does not change any of this. This is because it goes no further than simply establishing a link between post-COVID conditions and COVID-19 (under codes U09.9 and U10.9).
Multitude of symptoms
Long COVID symptoms are very diverse. Some of the symptoms identified by researchers include fatigue, loss of smell, headaches, depression, cognitive dysfunction, nausea, shortness of breath, coughing etc. However, even if Long COVID is not currently considered an independent illness within the meaning of Art. 3(1) of the GSSLA, the concrete individual symptoms experienced after an acute infection do indeed meet the criteria for the definition of an illness set out under Art. 3(1) of GSSLA if their effects are sufficiently objective.
Individual symptoms can also meet the definition of an illness.
If a social insurance provider rejects an insurance claim on the grounds that the person has not been diagnosed with Long COVID, this would therefore be an incorrect position provided that the physicians providing treatment have reported the case together with a sufficient description of the patient's symptoms. This is because it is not a condition’s official “label” that is the deciding factor for the presence of an illness in legal terms, but rather the effects of that illness on the physical, mental and psychological health of the person concerned and/or their capacity to work.
The decisive factor isn’t the condition’s official label, but its effect on a person’s health and/or capacity to work.
The problem with rehab
The question of who is responsible for paying for a stay at a rehab clinic is particularly problematic. In order for a health insurance provider to pay for such a stay, there has to be something called a “need for hospital treatment”. There is a need for hospital treatment if the necessary diagnostic and therapeutic measures can only be properly provided in a hospital (i.e. if they require a hospital bed) because they depend on equipment and personnel only available in such settings, or if all outpatient treatment options have been exhausted and a hospital stay is the only remaining prospect for successful treatment. Due to the fact that there are no hard and fast clinical rules for this kind of assessments, a person will only be able to receive treatment at a rehab clinic if the health insurer has approved the related costs in advance. For more detailed information on who is responsible for rehab costs, take a look at this article (German).
Attorney at law Sebastian Lorentz (lic. iur.) is a member of the Verband Covid Langzeitfolgen (Covid Long-Term Consequences Association) and a partner at Lorentz Schmidt Partner Rechtsanwälte (rehaanwaelte.ch).
