In the Altea blog, attorneys from the Verband Covid Langzeitfolgen (Covid Long-Term Consequences Association) discuss the legal issues faced by people with Long COVID. In this article, Sebastian Lorentz looks at the coverage of therapy costs by health insurers. Many people affected by Long COVID are faced with issues such as:
My health insurer doesn’t want to cover the costs of my therapy. But it is stated that “the costs of medically necessary treatment for long-term effects of COVID-19 will be covered by your health insurance.” Why isn’t this the case for me, and what can I do about it?
The short answer is that for services to be covered by health insurance, they must be proven to be effective, appropriate, and cost-effective. Because Long COVID is such a new illness, it hasn’t yet been possible to develop such therapies or to demonstrate scientific proof of their effectiveness.
To ensure that patients can still make use of therapy, what’s known as the “presumption of mandatory benefits” applies in such cases. This principle states that treatments prescribed by a physician can generally be assumed to be effective, appropriate, and cost-effective. Physicians enjoy an advance of trust. Moreover, the responsibility to prove otherwise doesn’t lie with the physician, but with the health insurance company. If the insurer refuses to pay for the service, it has to prove that one of the criteria hasn’t been met. Based on the principle of trust, treatment costs can therefore be claimed, if applicable.
A more detailed section on this follows in the second part of the article, which concludes with steps you can take to claim back costs.
Health insurers may cover treatment costs, even if their effectiveness hasn’t been proven. (Symbol image: Adobe Stock)
In Switzerland, health insurance covers the costs of health care. This includes all medical measures for diagnosing and/or treating a medical condition, provided that they are performed by an authorized professional (e.g., a physician).
No discretionary additional services
According to Article 34 of the Swiss Health Insurance Act (HIA), the health insurer may only cover the costs of certain services (Art. 34 (1) HIA). Health insurers are not allowed to provide any voluntary services above and beyond this, as this would violate the principle of legality.
The list principle
Services that are covered are recorded in lists (under the “list principle”). In principle, insurers cannot pay for anything not included in these lists; however, there is no conclusive “positive list” of medical and chiropractic services that must be covered. Instead, there is a list describing which medical and chiropractic services are covered under which conditions, or those that are not covered at all (“negative list”).
Furthermore, only costs for services provided in Switzerland are generally covered (the “territoriality principle”; Art. 34 (2) HIA). As an exception, the insurer may be required to cover a service performed abroad only if the service can’t be provided in Switzerland.
EAC: effective, appropriate, cost-effective
For services to be included on the lists, they must meet certain overarching criteria: all services to be covered must be deemed effective, appropriate, and cost-effective (EAC criteria; Art. 32 HIA). These criteria must be met cumulatively; if any one of them is not met, the health insurance company is under no obligation to pay for the service. Only services that meet these requirements may be included in the lists. In addition, the compulsory health insurer must always check in each case whether the EAC criteria have been met.
Standard benefits in cases of Long COVID
There has not been enough scientific research conducted on the long-term effects of COVID-19 at this stage, and there are some uncertainties regarding diagnostics and therapies. Since lists can only be created when knowledge is definitively established, a list including Long COVID services cannot be compiled yet. Does this mean that patients affected by Long COVID can’t claim any treatment costs at all? That would obviously be absurd, and so there is a second option besides the lists.
This is where the presumption of of mandatory benefits applies. Physicians and chiropractors have plenty of decision-making leeway in accordance with Art. 25 (2) HIA. The (refutable) assumption is that the prescribed and implemented treatment methods are effective, appropriate, and cost-effective.
Counter-evidence required
If a physician prescribes a service, the health insurer may not simply raise doubts over one of the EAC criteria. The compulsory health insurance has to prove that one of these criteria has not been met. If it cannot provide any evidence that this is the case, then there is a lack of proof. In this case, the treatment is deemed to be effective, appropriate, and cost-effective under the assumption of standard benefits. This means that health insurers can cover services that are not listed in the service catalogs.
Exception: the negative list
There is one major exception: if the service is excluded from standard benefits on the list in Annex 1 of the Swiss Health Insurance Benefits Ordinance (HIBO), no costs are covered.
Otherwise, there’s a chance the costs will be covered
In the case of disputed services that are not on the negative list – for example, where apparent, H.E.L.P. apheresis – the compulsory health insurer must provide evidence that the service doesn’t meet the EAC criteria. If it cannot do so, it must pay for the costs of the services.
What should you do if your health insurance company refuses to pay for a service?
If your health insurer refuses to cover a service, start by checking whether there are any supplementary insurance policies that cover the service in question. You may be able to recover at least part of the costs by other means.
An injunction is required for legal action
You also need to check the form of the refusal immediately. Many health insurance companies initially reject a claim by means of an informal letter, which is not an injunction. If this is the case, the situation is not so urgent. However, if you receive an injunction, you must lodge an appeal within 30 days if you wish to challenge it.
Consult a physician
In any case, you should consult your attending physician and see how they assess the reason for the refusal. Do they agree with the health insurance company? If not, a discussion between the attending physician and the health insurer’s trusted doctor is often helpful.
As a last resort: legal action
If this discussion doesn’t lead to the desired outcome and you’ve only received an informal rejection from your health insurance company, you can ask them once again, with sound reasoning, to reconsider their decision. When you do this, request that the refusal be issued as an injunction and also request access to the complete files. Once the injunction has been issued, you can take legal action.
Lodging an appeal
The legal process begins with the lodging of an appeal; this must be submitted within 30 days of receiving the injunction and you must have a justified reason for doing so. This means that you have to be able to demonstrate why the injunction is incorrect. When you take legal action, you should establish whether legal assistance is indicated. Since attorneys cost money, it is worth clarifying whether there is a legal protection insurance (with coverage for this case) that would make the financial risk more manageable.
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).
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