Federal Social Court: High barriers for cannabis on health insurance prescription

Co-Author: Cao, My Anh

A recent ruling by the Federal Social Court of November 10, 2022, shows that health insurance companies can only approve the prescription of cannabis in the presence of a serious illness, provided that the attending physician has made a particularly careful and comprehensive assessment. The medical assessment is subject to a review for completeness and comprehensibility by the health insurers and must not indicate any implausibility.

The Federal Social Court ruled for the first time in four cases in which the plaintiffs suffered from conditions such as epilepsy, ADHD, and mental illness (Ref: B 1 KR 21/21 R, B 1 KR 28/21 R, B 1 KR 9/22 R, B 1 KR 19/22 R).

For the prescription of cannabis, a serious illness must be present. The severity of the disease must be different from the average. The presence of an illness with a degree of disability (DoD) of 50 is regularly assumed to be a serious illness. Falling below this value does not mean that the prescription of cannabis is excluded, but could be considered in individual cases if its effects are more severe due to other illnesses or if participation in working life or everyday life is restricted. Likewise, a DoD of 50 is not to be understood as a threshold value or a formal determination.

Cannabis may also be prescribed in addition to a standard therapy that is still available. For this purpose, the physician must comprehensively document the state of the disease, analyze therapy alternatives, and carefully weigh the chances of success and risks of the therapies. High demands are placed on the assessment prerogative. The treatment with cannabis must have a noticeable positive effect on the course of the disease, whereby the determination of a positive effect on the basis of scientific standards is sufficient.

The insurant is only entitled to the most cost-effective remedy if several remedies are equally suitable. In the selection of dosage form and quantity, the physician has no leeway for assessment.