Abstract

The article analyzes regulatory structures in German public health law in the light of the pandemic. It focuses on the responsibility of the welfare state to provide access to hospital treatment. While the public law corporations that finance statutory health insurance, keenly argue in favor of centralization and specialization, others, including the German Hospital Federation, prefer regional planning and highlight the importance of sufficient hospital bed capacity.

The German hospital sector is characterized by a mixture of public, private for profit and charity-based hospital owners who provide hospital treatment. The state and independent public law corporations guarantee equal access to healthcare via statutory health insurance. For historic reasons, there is a highly complicated system of “self-administration”, in which representatives of doctors and hospitals are given the power to “regulate themselves” in cooperation with public law health insurance fonds. Non-medical staff, especially nursing staff, is not represented in this system, which explains why their interests tend to be ignored. Additionally, the German Bundesländer (states) have the power to determine hospital capacities, usually understood as bed capacities, via hospital plans. Over the last two decades, the German hospital financing system was fundamentally changed by the introduction of diagnosis related groups (DRGs), potentially causing hospital owners to prioritize profit over patient care. The article examines the legal framework of hospital planning as well as the latest developments in hospital financing and quality assurance and argues against the idea that the health care sector should be shaped by market competition rather than planning.