Inter­pel­la­ti­on Dor­mond (03.3613): Health insu­rance and data protection

Inter­pel­la­ti­on Dor­mond (03.3613): Health insu­rance and data protection
Writ­ten off (16.12.2005)

Sub­mit­ted text

Recent­ly, we lear­ned from the press that cer­tain health insu­rance com­pa­nies are trans­fer­ring the pro­ce­s­sing of invoices for ser­vices under the Fede­ral Health Insu­rance Act (KVG) to pri­va­te com­pa­nies. This work is thus being sub­con­trac­ted, so to speak.

The Fede­ral Coun­cil is reque­sted to ans­wer the fol­lo­wing questions:

1. has he been infor­med about this new prac­ti­ce of the insu­r­ers car­ry­ing out social health insu­rance and has he appro­ved it in advance?

2. has it been con­sul­ted on the lega­li­ty of this new prac­ti­ce and has it recei­ved assu­ran­ces that the pro­vi­si­ons of the KVG will be followed?

3. has it gran­ted the­se sub­con­trac­tors aut­ho­rizati­on to pro­vi­de basic health insu­rance, as it does with health insurers?

4. does it super­vi­se the com­pa­nies that pro­cess invoices for KVG ser­vices ren­de­red on its behalf and deci­de on reim­bur­se­ments in the same way as it super­vi­ses the health insu­rance funds?

5. invoices can only be pro­ce­s­sed relia­bly if the data of the insu­red per­sons is known (inclu­ding deduc­ti­ble, reten­ti­on, per­so­nal data). Does the Fede­ral Coun­cil not think that the health insu­rance com­pa­nies should have infor­med the mem­bers con­cer­ned about this out­sour­cing practice?

6. the insu­red per­sons had no oppor­tu­ni­ty to con­sent to the health insu­r­ers’ action, espe­ci­al­ly sin­ce they were not infor­med about the out­sour­cing. To what ext­ent is the Fede­ral Data Pro­tec­tion Act (DPA) still being fol­lo­wed under the­se circumstances?

7. what con­trols has the Fede­ral Coun­cil intro­du­ced to ensu­re com­pli­ance with the DPA?

8. what con­trols has the Fede­ral Coun­cil intro­du­ced to ensu­re com­pli­ance with the pro­vi­si­ons of the KVG?

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h1>Reason

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In the past two weeks, the press has repor­ted that health insu­rance com­pa­nies are sub­con­trac­ting the pro­ce­s­sing of bills rela­ting to basic insu­rance to pri­va­te com­pa­nies. This is the case, for exam­p­le, with the insu­rance com­pa­ny KPT/CPT. Accor­ding to press reports, it has cut 45 full-time posi­ti­ons in this area. It gave as a pre­text the ent­ry into force of the uni­form phy­si­ci­an tariff (Tar­Med) and the trans­fer of invoice pro­ce­s­sing to a pri­va­te com­pa­ny. Howe­ver, the approach of the fede­ral­ly reco­gnized health insu­rance com­pa­nies, which trans­fer part of their acti­vi­ties to pri­va­te com­pa­nies, which – it should be noted – are not sub­ject to the same requi­re­ments, is not wit­hout pro­blems. Once apart from the defi­ni­ti­ve loss of the jobs of peo­p­le who exer­cis­ed con­trol over the paid KVG ser­vices and had an important role in cost con­trol in the heal­th­ca­re sec­tor, it is que­stionable whe­ther the legal pro­vi­si­ons of the KVG and the DPA are still being obser­ved. As far as the KVG is con­cer­ned, sub­con­trac­ted com­pa­nies can cir­cum­vent the pro­fes­sio­nal sec­re­cy enshri­ned in the KVG wit­hout the know­ledge of the legis­la­tor. In the area of the DPA, the que­sti­on of trans­pa­ren­cy ari­ses, all the more so becau­se the insu­red per­sons did not learn about the facts at hand from their insu­rance com­pa­nies, but from the press.

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h1>Statement of the Fede­ral Council

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1 It is true that various health insu­r­ers have incre­a­sing­ly out­sour­ced parts of their bene­fit pro­ce­s­sing in recent years, name­ly in order to redu­ce costs. Some insu­r­ers, which are struc­tu­red as hol­ding com­pa­nies, have out­sour­ced parts of the bene­fit pro­ce­s­sing to one of their com­pa­nies; smal­ler health insu­r­ers have them par­ti­al­ly pro­ce­s­sed by their reinsu­r­ers, others by IT pro­vi­ders. As a rule, the super­vi­so­ry aut­ho­ri­ty is infor­med of this.

2. health insu­r­ers may in prin­ci­ple com­mis­si­on third par­ties with auxi­lia­ry acti­vi­ties in the area of bene­fit pro­ce­s­sing, becau­se the Fede­ral Health Insu­rance Act (KVG) grants them a cer­tain degree of orga­nizatio­nal auto­no­my: they can shape their orga­nizati­on accor­ding to pur­po­se. This auto­no­my finds its limits whe­re the inten­ded objec­ti­ves of the KVG (prin­ci­ple of soli­da­ri­ty, prin­ci­ple of equal tre­at­ment, prin­ci­ple of recipro­ci­ty, ear­mar­king of funds, etc.) are que­stio­ned or under­mi­ned; then the super­vi­so­ry aut­ho­ri­ty must intervene.

3. health insu­r­ers do not requi­re aut­ho­rizati­on from the Con­fe­de­ra­ti­on to com­mis­si­on third par­ties with auxi­lia­ry acti­vi­ties. Third par­ties them­sel­ves also do not requi­re aut­ho­rizati­on for the exe­cu­ti­on of the orders.

4 The Fede­ral Coun­cil dele­ga­ted the super­vi­si­on of health insu­rance to the Fede­ral Social Insu­rance Office when the KVG came into force and to the Fede­ral Office of Public Health (FOPH) sin­ce 1 Janu­ary 2004. The super­vi­so­ry aut­ho­ri­ty requi­res that it be given the same con­trol over third par­ties that per­form tasks for the health insu­r­ers as it has over the health insu­r­ers. The health insu­r­ers must con­trac­tual­ly regu­la­te this con­trol opti­on with third parties.

5/6 It is not unpro­ble­ma­tic if third par­ties obtain con­sidera­ble know­ledge of the per­so­nal data of insu­red per­sons through the pro­ce­s­sing of invoices, etc. The data pro­tec­tion of the insu­red per­sons must be ensu­red. With the onward dele­ga­ti­on of social health insu­rance tasks, the health insu­r­ers must con­trac­tual­ly agree with third par­ties that they can gua­ran­tee an equi­va­lent level of data pro­tec­tion. They must moni­tor the third par­ties’ com­pli­ance with data pro­tec­tion. In addi­ti­on, the health insu­r­ers must inform the insu­red per­sons if they have tasks pro­ce­s­sed by third par­ties. Spe­ci­fi­cal­ly, they have been ins­truc­ted by the super­vi­so­ry aut­ho­ri­ty to list out­sour­ced busi­ness are­as as well as the com­mis­sio­ned com­pa­nies in the annu­al report and also to list tho­se com­pa­nies with which they coope­ra­te in an area that is fun­da­men­tal to the imple­men­ta­ti­on of social health insu­rance, such as ser­vice pro­vi­si­on, ser­vice con­trol, cost manage­ment, pre­mi­um coll­ec­tion and mar­ke­ting, regard­less of whe­ther they are social health insu­rance com­pa­nies, pri­va­te insu­rance com­pa­nies or other com­pa­nies. The­se annu­al reports are to be sent upon request; this ensu­res that inte­re­sted par­ties can obtain infor­ma­ti­on about out­sour­ced busi­ness are­as. If an insurer has not made out­sour­cing trans­pa­rent, it must be exami­ned in each indi­vi­du­al case whe­ther the­re has been a vio­la­ti­on of the sta­tu­to­ry provisions.

7. the FOPH shall super­vi­se the imple­men­ta­ti­on of social health insu­rance, which shall also include the safe­guar­ding of data pro­tec­tion by the health insurer. If an insurer has per­so­nal data pro­ce­s­sed by a third par­ty, it remains respon­si­ble for the pro­tec­tion of this data and must ensu­re that it is pro­ce­s­sed in accordance with the order. In its super­vi­so­ry acti­vi­ties, the FOPH may also issue ins­truc­tions to insu­r­ers in the area of data pro­tec­tion to ensu­re the uni­form appli­ca­ti­on of fede­ral law (Art. 21 KVG). In the event of non-com­pli­ance with the sta­tu­to­ry pro­vi­si­ons, the super­vi­so­ry aut­ho­ri­ty will take the appro­pria­te mea­su­res in accordance with Art. 21(5) and (5bis) KVG, depen­ding on the natu­re and seve­ri­ty of the case.

8. the super­vi­so­ry aut­ho­ri­ty shall moni­tor the insu­r­ers as ear­ly as at the time of reco­gni­ti­on and appr­oval for the pro­vi­si­on of social health insu­rance and the­re­af­ter by means of ongo­ing checks. In the event of defi­ci­en­ci­es, the super­vi­so­ry aut­ho­ri­ty may take appro­pria­te mea­su­res; it may issue bin­ding direc­ti­ves, impo­se admi­ni­stra­ti­ve fines and, as a last resort, with­draw the license.

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