Austria: Reimbursement For A Medicine Not Listed In The Reimbursement Code?

Introduction

In the field of medical treatment there is basically a preference of scientifically recognized conventional medical methods of treatment over alternative methods. Reimbursement of costs for alternative treatment not recognized by science cost reimbursement is granted only if the complementary medical treatment corresponds to a suitable medical treatment and does not exceed the necessary extent. If the insured person does not react positively on a medicine listed in the reimbursement code but further methods of treatment have not yet been tried, the administration of an alternative medicine is not indispensable or inevitable.

Facts

The plaintiff is in psychiatric treatment since age 15. Since 2009 he was treated with various antidepressants listed in the reimbursement code. The plaintiff showed occasionally improvements of his condition, however, also significant changes for the worse occurred. There was no exhaustive treatment with the medicines listed in the reimbursement code so that further methods of treatment under the reimbursement code are still available.

In the second quarter of 2014 a psychiatrist prescribed the medicine Dronabinol which is not listed in the reimbursement code. Dronabinol works mood elevating, sedative, relaxing, anxiolytic and analgesic. In case of depressions Dronabinol can be helpful, but this is not necessarily so, because the effect can be individually very different. The consequences are scientifically insecure. Dronabinol has also similar effects to cannabis drugs.

Since the administration of Dronabinol the general condition of the plaintiff has improved. From a subjective point of view the plaintiff has not suffered from adverse effects. In consideration of the plaintiff's individual situation a treatment with Dronabinol is medically useful.

Decisions

By decision of 4 April 2016 social security refused to reimburse the cost of Dronabinol. All three instances confirmed the decision. In its decision of 17 December, 2019¹ the Supreme Court long standing precedents and ruled:

If a condition can be treated by conventional medicine, there is no reason to finance "outsider methods" in the sense of complementary or alternative treatment.² A cost reimbursement is not excluded for alternative ("outsider") methods of treatment. However, it is limited to exceptional cases and is granted only if a complementary method of treatment corresponds to a useful treatment and not in excess of the necessary extent. This implies that an appropriate and promising treatment under acknowledged rules of medical science was not available or was tried in vain, whereas the "outsider method" was successful or seemed to be promising ex ante. If conventional methods of treatment were applied (or could have been applied) without adverse effects, there is no reason that social security reimburses the cost of alternative treatments by social security. In such a case it does not matter how high the costs of the outsider treatment are in comparison to conventional treatment.³ The jurisdiction has refused the cost reimbursement for complementary treatment if already with conventional methods would have been successful, because in such case the necessary extent is exceeded. To claim cost reimbursement for a complementary treatment it does not suffice that only one of several conventional methods has been applied.

According to the established facts the scientifically acknowledged methods of treatment have not been exhausted. The lower instances have considered the plaintiff's situation by addressing the possible effects (success and adverse effects) of conventional treatment and alternative treatment (both in objective and subjective view). As regards the significant adverse effects of conventional treatment they will not be objectively verifiable in respect of the (conventional) medicines administered nor is it certain that such adverse effects will occur in the plaintiff if the conventional methods of treatment are continued. Although the plaintiff subjectively believes that Dronabinol does not have adverse effects in him, it could not be established if the conditions the plaintiff suffered in 2016 (after administration of Dronabinol) were symptoms of his primary disease or adverse effects of Dronabinol (which occur frequently).

Therefore, the plaintiff could not prove that the prescription of Dronabinol is indispensable or inevitable. The plaintiff's disapproval of the conventional methods of treatment and his assumption that these methods are not promising and therefore unreasonable cannot justify a claim for cost reimbursement.

Comment

Although Austrian social security provides for a legal entitlement to benefits in kind (free administration of medicines listed in the reimbursement code, except for a small prescription fee) social security is reluctant to reimburse the cost of medicines not listed in the reimbursement code. This restrictive approach is supported by the Austrian courts.

Footnotes