On the difficult implementation of Section 25b of the German Social Code, Book V (SGB V)

How exactly does a health insurance company have to provide information?

"We didn't use it." This is the succinct conclusion reached by the majority of health insurance funds regarding the implementation of Section 25b of the German Social Code (SGB V) in the current MVF survey (1). The SBK has so far seen no reason to invoke the legal basis. Techniker Krankenkasse, one of the driving forces behind the German Health Data Use Act (GDNG), has also only identified a single measure. The MVF survey has been running since February – even before the BfDI circular of April 1, 2025, on the information obligations of health and long-term care insurance funds regarding the right of objection, which significantly tightened the requirements for the funds and spoke of a "multiplicity of information measures" and "conceivable building blocks."

The BfDI letter of April 1st, which some dismissed as a bad April Fool's joke, is not the issue. Quite the opposite, in fact. It is an effort to provide clarity, as Philipp Oster from BfDI Division 13 "Health and Long-Term Care Insurance, Fundamental Issues of the German Social Code" explains in his rather detailed letter to "Monitor Versorgungsforschung": "In my circular, I stated that, in my assessment, Section 25b Paragraph 3 Sentence 2 of the German Social Code, Book V, should be understood to mean that health insurance funds can fulfill their duty to inform by publicly informing the insured. The crucial factor – as the Federal Ministry of Health (BMG) also sees it – is the realistic possibility of taking note of the information."„
What exactly is this "realistic possibility" on which the BfDI and BMG are supposed to agree?
The BfDI circular (2) of April 1 states: „In my current assessment, a number of information measures must be taken for public information to be suitable within the meaning of Section 25b Paragraph 3 of the German Social Code, Book V (SGB V).” According to the BfDI, possible components of the overall measure could be:
• Clearly visible notice on the health insurance company's homepage
• Clearly visible notices in all branches
• Prominent mention in mailed member magazines
• Information included in mailings already sent, for example in the form of an enclosed leaflet.
• Information in advertising brochures that are already being sent out (by mail).
• Notifications via email newsletter
• Individualized information for policyholders, including access to electronic mailboxes (where available). With the nationwide rollout of ePA 3.0, the use of health insurance fund-specific digital service portals and electronic mailboxes is likely to increase even further. In this regard, it is advisable to examine whether individualized information can be provided to policyholders in this way in the future.
• In the future, even more insured persons should be reachable through the integration of the TI Messenger. This will make even more data protection-friendly measures available for informing insured persons.

So what now: Must all measures be used to comply with the information obligation of health insurance funds towards their insured members, as explicitly intended by the legislator?
Section 25b (3) merely states that insured persons must be "publicly informed in a suitable manner about the existence of the right to object." However, it left open which generally accessible channels are suitable within the meaning of the provision.
The Federal Commissioner for Data Protection and Freedom of Information (BfDI) also remains vague on this point in its circular, but elaborates somewhat. It writes: „The suitability of public information must be assessed on a case-by-case basis by means of an overall review. It must be taken into account that even insured persons who use digital services are likely to visit their health insurance company's website only very rarely, if at all. So-called ’offline“ individuals and vulnerable groups will not be reached by this information measure. An information channel that cannot reach the sphere of the insured is not suitable.”
In individual cases, it should also be examined whether the information about the existing right to object is prominently displayed on the website or whether its placement makes it easily overlooked. The Federal Commissioner for Data Protection and Freedom of Information (BfDI) further stated: „Similar challenges arise with information provided in member magazines. Insured persons do not expect – and should not expect – that a free magazine will contain information (possibly only once) relevant to safeguarding their right to informational self-determination. These considerations lead to the conclusion that individual public measures are generally unsuitable for fulfilling the information obligation under Section 25b Paragraph 3 of the German Social Code, Book V (SGB V), due to a lack of awareness or the lack of opportunity to become aware of them.“
To shed more light on this matter, the "Monitor Versorgungsforschung" (Healthcare Research Monitor) contacted the Federal Ministry of Health (BMG). Hanno Kautz, head of division L 7 at the BMG, wrote in an email to the editorial team that his office is "very interested" in seeing the new opportunities offered to health insurance funds by Section 25b of the German Social Code, Book V (SGB V), fully utilized. The legally mandated transparency requirements, including the public information obligation under Section 25b, paragraph 3, sentence 2 of the SGB V,
were deliberately formulated in this low-threshold form by the legislator.
The Federal Commissioner for Data Protection and Freedom of Information (BfDI) circular requires that the information pursuant to Section 25b Paragraph 3 Sentence 2 be provided "in a suitable manner." This request, according to Kautz, "is fundamentally understandable." However, the "legislatively intended low-threshold access to information should not be undermined by an interpretation not intended by the legislator." In particular, Kautz argues that health insurance funds cannot be required to provide information tailored to each individual insured person. The legislator "specifically intended to mandate public information, not individual information for each insured person." This is stated in the explanatory memorandum to Section 25b Paragraph 3 Sentence 2 of the German Social Code, Book V (SGB V).
This has been clearly and repeatedly expressed. Therefore, according to Section 25b Paragraph 3 Sentence 2 of the German Social Code, Book V (SGB V), health insurance funds would not be obligated to inform their insured members individually. Kautz: "In our understanding, the 'multiple information measures' required by the Federal Commissioner for Data Protection and Freedom of Information (BfDI) are already met if health insurance funds take two measures to provide information." For the unbureaucratic implementation of this obligation, information on the health insurance fund's website in conjunction with notices posted at the branch office would suffice. The latter also allows people without internet access to take note of the information.
Does this mean that there will only be 2 measures instead of 7? What does the Federal Commissioner for Data Protection and Freedom of Information (BfDI) say about this?
In his detailed letter to MVF (4), Philipp Oster from the Federal Commissioner for Data Protection and Freedom of Information's (BfDI) Division 13, "Health and Long-Term Care Insurance, Fundamental Issues of the German Social Code (SGB)," explains this as follows: He illustrates this with the example of the information channels "members' magazine" and "website notice": "The group of people affected by an evaluation will, in most cases, consist of a larger group of individuals. Some of these individuals will have internet access, others will not. Some will receive their health insurance fund's members' magazine, others will not. The larger and more heterogeneous the group, the greater the likelihood that some will have neither internet access nor receive a members' magazine. Therefore, if the information is disseminated via only one or two channels, the probability of failing to reach individual people increases with the size of the group. For this reason, I stated in my circular that providing information solely on the health insurance fund's website or in the members' magazine as a standalone measure does not appear suitable." However: „If the cash register can ensure that all persons affected by an evaluation are informed via only one or two channels
"If the recipient has a realistic opportunity to take note of the information via at least one of these channels, then Section 25b of the German Social Code, Book V (SGB V) would be fulfilled." (Circular dated April 1st)
In 2025, he stated the following: "The crucial point is that every affected person has at least a realistic possibility of actually being reached by one component of the information measure."„
Two measures will be combined into one? But will it be sent by mail?
In response to MVF's inquiry, "What do you understand by the sentence 'must... be referred to the insured's individual information at a second stage'? Does this mean mandatory communication by letter or also via other information channels (email, social media, etc.)?" Oster replied: "Insured-specific information regarding an objection is information provided via an individual communication channel (e.g., by postal mail or message in electronic mailboxes). Insured-specific communication is only required if the health insurance fund determines during its review that no suitable public information measures are available to reach all those affected by the evaluation."„
This, in turn, contradicts what Christoph Wagenblast, legal advisor in Department 511 "Fundamental Issues of New Technologies and Data Use" of the Federal Ministry of Health, stated in the accompanying chat at the WISO vaccination congress on April 2nd of this year: "The information must be provided at least by letter. Other means of communication are also possible under the law." He is thus following the wording of paragraph 4 of the legal text (3), which states: "The information pursuant to sentence 1 shall be provided in writing and may, if necessary, also be provided in another suitable form."„
from:
MVF editor-in-chief Peter Stegmaier