On The Proposal To Repeal Cer. The Provisions Of Law No. 48/1997.

Original Language Title: ve věci návrhu na zrušení někt. ustanovení zákona č. 48/1997 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=80329&nr=238~2F2013~20Sb.&ft=txt

238/2013 Coll.
FINDINGS


Constitutional Court
On behalf of the Republic


Constitutional Court decided under ref. Nos. Pl. US 36/11 of 20 June 2013
Plenary composed of the Chairman Pavel Rychetsky court, judge Stanislav Balik
, Jaroslav FENYK, John Philip Vojen Güttler, Pavel Holländer
, Ivana Janu, Vladimir crust Dagmar Lastovecká,
Jan Musil, Jiri Nykodým, Vladimir Sládečka, Milady Tomkova and Michaela
Židlická on the proposal of 51 deputies of the Parliament of the Czech Republic
whose behalf he is acting deputy Mgr. Bohuslav Sobotka,
the annulment of § 11 para. 1 point. f) § 12 letter. n), § 13.
3-8, § 16a par. 1 point. f), par. 9-11, § 17 para. 4
words "and marked variations of health care according to § 13," § 32 par. 5 and § 44 paragraph
. And paragraph 5. 6 the words "imposed by paragraphs 1-5" Law no.
48/1997 Coll., On public health insurance and amending and supplementing
some related laws, as amended by Act no. 270/2008 Coll., Act No.
. 59/2009 Coll., Act no. 298/2011 Coll. and Act no. 369/2011 Coll.
supplemented by an alternative proposal to repeal the provisions of § 11 para. 1 point.
F), § 12 para. 1 point. n), § 13 para. 3-8, § 16a par. 1 point. f)
paragraph. 9-11, § 17 para. 4, the words "and marked variations
health care according to § 13," § 32 par. 5 and § 44 par. 2 and par. 3
words "imposed by paragraphs 1 and 2 "Act no. 48/1997 Coll., on public
health insurance and amending and supplementing some related
acts as amended by Act no. 270/2008 Coll., Act no. 59/2009 Coll.
Law no. 298/2011 Coll., Act no. 369/2011 Coll. and Act no. 458/2011 Coll., as
participation of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic as parties


Follows:

I. § 11 para. 1 point. f) § 12 letter. n), § 13 para. 3-7,
§ 17 par. 4 the words "and marked variations healthcare under §
13" Law no. 48/1997 Coll., on public health insurance and amending and
some related acts, as amended, and
§ 12 para. 1 point. n) of the Act no. 48/1997 Coll., on public health
insurance and amending and supplementing some related laws, as
after the amendment made by Act no. 458/2011 Coll. abolishing the date of publication
in the Collection of laws.

II. Day this judgment in the Official Gazette cease simultaneously
validity of the annex of the Ministry of Health no. 134/1998 Coll
., Which publishes a list of medical procedures with point values ​​
amended, and the part of the Annex, which is the symbol
'E' indicates that it is an economically demanding variant healthcare
according to § 13 par. 5 of Law no. 48/1997 Coll., on public health
insurance and a change supplementing certain related acts, as amended
.

III. § 16a par. 1 point. f) of the Act no. 48/1997 Coll., on
public health insurance and amending and supplementing certain
related laws, as amended, abolishing
expiry on 31 December 2013.

IV. § 13 para. 8 of the Act no. 48/1997 Coll., On public
health insurance and amending and supplementing some related laws
, as amended, shall be canceled on the day of judgment is published in the Official Gazette and
§ 16a par. 9-11, insofar as they relate
charge for inpatient care under § 16a par. 1 point. f)
Act no. 48/1997 Coll., on public health insurance and amending and supplementing certain
related laws, as amended,
§ 32 paragraph. 5 and § 44 para. 5 and Article . 6 the words "imposed by
paragraphs 1 to 5." Act no. 48/1997 Coll., on public health insurance
amending and supplementing some related laws, as
amended, and § 44 paragraph. 2 and par. 3 of the words "imposed by
paragraphs 1 and 2 of" Law no. 48/1997 Coll., on public health insurance
amending and supplementing some related laws, as after
amendment by Act no. 458/2011 Coll. abolishing the expiry on 31 December 2013.

Reason


I.

Definition matter and recapitulation draft

First Constitutional Court on 14 December 2011 received a petition of 51
Members of Parliament of the Czech Republic to the quashing of the designated
(parts of) the provisions of Law no. 48/1997 Coll., On public health

Insurance and amending and supplementing some related laws, as amended
Act no. 270/2008 Coll., Act no. 59/2009 Coll., Act no. 298/2011 Coll. and
Act no. 369/2011 Coll., for their inconsistency with the Constitution and the
Czech Republic's obligations under international treaties on human rights
. The petitioners challenge the court subsequently modified the petition
so that take account of amendments to the Act no. 48/1997 Coll., On public health
insurance and amending and supplementing some related laws, as
amended (hereinafter "Act on public health insurance
") by Act no. 458/2011 Coll., on the amendment of laws
related to the establishment of a single collection point and other changes
tax and insurance law, which becomes effective 1 1st 2015.
contested legislation

- Distributes health care, respectively. health services, in terms of payment of
public health insurance option for basic, fully paid, and
option economically demanding that beyond the payment provided for
basic care from public health insurance paid
not,

- Increases daily regulatory fee for the provision of inpatient care from CZK 60 to CZK 100
,

- Authorizes health insurers to punish providers of health services
for infringement of certain obligations imposed on them by the law on public health insurance
.

Second According to the petitioners adopted legislation in conflict with Art. 6 paragraph.
1 of the Charter of Fundamental Rights and Freedoms (the "Charter")
guaranteeing the right to life, Art. 31 of the Charter guaranteeing everyone the right to protection
health and citizens on the basis of public insurance under the conditions set
law the right to free health care and to medical aids, Art.
4 par. 4 imposing skimp when applying provisions on limits
fundamental rights and freedoms of their nature and the sense of Art. 1 of the Charter
declaring equality in dignity and rights, Art. 3. 1 of the Charter
guaranteeing fundamental rights and freedoms for all without distinction
property or other status, and Article. 11 paragraph. 1 of the Charter , under which the ownership right of all owners
same statutory content and protection. Simultaneously contested
rules run counter to the obligations arising from Article. 12 paragraph. 1 and Sec. 2 point. c)
d) of the International Covenant on Economic, Social and Cultural
Rights, Art. 11 paragraph. 1 and 3 and Art. 13 of the European Social Charter, Art. 3
Convention on Human Rights and Biomedicine, Article . 24 paragraph. 1 and Sec. 2 point.
B) of the Convention on the Rights of the Child and Art. 25 point. a), b), d) and f) of the Convention on
Rights of Persons with Disabilities.

A) Distribution of health services at primary and economically demanding

Third The mere change of terminology, the term "health care" was
law on public health insurance replaced by "
health services", according to the petitioners captures the overall intention of the legislator
directed to the concept of customer medicine provided according to economic criteria
option "client". Statutory regulation allows to distribute health care
according to its economic performance of the system, not its effectiveness in terms of medical
. The formulations are as yet very vague in the law
completely absent defining features of both variants of a single resolution,
which is "effective and efficient spending of resources
public health insurance." Also, not all define the criteria by which it would
to determine the cost of health care in differentiating the
basic and economically demanding variant. It is not so clear whether
criterion should be the price of medicines, medical costs
material, medical equipment, medical devices, price, quality
care in health care facilities (food, equipment room, ancillary services
) the amount of remuneration of health workers, staff and technical equipment or
current level of reimbursement of medical services to individual
under a contract for the provision and payment services paid under the Act on public health insurance
. Condition resolution of both variants, ie
opportunity to provide health services to more than one way
says nothing about what the law is guaranteed
standard medical care. The petitioners in this regard on the judgment file. Nos. Pl. US
35/95 of 10. 7. 1996 (N 64/5 SbNU 487; 206/1996 Coll.), In which

The Constitutional Court stated that 'the right of citizens to free health care
and medical devices is the subject of a constitutional requirement and scope of the public
insurance ". This constitutional safeguards Constitutional Court reiterated in the judgment file.
Brand. Pl. US 14/02 of 4. 6. 2003 (N 82/30 SbNU 263; 207/2003 Sb.).
Here the Constitutional Court also stated that "the constitutional and statutory principles
not this sort of care divided into basic, cheaper 'but less suitable
and less effective, and superior, more expensive', but
better and more efficient. The difference between standard and extra care must lie in
differences in the appropriateness and effectiveness of treatment. The law does not regulate what
care physician may respectively. medical devices provide, but which must
in the public interest to provide that all insured should
equally entitled to such care and treatment, which correspond
objectively identified needs and requirements of appropriate standards and medical ethics
. Developmental orientation of health care, backed by laws, is therefore
based not on the move, the better 'acts of free health care
into the realm of the insured paid directly, but rather in the direction of improving
acts provided free of charge by public health insurance " .
Contested by the petitioners consider discriminatory, since access to
economically demanding variant will depend on the willingness or ability
pay the cost of health care, rather than on the need of pumping.
It creates a real dual health care - for those who have only basic
option, and wealthier, who can afford variant
economically demanding. The petitioners express the conviction that
healthcare providers will prioritize policyholder who chooses
economically demanding variant, since it will be economically
involved. Conversely policyholders who choose the basic option, will
recorded in the medical records identified as those who
does not bring anything extra, and will therefore be sanctioned, for example latency for
utilization of health services. Insurance companies will actually be a legal prohibition of such conduct
control very difficult. The introduction of two variants
health care according to the criterion of whether the insured has the means to
from his care suffered from, is the negation of the principle of equality of people in dignity and rights
. The petitioners point out that on the unconstitutionality
accepted the changes and the consequences caused by their application pointed
individual lawmakers in their speeches in plenary debates
Chamber of Deputies and the Senate, the representative posts in the draft
quote.

Fourth According to the Charter can limit fundamental rights and freedoms determined only
law and the right to health protection may be claimed only within the limits
implementing laws. The law on public health insurance
while taking into account the fact that the level of reimbursement for health services in the basic version, as well
definition of health services, which are economically challenging
option, the implementing legislation, namely the Decree of the Ministry
health. It also provides a list of medical procedures with point values ​​
labeled versions of health care. Even in this case already
during the adoption of amendments to some lawmakers warned
violation of the constitutional principle that define the conditions for the provision of health care and
conditions of entitlement to free health care can only
law. 31. 3. 1997 analogous rule contained in the Act no. 20/1966 Coll.
On public health care, as amended, under which
health care for full or partial payment or its amount | || should further specify the Ministry of health in agreement with the Ministry of Finance Decree
. Related provisions of the Act no. 550/1991 Coll., On
general health insurance, as amended,
conferring determine areas of care fully paid and partially paid
the Health Regulations, which were empowered to issue a Government Decree.
This legislation abolished the Constitutional Court in its judgment file. Nos. Pl. US 35/95 (no.
206/1996 Coll.) That "can not be allowed to define the scope of the above
provided health care for full or partial payment has been
left to modify other than statutory law regulations ". Now
contested by the shows to what he referred to the Constitutional Court finding

Canceled, according to the petitioners completely identical features an unconstitutional restriction of fundamental rights
.

B) Increased regulatory fee

5.Navrhovatelé anticipate that unconstitutional means all
regulatory fees introduced by Act no. 261/2007 Coll., On stabilization of public budgets
taking in this direction identify with the arguments contained in different
opinions seven judges of the Constitutional court
brought to judgment file. Nos. Pl. US 1/08 of 20. 5. 2008 (N 91/49 SbNU
273; 251/2008 Sb.). Note, however, that elect not to repeat the same
assessment, that whole complex regulatory fees, but quite
new legislation increasing regulatory fee for each day
providing inpatient care from CZK 60 to CZK 100. Reasons for the increase of the entire 2/3
thus significant amount were justified merely declarative, without proof
necessity and rationality of such a measure, moreover reservation in
amendment procedure raised by the Ministry of Finance.
Since the introduction of the charge in 2008, not enough to significantly increase costs even
segment of inpatient health care facility or health care
as a whole. Increase does not match the rate of inflation or the growth of nominal and real wages
. The amount of increase is not negligible, especially for some social groups
be a barrier to accessing health care, particularly when
There are no protective limits. Significantly negative impact has
increase to disabled persons. Increase the fee has
opinion of the petitioners, in particular in relation to such groups of policyholders, such as
children, the elderly, the disabled and the socially weak,
"choking effect".

C) Authorization health insurers penalize providers of healthcare services


6th Insurance companies are subject permission is given, though no bodies
public authority and are not fundamentally against the providers of health services
not in a position of authority or position of authority in
apply to them too public. Relations between
health insurance and medical service providers stands on a private basis
is applied between the principle of private autonomy. Indeed, this approach
lawmaker criticized by some judges of the Constitutional Court in its
dissenting opinions cited above finding sp. Nos. Pl. US 1/08.
Health insurers have a very wide discretion when imposing fines
, both in terms of the amount, as well as storage and reuse.
Maximum fine is considerable and it can threaten the very existence of economic
healthcare providers.
The petitioners express concern that health insurance can through this sanction
privileges directly or indirectly act on healthcare providers
in relation to the conclusion, performance or termination of the contract on the provision and payment
paid services, especially the or if they were together in the dispute.
In cases where the imposition of a fine constitutes a reason for the termination of the provision and payment
paid services without notice (§ 17 para. 2
law on public health insurance), health insurance company can act as
real "judge in his own cause". In contrast
provider of health services in any similar punitive
public authority does not have the health insurance company.

II. A)
Observations of the parties


7th The Constitutional Court sent the petition to open proceedings in accordance with the provisions
§ 69 of Act no. 182/1993 Coll., On the Constitutional Court, as amended
amended (hereinafter "the Constitutional Court Act"), the parties -
Chamber of Deputies and the Senate of the Parliament of the Czech Republic.

8th Deputies responded to a brief statement.
Recapitulated in it the legislative process, with the subject
laws amending the law on public health insurance
considered duly adopted and published. Assessment of the contested provision leaves entirely
consideration by the Constitutional Court.

9th The Senate, in its statement did not clearly support either
the petition nor the contested legal regulation. He noted that issues
great attention was paid already in the Senate bodies, where
well as subsequently in the debate in plenary prevailed reservation
senators evaluating the proposal as unconstitutional, as opposed to the minority opinion
agree with the proposal. This was also reflected in the poll. in

Statement is followed by discussion of the amendment described in relation to
individual provisions now proposed to abolish. Overall, the Senate also
leaves entirely to the Constitutional Court to assess the individual parts
as the final decision.

10th Possibility of Government and the Ombudsman to intervene in
intervener status, anchored with effect from 1
1st 2013 § 69 par. 2 and 3 of the Constitutional Court, as amended by Act No. || | 404/2012 Coll., applies only to proceedings initiated after 1 1, 2013 (see
announcement of the Constitutional court no. 469/2012 Coll., on the effects of Act no. 404/2012 Coll
., which amending Act no. 99/1963 Coll., Civil procedure Code, as amended
amended, and certain other laws, to
still open proceedings before the Constitutional court initiated before 1 1, 2013).

II. B)

Opinions of other stakeholders

11th The Constitutional Court considered it desirable to obtain a more comprehensive view of
raised the issue addressed because other entities representing
individual interest groups which opposed expecting stance on the subject
reform. In order to maintain the balance of opinion provided the following
opportunity to comment on the proposal especially the Ministry of Health as
processors health care reform, as well as the Association of Health Insurance
Czech Republic General Health Insurance Company, Czech Medical Chamber and the Association of Patients
Czech Republic.

12th The Ministry of Health has submitted a proposal for a detailed opinion
structured according circuits defined in the proposal.
Established finish elementary and economically demanding care as to the constitutionality by the conviction will stand
Ministry of Health, which shows an overview of the supporting points
modifications: a) guaranteed a complexly conceived health care covered by health insurance
, defined qualitative characteristics; b) healthcare
must be truly effective; c) must be truly effective both variants
care; d) the insured has the right to offer basic variants
fully paid and information about the economically demanding variant, including the difference in price;
E) in the case of elections economically demanding variant pays insured
only difference from the basic variant; f) pricing economically challenging
variant is publicly available; g) It is forbidden to prioritize patients
selector economically demanding variant; h)
economically demanding variant of the ice itself, which is designated as such in the Regulations;
I) of free care does not become paid, the amount of fully paid care
remains unchanged. The Ministry of Health strongly disagrees that it lacks
basic definitions and economically demanding care. § 13 para. 1
law on public health insurance provides the policyholder is entitled to
health care covered by public health insurance, which is herein defined as general
characters (aims to improve or maintain the health status
or alleviate suffering, must conform to the state of health of the insured and
purpose to be achieved is in line with current available
findings of medical science and the evidence of its effectiveness).
Highest possible standard of health care equivalent health status and needs of the patient
within the meaning of the same therapeutic effect is always secured by
both variants, ie variants also essential. Only if it can provide health care
satisfying those criteria § 13 para. 1
law on public health insurance more ways that have the same therapeutic effect
is a criterion for payment of the possible options and practical
economical spending of public health insurance
. When comparing the costs of the various options to them must be
includes everything with the provision of such care is related to (the performance itself,
length related hospitalization, medicines, medical devices, etc.).
No medical care which can be provided only way in
not qualify as economically demanding variant. Process operator
health services will always be such that the physician assess the medical condition of the patient and
him unfolding purpose of providing health services,
provides optimum alternative care, which is for the case becomes
basic variant, and only then will consider whether the relevant
medical treatment options exist economically challenging with identical

Therapeutic effect. Determine the conditions under which it will be possible to identify
variant of care, not left to the discretion of the Minister, editing
implementing regulation merely implements the relevant provisions of the Act that
application of general statutory limit for the participants was as simple and
user comfort. The authorization reflects the efforts of lawmakers
optimally configure the system so that the exhausted, but at the same time allow
realization of the rights guaranteed by the Charter. With concepts of purpose and efficiency
paid care when the purpose is the medical aspect
reflecting the interest of the patient and the economy reflects the limited volume
public health insurance funds. The described method and new
legal limits already applied in the Ministry of Health Decree no.
411/2011 Coll., Amending Decree of the Ministry of Health no.
134/1998 Coll., Issuing the list of medical services
point values, as amended;
economically challenging alternative health care is only that which the patient does not already
improvement of medical terms, but it brings him comfort or increased
fills his subjective preferences (some vaccinations
fixing plaster etc.). . The Ministry of Health also disagrees with the way comparisons
legislation now contested with that which has been annulled
Constitutional Court judgment file. Nos. Pl. US 35/95 (no. 206/1996 Coll.), Respectively.
s assertion that exhibit similar features. Now the definition of both variants,
both in joint elements (same therapeutic effect) and differing
(compliance with efficient and economical spending of public resources
health insurance) provided directly by law.
In the previous case, it was only the implementation regulation - expected Health Regulations.
Regarding the increase in the regulatory fee, certainly does not create a barrier
access to health care. His pay is enshrined as a condition for granting
covered health care, the service provider must
health services provided regardless of whether the fee was paid
or not. Analysis of statistical data
Ministry of Health found that the system of regulatory fees, as it was from 1
first set in 2008, in no way did not limit the availability of health care, and it
even for the poorest citizens. Performed the intended purpose
regulatory effect on the health care. The level of increase is based on economic calculations
above the daily cost of consumption, 10% of households with the lowest incomes
Czech Republic recalculated per capita
(do not count spending on housing, but food and beverages, tobacco,
water, electricity, gas and fuel
outpatient medical care, fuel and oil, cultural services, recreational and sports
services, gambling and lotteries, restaurants and cafes and canteens), which
2010 amounted to CZK 99.74. Therefore the proposed measure can not be
proclaimed strangling effect. Finally, the Ministry of Health with
petitioner does not agree that it would be contrary to the constitutional order
authorization of health insurance providers to penalize health care
. It points to other cases where the law confers on the performance of public administration
person of private law, moreover, in the case of the state and public corporations
is common that in addition to public relations act as
private entities. The mingling of private and public law and from him
unfolding mixed nature of the activities of institutions and border
public and private law, expressed repeatedly by the Constitutional Court
[Department of Health refers to decision no. Ref. II. US 75/93
dated 25. 11. 1993 (U 3/2 SbNU 201) and sp. . I. ÚS 41/98 of 1
12th 1998 (N 147/12 SbNU 363)]. In the present case, the government
expressly delegated by law, are precisely defined cases, conditions and
sanctions to process health insurance covers administrative order
and their decision is reviewable by a court. According to the Ministry of Health
arrangements similar to cases where the state through
administrative authorities impose sanctions for violations of the law to those with whom
concluded or may conclude agreements with different filling.
The current legal arrangement allows insurance companies penalize the insured and employers
against which the petitioners surprisingly nowhere accepted them.
Legislative solution is not only justified, but also useful, because insurance companies have

Necessary data from health providers and the insured.
It is mostly about personal data, which further threatens their transmission protection.
It can also point to the current practice where the fine was imposed in only 93 cases
and selected only in 41 cases, for a total amount of 587 500 CZK.

13th Association of Health Insurance Czech Republic through its
president also rejected the petitioners' arguments.
Distribution of health care can not be given the same therapeutic effect
discriminatory. Association of health insurers after the division of care
standard and superior long calls and the introduction of legal options
you pay extra for health care of welcomes. Legislation on the contrary relaxed
availability and economically demanding variant of health care for those
who could not afford to pay the entire medical device or
service because today you pay extra only difference.
Increase regulatory fee must be seen in the overall context editing when on the other hand
was canceled fee per item on a prescription. In his
result, there was a larger group of patients to reduce the burden.
In addition, there is the possibility of ever paying the regulatory fee, in the case of insured
receipt of benefit in material need. Regarding permission
insurers penalize medical facilities must be according to the Association of Health Insurance Companies
distinguish two different, independent relationships that may
between the insurance and healthcare facilities arise;
on one side purely commercial relationships, and on the other the relationship public,
the insurance company acts as an executor of public power.
By the Constitutional Court in its judgment. Nos. Pl. US 1/08 came to the conclusion that it is the will of the legislature
which entity will equip public sanction powers.

14.Všeobecná health insurance with the petitioner also disagrees.
Introduction Luxury is the modern way to achieve the public interest and
step forward. Contested adjustment can not be considered discriminatory nor
preventing access to care. Paid health care must conform
condition of the patient and the purpose to be achieved. It follows that if
for a particular policyholder an economically demanding variant
only option for health care, it becomes the basic variant.
Differences variants not lie in the appropriateness and effectiveness of the treatment, the law clearly requires
same therapeutic effect. General health insurance
attention to the fact that participation in medicines
establishes the State Institute for Drug Control mere decision time is also used
system variants reimbursement for eyeglasses. Conditions are clearly laid down by law
(of equally effective treatments is they only pay the cheapest)
list of health care services does not decide about anything, only refers to those
performances that law filed their prize between paid only up
cheapest alternatives. Regarding the fee for inpatient care, he is
proved itself in regulating the overuse of care.
While an increase was necessary in order to be really demotivating effect. Can be sure for certain groups of policyholders
loads, however, to deal with these situations
has become a tool in the field of social security. You can not overlook that in
children and seniors has been reduced to the limit (other) regulatory charges
thereby reducing the overall burden. Finally, the possibility of imposing sanctions
public is the best way to force providers of health services
duties. Health insurance companies are public institutions
minimize abuse of power by them is ensured by storing
fines in administrative proceedings with the possibility of judicial review.

15th Czech Medical Chamber with division distinguishes two aspects of care.
First, the actual distribution of medical procedures
same therapeutic effect on your performance in the basic version and variant
economically challenging surcharge insured, which itself
does not itself unconstitutional. The insured has in the existing legal
adjustment under § 13 of the Act on public health insurance
guarantee that health insurance are covered by all health
services that are necessary to protect their health, but their way
execution, if it can in some cases be different, you can choose yourself
and comfortable voluntarily pay extra. In the situation where the

Czech healthcare repeatedly confronted with serious economic problems
and when in the neighboring democratic countries there is a possibility for citizens to regularly
additional insurance, the general health insurance covers only
care essentials, is the possibility of additional payment for certain extras
desirable and healthcare providers themselves called after him. Additionally
newly calculated only difference between more comfortable or less comfortable
performing the medical procedure or medical device, which is, according
Czech Medical Chamber for insured positive as yet have had such
performance or utilities to pay completely alone. Regarding the second point, therefore
method of selecting individual operations where possible variants care and utilities
offer, he is left to a purely administrative clerk procedure -
Ministerial Decree (current practice is that the Ministry | || health decides in a decree establishing a list
medical procedures with point values, what performance can be offered in addition to basic
even in economically challenging variant). The fee for the provision of residential care has
Czech Medical Chamber only terminological reservation
because it is in fact a payment for hotel services. It is more or less a
services that would hospitalized patient would have to pay even at home
environment (food, light, heat, bed linen).
Against the increase as such does not object, according to her, apparently corresponds
increased costs to which in four years has occurred. Finally, permission
health insurance providers to penalize them according to the Czech Medical Chamber
situation when it comes to contractors and unprecedented in democratic countries
excluded. In a broader context reminds repeatedly criticized
unequal position of insurance companies and health care facilities, and draws attention to the problem
more onerous than the one contained in the proposal, namely
distorted and opaque rules on contracts for the provision of care between
insurance and healthcare facilities; about the existence and nonexistence
private physician, respectively. medical devices are decided upon by the favor or disfavor
official monopoly health insurance, not preference
patients.

16th Association of Patients Czech Republic to the apportionment care options
contrary, agrees with the opinion of the petitioners. Only
doctor can decide what is in a particular case must be patient and
do just that is to be covered by public insurance. According to the union even
need to completely disable the parallel provision individually
paid care workers in facilities contracted for public insurance.
Reject all restrictions on the payment of health care, whether it be determined
law or regulations, because they are fundamentally inconsistent with Art. 31
Charter. Also refuse regulatory fees, including charges for inpatient care
because they have nothing to regulate. Number treated after their introduction
dropped just the poorest, but who are really sick.
Conversely spread phenomenon called to control examination, from which you
made some significant trade providers. The fee for hospitalization
is inconsiderate, therefore, support the argument for his proposal
repeal. Sanctions that insurance companies may impose on providers
are absurdly high, the real motivation for their introduction had to be
provide a tool to destroy certain providers of health insurance
. The opinion of the Association of the Czech Republic patients were
statement of the National Council of Persons with Disabilities. She considers it important
this topic the issue
fees in health care. With their payment fundamentally disagree. For handicapped patients
performs no regulatory role, hospitalization in children are associated with a variety
always unpleasant, in a statement described the obstacles
hospitalization and therefore tries to avoid the contrary. These patients also have health problems
frequently, a stay in the hospital is longer
generally difficult to treat. These persons are further limited in earnings
options realistically offer job opportunities for them is minimal.
Invalidity pensions are usually their sole income,
are very low and set the fee for inpatient care for them
is unacceptable. A model example of the National Council of Persons with Disabilities
calculates that for disabled persons can be

Payment of regulatory fees, esp. A fee for hospitalization
economically liquidation.

II. C)

List of foreign regulations

17th The Constitutional Court has provided further information on the issue
standard and above-standard health care and the patient co-payments, as addressed
legislation in neighboring Having regard to the historical context for us
relevant countries.

18th On the Slovak defined by the Act no. 576/2004 Coll., On health care
services related to the provision of health care and amending and supplementing certain acts
, health care as "a set of working
activities they carry out health workers, including
provision of drugs, medical devices and dietary foods with
to prolong the life of a natural person (the person ')
increasing the quality of life and a healthy development of future generations; zdravotná
care includes prevention, dispenzarizáciu, diagnosis, treatment,
biomedical research, nursing care and birth
assists. "At the same time establishes the principle of equal treatment, according to
" Right on the provision of health care is guaranteed equally
each in accordance with the principle of equal treatment in health care
is the designated special rules. In accordance with the principle of equal treatment shall
prohibits discrimination on grounds etc.
sex, religion or belief, marital status and
marital status, color of skin, language, political or other
mindsets, trade union activity, national or social origin,
disability, age, property, birth or other status. "
care in terms of coverage by public insurance divided
conditions provided for by law no. 577/2004 Z. z. on the scope of health care covered
basis of public health insurance and payments for services
related to providing health care, supplemented by Government Decree no.
722/2004 Coll., on the insured amount of payment for services related to
providing health care, and government decree no. 777/2004 Coll.,
laying down the list of diseases in which the medical services
partially reimbursed or not cover the system of public health insurance
.

19th On the issue of direct payments from patients in its judgment. Nos. Pl. US 38/03
dated 17 May 2004 (no. 396/2004 Coll.), Issued in proceedings on the petition
concerning "certain part of the charging scheme for granting
health care provided under health insurance as well
acts and activities that although the healthcare-
provided under the health care insurance are closely related, but
not form part of it immediately, "the Constitutional court of the Slovak Republic
. When analogous wording of Art. 40 Slovak Constitution and Art. 31 Czech
Charter formulated the legal sentence that "free care under Art. 40 of the Constitution
has his, range ', ie. That not everything was provided free of charge."

20th In Austria - but at a different structure of public insurance (about 80%
Austrian population is covered under the Law on General
social insurance, the remaining population groups, such as.
State officials are insured under special regulations exist called.
state insured, the cost of care employed inactive people are
included in health insurance contributions of others;
You can also enter an optional extra private insurance) and other
expenditure structure (approximately half the expenditure
health care is financed by contributions from health insurance, a fifth of tax revenues and over a quarter
financed directly by the citizens) - Shares care in terms of payments
so that every public hospital must be made "universal class" | || (fee / class accommodation). Until that are accepted all of those
not require admission to a special class. Besides the general fee class
may be in a public hospital set up a "special class", which is designed for receiving
persons or their family members who have admitted to this class
request and based on their income or financial situation
are able to make contributions to the day of treatment and other payments
special class for themselves or their family member [see eg.
§ 32 of the Act on the ground for hospitals Vienna (Wiener Krankenanstaltengesetz 1987
- Wr. KAG)]. Reimbursement for care (fees / contributions for the care called.

"Pflegegebühren") in a general class are (with certain exceptions)
pay all hospital performance (since 1997 in Austria
reimbursement of hospital care is largely dependent on the executed medical and nursing interventions
) . To payments for care are not included eg.
Costs of transport of patients to the hospital and her fabrication of dentures
- if not associated with treatment provided in a hospital, making
orthopedic aids (substitution of parts of the body) - if
not a therapeutic support, as well as funeral expenses of the deceased individual
hospital [see § 44 para. 4 of the hospitals for the country
Vienna (Wiener Krankenanstaltengesetz 1987 - Wr. KAG)].
The same applies to additional practices that are not associated with medical procedures (
nothing to do with healing powers) and are provided at the explicit request of the patient. Besides
payments for care (payments from insurance) may be required
special charges (ie. "Sondergebühren") and royalties. This is eg. A fee
Hotel accommodation in a special class called.
Outpatient fee (ie. "Ambulatoriumsbeitrag", which was reportedly canceled in 2003,
because many citizens were exempt from the fee)
further costs for transportation of patients, dental restorations, if not in association with treatment in hospital
orthopedic appliances, etc. Since patients in a particular class may also require
called. contracting (medical) fee [cf. § 45a of the country
hospitals for Vienna (Wiener Krankenanstaltengesetz 1987 - Wr.
KAG)]. The same is true regarding the fee for laboratory or consultant
examination, X-ray or other physical performances and special activities
medical specialists, such as for anaesthesiology and intensive medicine
. It is therefore a performance under private contract. On
attending physician then feels part of the contractual fee (not less than 40%
). The hospital continues to levy the so-called. 'Contributions to the cost. " There are also
set exceptions, ie. Some people this is not true or have a reduced rate
(with respect to income - eg. If the patient
income does not exceed 900 €). Payments for care and, if necessary.
extra fees are published in the Provincial Law Gazette (the Journal) provincial government, and it
form of regulation. Hospitals will charge patients fees
last day before the release, after expiry of six weeks from the due date
account may be charged to the statutory default interest - the assumption
undercapitalisation patient after discharge from the hospital and he gives you time
for later payment, only then will apply the law regulated interest.
Against bill payments a person may be filed within two weeks of exposure
account - written or oral objections. About the objection decides
municipality as a regional administrative office. For certain groups of people exist in paying
participation exemption. Participation is normally required for dentists,
non-contracting physicians, therapists, psychologists, and so on. Some performances or
resources (such as dental bridges), the patient pays the full amount himself.

21st In Poland (see Improving THE HEALTH-CARE SYSTEM IN POLAND, document
OECD. JT03321394 of 10. 5. 2012), access to basic care to ensure
without limitation, general health insurance.
Health care is divided into standard and premium.
Most basic care, regardless of ownership status of the provider is still
covered by public health insurance. Poland pays for the health care system
7.4% of GDP. The share of privately owned facilities
outpatient care increased from 42% in 2000 to 82% in 2009 and
increases overall utilization of ambulatory care. Poland is among the OECD countries
having a high proportion of direct payments (drugs, reimbursement for medical care
specialized doctors in private facilities, payments for dental
doctor prepaid packages of medical services paid by the employer to the employee
). All these services are nominally paid separately
because there is no private insurance, although discussions about the need to introduce private health insurance
takes place in Poland for at least ten years.
National Health Fund (hereinafter "NFZ") is a nonprofit organization whose
primary mission is to provide access to public insurance
healthcare. Service providers is to ensure equal treatment
. NFZ is fully responsible for needs assessment and control

Contracted medical services. In addition to the contractual services NFZ also finances
selected programs for public health, prescriptions in the ambulatory care
experimental programs, rehabilitation and spa treatment and long-term care
. Since 2008, the list was extended to highly specialized medical procedures
. In 2009, the legislation was first mentioned a so-called.
Guaranteed package of health care services, which is an extensive list of medical services covered by health insurance
excluding
such medical procedures, such as plastic surgery, vaccination against influenza,
operation changing sex and treatments in vitro. Primary care providers have
contribution per patient, while payment scheme under the care of specialists is
service fee. Per stay in a bed in the hospital for care covered by public health insurance
nepřiplácí.

22nd In the Federal Republic of Germany regarding the issue of apportionment
healthcare in terms of its payment to the standard and above standard, possibly
whether the allocation refers to as "additional" or "related"
care, materials and aids or medical procedures also
as such, it was this particular issue addressed letter
Federal Ministry of health (Bundesministerium für Gesundheit).
From the replies received indicate that payment for hospital care provided
is determined primarily on the basis of case flat rates according to the DRG system and
additional payments. These payments are provided for the total volume of performances
necessary in individual cases performed to ensure the effective and
adequate health care for the patient. This is called. General Hospital
performances, in which it is included among others, care for the sick,
necessary operations, hospitalization, food and other acts of hospital.
If required medical indication, this includes the treatment of head physician.
Hospitals can charge optional - optional - performances, which are
other performances than the performances of general hospital care, if agreed
account for them separately. Patients can also request that the treatment carried out by a doctor
device (Chefarztbehandlung), even though it is not according
medical indications necessary; Agreement on the election of the physician applies to all
hospital doctors who are authorized to issue bills and contribute to
patient's treatment. Since all the doctors who were involved in the treatment, the patient receives
separate invoices to be paid on the normal payment
hospital stay under the generalized system of hospital performance.
Charged amount is reduced by 25% respective share of the credit
pay for medical treatment in tariffs for a treatment day.
As a premium service you can arrange a stay in the hospital for a single or double room
. The Constitutional Court found that the provisions of § 2 of the fifth book
Social Code, which governs the statutory health insurance
(Sozialgesetzbuch V - Gesetzliche Krankenversicherung, hereinafter also
"SGB V") implies that health insurers
paid to insured health care with regard to the principle of the economy (§ 12 SGB V) while
quality and efficiency of health care must conform to generally recognized
state of medical knowledge and must take into account medical advances (§ 2 SGB || | V in fine). The rate of participation in the payment of the patient other than
general hospital performance depends largely on what type
private health insurance, which is Germany's varied menu, a
negotiate. Regarding the regulatory fee (charge - Zuzahlung)
for hospitalization, which is set at € 10 per calendar day, but most
collected for a period of 28 days of hospitalization in a calendar year
- see § 61 SGB V. Additional regulatory fees are then supplement
per prescription charge for rehabilitation fees for ambulance transport, etc.
as in the Czech legislation, the maximum limits for
levied and various exemptions (eg. for
long-term unemployed under Hartz IV, etc.). Regulatory fee per visit
practitioner, dentist, outpatient specialist, psychologist (ie.
Praxisgebühr), which was set at € 10 per calendar quarter
and the income of the health insurance, the federal legislature abolished the | || 31st 12th 2012. Interestingly, it may be noted that the Federal Social
court (Bundessozialgericht, BSG) in 2009 dopěl to the conclusion that this

Regulatory fee does not interfere with the constitutionally guaranteed rights of patients
(see Case 25. 6. 2009 sp. Ref. B 3 KR 3/08 R).

23rd For bearing materials (mainly raw material of: 6. 11. 2012, Author:
Petr Gola, available
http: //finexpert.e15.cz/za-den-v-nemocnici-platime-100- kc-how-is-it-in a state-
countries) indicate that in Europe the fee for hospitalization
within the following ranges:

Belgium - The participation of patients with health insurance in the state
hospital is € 14.71 per day. You also need to pay
an admission fee of 42 €.

Bulgaria - Health insurance citizens pay for each day of hospitalization
2% of the minimum wage. Currently, the minimum monthly wage of 270
BGN (138 €). Deductible per day and amounts to € 2.76 per day.

Estonia - The amount deductible for hospitalization varies according to the individual
medical facilities. Most, however, is € 1.60 per day.

France - basic hospitalization fee is € 18 per day (€ 13.50 in
psychiatric facility).

Latvia - The contribution of the patient varies according to the type of hospital and treatment.
Post ranges from 9 LVL (14 €).

Luxembourg - hospitalization fee is € 19.62 per day.

Germany - The participation of patients with health insurance is 10
€ for each day of hospitalization.

Austria - The contribution of the patient varies according to the type of hospital and
Land. It moves around € 10 per day of hospitalization.

Sweden - The amount deductible for hospitalization varies according to the individual
medical facilities. Most, however, is 80 SEK (€ 8.94) a day.

Switzerland - Patients in public hospitals paid a contribution to the costs of accommodation and
15 CHF (€ 12) per day.

II. D)

Replica of the briefs and opinions

24th The appellants applied to ceded observations and opinions replica
which mainly take issue with the individual arguments
Ministry of Health. Repeated criticism of the explanatory memorandum, which according to them
totally unsatisfactory. Ministry nor the statement does not invalidate that
limits in the law lacks basic variants and economically demanding care
wording of the contested provision makes the scope of care covered by public health insurance
dependent on ministerial decree. Neither the Act enshrined the condition
same therapeutic effect can not establish jurisdiction
ministry arbitrarily determine which treatment has such an effect,
and which has not. Ministry raised the idea of ​​a practical application
contested regulation does not act any support. Optimal
care not covered by public health insurance under the terms stipulated by law
depending on the patient's condition, but purely
depending on whether or not identified as economically challenging
option in subordinate legislation. Also, the wording of the law on public health insurance
imply that economically demanding variant
indicated that decree could be ad hoc in the case of an individual insured
basic variant according to the current medical point of view, it is rather
misinterpretation of the ministry. It is also unsuited voucher
to current practice, as medical care, which the insured pays
itself, unlike the contested regulation laid down directly by law. If in case
increase charges only indicator of the amount of the daily cost of
consumption by 10% poorest households in 2010, testifies rather
against the fee increase because it is a civilized country can not accept that tax
on one day of inpatient care exceeded all expenses
taken into account to calculate the daily consumption of the poorest households.
Sides of sanctions imposed by medical service providers
petitioners point out that in no way questioned the possibility of delegating person
private law with a public service, but criticized the absence
legal limits of discretionary health insurance on the amount and the possibility of repeated
fines, inadequate and set an upper limit
disproportionate increase in the upper limit of fines for failure to collect regulatory fees
. A statement by the association of health insurance companies
appellants state that adored option for the care of the patient can pay extra
has nothing in common with the concept of the right to free health care and medical aids paid
based Charter. They express concern that contested

Adjustment will be implemented in the spirit of the trend of recent years, where the more
subsidizing the insured, the greater the extent of care covered narrower.
Relevant in relation to the objections against the regulatory fee increase, it can not be
voucher cancel fee per item on a prescription, which is not insured for
drawing upon patient health care of practical significance.
The essential point here is that the fee is not restricted to any limit and applies
to children under 18 years of age. Definitely
petitioners disagree with the position of the General Health Insurance Company, which proposal in the part concerning the care variants
dismissed as purposeful and wrong, and the fact that
list of medical procedures only indicates performance that is paid up || | cheapest alternatives already designated by law. The petitioners insist
that the law itself does not identify any performance, it does so through a sub-statutory regulation,
which they consider lack of constitutionality. Also they refuse to claim the insurance company,
that the increase in the fee for the provision of inpatient care necessitated practice
because the current level of CZK 60 did not have sufficient disincentive effect and
did not lead to the desired goal, namely to reduce the overuse of inpatient care.
Petitioners do not agree with the underlying premise that the insured can stay in bed
deliberately arbitrarily extended, according to them, on the contrary, no fee
regulatory function does. The insurance company in this regard complain that the
his statement did not add any empirical data (which undoubtedly has
). The petitioners point out that the submitted draft law
(Parliamentary Print no. 979), which would repeal the fee for a bed for children under 18 years of age
. Although the government with the pretext of legal shortcomings
disagrees, however, he said that in general terms the intention
shares. The opinion of the Czech Medical Chamber, the proposers
identify the extent to which the contested legislation criticized as unconstitutional. Conversely
disagrees with the idea that it is okay if the law allows for the same therapeutic effect
offer the patient more comfortable
perform certain procedures or comfortable utility surcharge. In keeping with Article.
31 of the Charter can not be treatment covered by public health insurance free of
more comfortable or more convenient design tools.
The present opinion goes against the desirable trend when
comfortable design performance and comfortable medical aids are only for those who
can afford to pay more for them, not for all policyholders.
Problem is the condition of the same therapeutic effect when
left to the discretion of the minister, that care has such an effect, and that
not. The petitioners also reject the view of the Czech Medical Chamber, that
increase the fee for the provision of inpatient care equivalent to an increase of costs
to which in recent years has occurred. Finally, the arguments Association of Patients
Czech Republic and the National Council of Persons with Disabilities
petitioners fully endorse and emphasize their importance.

III.
Wording of the contested provisions


A) Legislation defining health care that is provided in the base
variant and economically demanding variant

25th Provisions:

§ 11 paragraph. 1 point. f) The insured has the right to choose the option
provision of health services according to § 13

§ 12 letter. n): The insured is obliged to pay the provider, or other entity
that insured health services provided, the difference between the price
provided by the health service and the level of reimbursement from health insurance
according to § 13.

§ 13 paragraph. 3-7:

(3) If possible health services referred to in paragraph 1
provide more than one way, all of these methods
meet the conditions set out in paragraph 1 and have the same therapeutic effect, payable
a way of health services, which is consistent with efficient and economical
spending resources of public health insurance (hereinafter
"basic version"). Other methods of health services under sentence
first that do not meet the effective and efficient spending of resources
public health insurance (hereinafter referred to as "economically challenging
variation"), from the health insurance paid at the rate set for
reimbursement of such health services in the basic option.

(4) In economically challenging variant of health services can be considered

Only health services that are so designated in the implementing legislation
issued under § 17. In economically challenging
option can not mark any medical care that can be provided only
one way.

(5) Prior to the provision of health services, which can provide both
basic variant, as well as in economically challenging scenario is
provider is required to offer insured health services provision
basic version and also inform him
economically demanding variant, including the difference between the price economically demanding variant
determined in accordance with pricing regulations and mentioned in the pricelist
provider, and the amount of reimbursement for health services in the basic variant
stipulated in an implementing regulation issued by § 17
and price regulation. The procedure under the first sentence shall not apply unless
possible due to the patient's condition, ask for his consent and
immediate treatment is necessary to save the life or health. Pricing
economically challenging variants health service providers need to be
published in the areas of healthcare facilities on publicly accessible
place and manner allowing remote access.

(6) The provider, in cases referred to in paragraph 5 shall be obliged to
medical documentation of the insured noted that he had been offered
provision of health services in the basic version and that he was informed about the possibilities
provision of health services and
in economically demanding variant. Part of the record in healthcare documentation is expressing
consent of the insured to the provision of health services in the basic
option, or the provision of health services in economically challenging
option if the insured for such an option ruled;
in this case it is part of the record in the medical records also expressing
consent of the insured with the payment of an amount equal to the difference between the price
economically challenging variants and levels of reimbursement for health services in
basic option. Thus, consent shall be signed and insured
attending physician; if the insured with regard to their health status
not sign the record confirming its unequivocal expression of the will of its signature
attending physician and another witness. The record shall indicate the manner in which the insured
expressed their will, and health reasons hindering the signature
insured.

(7) Providers must in the provision of health services
prioritize policyholder who chooses economically challenging
option.

§ 17 par. 4: The Ministry of Health shall issue a decree
list of medical performances with point values ​​and indicating variations
health care under § 13.

B) Increase Regulatory Charges for inpatient care from CZK 60 to CZK 100
/
day
26th § 16a par. 1 point. f)

(1) An insured, or for him by his legal representative, is obliged
connection with providing paid services to pay providers who provide services paid
regulatory fee in the amount of (...)

F) CZK 100 per day, which is provided inpatient care, including inpatient
spa treatment rehabilitation care, with the day on which the insured
adopted to provide such care, and the day on which the
providing such care terminated count as one day; It also applies to stay
guide the child if it is in accordance with § 25 covered by health insurance
. Obligations under other laws without prejudice.

C) Authorization health insurers to punish providers of health care
for violation of certain provisions of the law on public health insurance


27th Provisions:

§ 32 paragraph. 5: When a repeated infringement by
paragraph 4 is entitled to health insurance providers that
impose a fine of up to CZK 1 000 000. A fine may be imposed even
repeatedly. When imposing the fine takes into account the health insurance
seriousness of the breach, the degree of culpability and the circumstances under which the
breach. A fine may be imposed within 1 year from the date when
health insurance company has found a violation or infringement
but not later than 3 years after the date on which the violation or infringement
occurred. The fine is the income of the health insurance that was imposed.

§ 44 paragraph. 5: Over the repeated violations to
providers in § 11 para. 1 point. d) impose appropriate health

Insurance providers fine of up to CZK 1 000 000;
when determining the amount of the fine takes into account the seriousness of the infringement, in particular the way
committed and its consequences and the circumstances under which it was committed
; a fine may be imposed within 1 year from the date when the health insurance company discovered
infringement, but not later than 3 years from the date
when the breach occurred; the repeated imposition of fines
is the reason for the termination of the provision and payment of paid services without
exercise notice period pursuant to § 17 para. 2nd

§ 44 paragraph. 6: A fine imposed under paragraphs 1 to 5
income health insurance that was imposed.

§ 13 paragraph. 8: The repeated breach of obligations under paragraphs 6-7
respective health insurance providers impose a fine up to 1 million CZK
. When determining the amount of the fine takes into account the seriousness of the breach
obligations, in particular the manner of its commission and its consequences and
circumstances under which it was committed. A fine may be imposed within 1 year from the date
day when competent health insurance company discovered the infringement,
but no later than three years from the date when the breach occurred.
The fine is the income of the health insurance that was imposed. Repeated granting
fine is grounds for termination of a contract for the provision and payment of health services
without applying the notice period pursuant to § 17 para.
Provider for the second infringement is not liable if it proves that it made every effort
which could be required to prevent a breach of the obligation
.

§ 16a par. 9-11:

(9) The provider is required regulatory fee referred to in paragraph 1 of
insured or his legal representative to choose, unless an exemption from paying
regulatory charge under paragraph 2 to 4 When finding a repeated
systematic violation of this duty is entitled to health insurance
this provider impose a fine of up to 1
000 000 CZK. A fine may be imposed repeatedly. When imposing a fine
health insurance company takes into account the seriousness of the breach, the degree of culpability and
the circumstances under which the breach occurred.
Fine may be imposed within 1 year from the date when the health insurance company discovered
violation or infringement, but no later than three years from the day when the violation or infringement
occurred. The fine is income
health insurance that was imposed.

(10) The provider must collect regulatory fees in connection with
providing paid services, which under this Act are not subject to regulatory
charges. When finding a repeated violation of this obligation
is entitled to health insurance providers that
fined up to CZK 50 000.

(11) repeatedly fined providers in paragraphs 9 and 10
reason for terminating a contract for the provision and payment of reimbursable services
without notice pursuant to § 17 para. 2nd

IV.

Terms of locus standi of the petitioner

28th The proposal to repeal designated provisions of the Act on Public Health Insurance
was submitted by a group of fifty-one Members of Parliament of the Czech Republic
, and therefore, in accordance with the conditions contained in § 64 paragraph
. 1 point. b) Act no. 182/1993 Coll., on the Constitutional Court.
The subject matter can therefore has met the requirements of locus standi on the petitioner
.

V.

Constitutionality of the legislative process

29th The Constitutional Court is in accordance with § 68 para. 1 of the
Constitutional Court in proceedings to review laws or other laws
required to assess whether the contested legislation was adopted and issued
constitutionally prescribed manner.

30th The wording of the contested legislation was to act on public health insurance
embodied by Act no. 298/2011 Coll., Amending Act no.
48/1997 Coll., On public health insurance and amending and supplementing
some related laws, as amended, and other related laws
, which occurred content changes, and Act no. 369/2011 Coll
. amending Act no. 48/1997 Coll., on public
health insurance and amending and supplementing some related laws
, as amended, and certain other laws; But it
amended the contested regulation only changes the current terminology.
Draft amendment (later published under no. 298/2011 Coll.) Act on public

Health insurance submitted to the Chamber of Deputies government
Czech Republic on 13. 4. 2011 (Parliamentary Press 325). Resolution no. 592 of 21
6th In 2011 the lower chamber approved the proposal majority of 105 deputies out of 180
present, 73 voted against the bill MPs.

31st The Senate forwarded the proposal (submitted on 30. 6. 2011)
discussed on 21st 7. 2011 and Resolution no. 281, the majority of 48 out of 75 senators present
favor of rejecting it. Deputies rejected
Senate debated the bill on 6. 9. 2011 (Resolution no. 668), and a bill approved
majority of 103 deputies out of 177 present.
Voted against 68 deputies. President of the Republic Act was delivered on 15. 9. 2011, the day
29th 9. 2011 signed it.

32nd The Constitutional Court notes that the adoption and publication of legislation
under review occurred in the prescribed manner.

VI.
The Review


33rd After finding that the contested legislation passed in terms of testing the constitutionality
procedure of its adoption, it was possible to deal with their own
content of the contested provisions. Reason is designed in the same spirit as
proposal, thus gradually dealing with the constitutionality of the first division
health care or health services on a variant of the basic
economically challenging, then increase the fee for the provision of inpatient care and ultimately
health insurance authority to sanction for conduct defined
healthcare providers.

A) Variants of health services in terms of their reimbursement from health insurance


34th As described above, petitioners fro the unconstitutionality of the legal
adjustments both in the way of its definition, therefore the wording (or lack
) the conditions and criteria variants of healthcare in terms of its
reimbursement from health insurance funds, and, secondly, the form in which it was done
. The first set of caveats and denies all alone
opportunity for the legislature to health care divided according to whether you are for it
patient has to pay extra or not. It is therefore desirable to other considerations
bounce back from answering this fundamental question, namely whether the actual distribution
health care (having studied in the context of adjustments same therapeutic effect
) according to its criteria covered by public insurance
Czech constitutional order permits or not.

35th For determining the content of Art. 31 of the Charter. It
guarantees everyone the right to health protection. Citizens are entitled under public insurance
entitled to free health care and medical aids under conditions provided for by law
. It's about whether this provision of the Charter
representing the right to free health care and to medical aids
under public insurance covers without further
all available and conceivable care and utilities, and whether at the same time eliminates the possibility || | divide a certain part as an extra care to help lift it from the regime
payments from general insurance payments more complete.

36th According to Art. 89 para. 2 of the Constitution of the Czech Republic (hereinafter "Constitution")
enforceable decisions of the Constitutional Court are binding on all authorities and persons
. The content of the right to free health care to the Constitutional Court
already been repeatedly discussed. Significant in this respect are the three
decision: finding sp. Nos. Pl. US 35/95 (no. 206/1996 Coll .; N 64/5 SbNU
487), finding sp. Nos. Pl. US 14/02 (no. 207/2003 Coll .; N 82/30 SbNU 263) and
finding sp. Nos. Pl. US 1/08 (no. 251/2008 Coll .; N 91/49 SbNU 273).
Constitutional Court in them apart from the merits of the assessment also expressed
wider context of health care financing. Given the severity of the supporting parts
reasoning of those decisions must be based Constitutional Court now.

37th Possibility distribution of health care standard, thus
paid from public insurance and premium, thus partially or totally paid
patient, the Constitutional Court acknowledged in judgment file. Nos. Pl. US 35/95, where
considered the constitutionality of statutory provisions generally
defining the scope of health care covered by general health insurance and
decrees providing for a specific category of this care.
The reasoning of the judgment is - the terminology now under the Act - with
variants care immanently counts, although concentrated on the essence
case, and that the legislative form of legislation, "
right to free health care and health aids to citizens on the basis of public

Insurance and conditions, as further defined by law. Thus, if these
conditions may be modified only by law, it is imperative that even
extent and manner of their provision was defined by the same legislative
regime. Other than statutory regulation would violate the Charter, and therefore
constitutionality. Not be allowed to define the scope of the above
provided health care for full or partial payment was left on the editing
other than statutory laws. This would
sphere of protection of fundamental rights and freedoms come under the jurisdiction of the executive power, which the
such powers is not authorized. "He spoke strongly in finding
sp. Nos. Pl. US 14/02, which addressed the issue of the harmony of the ban
healthcare facilities and healthcare professionals receive from insured
any reimbursement for care provided solely related
care covered by public insurance, he said: "The wording of the law | || but at the same time it suggests that there is nothing even make for health care provided
beyond the conditions for free care
direct payment from the insured could be levied "; This interpretation
expressly agreed by a group of seven dissenting judges. The same sentence was then
also cited in the majority opinion of the Plenum in its judgment. Nos. Pl. US
1/08 (paragraph 125), where it was further stated that '-
legalistic insistence on free medicine for individuals at expanding the concept would rather
could lead to a reduction in the level of free medical care covered by || | public insurance in the truest sense
for all members of society. " Judge George Nykodým in his dissenting opinion stated:
"I do not mean to say that all health care must be provided free of charge
. - The law can determine which acts are
medical care from public health insurance fully reimbursed, partially and not at all that
well as for reimbursement of medicines and food
for special purposes. At the same time it must be a possibility
voluntary insurance, from which it would be possible to pay the cost of treatment
which are not covered by public health insurance
paid. The fact that the state at least since 1995, has not been able
prepare a law that would determine health care
fully or partially covered by health insurance, and thus defined the care of these
funds not covered at all, so that the public budget
health insurance was balanced, although for many years it is obvious that spending
are higher than revenue, can not justify the violation of constitutional order.
In its judgment. Nos. Pl. US 35/93 defined the possibilities of the legislation so that conditionality
this by law does not mean that the law can be ruled out entirely free of charge
. The law may determine what is free and what is not
already free. "To his dissent, Judge volunteered Vojen
Güttler. Direct payment services conceded, albeit cautious formulations in
his dissenting opinion Judge Pavel Holländer also: "One can also
in relation to Art. 31 of the Charter to introduce direct payment services (again with the possibility of contractual insurance
) that are not part
immediate medical care. "

38th The Charter includes provisions on fundamental rights which are, in normative content
different. Firstly, they are basic human rights
which emanate directly from the human being, and this fact alone is
basis for defining their constitutional content and scope.
These are values ​​that include basic rights to preserve the integrity of man and his dignity
collateral, such as. The right to life,
inviolability of the person and personal freedom. Such rights are
inherent, inalienable, and irrepealable (Art. 1 of the Charter
). Their limits may be adjusted under the conditions set
Charter and only the law (Art. 4 paragraph. 2 of the Charter).

39th By contrast, the rights and freedoms contained in Chapter Four as
"Economic, social and cultural rights" require for their realization
interaction of other factors; does not act immediately as the rights mentioned above
. At discussed, the Art. 31 of the Charter, this fact is made explicit
second sentence. The right to free health care and to medical aids
there is narrowed to a range of public insurance, and is therefore subject to payment
sums insured and the volume of funds thus created and prepared

Redistribution. All rights contained in Chapter Four are dependent upon
achieved economic and social level of the state and the associated amount
living standards. This law falls under the regime of Art. 4, paragraph. 1 of the Charter, which
obligations can be imposed only by law and within its limits
and only while respecting the fundamental human rights.

40th The real fulfillment of the proclaimed rights to health care and health
aids that will be truly effective and will conform to modern trends
in medicine, is subject primarily adequate financial backing.
Well-known fact is that - and this is not meant in a negative sense of the word
- financial needs of healthcare continues to grow. Progress
research and technological possibilities of the industry growth rate of the economy as it
bound volume of resources of public health insurance is not enough.
Ministry of Health as the body responsible for the stability of the resort
therefore logically looking at ways to get funding for health care
(or medical services) for more funds. Increasing the share of direct payments by patients
is one of them.

41st This possibility is not excluded that the framers of the Constitution in Art. 31 of the Charter expressly
introduced free of charge. The term "free of charge" in terms
head four of the Charter, stipulating economic, social and cultural rights
, the Constitutional Court also explained. In its judgment. Nos. Pl. US 35/93
(no. 49/1994 Coll .; N 7/1 SbNU 51) dealt with a proposal to cancel
provisions of Article I of the Act no. 190/1993 Coll., Which was amended provisions
§ 4 para. 1 of law no. 29/1984 Coll., on the system of primary and secondary schools
(the education Act), as amended.
This article in § 4 para. 1 of Law no. 29/1984 Coll., The sentence "
Education and training are free." Replaced the phrase "In schools that are part of the system
primary and secondary schools, citizens have a right to free education
, unless otherwise provided by law. ". The Constitutional Court abolished the provisions in Part
"unless otherwise provided by law", while the main reason
said that although under Art. 41 paragraph. 1 of the Charter of the rights referred to in Article
. 33 paragraph. 2 of the Charter, ie. The right to free education at primary and secondary schools
, can be claimed only within the limits of laws that implement these provisions
, can hardly be considered that a survey among
fundamental rights and freedoms would still be compatible legal exception
challenged unconditional right to free primary and secondary education
. In the follow-up to this judgment file. Nos. Pl. US 25/94 of 13. 6.
1995 (N 31/3 SbNU 233; 165/1995 Coll.), The Constitutional Court dealt with a proposal to repeal
Government Regulation no. 15/1994 Coll., On free
provision of textbooks, textbooks and basic school supplies. This Regulation
government determined the extent to which pupils are provided free of charge
textbooks, teaching materials and basic school supplies. This proposal was rejected and
in the preamble stated that gratuitous education can not consist in the fact that
state will bear all costs that citizens in connection with the realization of the right to education
arise. State may therefore require reimbursement of
costs in connection with the realization of the right to education and the government has
such a procedure undoubtedly permission. This in no way
does not question the principles of free education at primary and secondary schools
. These two findings of the Constitutional Court defined the term 'free of charge
in general so that conditionality rights contained in the Charter
law does not mean that the law can be ruled out entirely free of charge.
Law can determine what is free and what is not free.

42nd From the perspective of the Constitutional Court, it is essential that the content of Art. 31 of the Charter
law was virtually emptied. In his mind there must be means
public health insurance fully covered by high-quality, full-fledged and effective care
care as a basic standard. As stated in the judgment
sp. Nos. Pl. US 14/02 "from the constitutional and legal principles that can not care
divided into a kind of basic, cheaper 'but less convenient and less efficient, and
premium, more expensive', but more efficient and effective.
The difference between standard and above-standard care not lie in differences in
appropriateness and effectiveness of treatment. The law does not regulate what health care is physician
respectively. medical devices provide, but what must be of general interest

Provide that all insured should equally entitled to such
care and treatment, which correspond to objectively identified needs and demands
appropriate levels and medical ethics.
Developmental orientation of health care, backed by laws, is therefore based not on shift
'better' acts of free health care to the sphere insured
paid directly, but rather in the direction of improving the operations provided free of charge to the public
health insurance. " It should be noted that
existing legislation such fears while being essentially because the law on public health insurance
§ 13 para. 1 defines the quality
conditions of health services covered by public insurance identically for both
care options so that a) correspond to the state of health of the insured and
purpose to be achieved by providing them, and are insured
reasonably safe, b) are consistent with current knowledge available
medical science, c ) there is evidence of their effectiveness, given the purpose of providing
. On the other hand, can not be excluded that more
treatment options, each of which meets the above parameters can be expensive procedure
better than cheaper with regard to individual
condition of the patient. In this case must be given to the physician
option to decide to protect the life and health of the patient
regarding suitability economically expensive option that, when certain conditions are met
will therefore fully covered by public health insurance
. The patient can not get into a situation that tempts
existing arrangements: be instructed on the essential and economically
demanding treatment procedures, the doctor will be familiar with
that he will be fully reimbursed by health insurance only treatment
intervention in the basic version, but also with respect to specific
conditions, as recommended by him for better medical treatment in
economically demanding variant. It is therefore necessary to lay down the law
boundary between the information on the basic version and economically demanding variant or variants
a recommendation to use one of the alternatives
healing process. If the doctor decides to recommend a specific diagnosis
economically demanding variant may do so only under the condition
be fully covered by public health insurance.
You can not overlook the fact that the patient is the weaker party in negotiating the terms
treatment procedure, and when the consumer protection legislation in the field of contractual
legal relationships having a material substance, thereby
rather have legislation providing protection patient where it is a significant
values. An example of such a situation can be
patients with associated diseases, for which the underlying option exercise meant
increased risk of complications, possibly life-threatening, and therefore
for them to be economically demanding performances as performance in basic || | To protect the health of the patient. In this case
impossible that this, due to the condition of the individual patient
better performance was not fully covered by public health insurance.

43rd The above argument thus lead to a partial Constitutional Court concluded that
actual distribution of health services covered by public health insurance
option on the base of public insurance
fully paid, and economically demanding variant is in line with our
constitutional order. It is also important that similarly to this issue
approach and European Union countries. Inspirational also cited above
conclusion of the Constitutional Court of the Slovak Republic in judgment file. Nos. Pl.
US 38/03 (no. 396/2004 Coll.), Which provides free care under Art. 40
Constitution of the Slovak Republic (during analogous wording of Art. 40
Slovak Constitution and Art. 31 Czech Charter) has its scope and does not mean that
all care is provided free of charge.

44th It has been said that economic, social and cultural rights, among which
including the right to free medical care under Art. 31 of the Charter, are instantiated
expressly to applicable law and only on the basis
(within its limits ) is available for these rights and freedoms claim (Art. 41 paragraph.
1 of the Charter). On the other hand, it must be a law, insufficient regulation
sub-statutory. In its judgment. Nos. Pl. US 35/95 the Constitutional Court formulated

Quite clearly: "The right to free health care and medical aids
to citizens under public insurance and
conditions further defined by law. Therefore, if these conditions can be
only by law, it is imperative that the scope and manner of their provision
defined by the same legislative regime.
Other than statutory regulation would violate the Charter, and therefore constitutionality.
Not be allowed to define the scope of the above-provided health care for
a full or partial payment has been left on the editing other than legal
legislation. This would be the sphere of protection of fundamental rights and freedoms
came under the jurisdiction of the executive power, which for such powers is not entitled
. "What in essence is well expressed in the judgment file. Nos. Pl. US
14/02: "If the public health insurance
closer to European standards, it would seem necessary that the law clearly and unambiguously defined the possibilities
private payments from policyholders, probably much like
in developed European countries, Germany, Switzerland and others. "For more
review this interpretation as definitive and will be examined whether the legislature except
own distribution of health care and medical aids to variations
truly defined the law itself and the range and the method of providing
within individual variations, or was it in fact remained until
implementing ministerial decree.

45th Executive in modern conditions (regulatory) state granted
own legislative activities. So it could be considered constitutionally
conformal nelibovolný exercise of power must always have for my norm creation
limits set by law. Ministries and other administrative authorities may pursuant to Art.
79 par. 3 of the Constitution on the basis of law, within its limits and only if
to do so by law empowered to legislate. In its judgment. Nos. Pl. US
45/2000 dated 14. 2. 2001 (N 30/21 SbNU 261; 96/2001 Coll.)
Constitutional Court stated: "It can therefore be concluded that the constitutional definition of derived norm creation by the executive rests
on the following principles: (a)
regulation must be issued by an authorized entity, (b) of the Regulation can not interfere in matters reserved
law (thus can not determine the primary rights and obligations) and
(c) must be clear intent legislature for regulation beyond the statutory
(must be open space for the sphere of regulation). "
implementing decree as another case derived rulemaking engaged in finding
sp. Nos. Pl. US 23/02 dated 30. 6. 2004 (N 89/33 SbNU 353;
476/2004 Coll.), Which stated that "for security
effective performance of public administration is appropriate to leave edit the details podzákonnému | || legislation, which can be more operational change. Therefore
constitutional order of the Czech Republic allows lawmakers that under certain conditions
authorized executive authorities to issue subordinate legislation.
The mandate, however, must be explicit and content of the sub-statutory regulation must be
in accordance with the law, which is carried out must therefore be issued in his
basis and within its limits. However, if Parliament resigns
determining the appropriate framework and a blanket authorize the executive to establish,
what is right, what are the rights and responsibilities of persons or those
powers and responsibilities of administrative authorities, it violates the principle of limited
delegation of rulemaking, thus breaching the principle of separation of power, set among others. Article.
2. 1 of the Constitution. Restrictions on delegation of rulemaking is one of the traditional and
key aspects of the separation of powers and a system of mutual checks and balance on
which is built and constitutional order of the Czech Republic.
Legislator in the system of separation of powers principle can not delegate his powers to another entity
, entrust it to the other hand (-). According to the jurisprudence of the Constitutional Court
may be required under any law because the requirement that any
obligation was determined directly and exclusively by the law, would
obviously lead to absurd consequences, and that the denial of secondary meaning
rulemaking, as the conceptual part of every legal norm is to define
certain rights and obligations mailing standards' (cf. judgment no. 410/2001
Sb.). Implementation regulation, however, must always operate within the law
which are either explicitly defined or derived from the meaning and purpose
Act. On the basis of statutory authorization has
Implementing Regulations specify the issues provided for in the basic features already
law itself, but must never go outside the law. "In its judgment. Nos. Pl. US

3/2000 dated 21. 6. 2000 (N 93/18 SbNU 287; 231/2000 Coll.), The Constitutional
Court stated that Article. 79 par. 3 of the Constitution should be interpreted restrictively
which means that the authorization to issue subordinate legislation
regulations must be specific, clear and unambiguous.

46th The authority of the executive in the implementation (or.
Regulation and the possibilities related restrictions) fundamental rights contained in Title IV of the Charter
The Constitutional Court has repeatedly expressed. In the aforementioned finding
sp. Nos. Pl. US 45/2000 dealt with the fundamental right to conduct business (Art. 26
paragraph. 1 of the Charter), which "does not act immediately and although it can be invoked only
within laws, on the other hand, for any limits
such business or activity exists reservation law. "Then
consideration while government regulation contained a number of provisions
intervening in free enterprise. However, the Constitutional Court
respected the principle of a looser relationship between law and regulation, when
priority for the constitutionality of the regulation considered its compliance with the spirit and purpose
bill as a whole, he was forced to say that grammatical, systematic or logical
interpretation, even when the greatest extent extensive access
indication that the provisions of the said Act, it was possible to deduce
regulate production, which builds on agriculture, respectively.
restrict the application of the goods produced in a particular market. If the legislature can not
area of ​​regulation of relations intended for treatment by law delegate to the executive
, thereby actually resign from its legislative duty by
rather the executive branch is not entitled to such treatment appropriated itself with
Referring to the law, which obviously has a different meaning and purpose.
Contested regulation violated the law reservation and limited free enterprise way
that the law does not require that generally does not. When approached
Constitutional Court to annul lesser legislation because it limits created
legislature for legislative action executives were vague, the
rather must do so in an area where legislative initiative of the Government
law does not at all . In its judgment. Nos. Pl. US 5/01 dated 16. 10.
2001 (N 149/24 SbNU 79; 410/2001 Coll.), The Constitutional Court stated that apply
that any limitation of fundamental rights enshrined in Art. 26 paragraph. 1
Charter can be done only by the law (and not government regulation).
Decree no. 445/2000 Coll., On setting production quotas for milk
years 2001-2005, considered (with the exception of one provision) for
constitutional, because only on the basis of an express statutory || | empowerment issues concretized modified the basic features already
law itself. "The opposite conclusion, that would require the determination of any duties
directly and exclusively by law, would obviously lead to absurd consequences
, and the denial of secondary meaning (and in some cases primary
) rulemaking because the conceptual part every legal norm is
definition of rights and responsibilities mailing standards. "If the government
respect the relevant principles for the contested regulation -
based on express statutory authorization - and this Regulation, his matter
merely specifies in detail cited statutory authorization, ie.
Issues provided for in the basic features already the law itself, can not be
regulation unconstitutional; limit fundamental rights and freedoms were in this case
determined directly by law (Art. 4 paragraph. 2 of the Charter) and
obligations under this Regulation are therefore imposed "based on the law and its limits
" (Article . 4 paragraph. 1 of the Charter). In its judgment. Nos. Pl. US 23/02
(see above), the Constitutional Court annulled the provisions of the Act no. 109/2002 Coll., On
institutional education or protective education in school facilities and
on preventive educational care in school facilities and amendment
other laws. Law in the provisions for cancellation,
introduced into Czech law the concept of "family contract" which is closer
nevymezoval, and its provisions were in this direction uncertain.
Rights and obligations of individuals and institutions involved in this institute and their
powers would have to be determined by ministerial decree to this
institute could ever become operational. Therefore, the contested provisions, among others.
In conflict with Art. 79 par. 3 of the Constitution, because it represented inadmissible
delegation of rulemaking authority to the executive branch and to allow revision of the limits

Fundamental rights and freedoms of sub-statutory legal norm.
Contested provisions of the Act was inconsistent with this Article of the Constitution, because the Ministry was empowered to modify
something for what the law itself, there are no limits to what he
not govern at all. It was therefore not implementing the Act, but
its completion, because implementing legislation would institute a contractual family had
pinpoint. Therefore lacked the relevant statutory provisions, which should be done
ministerial decree. The law its brevity and uncertainty
gave the necessary basic framework for the said implementation regulation.
Challenged the law in the constitutional principles of the provisions subordinate
rulemaking did not hold. Definition of contractual families in the law was vague
. Equally uncertain are the conditions under which the child into the family
Contracting place ( "in particularly justified cases, if required
child's interest"). The intensity of that uncertainty was so high that
exclude the possibility of determining the normative content of the provisions
using customary interpretive approaches.

47th The center of gravity adjustment variants health services lies in § 13 of the
public health insurance. In paragraph 1 of this provision (which
is proposed to abolish) contains the definition
medical services covered by health insurance; this is how they paid for health services provided to insured
to improve or maintain their health
or alleviate his suffering, if a) comply with health
insured and the purpose to be achieved by providing them, and || | insured for reasonably safe, b) are in line with current
available findings of medical science, c) there is evidence of their effectiveness
relation to the purpose of the provision. In paragraph 2 (also now uncontested
) are defined areas of services (eg. Health care
preventive, diagnostic, provision of medicines, transporting
insured etc.) that are within the specified range and set || | conditions of public insurance coverage. Resolution variants care is
contested paragraphs 3 and 4 are defined such that it can be if the health service
referred to in paragraph 1 to provide more than one way, then the
if all these methods satisfy the conditions set
in paragraph 1 and have the same therapeutic effect, paid by that which is in accordance with
efficient and economical spending of public resources
health insurance, labeled as "basic version". Other ways
health services meeting the same conditions except for the effective and efficient spending of resources are
as "economically demanding variant" of
public insurance paid only for the amount specified for the payment of such
health services in the basic option. Economically demanding variant
health services must be labeled as such in the implementing legislation
regulations; according to § 17 para. 4 of the Act on Public Health Insurance
Ministry of Health shall issue a decree
list of medical procedures with point values ​​and indicating variations of health care. For
economically demanding variant can not mark any medical care that can provide
only one way.

48th It is thus questionable whether this formulation legislature complied with the wording of Art.
31 of the Charter. According to the Ministry of Health, the initiator of the draft
particular the first paragraph of § 13 of the Act on public health insurance
guarantee that both options will meet the highest possible standards of health care
adequate health status and needs of the patient.
So even the basic version, which meets all the criteria for covered health care, including
same therapeutic effect. Ministry interprets
options so that the first will always be thoroughly assessed health status
patient and determine the optimal variant of care that for the case
becomes the basic variant. Only then will examine whether the
appropriate treatment exists de facto and formal variant
economically challenging with the same therapeutic effect. It will be such
care that the patient does not bring any improvement in terms of medical
(has the same therapeutic effect), but increased comfort or her patient
subjectively prefers. Elements common to both variants and their limits are so
opinion of the Ministry of Health, embedded directly in
laws, decrees, then a user comfortably carried out its provisions.


49th With that, you can agree only partially. It is true that the general basis
basic variants and economically challenging is contained in the Act.
From the perspective of the Constitutional Court, but it is essential, if the modification in the law itself
themselves, that even without implementing regulations, the addressees
sufficiently clear and whether it would be applicable. An implementing regulation is to determine
only its details. Challenged care treatment options currently
works so that in addition to the above reproduced the general framework of the law on public health insurance
are in a decree issued
list of medical services with point values, the Ministry of Health
marked medical procedures for which the insured may be offered a choice between
basic and economically demanding variant.
Providers of health services, insurance companies and policyholders is therefore only a decree understand what is
baseline and at what medical services, utilities, equipment and medical supplies
is possible or necessary to pay the price beyond the payment of || | public insurance. Under the law itself, it does not follow, and it can not be inferred from it
even the loosest interpretation. The law on public health insurance
therefore made only the first step towards defining the standard and
above standard (in the words of the Act on public health insurance and basic
economically demanding variant). The second, however, a substantial portion, without which
Institute is nonviable, therefore, specific determination of what is in
intentions of Art. 31 of the Charter of unpaid care is provided to the implementing decree
. Legislator by the Constitutional Court's requirements set
constitutional order and repeatedly landed the previous decision-making practice
failed.

50th Of Art. 4 paragraph. 2 of the Charter indicates that "
requirement of a legal basis for a possible limitation of fundamental rights is generated from
democratic principles, as well as the principle of substantive law.
His reason is to prevent the executive branch to implement their own ideas about how and how much
can restrict fundamental rights. The fact that this permission was granted
democratically legitimovanému Parliament, it should be ensured that the restriction of fundamental rights
occurs after democratic parliamentary discourse and in addition
gains limitation of fundamental rights and the subsequent democratic
backward linkage " (cf. nearer Wagner, Elizabeth, Šimíček, Vojtech, Langášek,
Tomas Pospisil, Ivo et al., Charter of fundamental rights and freedoms. Commentary.
Praha: Wolters Kluwer, 2012, p. 128). The legislature can not delegate to the executive
imposition of primary obligations, sub-statutory modification must always honor
purpose and meaning defined by law. Subordinate treatment alone, without support
in law, identified a definitional character on which it is duty bound.
It is therefore a regulation which, among other things. Clashes with the requirements arising from Art. 4
paragraph. 1 of the Charter. In relation to the investigation materia can conclude that some
essential defining features on which the obligation to make payment for health care
(even after selecting its economically demanding variant), as well as
obligation of health care providers regarding the offering
options or documentation of patient consent are (or should be) primarily defined
only statutory regulation.

51st As mentioned, the sub-statutory norms is unconstitutional if
limit fundamental rights and freedoms can not impose anything other than directly
law. That is also the case solved between the right to free health care
. Although the issue is governed by the basic features already in itself
law on public health insurance, but only partially.
Needed basic framework for secondary legislation is therefore
too brief and vague. In addition, you can not overlook the gap
legal definition, which is pointed out in recital 42.

52nd For the reasons given no choice but contested § 13 par. 3, 4 and
part of § 17 para. 4 of the Act on public health insurance to cancel
conflict with Art. 4 paragraph. 2 and Art. 31 of the Charter. Because the relevant provisions
§ 11 paragraph. 1 point. f) § 12 letter. n), § 13 para. 5-7
lose the sense of discovery was repealed some provisions.

B) Increase Regulatory Charges for inpatient care

53rd The petitioners are challenging provisions laying down fee obligation
[§ 16a par. 1 point. f) of the Act on public health insurance], respectively.
Not a fee as such, but its increase to the current CZK 100 per day
provided inpatient care.


54th A proposal to repeal the fee for the provision of inpatient care, the Constitutional Court
already been dealt with in its judgment. Nos. Pl. US 1/08 (no. 251/2008 Coll .;
N 91/49 SbNU 273), in assessing the constitutionality of the system
regulatory fees in health care as a whole.
Proposal to repeal the fee - in the then 60 CZK per day of hospitalization - dismiss.
In relation to all charges found grounds for maintaining the maximum extent
restraint in executing its powers to accede to derogačnímu
decision that presenting the most appropriate ways
implementation of social rights under Title Four of the Charter is the task of political parties
relying on the mandate received from the voters. At the same time, as a supporting
step reasonableness test carried out with the conclusion that the rules contested
stand in all its stages. In relation to the now solved fee for hospitalization
Constitutional Court took into account the fact that the applicants themselves admit that it is a
charge "hotel services," ie setting fees for lodging and meals in the hospital
which need not exceed the bounds of constitutionality. In the case
payment of the hospitalization so obviously can not discuss
free health care or medical device within the meaning of Article. 31
Charter, but simultaneously provided other related services. Otherwise -
in the extreme - Art. 31 of the Charter should establish an entitlement to free
accommodation and catering services outside the medical facilities and
regardless of whether or not they are provided in connection with health care | || or not. The Constitutional Court concluded that the pertinent part of the proposal (to cancel
§ 16 paragraph. 1 point. F) of the Act on public health insurance) would
situation where it would not be challenged for reasons of nonconformity
legislative process criticized as the action is manifestly unfounded.

55th In the case now under consideration at the plenary nature of the conclusions of the above
continues. However, the change of circumstances, namely the change in the legislation to which
occurred after the decision in the case file. Nos. Pl. US 1/08, which increased
fee from the original 60 to the current CZK 100 CZK per day of hospitalization, the Constitutional Court
leads to the belief that the constitutional question, the harmony of
provision is needed to reopen. Increase the fee rate is about 2.3
is so outstanding that it is in fact a provision in its essence
others. Indeed, in its judgment. Nos. Pl. US 1/08
Constitutional Court stated that "... to assess issues related to social
currently accessing static, but with extra emphasis on what is
condition at the time of its decision." At the same time in relation to the social rights
recalled that the intentions of finding sp. Nos. Pl. US 11/02 of 11
6th 2003 (N 87/30 SbNU 309; 198/2003 Coll.), The reason for that "
Constitutional Court can overcome its own jurisprudence, is to change the social and
economic situation in the country or a change in their structure or change || | cultural conceptions of society. Another possibility is a change or shift
legal environment formed by sub-constitutional legal norms, which in
entirety influence the examination of constitutional principles and without them
however, deviating, and especially restricting the principle of democratic statehood
(Article . 1. 1 of the Constitution). Another option to change the jurisprudence of the Constitutional Court is
change, respectively. completion of legal norms and principles that constitute
binding terms of reference for the Constitutional Court, ie. those that
are contained in the constitutional order of the Czech Republic, unless of course
changes conflict with the limits laid down by Art. 9 Sec. 2 of the Constitution, ie. unless
changes in the essential requirements of a democratic rule of law. ".

56th The Constitutional Court therefore subjected the provision in its current form
re-test of rationality: and the methodology in similar cases
standardly used [besides finding sp. Nos. Pl. US 1/08 and
It cited judgment file. Nos. Pl. US 83/06 of 12. 3. 2008 (N 55/48
SbNU 629; 116/2008 Coll.), For example, still finding sp. Nos. Pl. US 54/10 of
on 24. 4. 2012 (no. 186/2012 Coll.)]. The test reflects on the one hand, the need to respect
relatively extensive discretion legislator
while on the other hand, the need to avoid its possible excesses.
Consists of four steps: 1) determining the meaning and essence of social justice, therefore
its essential content, 2) evaluate whether the statute does not affect the very existence
social rights or the actual implementation of the essential

Contents, 3) assessing whether the statutory framework pursues a legitimate aim, therefore, is not whether
arbitrary substantial reduction in the overall standard of fundamental rights
4) considering the question of whether the legal means used to achieve it is reasonable
(rational), though not necessarily the best, the best, the wisest and most effective
. Regarding the first three steps of the test can be
refer to the conclusions contained in the reasoning of judgment file. Nos. Pl. US 1/08;
a third round of testing just let him be clarified and specified that studied
goal is to lead the regime reimbursements from public health insurance
those services with private provision of health care have nothing in common
is legitimate . Rationality parties contested legislation
However, the Constitutional Court of the reasons listed below to different conclusions.

57th As mentioned, the charge for inpatient care provided is in its essence
payment for "hotel services". This is also evidenced
argument Ministry of Health to a specific level of the
fee, which is derived from the per capita costs of food, beverages
energy, water, etc. It is therefore considered as equivalent to the cost that would
patient anyway (even outside hospitals) necessarily incurred. Of
rezultuje the first constitutional reservation of the Constitutional Court.
Obligation enshrined in no way distinguishes cases where a stay at a bed only
normal part of treatment, health-related services only in an extreme case
recoverable residence outside medical facility,
however it would not be practical and patient optimal solution, and when it comes
longer a necessary part of their own medical performance.
It is hard to accept that during hospitalization in an intensive care patient
provided "room service". In these cases already
obligation to pay the fee comes into conflict with the wording of Art. 31 of the Charter.
Hospitalization that is health care in the narrower sense,
paid from public health insurance must be provided free of charge, since the
her patient there is no alternative.

'58. Another factor that causes a constitutional deficiency is the absence
limits for this payment; In this respect the Constitutional Court had proposers
completely agree with. The law on public health insurance
obligation imposed across the board, it must also apply to persons who are idle, including groups
socially vulnerable, children, persons with disabilities, etc. Likewise
no obligation to pay the fee bounded time, the patient can thus have
paid in full, regardless of the length of hospitalization. The combination of these factors may cause
financially untenable situation not only in the above mentioned categories
patients. Anyway denies the essence of solidarity
health care utilization. Measure effectively mitigating the effects of the obligation in question
no fee exemption those insured who demonstrate
decision, notification or certificate issued by the body providing assistance in material need
provided a dose. Here is assumed
activity associated with processing and procurement of official documents could be just the person
fee socially vulnerable difficult to anticipate, respectively. ask.

59th The legislation in question in a manner that is above criticism
stands out even in the context of hospitalization fee paid
in neighboring countries, as described in the narrative part. In the Federal Republic of Germany is charged
supplement (Zuzahlung) for the hospitalization of 10 €
per calendar day, maximum, however, is chosen for a period of 28 days of hospitalization
calendar year [§ 61 fifth book of the Social Code || | (Sozialgesetzbuch V - Gesetzliche Krankenversicherung)]. Just for completeness
belongs noted, since this actually touched some
opinion in this matter from that tax, specifically
supplement, not canceled. Federal legislature was on 31 12. 2012
abolished regulatory fee for visiting a GP, dentist,
outpatient specialist, psychologist (ie. Praxisgebühr)
which was set at € 10 per calendar quarter and was
income health insurance. In doing so, the Federal Social Court (Bundessozialgericht, BSG)
in 2009 dopěl concluded that the regulatory fee
interfere with the constitutionally guaranteed rights of patients (see Case 25. 6. 2009
sp. Ref. B 3 KR 3/08 R). The Slovak Republic, according to § 1 para. 1
point. a) Government Decree no. 722/2004 Coll., on the level of reimbursement for insured

Services related to providing health care, issued to implement
Act no. 577/2004 Coll., On the scope of health care covered by public health insurance
and payments for services related to the provision
health care fee for staying in bed is not applicable.
Also in Austria for hospital care paid by the insured deductible for each day
hospitalization of about 10 € per day (ie. The inpatient fee) -
its amount varies according to the individual federal states, but most are
valid for 28 calendar days per year. These funds are mostly used
amicable compensation for deficiencies in patients
care. Even if the patient is not exempt from the fee,
hospital may ask for forgiveness extraordinary payments due to the current unfavorable situation
. In the case of dependent family members
insured is expected during the first four weeks of participation
payment of 10% of the daily rate. From the fifth week is
insured and dependent family members of hospital treatment
free. In some cases, the health insurance company can reimburse
part or the full amount of travel expenses incurred for the purpose of access to health care
(MISSOC: Your social security rights in Austria. Brussels
2011, p. 11).

60th As mentioned, the constitutional deficit increase charges is found just
his lack of differentiation and universal application in combination with
absence of any limits. § 16a par. 1 point. f)
law on public health insurance and puts them in conflict with Art. 31 of the Charter, as well as Article
. 3. 1 of the Charter which guarantees fundamental rights to all without distinction
property. The Constitutional Court therefore decided to set it aside. Simultaneously
was determined foresee a deadline until the end of 2013 since
fee for inpatient care is currently not insignificant income
providers of health services and the immediate shortfall would unreasonably and unfairly
economically affected. Lawmakers are created by time
space, to set the parameters of the payments in keeping with this finding.

61st Obiter dictum, the Constitutional Court gives lawmakers to consider whether
neupřesnit elected, truly confusing terminology. These payments are called
fee, although in legal terminology means
fee payment obligation of natural or legal persons in connection with the activities
public authority (state or municipality)
undertaken in the exercise of public authority in the interest. Terms of payment, the purpose of which is both
motivating effect in relation to the subject domáhajícímu
is an act of public authority (ie. As pursuing the objective seriousness of the act, not abusing
public authorities, eg. In court fees judiciary) and
further fulfill the role of a fee equivalent economic activity as a public authority.
Provisions of Article 11 of the Charter provides that taxes and fees can be imposed only
under the law, and it should be emphasized that the determining feature
taxes and fees that flow into public budgets.
It is evident that this kind of payment is not. Basically, it is a
payment for "hotel services" that are income
providers of health services and accrues not to the public.
Provider has been no powers of the state in ensuring its functions or
sourcing or in connection with the collection of regulatory fees.
It is a private law entities. More appropriate would therefore be in the context of
not use the term fee.

C) Authorization health insurers penalize providers of healthcare services


62nd The object of assessment is the list of practices contained in the Act
public health insurance, which can store
health insurance providers sanctions. Only marginally
Constitutional Court dealt with the question of property penalties in its judgment. Nos. Pl. US 1/08, stating:
"is the will of the legislature, a body that will equip public powers
penalty if the penalty is imposed as a result of proper administrative procedure
a decision on granting sanction subject to judicial review, which is
in the case of the contested legislation passed ". Thus he tackled with
ownership of sanctions for failure to collect the charge medical device (
according to the new terminology of "provider of health services"). At that time
valid and effective wording was a property sanction in the amount of CZK 50 000. Now is

Challenged § 16a par. 9 of the Act on Public Health Insurance
amended, which allows for the same offense fined up to
1 000 000 CZK, and along with it, paragraphs 10 and 11, all
in relation to the proposal to repeal provisions to increase the regulatory fee per stay
hospital. In addition, the current proposal is directed against property
sanctions laid down under other provisions of the law, specifically in § 13 paragraph
. 8, § 32 par. 5 and § 44 para. 5th

63rd The Constitutional Court, however, until now - that is not in its judgment. Nos. Pl. US
1/08, where it was not alleged - did not examine whether such
set of sanctioning powers does not exclude straight
relationship between providers of health services and health insurance, which is primarily
relationship private. This should correspond to the intensity of his
deformation resulting from the special status of health insurance
given that managed mainly public, not private funds.
The Constitutional Court does not deny that it is generally accepted that an entity
featured in private relations while he was endowed
suzerain powers, but in terms of health care provider
(Services) - Health insurance should be considered
specifics stemming from the reality of the Czech environment.
Prerequisite for the viability of the provider of health services is a contract for the provision and payment is
health insurance, especially with the dominant
Universal health insurance. Despite this objective existential dependence on the willingness
health insurance companies are contracting was no formal
reviewable and most transparent rules as defined in claim
provider to its closure if certain conditions are fulfilled.
This fact unequal position is further deepened broad sanction
authorized insurers.

64th The Constitutional Court is a matter of equal rights has already addressed a number of its
decisions. He expressed primarily in the sense that the constitutional principle of equality
expressed in Art. 1 of the Charter does not mean absolute equality. In
finding sp. Nos. Pl. US 6/96 of 5. 11. 1996 (published under no.
295/1996 Coll., N 113/6 SbNU 313), which was followed by other case law, it
expressed himself as follows: "The constitutional principle equality, the rights enshrined in Article
. l Charter, can not be understood absolutely and equality
understood as an abstract category. The Constitutional Court of the Czech and Slovak Federal Republic
expressed his understanding of equality, in that article
enshrined as a relative equality, as it is understood by all
democratic constitution, requiring only the removal of unjustified differences
(finding Constitutional court of Czechoslovakia published as no. 11 and
Collections resolution of the Constitutional court of Czechoslovakia). The principle of equal rights must be understood
also such that legal differentiation in the approach to certain rights
between legal entities shall not be a manifestation of arbitrariness, it does not follow, however, that
everyone must be granted any right " .

65th The Constitutional Court interprets the general principle of equality of the two points of view
[see, eg. Judgments. Nos. Pl. US 16/93 of 24. 5. 1994 (N 25/1 SbNU
189; 131/1994 Coll.), Sp. Nos. Pl. US 36/93 of 17. 5. 1994 (N 24/1
SbNU 175; 132/1994 Coll.), Sp. Nos. Pl. US 5/95 of 8. 11. 1995 (N 74/4
SbNU 205; 6/1996 Coll.), Sp. Nos. Pl. US 9/95 of 28. 2. 1996 (N 16/5
SbNU 107; 107/1996 Coll.), Sp. Nos. Pl. US 33/96 of 4. 6. 1997 (N 67/8
SbNU 163; 185/1997 Coll.), Sp. Nos. Pl. US 9/99 of 6 10. 1999 (N 135/16
SbNU 9; 289/1999 Coll.), Etc.]. The first is the exclusion from the requirement
arbitrariness in the procedure of the legislature in differentiating groups of subjects and their
rights, the second requirement of constitutional acceptability of aspects
differentiation, ie. The inadmissibility of affecting one of the fundamental rights and freedoms-coding
entities and rights by the legislature.
Postulate of equality, although not a requirement for general equality of everyone with everyone,
however, it implies a requirement that the right to gratuitously give an advantage or disadvantage on
one group over another. The Constitutional Court therefore admits
law based inequality unless they are for a constitutionally acceptable
reasons.

66th But this is not the case. The dominant position of insurers, especially
General Health Insurance Company, in conjunction with the sanction
privileges and regulations against the providers of health services, particularly
performance limitations, financial sanctions for prescription drugs and

Solicited care in excess of the specified limits, not on the part of health providers
nothing outweighed such
contractual obligations of insurance companies in cases where they are objectively true
generally applicable statutory conditions.
Penalty authorization of health insurance resulting from the contested
§ 16a par. 10 and 11 and § 32 par. 5 and § 44 para. 5 and
paragraph. 6 in the words "imposed by paragraphs 1-5"
law on public health insurance and go beyond the boundaries even more constitutionally acceptable
inequality, as the Constitutional Court defined in the aforementioned findings.
This inequality additionally multiplied by a large margin the majority of penalties that
itself is not unconstitutional, as will be discussed, but it highlights just
in combination with the above-mentioned facts.
Marked with statutory provisions, are in conflict with Art. 1 of the Charter which guarantees equality in rights
.

67th Regarding § 13 para. 8 of the Act on Public Health Insurance
, it relates to the obligations of health providers,
which emerged from the newly created division of care to variants of the
reimbursement from public insurance. Specifically, it allows penalize violations
obligations of providers recorded in the medical documentation of the patient by
offer health services in the basic version and instruction
about the possibility of drawing it in economically demanding variant and another consent
patient and violating the ban prioritize patient
selector economically demanding service option. Due to the cancellation base
matter allowing paid to provide care in versions
follows from the logic of things that are in that provision, other grounds for annulling that
repealing sanctions enforces its implementation of the annulled provisions. For this reason
this provision, the Constitutional Court canceled the judgment day of its publication in the Official Gazette
. Other provisions repealed by the deadline of end-2013, which
a period sufficient to enable the legislature managed to make an adjustment
wording of the contested provisions in keeping with this finding.
The legislature should also consider whether not to reflect adjustments in keeping with this finding into
penalties for failure to collect fees for other medical care that
proposal under consideration were affected.

68th The Constitutional Court nepřisvědčil promoters, that is not acceptable
broad discretion health insurance, both in the amount, so the parties
possibility of re-imposing fines, as well as the upper limit
fine is not adequate. Currently - in its judgment. Nos. Pl. US 1/12 of
27th 11. 2012 (no. 437/2012 Coll.) - The Constitutional Court addressed the question
constitutional conformity of Act no. 372/2011 Coll., On health services and their provision
conditions (Health Services Act) | || defining misdemeanors and other administrative offenses
as well as levels of penalties for them. Draft a group of senators in this part
[specifically in relation to the provisions of § 114 paragraph. 1 point. g) and § 117 paragraph.
1 point. e), f), g), n) ar) and paragraph. 3 point. d), e), f), g), h), i) and m)
law on health services], according to which the maximum penalties are
due to their excessive severity, rejected because not found | || form of sanctions in conflict with Art. 11 paragraph. 1 in conjunction with Art. 4, paragraph. 1 and 4
Charter. At the same time it stated that the possibility of reviewing the specific application of the provisions
in proceedings on constitutional complaints
remains unaffected. Justifying their conclusion in paragraphs 329-337 above findings and
this justification is now referred to.

69th Obiter dictum, the Constitutional Court states that the scope of the sanctions
license can not be offset even by a legitimate aim, which is their
storage monitored, ie. The sound management of public funds
health insurance. Such measures appear to be inappropriate for
situation where these public funds are managed in addition to the General Health Insurance Company
other employee health insurance, which
have the character of a purely private entities. The legislature should consider
economical way of dealing with public health care insurance
also in terms of organizational structure. Regarding
horizontal relationship with health insurers and providers of health care services
to prevent its continued distortion that occurs
inter alia entrusting the sanctioning authority health insurance, should

Would be under current conditions entity gifted this privilege either
Health Ministry itself, eventually. (Optional) in the case
state and regional health providers
their founders, and in the case of private health providers
to the competent bodies, such as.
Expert professional association of physicians.

70th The scrambled parts of § 12 and 44 of the Act on public health insurance
be added that in the course of discussion of these provisions
undergone changes made by Act no. 458/2011 Coll., On amendment to laws related to the establishment of a single
collection locations and other changes in tax and
insurance laws (amendment affects only the structure of the provision, which
existing text of § 12 shall be referred to paragraph 1 and
will be supplemented by paragraphs 2 and 3 and in the case of § 44, paragraph 5 becomes
paragraph 2, the current paragraph 6 paragraph 3). The changes will become effective as from 1
1st 2015 verdict finding therefore corresponds to the legislation in force
and effective at the time of decision-making and change that only comes into
efficiency. Let added that in the case of § 12 petitioners
Although the amendments made to the Act no. 458/2011 Coll. even supplemented variant
judgment in the petition reflected upon, however, the Constitutional Court, based on the content
administration has done so. Constitutional Court Act does not associate
assessing the constitutionality of effective regulation, but its effect in
result of which is to be considered admissible
proposals to repeal legislation, even if not as a result of both outlined | || possibility of effective (see Filip, J., Holländer, P., Šimíček, V.
Law on the Constitutional court. Commentary. 2nd, revised and expanded edition. Prague:
CH Beck, 2007, p. 387).

VII.

71st In light of the above arguments, the Constitutional Court
§ 11 paragraph. 1 point. f) § 12 letter. n), § 13 para. 3-8, § 16a par. 1 point.
F) and. 9-11 [if they concern a fee for inpatient care by
§ 16a par. 1 point. f) of the Act on Public Health Insurance
] § 17 para. 4, the words "and marked variations
health care according to § 13," § 32 par. 5, § 44 para. 5 and Sec. 6 in words
'imposed by paragraphs 1-5 "law on public health insurance and
§ 12 para. 1 point. n) and § 44 par. 2 and par. 3 of the words "
imposed by paragraphs 1 and 2 of" Law no. 48/1997 Coll., on public health
insurance and amending and supplementing some related laws,
wording after the amendment made by Act no. 458/2011 Coll., according to § 70 paragraph
. 1 of the Constitutional Court. Enforceability verdict annulling
no. III of the operative part no. IV finding the reasons above divorced
deferred until 31. 12. 2013.

72nd In accordance with § 70 par. 3 of the Constitutional Court were
simultaneously canceled the relevant part of the Annex of the Ministry of Health
no. 134/1998 Coll., Issuing the list of health
performances with point values, as amended, and that the designation
performance as economically demanding variant. For clarification
Constitutional Court verdict II interprets so that in the decree itself alongside
symbol "E" also cancels it pertained description
economically demanding variant.

Chairman of the Constitutional Court:

JUDr. Own hand

Dissenting opinions according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, took to the plenary decision
judge Stanislav Balik, Vladimir Kurka, Dagmar Lastovecká, Michael and Židlická | || to justify judge Ivana Janu.