396/Sb.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court ruled under SP. zn. PL. ÚS 19/13 of 22 November. October 2013 in
the plenary consisting of the President of the Court, Pavel Rychetského and Stanislav
Bumpkin, Louis David, Jaroslav Fenyka, Jan Filip, Vladimir Crust,
Jan Musil, Jiří Nykodýma, Vladimir Sládečka, Catherine Šimáčkové, and
Michaela Židlické on the proposal for a group of 39 Senators of the Senate of the Czech
States on behalf of which it is a State Senator. Alena Dernerová, on
the cancellation of the Decree of the Ministry of health no. 475/2009 Coll., on
determination of the values of the point, the amount of the reimbursement paid services and regulatory
limits for the year 2013, respectively on the repeal of section 17, annex 1, annex
# 3, part A, point 1 (b). (g)) and part (B), of the annex No. 4, annex No. 5 point
5 and annex No. 14 Decree No. 475/2009 Coll., on the establishment of the point
the amount of the reimbursement paid services and regulatory limits for the year 2013, in
the participation of the Ministry of health as a party to the proceedings
as follows:
Even. Decree No. 475/2009 Coll., on the establishment of the point of the above payments
covered services and regulatory limits for the year 2013, is in breach of article.
1 (1). 1 of the Constitution of the Czech Republic and article. 1 and article. 26 paragraph 2. 1 of the Charter
fundamental rights and freedoms.
II. order No 475/2009 Coll., on the establishment of the point of the above payments
covered services and regulatory limits for the year 2013, is off the end of the
day 31.12.2014.
Justification:
(I).
The definition of things and a recap of the proposal
1. The Constitutional Court was on 25. 3.2013 served Group 39
Senators Senate of the Parliament of the Czech Republic (hereinafter referred to as "the appellant")
According to the article. 87 para. 1 (b). (b)) of the Constitution of the Czech Republic (hereinafter referred to as
"The Constitution"), and according to the provisions of § 64 para. 2 (a). b) Act No. 182/1993
Coll., on the Constitutional Court, as amended, on the abolition of
Decree of the Ministry of health no. 475/2009 Coll., on the establishment of
point, the amount of the reimbursement paid services and regulatory limits for the year 2013
(hereinafter referred to as "Decree" or "úhradová Ordinance"), possibly to cancellation section
17, annex 1, annex 3, part A, point # 1 point. (g)) and part (B),
Annex No. 4, annex 5, point 5, of Annex No. 14 and the other
the provisions which will be found to be constitutionally nekonformními. The contested
the decree is based on the applicant in breach of article 88(3). 1 and article. paragraph 79. 3
Of the Constitution and article. 1, art. 26 paragraph 2. 1, art. 28, art. 31 and 34(2)(c). 36 of the Charter of
fundamental rights and freedoms ("the Charter"). With the design was associated
a request for priority review of the draft.
2. the applicant considers that there is infringement of article 81(1). 1, and it specifically, it contained
the prohibition of arbitrariness and arbitrariness and the principle of predictability, as a fundamental
the values of the rule of law, and article. paragraph 79. 3 of the Constitution, above all in the fact that in
comparison with previous years reduced the Ordinance the remuneration in almost all
segments covered by the health services, and this despite the fact that the cost of
the operation in 2013, proven to grow. Health providers
Services ("providers") therefore, the expected increase in payments, rather
that would at least partially cover the enhancement of inputs. I stay in the
the existing levels, which is going on since 2009, is for them to
unsustainable over the long term. Reduction of payments Department of nezdůvodnilo,
respectively failed constitutionally Conformal manner.
3. change the payments were not informed in advance providers, as
the contents of the reimbursement of the order, which took effect on 1 May 2004. 1.2013, was
published-publications of the prescription in the collection of laws on 31 December 2004. 12.2012.
Realistically, however, it is not obvious, or the actual amount of remittances after the release. Way
the calculation is set up so that the providers in a number of segments will not be
by mid-2014 to know how much they get paid for the work
paid during the year 2013. Receives only the so-called. preliminary monthly payment,
the amount being determined by the health insurance fund payments in reference
period, which is the period of two years ago, but without binding at
the current volume of reported care. In the opinion of the appellant's
the unpredictability of several causes. For providers of inpatient care is
the method of calculating remuneration (14 formulas using the variables 45) set
so intricately and překombinovaně, that without the expert assessment is not
mathematical formulas can be "all over". Only payment of inpatient care consists
of the 5 components of remuneration calculated separately and a separate calculation for
each clinic and professional workplace. At 20 hospitals with outpatient departments should
the calculation of the remuneration had undertaken in 25 constituents of remuneration for
each of the 7 health insurance companies, which represents a total of 175 parts
the remuneration. In addition, the Ordinance can be interpreted in different ways and achievements
quantities from nothing logically does not arise and are an expression of the will of the creator
the Decree. This system makes the care provided by hospitals
neřiditelnou and the ability to comply with the restrictions and regulations is minimal.
Calculation, compared to the previous period of difficulty, yet are able to realistically do this
only specially equipped institutions, not even all the health
insurance companies and hospitals are not able to calculate the accuracy of payment arrears
Verify. Even the best equipped with General health insurance company of the United
Republic of China (hereinafter referred to as "universal health insurance" or "NGA") in
the calculation is wrong and corrects it repeatedly, so at the time of this
the proposal had a number of hospitals still vypočtenu the remuneration for the year 2011 and
Some even in 2010.
4. The problematic is a decree and the variance in the amount of reimbursement between
the individual provider. According to statistics from the 58 hospitals published
The Association of Czech and Moravian hospitals scattering occurs prior
remittances from 83% to 101% of provisional payments in 2012, although the input
data from the year 2011, including the structure of the care provided has remained essentially
unchanged. The hospital stands before deciding whether throughout the year 2013
provide a limited care in proportion to the restriction on the payment or, in November
to stop the provision of care. Out-patient specialists cannot for the moment
know at what price they work, because this price will be determined after
the expiry of the full calendar year, at the earliest, however, towards the end of the first
mid-2014, based on the number of insured persons and treated as
costly care they will need to be provided in a summary. There is also a disproportionate
term, when it comes to billing. According to the appellant, the entire Ordinance
designed to ensure that payments were made retroactively and health
the insurance company is able to set the way ensuring their balanced
management. All risk in health insurance is so transmitted to the
providers of health services.
5. The Ministry by creating a překombinovaného method of payment exceeded
beyond legal authorization resulting from Act No. 48/1997 Coll., on
public health insurance and amending and supplementing certain
related laws, as amended by later regulations (hereinafter referred to as "the law of
public health insurance "). According to its section 17 para. 5 may
The Ministry of health, in the absence of agreement in the conciliation procedure,
lay down by Decree the point values, the amount of reimbursement the covered services and
regulatory restrictions. Paragraph 2 of the same provision reserves the contracts between
providers and health insurance companies provide a way for the implementation of the
remuneration provided to paid services, as well as the rights and obligations
the participants of the Treaty, if they are not determined by law. Contrary to the
the Decree provides for the method of payment, including the detailed definition of its
the individual components as well as the rights and obligations of the parties to the Treaty, which is the
only the law or the contract.
6. Conviction of violating article. 26 paragraph 2. 1 and article. 28 of the Charter is based on the
the fact that the decree reduces the payments, although the cost of running
healthcare facilities grow. The result is the fact that despite
its just as demanding and responsible work are not doctors and other health care
workers fairly remunerated for their work. In doing so, to reduce the
reimbursement is not given to the public interest, as the selection of health
insurance in 2012, there were 102% of the 2011 selection. The restriction turns out
especially on the selected provider. Decree on the one hand
calculates the volume of who are provided by the
Health Services Limited (for which the remuneration is transparent, easy to
spočitatelná and predictable), and those who are limited, which
means that part of the services they paid for in full and part of the reduced
the value of the point. The ratio of these parts cannot affect the provider. In
He will be paid the full amount of a maximum of what was shown in the reference
period (in 2011), and 98% of this value. All health
services provided by the above this value will be paid at a reduced value
point. The model example, the rapporteur demonstrates that reduced
point value can be and is provided by a considerable part of the services. Decree
does not contain any clause, requiring the medical vyviňovací
the insurance company to pay the full amount of service, where the service provider
justify its necessity or higher cost. In case of exceeding
set the volume of paid health care is provided in the
a completely unreasonable amount and does not cover the costs of providers
(the appellant points to the cases where the care provided by the above set
the volume of paid in the amount of $ 0.30 per point, with full point value is 1.02
CZK). According to his opinion as to the arbitrariness of the Publisher of the Ordinance, a
fines for exceeding the volume of care. Such payment is, however,
non-transparent, because during that period, the provider does not know and
cannot know which care and how it will be paid, since it does not know whether the
has exhausted the allowed limit health care. Even if it did, it cannot
as another trader noted that exhausted the limit and for the price
below the costs won't work.
7. Violation of equality in the rights guaranteed by article. 1 of the Charter,
the appellant in the manner of the remuneration of the urgent care. For urgent care
granted to non-Contracting providers shall be established in the amount of point value
75% of normal remuneration. Such inequality in remuneration of work is the same as
the appellant completely unjustified. Paradoxically, this type of service usually
It puts higher demands on the health-care professionals. The obligation of health
insurance companies pay for emergency care providers beyond the agreed
the volume of care has saved both the Supreme Court and the Constitutional Court. It is not clear
Why should be the same (urgent) care paid for by the individual
In addition, while providers in different ways, the term "non-contracted provider" is not
completely clear. The law on public health insurance stores health
insurance companies provide contracted care for its clients, failure to comply with this
obligations-a number of smaller health insurers does not care after
throughout the territory of the United States-but paradoxically, bonifikuje 25% reduction
the remuneration.
8. further inequality decree introduces a number of changes to the amount of the remuneration referred to in
health insurance policyholders in the individual regions by applying the
the coefficient of KPp, which takes into account in the calculation of remuneration in addition to the number of
Indeed, the number of patients treated the insured in the insurance company
region. Differences in default of payment of the same care for each insured person is then
made not only by the health insurance companies, but also by the County in which the
they were cared for. The greatest inequality is only partial compliance with the
the principle of equal remuneration for provided care, since the combination of the so-called.
technical national base rate and individual base rates as
variables leads to dispersion of reimbursement to hospitals of 17 000 and 39 000 CZK
in its most important folders-bed care. Similarly, the decree establishes
inequality in payment for unpaid care of diagnosis is the base rate
calculation of the remuneration on the basis of individual price point for each
provider of inpatient care.
9. Within the meaning of article 87(1). 31 of the Charter, an insured person has the right to request available
treatment, and even that was paid from public health insurance.
The Ordinance sets the parameters so that the providers will not be able to
the insureds care while, in fact, guaranteed by law, however,
insurance companies nehrazenou, provide.
10. Conflict with the right to a fair trial the appellant sees in
the complexity of its applications that can not do without expert
the mathematical assessment. In the Czech Republic are 2-3 companies
with a few specialists capable to calculate (at least according to the
previous, less complicated regulations). The need to verify any
the claim is complicated by ongoing litigation disproportionately between health
insurers and providers about the amount of payments. In one particular proceedings
the Court of appeal has already called on the Court of first instance, to bring about the conversion requested
The Ministry of health. In such a pověřováním itself is at risk
the principle of the separation of powers, in any event, to the participants of the performance requirements of the Decree
an obstacle to the exercise of the right to judicial protection. In addition, it is not legally
fixed so and modified method of payment through a payment for the diagnosis,
works only with the methodology prepared by the general health
the insurance company. The Decree so operates with the terms shall in no way and nowhere legally
undefined, whose interpretation is ambiguous.
II. A)
Representation of the Ministry of health
11. in its observations, the Ministry stated that the power to regulate
the volume of care provided by a decree and the volume of payments for it is based on the
the enabling provisions of section 17(2). 5 of the Act on public health
insurance, which was confirmed by the judgment of the Supreme Court, SP. zn. 32 Cdo
3067/2010 of 31 March. 7.2012. The Decree respecting the scope and limits of the
of the legal authorization and release of the Ministry of
joined because of the assumed here, or after the conciliation
There has been no management among its participants to the agreement. The conciliation procedure for the
remuneration to the year 2013 was convened on 6. 3.2012 and completed the final
the hearing on 21 February 2006. 8.2012, with an agreement reached by its participants only
in three of the eleven segments of health care. This positive result
the hearing was taken up to the Decree. In General, the result of
the conciliation procedure, which shall keep the representatives of health
insurance companies and professional associations, providers of health services must
be a compromise. The amount of the payments cannot be set taking into account the interest of the
providers, as against them is interested in health insurance companies and
indirectly, the public interest in maintaining the stability of the financing of health
care from public health insurance funds. The Decree, issued in
the case of the failure of the conciliation procedure, therefore, may not fully
reflect profit providers. You cannot calculate even with
that will always be in every situation and fully paid all of their
cost of doing business. The opposite approach, while maintaining the current number of
providers marked destabilization of the public health system
insurance, which is in a slump, 4 billion. CZK. As a result, this would lead to
restriction of the availability of health care, since the insurance company would have been forced to
to conclude less contracts. Finally, in 2012, particularly přerozdělilo 6
billion of reserves, health insurance companies, which was a hedge fund
more or less exhausted, so a similar step already in 2013 will not be able
proceed. In this context, the Ministry points to find SP. zn.
PL. ÚS 35/95 of 10 October 1995. 7.1996 (N 64/5 SbNU 487; 206/1996 Coll.), in which
The Constitutional Court held that the system of public health insurance is
as each insurance system of limited financial resources,
that obtained from the insurance, and the volume of funds on
reimbursement of health care as a limiting factor for public health
insurance is directly included in the article. 31 of the Charter. The Ministry respects,
that providers of health services shall have the right to realize the reasonable
the profit, which is the purpose of the business, and at the same time they cannot provide
health care to its detriment. This purpose is also reflected in the Decree.
At the same time, however, the decree must reflect the fact that the health system
insurance is not able to ufinancovat the reimbursement of all the costs of
providers and that the maintenance of the health insurance system is a public
interested in, which is required to protect the Ministry.
12. As to the agreement on the amount of remittances for the year 2013, has not had to
Ministry to proceed to issue the Decree. However, he refuses his
the procedure has been unpredictable and non-transparent. The results of the conciliation
Although the management has received 3 June 2003. 9.2012, to November, however, had to wait for the
documents from the general health insurance company (in the system přerozdělovaných
public health insurance resources manages approximately 66%, and
without such data, the Ministry could not bypass and had to wait).
28 June 1999. 11. the draft circulated by 2012 to the internal
question, from 29. 11.2012 has been publicly available for the first
version of the draft (that is, a month before the applicant States), operationally,
then discuss the comments. The final version of the Decree was, in principle,
already published work by the Commission sent to the torque of the Legislative Council
the Government (in the standard way of discussing proposals on them in this
stage after the substance does not change anything). 17.12. 2012. The representatives of the
providers of health services and the public be able to with the content
the decrees meet already that day. In addition, where possible, respects the
Decree of the results of the conciliation procedure. When it comes to vytýkanou
the unpredictability, the Ministry already at the beginning of the conciliation procedure its
the parties declared that, with regard to the financial situation of the scheme
health insurance to be reckoned with a more restrictive form of Decree
compared to the year 2012. The contents of the decree is not fundamentally different, is based on the
the same principles, in the case of acute care in particular.
případovém flat-DRG. This is used in many other countries, in the United
Republic is used since 2007 and is still being developed, so that was what
fair to large and small hospitals. Even in the case of
out-patient specialists is not on-point recovery systems
reviews of performances with regression identified performance no novelty.
The Ministry does not conceal that the calculation of the remuneration is in particular for acute
more complicated services and is definitely not intended for the layman,
but not running in the health sector, not with the úhradovým system
experience. However, the Ministry provides assistance and advice in cases where
You may encounter problems with the application. For these reasons the objections of rejects
discretion and arbitrary decisions when creating a prescription.
13. The value and limitations of the Ordinance shall be for a predetermined
the general categories of providers a differentiated characters. Each provider
from the category that remuneration shall be calculated as well. The fact that the
each category is calculated differently, is a reflection of the diversity of
These categories in real life, and related objectively different
the amount of costs. Categorization, however, builds on the previous edit.
14. the rights to conduct business with the Decree, which does not regulate the conditions for the
How to obtain permission to provide health care, does not apply, as these offer
services, whether paid for by public health insurance or otherwise, to
providers. However, providers cannot base its
business on the fact that their activities will be reimbursed without further from
public health insurance, the introduction of limited resources
In addition, the split is fair. According to the principle of freedom of contract
In addition, providers may enter into a contract with a health insurance company
on the manner and amount of payment and regulatory constraints, the application
the Decree excludes. The issues examined by the Charter binding guaranteed
right to equitable remuneration from the Ministry is missing then the more.
15. Also, with the right to a fair trial lacks legislation
contained in the notice any link. The Decree has no effect on
whether, with whom, from out of the title, before which court or such procedural
the funds will be the providers ask for protection of their rights before the courts.
Providers and health insurance companies, whose relationship and Constitutional Court
as a private, have the opportunity to apply to the ordinary courts, in order to
address their mutual disputes. Difficulties with obtaining expert to validating
the accuracy of the calculation caused by its extraordinary complexity are
speculation of the claimant, moreover, on the website of the Ministry of the
available manual to calculate the payments.
II. B)
The opinion of the Ombudsman
16. The Constitutional Court, the Ombudsman said that his rights
enter into the control.
II. (C))
The replica to the statements and opinions of the
17. the applicant has submitted to the postoupenému observations of the Ministry of
Health replica. In his opinion the Ministry refutes the
arguments with which did not work at all, and does not represent the fundamental
předestřeným issues. It is not so obvious, it is concluded that it is constitutionally
Conformal, when for the same health service provider receives one
a specific amount and at other times (after exceeding a set limit) the amount less
than one-third. The same is true for reduction of payments for emergency health
services provided to non-Contracting providers. The Ministry also does not give the
in response to the issues raised the question of how to carry out the law providers
obligations, when they're not created elementary economics
assumptions. On the contrary, deals with the process of the adoption of the decree at length and
claims that corresponds to the lawful authority, as against the applicant
complained. As well as not neakcentoval the right of providers to
a reasonable profit in the submissions, but mainly to
the current setup does not allow them to cover the payments or common costs,
let alone realize a reasonable profit, which is the situation of the majority of providers
inpatient health services and some outpatient providers
health services. The applicant can think of DRGs, as such, as
accused, but a system that limits remuneration according to DRG categorically without
regardless of the composition and the diagnosis of the treated patients. Alone would see or
inequality in that it is set to any other remuneration for medical practitioners,
General practitioners for children and adolescents, outpatient specialists,
provider of inpatient services, etc., as the Ministry is there, but
in fact, in exactly the same health service is provided when crossing
set the volume of the remuneration is less than one-third of the normal payments, although
crossing was necessary, if the provider did not break the law. Or to the
the next key point, namely the provision of urgent medical
non-contracting services provider for payment of 25% lower, although the
This is the same service, provided in addition in more challenging conditions,
the Ministry did not comment.
II. D)
Expression of amicorum curiae
18. During the hearing of the matter has reached the plenary, the Constitutional Court concluded that the
It is desirable to get to the content of the design representation of the general health
the insurance companies of the Czech Republic, the Union of health insurance companies in the Czech
Republic (hereinafter referred to as "the Union of health insurance companies" or "Union") and the
Hospital Association of the Czech Republic (hereinafter the "Association of hospitals", or
The "Association"), as a representative of providers of health care services.
19. the applicant does not agree with the arguments of the NGA. The concepts of arbitrariness and arbitrariness
According to her, the appellant uses rather emotively, in fact
the Ministry is based on a clear legal authorization. It even
imposes an obligation to issue the Decree, but leaves it to the individual
health insurance providers and space for negotiation about the amount of
reimbursement and regulatory restrictions. The Ministry issued the Decree
obliged to keep track of the public interest, which is next to the availability of high-quality
health care and the financial equilibrium of the system. Exceeding the mandate
Therefore, the issue of the implementing regulation in the form of nereflektující
financial options, and the stability of the public health insurance system.
Because it is in the long term in a slump and increased remittances as required
providers would destabilize it. In this respect, could the providers
in the period of the economic crisis and its aftermath, the overall reduction of payments
expect. The Decree follows a conciliation procedure, in which the conformity
only in some segments. Its form is a compromise have emerged from a series of
the negotiations, which are likely to pronounce on the matter concerned,
all of their comments but it is not possible to accept. The text of the decree is
understandable, with the calculation of payments are not the problem. For a completely misleading
considers the claimant's assertion that the NGA health insurance companies focus
the funds on their accounts and to the final bill
services provided occurs with great delay. Payments from the NGA vice versa
take place continuously, even přeplatkům, which occurs after the Bill of
the insurance undertaking must claim back. The share of remittances to a total summary of preliminary
reimbursement shall be according to the statistics of the NGA 88% to 101.1%, the vast majority of
the financial resources available to providers have so continuously in advance
the agreed amount. The Decree does not distort even the principle of equality, since the differences
between categories correspond to a wide range of providers
their objective needs. Overall, it was a space for the increase in remittances,
the claimant's argument about increasing the selection of health insurance
insurance undertakings is assigned a page torn out of the context of other circumstances. At the same time
Indeed, continuously rising health care costs in recent years
even the pace of times higher. The Government approved material-
The summary assessments of the evolution of the system of public
health insurance in 2013 on the basis of the evaluation of the data
health insurance plans insurance companies-in addition to the above it is clear
information about the selection of premium growth and the growth of health care costs, and
that, despite the restrictions, the contested Decree will have a health
higher expenses than income insurance. The decree is clearly
stabilizing character. As regards reservations against regulation, reduction
the point values in case of exceeding limits represents according to NGA sui
generis a volume discount for the implementation of the agreed volume of offered above.
At the same time the Decree allows you to make all the excesses do not result in
regulatory restrictions. As regards the payment of urgent care provided
non-contracted provider, not by a smaller valuation provided by NGA
care, but only observations and a consequence of the service provider does not have
a contract with an insurance company, therefore is not obliged to provide an entire
the spectrum covered by the services required by an insurance company from the Contracting
partners, which represents next to material that is easy and lucrative
material-intensive services and nelukrativní. In any case, the proportion of
payments calculated from descending point values represented according to the NGA in the handouts
2011 around 3% of the total remuneration, which is rather negligible share.
Finally, the intervention into the article. 31 of the Charter of the NGA. It assumes
the existence of a financially stabilized the public health system
insurance, which helps to fulfill the Decree.
20. The Union of health insurance companies alleged by the applicant shall be deemed to conflict with the
ústavněprávními only for rules and their arguments are
do not adopt. The Ministry issued a decree in terms of legal
in response to this mandate, that the agreement was within the framework of the conciliation procedure
only in a few segments of health care services. To a specific substantive
the content of the Decree, in particular whether the remuneration set in
the correct amounts correspond to the economic possibilities of the State, and whether it was possible to
follow these steps to set the amount of the payments, the Union did not rule, as
the assessment of these aspects cannot be subject to review
The Constitutional Court. Draws attention, therefore, rather on some aspects with the release
Decree related. First, the Ministry is authorised to issue úhradovou
following promulgation of the always on and at the same time only on the entire calendar year. (I)
If, therefore, the Constitutional Court upheld the proposal and the contested Decree set aside,
the Ministry could issue a decree only for the remaining part of the year,
as this is in contravention of section 17 para. 5 of the Act on public health
insurance. If a new decree issued for a full year of 2013, she worked
would retroactively, which is not allowed. Entered into price agreements
concluded in good faith on the constitutionality and legality of the decree now contested.
As regards the impact of the Decree on its addressees, the Union admits that the
some constructs are not the easiest, but the Ordinance as a whole therefore
cannot be evaluated negatively or even as unconstitutional. Notes that the
According to the Decree happens only if the insurance undertaking's nesjednají with
the provider of payments and otherwise. Prescription therefore has the nature
recommendations, with the possibility to derogate from its content, which is also in the
most of the compensation paid by the services relationship going on. Furthermore, The Union Of
stresses that the proposal is from a substantive point of view, unfounded, since
hypothetical repeal of the Decree cannot have any consequences on the already closed
price agreements for 2013. Finally, the Union protests against certain
the statement contained in the draft, for example, that the insurance enterprises
absentuje, a computerized system that allows the application of the decree or that
insurance companies are abusing the regulation to their advantage. Proposal to repeal
the Decree as a whole should be according to the Union rejected an alternative proposal
to cancel its selected provisions it considers even absurd,
as it tracks the interests of only some of the selected providers.
21. in its report of the hospitals Association said its members consider
the decree made the reduction in remuneration for unjustified, bed care
inadequate given the economic situation. If the hospital and hospital
must deal with the increase in the SALES TAX, increasing their energy and State-ordered
by adjusting the salaries of health workers, then a reduction of payments threatens
the basic functioning of each device and mission to provide health
care within the scope of the law, especially after the exhaustion of internal
reserves. The lack of finances is reflected in planning for the provision of care,
leads to its total reduction, postponement of emergent care, layoffs
employees. The complexity of the calculation of the reimbursement in accordance with the opinion of the Association still
is increasing, and confirms that health facilities can therefore only
It's hard to predict what the actual remuneration they eventually gets. Association
matches the plaintiff party alleged the unpredictability of payments
the complexity of the mechanism-based calculation. The decree will some
the imbalances corrected, however, inequality persists in the disbursement,
for example, that each insurance company pays a different price for the same care.
The Decree further complains that works with the DRG outputs, which are instruments
the law of the unforeseen. Finally, the Association expresses its concern that any
repeal of Decree during its efficiency, in the case that the Ministry of
prepares a new one, the worst came on the provider, which
the position would be economically even more znejistělo.
II. E)
Information on foreign regulations
22. the Constitutional Court in order to get a better overview of the solved problems
also, he has provided information about how to use the remittance rules are set
provided health care and its regulation in the surrounding countries, namely
the Slovak Republic, the Federal Republic of Germany, in Austria, in Poland and in the
France. It turned out that, in particular, for completely different default parameters
each of the adjustments are submitted to the report for the management of unusable,
because it is not as to the justification for the project. For this reason, it is not their
content naraci rekapitulován.
III.
A summary of the content of the contested Decree and diction of certain provisions
23. The contested Decree laying down the values of a point, the amount of the reimbursement paid services
and regulatory restrictions for contractors in the listed fields
or proficiency, and also in the context of urgent care for providers
non-contractual. These parameters are specified in the individual
annexes, and specifically in annex No. 1 for paid services provided
providers of inpatient care, in annex No. 2 for paid services
supplied in the general practice of medicine and in the field
practical medicine for children and adolescents, in annex No 3 to the
specialized outpatient care, in annexes 4, 5, 6 and 7 for
ambulatory health care services in different fields of medicine and in annex No. 8 for
paid services provided by providers of medical transport services.
Annex No 9 to 13 contain the enums related with previous attachments,
Annex No. 14 coefficients change the number of policy holders of health insurance companies
According to the regions of the Czech Republic and annex No. 15 contains the medicinal products
removed from the case by flat rate payment.
24. Since the Constitutional Court did not consider it appropriate to reproduce on this
place the full text of the contested Decree, a citation of the
the provisions of § 2, which contains some relevant definitions,
the provisions of section 17, which provides for a rate of reimbursement for non-contracted provider, and
Finally, in a substantial part of annex 3, which refers to the amount of the payments for the
providers of ambulatory health care and where you can also illustrate the
the way the Decree provides, offers and other regulatory restrictions. These
part of the Decree:
"The Ministry of health shall lay down pursuant to § 17 para. 5 of law No.
48/1997 Coll., on public health insurance and amending and supplementing
some related laws, as amended by Act No 117/2006 Coll., Act
No 245/2006 Coll., Act No. 261/2007 Coll. and Act No. 369/2006:
...
§ 2
(1) the reference period means for the purposes of annexes 1, 3 and 8 of this
Ordinance of the year 2011.
(2) the Rated period shall mean for the purposes of annexes 1, 3 and 8 of this
Ordinance of the year 2013.
(3) Unique insured for the purposes of this order means a
the insured person the health insurance companies treated by the provider
health services (hereinafter referred to as "provider") in a given expertise in
investigational or reference period, at least once, with the fact that it is not
applicable, whether it is a treatment within its own services or services
on-demand. If the insured person in a given provider expertise
treated in the relevant period or the period of reference
more than once, includes the number of unique insured persons the competent
health insurance companies treated in the skill only once. In
the case of the merging of health insurance companies, the number of unique policy holders
the sum of the unique policy holders of health insurance companies, which are
were merged. If the insured person is insured in the reference period more
than one health insurance company, the number of unique treated
insured persons are counted only once.
(4) when calculating the total number of declared and health provider
insurance company recognized for performance for the reference period referred to in the annexes to the
# 3, 5 to 8 to this Ordinance with these points means the points calculated
According to the list in the version in force on 1 January. January 2013.
(5) if in the reference period or in 2012 to merge two
health insurance, it shall apply for the calculation of the payments the sum of data for
the reference period of the merged health insurance companies.
...
§ 17
For emergency care provided by non-Contracting providers
paid by list of performances is fixed point value of 75%
the point values laid down in section 8, 12 and 14 and in the annexes 1 to 8 to this
the Decree. The resulting point value is rounded to 2 decimal places.
...
Annex 3
The value of the item, the amount of the reimbursement paid services and regulatory restrictions in accordance with § 6
And the point value and the amount) reimbursement
1. The amount of the reimbursement shall be laid down in accordance with the list provided by remuneration for performance
medical procedures-valued point of
a) ...
...
g) £ provider 1.02 paid services providing
specialized outpatient medical care than those referred to above, to the volume of
calculated for individual expertise by performance list as follows:
POPho
PBro x--------------x 0.98
POPro
where:
The total number of the provider of the PBro of declared and recognised by the health insurance company, which had not been reimbursed for the reference period at a reduced point value
The number of unique POPho insured persons treated by the provider in the expertise of the vhodnoceném period
POPro number of unique insured persons treated by the provider in the expertise of the vodbornosti in the reference period
Healthcare provided by the provider of the calculated volume in the
expertise, expressed in number of points for the performance of the provider of the declared and
health insurance company recognized as the reference period, shall be reimbursed by the
list of performances with a value of $ 0.30 point.
2. in the case of a provider that did not exist in the reference period, or
which did not allow the care in the expertise, the health insurance company
for the purposes of calculating the volume of use of the average number of points per
unique expertise in the insured person treated for the reference period
comparable service providers.
3. where the provider compared to the reference period occurs due to changes
nasmlouvaného extent provided covered services in some
expertise to an increase in the average number of points per unique
the insured person, the volume number of points referred to in point 1 (b). (g)) be increased by the number of
, which corresponds to the year's provider and health insurance company
recognised the newly-nasmlouvaným health.
4. the reduced point value in a given expertise in accordance with point 1 (b). (g))
not apply to:
and) in the case of a provider that, in the reference period or
within a single expertise has treated 100 and less unique policyholders when
contracted capacity provided covered services at least 30
Office hours per week. In the case of the contracted capacity provided by
covered Services Office of less than 30 hours a week with a limit of 100
the treated policyholders is converted by a factor of n unique/30, where n
is equal to the capacity of the covered services contracted for that expertise.
(b)) in the case of paid services provided by foreign insurance policy holders.
In the cases referred to in point (a)), all the stops with a value of
the point of 1.02 €.
5. the monthly interim payment shall be equal to one provider
twelfth of the volume of the remuneration for the corresponding reference period, or in the amount of
the value of the provider of the declared and recognised by the covered services for
the appropriate month. The selected form of interim payments health insurance
preserves throughout the rating period, if a provider during the investigational
period does not request reduction in the amount of pre-financing payments. Advance payments for
-rated period financially settled in the context of the overall financial
settlement, including regulatory restrictions, and no later than 120 days after the
the date of the rating period.
B) regulatory restrictions
1. If a provider reaches the average payment per unique
the insured person separately charged medicinal products, with the exception of separately
posted in medicinal products marked with the symbol "S" under § 39 para.
1 Decree, and posted the material in the period is higher than the
100% of the average remuneration per insured person for a particularly unique
charged to the medicinal products, with the exception of specially charged to medicinal
products marked with the symbol "S" under § 39 para. 1 Decree, and especially
posted material in the reference period, the health insurance company may
After the end of the year 2013 providers reduce the payment to 40% of the amount by which
the total remuneration for the listed separately charged medicines and separately
posted material in the period exceeded such a payment in
the reference period, and that the Treaty methods of provider and
health insurance companies.
2. If the supplier reaches the average payment per unique
the insured's prescribed medicines and medical devices in the
the period is higher than 100% of the average remuneration per unique
the insured's prescribed medicines and medical devices in the
the reference period, the health insurance company may after the end of
the rating period to reduce the payment of 50% of the amount by which the total remuneration for the
prescribed medicines and medical devices in the
the period has exceeded such a payment in the reference period, and ways
contained in a contract provider and health insurance companies. To the average
the remuneration of an insured person for one unique will be included as well as supplements for
medicinal products for which the prescribing doctor ruled out the possibility of
Replace in accordance with § 32 para. 2 of the Act.
3. If a provider reaches the average payment per unique
pull the insured's care in the listed fields of medicine in
the period is higher than 100% of the average of the remuneration of an insured person for one unique
in the reference period, the insurer may, after
the end of the period to reduce the payment to 40% of the amount by which the total
payment for the requested care in listed in the fields of medicine
the period has exceeded such a payment in the reference period, and ways
contained in a contract provider and health insurance companies. To the requested
care do not include ... For the purposes of determining the amount of the average reimbursement i
a collision in the first sentence the performances requested in the care and
the reference period will be appreciated according to the list in the version in force on 1 January.
January 2013 the value in the period.
4. Regulatory restrictions referred to in points 1 to 3 shall not apply if the supplier
justified provided paid services, on the basis of which occurred
exceeding the average of payments referred to in points 1, 2, or 2.
5. ..."
IV.
The existing relevant case-law of the Constitutional Court
25. the proposal to abolish the reimbursement of the decree is not submitted to the Constitutional Court
for the first time. Finding SP. zn. PL. ÚS 24/99 (N 73/18 SbNU 135; 167/2000 Coll.)
the former was repealed the provisions of § 17 para. 5 of the Act on public
health insurance. It provided that the value of the point and the amount of reimbursement
health care paid for by public health insurance, agree in
conciliation between the designated participants and that, if in the
conciliation is reached to the outcome or the result will be in
conflict with the law or the public interest, decide on the values
point and the amount of government payments, and will announce its decision in the Gazette
The Ministry of health. The reason for the derogation was, that the
the Act Government is not due to their general nature of the decision, but the legal
provision. With springs (forms of) the legislature nor the Executive rights cannot
to dispose freely, and if according to the article. 78 of the Constitution, the only form of regulation
normative act, which is entitled to take the Government, then in the present
the case was the contradiction between the normative content of the Act of the Government and the absence of this
the appropriate legal form. This plenary proceedings initiated III. the Senate
The Constitutional Court in a hearing a constitutional complaint of a group of doctors,
against the part of the Government's decision of 23. 6.1999 about the values of point and
the amount of reimbursement of health care paid for by public health insurance.
Own constitutional complaint was then given to the conclusions of the plenary for
lack of locus standi of the plaintiffs, finding SP. zn. III. THE TC
407/99 of 9 December 1999. 11.2000 (N 165/20 SbNU 171) rejected. Conclusion on the legal
the nature of the Act of the Government of the other decisions: resolution SP. zn.
III. TC 60/2000 of 10 July. 11.2000 (in the collection of the findings and resolutions of the
The Constitutional Court unpublished; all resolutions are available on the
http://nalus.usoud.cz) rejected the constitutional complaint against the doctor
the Government's decision on the determination of the point values and the amount of reimbursement of health care
covered by the public insurance for 1. half of 2000 as from the
the person obviously unfair and for the same reason was on 30. 11.2000
rejected resolution SP. zn. I. ÚS 498/98 a constitutional complaint the Group
the complainants against the Government's decision about the values of point and the amount of reimbursement
health care paid for by public health insurance for the IV.
quarter of 1998.
26. By resolution SP. zn. IV. TC 407/99 of 15 December 1999. 6.2001 a constitutional
Court as manifestly unfounded constitutional complaint of a group of private
medical practitioners against the measures of the Ministry of health
-The results of the conciliation procedure on the values of the point and the amount of reimbursement of health
care paid for by public health insurance for 3. and 4. quarter
1999. The complainants claimed that the result of the conciliation procedure is not in
accordance with the law on prices, since it does not allow you to realize
a reasonable profit, that setting regulatory limits is the unequal
position in relation to health insurers and that he had tampered with principle
of representativeness, because the power of attorney to represent either have not given to anyone
or is given representatives who did not vote for the regulation. The Ministry of
not to accept the results of the conciliation procedure and disbursement should
decide the Government. The Constitutional Court held that the powers of execution
the Act on public health insurance, according to which the value of the point and the
reimbursement of health care provides for conciliation, is against the law for
prices (Act No. 526/1990 Coll., on prices, as amended)
the nature of the special law. The purpose of the Institute is to achieve agreement between the
health insurance companies and groups of providers on
reimbursements from health insurance, so that the economic requirements
medical facilities were to be enforced, while maintaining financial stability
the health insurance system. In the mechanism of the conciliation procedure is to
each provider whether and how must authorize the competent professional association
to defend their interests. Omission or failure to act of the particular
the provider in this regard cannot call into question the fairness of the entire
process. Were things of the complainants and their professional associations, in order to
they performed in the spirit of consensus of opinion and interest. If there is in
conciliation agreement on the amount of remittances, the complainants
obligations arising from this agreement to get rid of reference to intervention in the
of fundamental rights.
27. By resolution SP. zn. PL. ÚS 13/03 of 25 March. 8. in 2004, the Constitutional Court
comment on the competence of the Ministry of health to decide on the values
point and the amount of reimbursement of health care. Rejected as manifestly unfounded
the proposal of a group of Senators to repeal the Decree of Ministry of health
No 101/2002 Coll., amending Decree of the Ministry of health.
134/1998 Coll. issuing the list of medical procedures with spot
values, respectively for annulment of provisions in the draft precisely marked
of this order. The proposal stood on the claim that after the derogation (finding SP. zn.
PL. ÚS 24/99) the enabling provisions of section 17(2). 5 of the Act on public
the Ministry of health insurance cannot decide about the value of point and
the amount of reimbursement of health care from public health insurance outside the
conciliation, i.e., in case of disagreement of his subjects. The Constitutional Court
It nepřisvědčil that the cancellation of the impugned provision cannot be
inferred the linking of the Ministry of health, the results of the conciliation
in determining the value of the control point and the amount of the reimbursement in a way, as it is
the appellants. The purpose of the statutory provisions governing the conciliation
control, is the anchoring mechanism negotiation stakeholders,
and thus minimizing the public impact of price regulation. This
the provisions but is not based regulatory competencies listed
non-State actors (in the sense of corporate system), since the
remains the Ministry of health.
28. By resolution SP. zn. IV. TC 127/04 of 7 December 2004. 4.2003 (9/30 SbNU 523)
was rejected as manifestly unfounded group 53
medical facilities on the cancellation of part of the Decree of the Ministry of
health care no 532/2002 Coll., laying down the amount of the reimbursement of medical
care paid for by public health insurance including the regulatory
restrictions for 1. half of 2003, as legislative work, consisting of
in issue generally binding legal regulation, cannot be regarded as intervention
the public authority competent to violate a fundamental right or freedom. From
the same reason was resolution SP. zn. IV. TC 128/03 of 11 February 1999. 11.2003
rejected the Association of general practitioners in the Czech Republic and the Association of
General practitioners for children and adolescents of the Czech Republic for annulment of the same
the Decree, this time as a whole.
29. The proposal to repeal the latter Decree conflict with the law and
the constitutional order then i brought a group of Senators and members of the group.
The proposal argued that the regulation carried out by Decree as
beyond legal authorization. Resolution SP. zn. PL. ÚS 53/03 of 17 June.
10.2006, the proposal was rejected as manifestly unfounded, since after
initiation was canceled by the enabling provisions of the Act, on the basis of
which was contested Decree is issued, and has been replaced by zmocňovacími
the provisions of the new, differently formulated. Before the Decree
end of the trial remain in effect, but the legal relations resulting from it
were undoubtedly already largely implemented and the Decree was no longer
eligible to continue to produce legal effects. Substantive examination should not
sense even for the reason that the main purpose of would be a General
specification of the scope of the legal authorization for the Department of health,
While the enabling provision was repealed.
30. the Group of Senators has proposed to cancel and Ministry
health care no 50/2005 Coll., which sets the amount of the reimbursement of medical
care paid for by public health insurance including the regulatory
restrictions for 1. first half of 2005, with the arguments that have been infringed
procedure the adoption of the Decree, the Ministry issued a decree outside and
beyond his legal mandate, and that for the period from the first to the
the 25th of January 2005 is retroactive. Resolution SP. zn. Pl. ÚS
16/05 dated March 4. 5.2007 the Constitutional Court rejected the proposal as obviously
unfounded for the same reason as in the case SP. zn. PL. ÚS 53/03. In
the intervening period had been cancelled as the enabling provisions, according to which
the contested Decree was adopted, and to replace the empowering
the provisions of the new, otherwise stated. Due to the absence of material
terms of action, the further normative by missing the legal
authority, although it is still a valid Decree legislation, but
She became a regulation, which is neither efficient nor applicable, i.e.
one that would be eligible in the reality of the legal effects for the
Futuro.
31. The further proposal of Senators to repeal the Decree, this time reimbursement
Decree No. 550/2005 Coll., which sets the amount of the reimbursement of health care
paid for by public health insurance, including regulatory restrictions,
for the 1. half of 2006, reasoned its formálněprávními and
materiálněprávními deficiencies, the Constitutional Court ruled in management SP. zn.
PL. ÚS 23/06. In fact, according to the Ministry of the appellants did not provide space
for the conclusion of an agreement on the amount of reimbursement of health care, when participants
the conciliation procedure assigned under the pretext of prejudice to the public interest
back agreements and create the precondition for issuing artificially
the contested Decree. In addition, it has exceeded the statutory mandate, as adjusted
even relationships that regulate a matter for her and by the way the above
payments has established inequality between the parties concerned. The Constitutional Court
in its resolution of 13 April 2000. 3. the 2007 work has declined due to the defendants already in
things SP. zn. PL. ÚS 53/03, that is, the cancellation of the relevant enabling
provisions, and the work of control about him stopped because a substantial part of
the Ordinance has ceased to be in force during the proceedings.
32. the same Decree-Decree No. 550/2005 Coll.-the proposed repeal within the
specific control of constitutionality of the two complainants, doctors,
who defended the constitutional complaint against the specified by decision of the
health insurance companies on the application of regulatory mechanisms. Resolutions of the sp.
Zn. I. ÚS 701/2006 of 10 March 2006. 7.2007, SP. zn. IV. TC 1544/07 dated
21.8. 2007 were both rejected as inadmissible constitutional complaint
(the complainants exercised options to seek protection against
the Contracting Parties-health insurance-in general the Court) and the attached
proposals to repeal the legislation process to share their fate.
In the.
Your own review
33. Although the provision of health services is subject to
private-law relationships between providers and patients as to the
the area in which it is significantly limited by the contractual freedom and
at the same time, is given a distinctive space for public regulation. Right here
reflects the risks when providing health care associated with
interventions into the bodily integrity, and sets out the rules to the maximum
as far as possible lead to their elimination. At the same time, however, it also
other obligations whose purpose is to ensure that citizens in
General, the real access to health care, and they were created
conditions for a decent life, even in the cases where this care
couldn't afford from their own resources. In all these cases,
justifies imposition of duties requirement the protection of the life and
human health, as well as its dignity.
34. To achieve these purposes is used in the Czech Republic the system of compulsory
public health insurance, whose legal expressly
second sentence of article predicts 31 of the Charter. This system significantly
modifies the legal relationship between the provider of health care services and
by the patient. If the provider is in a contractual relationship with the health
the insurance company, then it arises (in the range defined by the legislation of the
and such obligation for payment of the contract) of health services
provided by its insurance policy holders. Between the patient and the insurance company at the same time
There are public-law relationship, part of which is, unless the State
the insured person (section 7 of the Act on public health insurance), and the law
as defined by the obligation to pay the premiums. Can I just add that the law does not prevent the
the fact that individual providers of health care services and providers
insurance policy holders of health insurance companies with which they do not have a contract.
These providers, however, with the exception of emergency care and certain other
the law defined the provision of health services (section 17, paragraph 1,
the Act on public health insurance) are not eligible for reimbursement
against health insurers, but directly to the patients.
35. In view of the fact that public health insurance participants are
obligatory in principle all persons permanently living or working on the territory of the
The United States, it is understandable that this system has on the expenditure
on health care, a dominant market share. According to published (preliminary)
the statistics represented health spending in 2011
health insurance amount to 225 547 miles. Of the total amount of $ 242
410 million. CZK public expenditure, while private spending accounted for
the amount of 46 376 million. EUR (cf. Health care as part of the national
economy 2011. Time series of selected financial indicators. Institute of
health information and statistics of the Czech Republic, 33, available
on http://www.uzis.cz/system/files/zdrnarekon2011.pdf). Direct payments for
medical procedures, which in principle apply only to their narrow
circuit (e.g.. dental care, aesthetic surgery)
they represent only a minor part of the latter group expenses, which
forms for example. payments for drugs and medical devices and regulatory
fees. In these circumstances, it is not disputed that, in the case of
providers of health services depends on their ability to do business in the
crucially on whether them for cooperating (or in General
the service) are entitled to a payment in respect of any of the health insurance companies.
The conditions for their business then completes the regulation of the amount of the reimbursement paid by the
services that occurs pursuant to § 17 para. 5 of the Act on public
health insurance for a period of the calendar year of the so-called. úhradovou
by a decree of the Ministry of health.
36. the value of point, the amount of the reimbursement paid services and regulatory measures
laid down by this Decree are reflected in the content of the agreements between the
providers and health insurance companies. As is apparent from the wording of
framework contracts laid down by Decree No 618/2006 Coll., which
the framework contract shall be issued by the Ministry of Health issued under section
Article 17(1). 2 of the Act on public health insurance, the said Treaty
assume that the above payments will be listed in the Appendix (the so-called price
Appendix). This appendix is usually concluded each year and
usually refers to the text of the Decree, effective for appropriate reimbursement
period, unless the parties agree on the amount of payments otherwise. The maintenance of the
the decree is applied directly to these relations only in the case that the
the amount of the payments do not agree. But it's always the legal relations between the so-called.
non-Contracting providers and health insurance companies, which have arisen from the
to provide emergency care to the insured person or any other legal
Regulation provided for a reason. Just cancel this order, issued for the
the year 2013, the complainant in this proceeding.
IN THE.)
The assessment of whether the contested Decree was issued on the basis and within the limits of
law
37. in accordance with § 68 para. 2 of the Act on the Constitutional Court, the Constitutional Court in the
this case dealt with the question of whether it was first challenged the Decree
taken and released constitutionally Conformal manner and within the limits of the Constitution
provided for competencies. While in the assessment procedure of its adoption
the Constitutional Court of the nature of the matters dealt with by Decree as a whole, in the case of
the question of whether it was released within the limits of legal authorization, to limit only
on her part, which turns out to be applied by the applicant's argument.
38. The provisions of article. paragraph 79. 3 of the Constitution confers on the Government departments and other
the administrative authorities of the power to issue secondary legislation to
its implementation, however, may occur only on the basis and within the limits of the law,
If they are empowered by law to do so. That provision must be interpreted
strictly in the sense that such a mandate must be specific,
unambiguous and clear [find SP. zn. PL. ÚS 3/2000 of 21 December. 6.2000 (N
93/18 SbNU 287; 231/2000 Coll.)]. If this is the case, the Constitutional Court
examines whether the podzákonný of legislation issued by a national authority to
legitimate and within the limits of its competence, namely whether in the exercise of this
powers moved within the limits and on the basis of the law (secundum et intra
legem), rather than outside the law (preater legem). Simply put, it is a
that, in the case where X is to be under the law, the law has provided
that it should be Y but that X 1, x 2, x 3. Of the enabling provisions must
be obvious will of the legislator to modify the above the legal standard. Even in the
this case, however, the podzákonný of legislation must not interfere in the Affairs of the
dedicated to regulate only by law (the so-called "reservation) [cf..
find SP. zn. PL. ÚS 7/03 of 18 May. 8.2004 (N 113/34 SbNU 165;
512/2004 Sb.)].
39. The mandate of the Ministry of health to issue a decree
provides the value of the item, the amount of the reimbursement paid services and regulatory constraints,
It follows from section 17(2). 5 of the Act on public health insurance. This
the provisions also assumes that its release will be preceded by
conciliation of the representatives of the Czech general health insurance company
States and other health insurance companies and representatives of the competent
professional associations as representatives of the providers
providers, which shall be convened by the Ministry. If the result of this
the management agreement on these parameters, the Ministry issues as it
a decree. However, if the content of the agreement was in conflict with the law
legislation or public interest in the meaning of § 17 para. 2 of the law on
public health insurance means the interest in quality assurance and
the availability of paid services, the operation of the health care system and its
stability within the financial possibilities of the public health system
insurance, or would the agreement was not reached until 120 days before the end
the calendar year, the Ministry will assess the value of the item, the amount of
reimbursement covered services and regulatory restrictions on the following calendar
year separately.
40. The contested Decree was released just on the basis of § 17 para. 5 of law
on public health insurance, and State authority to
authorized, and how the Constitutional Court found the requested representation in the
accordance with this provision and the conciliation took place
proceedings, albeit in a timely agreement has occurred only on the participants
three of the eleven segments of health care [on the question of the importance of the conciliation
procedure for the use of the mandate and the firmness of the eventual agreement. find
SP. zn. PL. ÚS 6/07 of 9 June. 2.2010 (N 20/56 SbNU 207; 66/2010 Sb.)
paragraph 77]. Because it was contested at the same time published in the collection of the Ordinance
laws, namely under the # 475/2012 in the amount of 178, which was circulated to
on 31 December 2004. December 2012, it can be stated that its acceptance and release
There has been constitutionally Conformal manner.
41. As regards the question whether the contested Decree was issued within the limits of
legal authorization, the enabling provision does not define what
exactly means the value of a point, the amount of the reimbursement paid by the services and
regulatory restrictions. The Constitutional Court has considered that the notion of remuneration is
wider and that the power to set them without further includes the determination of the
point values and regulatory restrictions, which are basically only
resources to its destination. The fact that the legislature is still considered
the necessary expressly to mention, has signaled for his idea about how to
the calculation of these payments, which should be based on the so-called. Scatter
system, and thus the amount of the payments it is based on the number of points for
individual medical procedures, but with the possibility of a total restriction,
that would at the same time take account of other facts relevant in particular from
the perspective of the stability of the health care system. With regard to the last sentence of section
Article 17(1). 5 of the Act on public health insurance, it is clear that this
the mandate also includes the option to specify how the reimbursement, if not
How to make payments (section 17 (2) of this Act, and on the other hand).
Way of payments is understood above all their time
layout, for example. through the provision of monthly payments.
42. The nature of the regulation of remuneration lies in the fact that, within a specified
cases, providers are required to provide health services currently
(price) for the payment of a certain amount. This requirement is based on your own
the content of the nature of the conditions or limitations on the exercise of the right to entrepreneurship (see
below), and is subject to the reservation of law pursuant to article so. 26 paragraph 2. 2 of the Charter, which
However, it does not preclude podzákonným by law-as in the end
even if the contested decree-law has been to refine
set limits and the definition of their details [cf. find SP. zn.
PL. ÚS 5/01 of 16 June. 10.2001 (N 149/24 SbNU 79, 410/2001 Coll.)].
The specific amount of the reimbursement to which the fixing occurs by Decree, then
must be based on the total amount of revenue (estimated) the system of public
health insurance and at the same time reflect the range of covered health care
care and the aforementioned criterion of the public interest pursuant to § 17 para. 2 of the Act
on public health insurance. Can I just add that the will of the legislator to
modify the above the legal standard is of the enabling provisions of section 17(2). 5
of that law.
43. While the assessment procedure, the adoption of the Constitutional Court of the nature of the
the case dealt with by Decree as a whole, in the case of questions of whether it was issued in
the limits of statutory authority, was limited only to those portions of it which
in his opinion the appellant applied argumentation. falls Grown up
in doing so, to conclude that any of those parts has not been issued within the limits of
the authorization pursuant to § 17 para. 5 of the Act on public health insurance.
V (B))
The starting points of the review, in particular of the right to health providers
services to business (article. 26 paragraph 2. 1 of the Charter) and the principle of
the predictability of law (article 1, paragraph 1, of the Constitution)
44. According to the applicant, the contested Decree improperly interferes
the position of providers of health care services, with the result that is not in the
accordance with their right to do business under art. 26 paragraph 2. 1 of the Charter. The flagship
part of his objection relates to its unpredictability (or breach of
the principle of predictability, and the prohibition of arbitrariness in the meaning of article 87(1). 1 (1). 1
The Constitution), both with regard to the overall reduction of the amount of the reimbursement, and
given the complexity of their calculation. This Decree also accused
in terms of the amount of the payments is based in several directions inequality between
individual providers, whether between parties and non-contracting or
only between the contracting with each other, and that because of the disparity between their
obligations to provide some of the performances and the amount of reimbursement to which they are entitled,
acts in respect of certain of them disproportionately burdensome way.
These shortcomings have a negative projected into the availability of health
care and be so because of this, contrary to the patients on
free health care on the basis of public health insurance
According to the article. 31 of the Charter.
45. The Constitutional Court considered it desirable that even before
He went to his own review of the contested order, defined at least in
General terms of its basis.
46. From article. 1 (1). 1 of the Constitution, according to which the Czech Republic legal
State, under basic principles relating generally to the
normotvorbu. Their part is also the principle of predictability, the rights
clarity and internal control [cf. find SP. zn. Pl. ÚS
21/01 of 12 October. 2.2002 (N 14/25 SbNU 97; 95/2002 Coll.), or find sp.
Zn. PL. ÚS 79/06 of 15 July. 2.2007 (30/44 SbNU 349; 37/2007 Coll.), paragraph
36]. any legislation can meet this requirement only for
provided that it is adequately accessible so that people are able to
Besides all that, a rule that has created on a specific thing. At the same time
However, it must be formulated sufficiently precisely, to enable people
customize their behavior. A person must be capable of, being respectively
equipped with appropriate professional Council, predict consequences, which may cause
exact (her) behavior, and with a degree of certainty, that corresponds to the
circumstances [cf. find SP. zn. PL. ÚS 29/11 of 21 May. 2.2012 (N
34/64 SbNU 361; 147/2009 Coll.), whether or not the judgment of the European Court of human
the law of 26 March. 4.1979 in complaint Sunday Times v United
the Kingdom # 6538/74, § 49].
47. When assessing whether legislation will stand in terms of the requirement to
the internal coherence of the legal system and its certainty and clarity
[cf. e.g. find SP. zn. PL. ÚS 5/95 of 28 June. 2. the 1996 (N 16/5 SbNU
107; 107/1996 Coll.) or find SP. zn. PL. ÚS 2/97 of 2 June 1997 7.1997 (N
91/8 SbNU 325; 186/1997 Coll.)], you cannot generally deny the relevance of the poukazům on
can be more complex or ambiguous cases of its application. The very
the fact that these cases may occur, however, still does not justify the conclusion
about its unconstitutionality. He came into consideration only if the
the text of the law did not allow to specify its normative content, or
by using the usual interpretative methods [to closer in particular find sp.
Zn. PL. ÚS 2/97, also find SP. zn. PL. ÚS 83/06 of 12 March 2003. 3.2008
(N 55/48 SbNU 629; 116/2008 Coll.), paragraph 186; find SP. zn. PL. ÚS 1/12 of the
27 June 2002. 11.2012 (No 437/2009 Coll.), paragraphs 338 and 339].
48. The contested Decree has the nature of price regulation (cf. conclusions of law
contained in the finding of TechCrunch.com. PL. ÚS 24/99), that the fact that on the basis of § 17 of the
paragraph. 5 of the Act on public health insurance lays down the amount of remittances
covered services, significantly affects the overall conditions for
business in the area of providing health services and thus to
rights of the providers of business pursuant to article. 26 paragraph 2. 1 of the Charter. In her
as a result, individual providers are in specific cases
obliged to provide health services for remuneration determined on the
the basis of this order. The Constitutional Court has already expressed in the past, even if
by way of obiter dicti that "an essential part of democratic rule
the State is the protection of the freedom of contract will, which is the derivative of the constitutional
protection of the rights of ownership pursuant to art. 11 (1) 1 of the Charter (whose basic
component is the ius disponendi). Price regulation is, therefore, measures
an exceptional and acceptable only under restricted conditions ",
While "based on from taking into account important factors (in the area
the amount of the premiums, the amount of the costs of selected in the provision of health care,
etc.) must be taken into account when determining the price and the possibility of making a profit.
The result of the absence of such maxims in the regulation of prices, "namely" can become
Disabling a specific area of business activities and the creation of the State
monopoly, IE. concerned, the nature and meaning of the basic law, arising from the
article. 26 of the Charter. " It must be stressed that the purpose of the business is just
to make a profit. Of the guaranteed rights and constitutionally a business operate different
Although economic activity does not imply a right to make a profit, the State is, however, obliged to
create such conditions that will allow individuals to seek real
its achievement. In relation to the subject of the regulation, this means
set the terms for buying health services equitably, and that of the
regard to their pricing and equal status of the subjects of the contractual relationship,
protect free competition between them and adequately compensate for any
deformation.
49. the rights to conduct business according to art. 26 paragraph 2. 1 of the Charter can be an individual in a
meaning of article 87(1). paragraph 41. 1 of the Charter to claim only within the limits of laws that it
are carried out. The provisions of article. 26 paragraph 2. 2 of the Charter at the same time assumes
the possibility of limiting the exercise of certain professions or activities by law, without
the purpose of such a restriction would be specified [cf. find SP. zn. Pl. ÚS
38/04 of 20 December. 6.2006 (N 125/41 SbNU 551; 409/2006 Coll.), section 29].
The legislator therefore has relatively wide definition applicable for a particular
the content and the method of implementation of this article, but even that is not absolute. In
your discretion is bound to a particular article. 4 (4). 4 of the Charter, which prevents
the restriction of the fundamental right to take its very touching
the essence and meaning of [cf. find SP. zn. PL. ÚS 24/99, also find SP. zn.
PL. ÚS 11/2000 of 12 January. 7.2001 (N 113/23 SbNU 105; 322/2001),
section VIII (b). H]. However, it is Also obliged to respect the principle of equality
in the rights pursuant to art. 1 of the Charter, or article. 3 (2). 1 of the Charter [find
SP. zn. PL. ÚS 1/12, paragraph 278].
50. the Constitutional Court, in the assessment of the compliance of the contested legislation with the law
a business which has the nature of economic law, proceeds by analogy, as in
the case of social rights to which the review was in the existing case-law
designed and developed the so-called. the test of reasonableness [cf. findings SP. zn. PL.
TC 61/04 of 5 April 2006. 10.2006 (N 181/SbNU 57 43; 16/2007 Coll.), SP. zn.
PL. ÚS 83/06 or SP. zn. PL. ÚS 54/10 of 24 July 2003. 4.2012 (No. 186/2012
Coll.), paragraph 48], consisting of the following four steps:
1. definition of the meaning and nature of economic or social rights, that is,
its essential content,
2. assessment of whether the law without prejudice to the existence of economic
or social law, or the actual realization of its essential content,
3. assessment of whether the legislation pursues a legitimate aim, i.e. whether it is not
a major reduction in the overall standard of arbitrary fundamental rights, and
4. consideration of the question of whether the legal means used to achieve it is
reasonable (rational), though not necessarily the best, the best,
the most effective or the wisest.
51. If the Constitutional Court in the second step of the test concluded that
the impugned legislation is affecting the very existence of any of these
rights or the actual realization of its essential content, shall assess
the admissibility of the intervention in this right within the test of proportionality. It
means that it will be in the following order to evaluate whether the
and the interference pursues a legitimate) (constitutionally qualified) target its
restrictions,
(b)), this intervention to achieve this objective, suitable (suitability requirement),
(c)) this objective cannot be achieved by other means, which would be to the
the basic law more friendly (the requirement of necessity), and
(d)) interest in the attainment of this objective in the context of a particular legal relationship
outweigh the fundamental rights concerned (requirement of proportionality in
a narrower sense).
If it is not doing any of these conditions are met, the Constitutional Court
have observed non-compliance with the constitutional order. In the same way
The Constitutional Court shall proceed even in cases where the reason for the violation of rights should
at the same time, consist in the violation of the principle of equality.
52. as regards the right of citizens to free health care and to the
health products on the basis of public health insurance under art.
31 of the Charter, the Constitutional Court has in the past defined the essence of this right in
the sense that it corresponds to the obligation of the State to create a system of public
health insurance and to provide citizens with
fair, hence the emergence of possible inequalities exclusive access method
to health care reasonable quality [resolution SP. zn. PL. ÚS 24/98 of
on 5 July 2004. 5.1999 (U 33/14 SbNU 319)]. All insured persons should have
entitled to such treatment and treatment that are objectively identified
needs and requirements of the appropriate level and medical ethics [cf. find sp.
Zn. PL. ÚS 14/02 of 4 January. 6.2003 (N 82/30 SbNU 263; 207/2003 Coll.)]. (I)
in the case of social rights, the Constitutional Court applied the above
the test of reasonableness. At the same time he is aware that the contested Decree directly
unless otherwise provided by the rights and obligations of patients, and thus its possible non-compliance
could be held only in case, if as a result
was in fact compromised or even impossible due to implementation of this
rights.
53. In conclusion, the General section of the preamble thereto, the Constitutional Court notes that
the appellant also objected to the law, the contested Decree mismatch
workers at the equitable remuneration referred to in article. 28 of the Charter. This objection
However, you cannot regard already for this reason that providers
health services have, by default, the position of the entrepreneurs or
non-profit organizations and, therefore, the nature of things cannot be their income
to provide a level of protection which is assumed in the case of
employees. Likewise, there was no need to further address the objection of a conflict
the contested Decree, with the right to a fair trial under article. paragraph 36. 1
Of the Charter, because its content is essentially the same as the question of the
the unpredictable nature of the legislation. Its projection to the currently ongoing
legal disputes in the present proceedings cannot be assessed.
V. C)
The predictability of the level paid services to which a
eligible providers
54. The Constitutional Court went to the assessment of the opposition, with the
the first dealt with the caveat of complexity and unpredictability
the Decree provided for the method of calculating the amount of the reimbursement to which a
the provider is entitled to health insurance company paid for the provided
the service.
55. Firstly, it should be noted that the amount of such payments in the case of
individual performance depends on the number of points by which the performance of the
rated, and the point values expressed as a monetary amount, which is determined
differently for each group, as a rule, an exhaustive stage performance
by listing or by expertise. The exact list of procedures and their evaluation
the number of points that should reflect their financial and professional
performance requirements shall be based on a mandate pursuant to § 17 para. 4 of the law on
public health insurance for all kinds of health care Ordinance
The Ministry of health no. 134/1998 Coll. issuing the list of
Healthcare with point values, as amended
regulations. The classification made then follows the decree under section 17
paragraph. 5 of the Act on public health insurance, which provides for a specific
the point values for the calendar year. The calculation of the amount of the payments for
in doing so, the principle is to multiply the value of point
the appropriate number of points.
56. the calculation method Outlined in the following simple form applies only
exceptionally, for the contested decree it in different directions and
modifies. Above all, they do so by reducing the point values over
a certain volume of provided health care or regulatory deductions in
case of exceeding set out above. The purpose of both the limitation is
Act on the individual providers in the sense referred to follow through
limits, as in the case of their crossing would provide additional
health services already economically unprofitable. For this reason, it is in the
their own interests to follow throughout the year that
health care and other services will be provided only where this is
needed. Otherwise, it is at risk, that at the end of
This period yourself the costs provided by the health services.
Further modifications of the method of calculation may consist in the addition of
tools to help you translate into levels some of the differences between the
individual providers, which have an impact on the level of their costs and
whose failure could constitute an obstacle in ensuring
high-quality and affordable health care.
57. The complainant alleged unpredictability of the contested order, from which
concludes its non-compliance with article. 1 (1). 1 of the Constitution, and hence also with the article. 26
paragraph. 1 of the Charter, has several levels. It is clear that the findings of the total amount
payments, to which a provider is entitled in the year 2013, requires
application more or less complex mathematical operations. Its calculation
Depending on the type of health services consist of even
dozens of calculations involving a large number of variables. The constitutional
the Court nevertheless concluded that this characteristic alone
is sufficient for the conclusion about the uncertainty of the contested Decree (see paragraphs 46 and
47.) Took into account that the legislation impinges on the very
a specific range of legal relationships whose subjects are assumed to
specific expertise, and that its complexity is, to the extent not
result of the complexity of the fabric of the immaterial, which governs. Without
should the Constitutional Court on this site refute the Decree as
a whole, and in this direction in the future generally based barrier to matter
decided, in the case of those parts of that, in this proceeding
He was the normative expression of individual calculations always enough
certain that it is using the input values (variables)
You can take. If, therefore, you can think about the unpredictability of
the contested Decree, its the main reason cannot be found in the
complexity, but it is necessary to examine in detail the actual structure
calculation of the amount of payments, including limitací and regulatory restrictions,
that allow you to reduce the amount of remittance. On the assessment of the two types
the limitations in this section are focused and the Constitutional Court, and specifically in the
terms of whether they are in view of its regulatory function when exceeded is
set limits effectively sanctioned by reducing the point values or
possibility of reduction in the amount of payments in relation to health care providers
services sufficiently certain and predictable.
58. The nature of the limitations provision of some health services consists
in that, for the calculation of the amount of the payments for performances provided over fixed
the volume decreased point value is used. This volume, however, is defined by
through the formula, for whose use are relevant only
summary information about the health services provided for the reference period
in 2011, but also for the period until 2013, which from the nature of things
providers may not be known in its progress. This fact
can be illustrated for example. on the value of point in the case of specialized
outpatient care under part (A). 1 (b). (g)) of annex 3 of the contested
Decree (in detail see paragraph 68), where the volume is calculated by
in a way, that the number of reported and health insurance provider
recognised for the year 2011 that were paid on the full value of the point
multiplied by the proportion of the number of unique insured persons treated by the provider
in a given expertise in 2013 and their number in 2011. The Constitutional Court
therefore dealt with the question of whether these providers may
to customize its behavior when such regulation, as determined by the volume of that
should follow in the course of the year, it will be possible to determine exactly to his
the end of the. He came to the conclusion that in spite of some reservations can be
answered in the affirmative. Providers can and should have an overview of the
the scope of health care they provide and the number of unique policy holders and
for this reason, during the year can also keep track of how
developing the value of the limit. Some ideas about the development of the
Finally, they may have already been on the grounds that this way the limitations to use
(I) reimbursement of the decree for the past years. It does not change or
the complainant alleged that, in practice, there have been situations in which
Some providers did not have available in early 2013
the summary data for the year 2011, as it is not a lack of legislation,
But mistakes by the competent health insurance company.
59. It should be added that these conclusions merely aprobují the way
determination of the limit through the General data about the number of unique
insured persons for the year 2013, do not mean, however, that the Constitutional Court considers the
specific limitations of the volume adjustment of health care provided for constitutionally
Conformal. The problem that it does not reflect the range of provided urgent care,
respectively, general care, for which provision of the provider, regardless of
on any limits must, and its ústavněprávním effects is
given to the part of the V.E. of this finding.
60. in the problematic in terms of predictability, the Constitutional Court found
on the contrary, the so-called law. regulatory reductions. According to part (B) of paragraph 1. 2
Annex No. 3 reimbursement decrees can health insurance providers
which arises in 2013 for the prescribed medicines and health
means the entitlement to compensation, the average amount per unique
the insured will be higher than 100% of that payment in 2011, after the end of
the year 2013 to reduce the payment of 50% of the amount by which the total remuneration for these
resources in 2013, has exceeded the total payment in 2011. In a similar
in a way, even if only in the range of 40%, the deduction may be applied in the case of
exceeding of the limit for particularly charged to medicinal products
((1)), or on-demand care in some fields of Medicine (para. 3). These
the deduction applies the health insurance company in relation to the amount of the reimbursement to which the
a claim for the year 2013 providers. In its essence it is about
the penalty for exceeding the said limits, to prevent
avoid unnecessary prescribing of drugs or requiring care after other
providers. In General, this adjustment completes the paragraph. 4, according to the
which referred to regulatory restrictions do not apply if the supplier
justified provided paid services, on the basis of which occurred
exceeding the average of payments. In practice, they are getting for this purpose
information from health insurance providers, the extent to
the regulation will be applied to them by this range can
comment and objections which the undertaking either acknowledge or acknowledge.
61. The first problem of this law establishes the Constitutional Court already in it,
that these limits are not in any correlation with the above
limits for the total annual volume of provided health care, respectively.
much more restrictive. This means that the Decree on the one hand,
enables providers to provide without any restrictions on the
the volume of health services, on the other hand, however, provides for a significantly smaller
limits on prescribing drugs, but with the provision of health
inextricably related services. By doing so inevitably comes to the fact that the
substantial part of the providers for the application of the regulatory space arises
rainfall (or for the application of sanctions!) due to the fact that
provider in the provision of health services in the nasmlouvaném volume
or volume for which you do not apply the limitations through reduced
the point values, fulfils its obligation and prescribes the drug to treatment
effective. A similar situation arises in the case of the requested care where in addition
the provider has the opportunity to influence, whether another provider from which
health care was requested, nevyúčtuje care to a greater extent than
What was required, which would be the possibility of the application of the regulatory
rainfall again just to the detriment of the former provider. Next, and in terms of
questions of predictability the same serious problem concerns the fact that the
If this is not the case where the application of the regulatory deductions that prevents
service provider within the meaning of part (B) of paragraph 1. 4 Annex 3 justify
the provision of paid services (which in practice depends primarily on the assessment of the
health insurance), or possibly another decree provided for the reason
health insurance is not limited in any way in its discretion, whether and in what
range (within the definition of the percentage) regulatory deductions will be applied. It
means that the insurance company may apply such deductions selectively and in accordance with
their own considerations, some providers (applying)
disadvantage and others (not them) favour. Also so
can the insurance company without any formulated criteria used to
reducing expenses and thus de facto unilaterally to modify the amount of the
In contrast, remittances, as determined by the Decree. The providers concerned,
who do not have the ability to the extent to which application occurs, regulatory
precipitation, anticipate, so it remains only a possibility to accept in 2014
additional health insurance decisions about how much they
in fact, for the year 2013, the entitlement to reimbursement, and with bowed head
hope that the year will be undertaking in the handling of her assigned
public funds somewhat more responsive.
62. Such a condition makes the legislation regulating rainfall is contrary to the
the principle of predictability, and the prohibition of arbitrariness under article. 1 (1). 1 of the Constitution and
also with the principle of equality under article. 1 of the Charter. This discrepancy has yet
the obvious implications for the rights of the providers of health services to conduct business according to the
article. 26 paragraph 2. 1 of the Charter, as it allows health insurance company without
any criteria unilaterally change the amount of the payments for the
health services and thus the conditions for doing business in this area. In this
the meaning of this adjustment affects the very essence of the right to do business. One can only
add that the said derogation applies reason in relation to the entire part B
Annex 3 of the order, as well as in relation to part (D) of Annex No. 2 and to
part B of the annex No. 4.
(D) IN.)
Reduce the overall level of health services
63. the applicant also rails against the contested Decree surprisingly
(overall) reduces the amount of the payments provided by the health services by 2%, and
Despite the fact that it is assumed in this year compared to the year
prior to the increase in the cost of health services providers, so
the increase in the premium selection. This fact in its opinion, based
non-compliance with the right to do business under art. 26 paragraph 2. 1 of the Charter, and taking into account the
the expected consequences of this condition (limitations of scope and quality
health care) also with the right to free medical care within the meaning of
article. 31 of the Charter.
64. It follows from the explanatory memorandum to the contested Decree, the Constitutional Court found that as
Basic parameter levels for the year 2013, Department of
health care rate of 98% of the volume of the reference period (year 2011)
with a distinctive degresí of this volume. This cut the Ministry wanted to
put pressure on increasing the efficiency of the entire system of public
health insurance and prevent unnecessary overproduction of care, even with
given the anticipated nominal income health insurance reduction
about 1.4% this year. In the text of the decree is expressed using a
the coefficient of 0.98 for calculating the number of points, which is limited to the payment of
health care at the full value of the point.
65. It should be stressed that a specific level of health settings
services covered by public health insurance depends mainly on the
a political decision, which is within its legislative competence
the Parliament and the extent and the limits of his adopted legal
the mandate also Ministry of health. The Constitutional Court on the contrary
in principle, it is not for entering their competence, and to replace or
reevaluate their decision only because of a different opinion on the
its accuracy or effectiveness, and therefore must be (i) in proceedings for review of
standards, the purpose of which is the reduction of the amount expressed in legislation
These payments, limited to an assessment of their compliance with the constitutional order.
The basic question that had to be answered in a particular case, is whether the
the obligation for providers to provide health services for remuneration, in such a
reduced the amount of stands in terms of their rights to conduct business according to the article. 26
Of the Charter.
66. The Constitutional Court of such assessment, of course, cannot perform at a flat rate
in relation to all providers, since the amount of the remittances varies depending
to a particular specialism or segment of medical procedures, as well
so there are differences in the impact of their eventual reduction. To the conclusion that it was
such a reduction in prejudice to the essence and meaning of rights business, would
not only the finding that for individual providers
the conditions make it difficult to achieve a profit, or even reduce the number of
providers. It would have to actually create a situation where the State, on the one
side formally enables business in a certain area, on the other hand,
However, for it lays down such conditions that effectively exclude his
sense. Reason to believe that such a condition has occurred or may occur in the
as a result of the decree made the reduction of payments, however, the Constitutional Court, without
in this direction after the material in any way related to relativizoval
argument of the applicant and the statement of the Association of hospitals, did not.
Similarly, there was no reason to conclude that this would result in a reduction
such changes have occurred in the health-care system, which would lead to a threat to
the availability and quality of health care provided. In this situation, you cannot
the Court concludes that this cut would be affected, the nature and
sense of rights according to art. 26 paragraph 2. 1 and article. 31 of the Charter. Because this is the
In addition, eligible measures achieve the pursued purpose (see paragraph 64) and
It cannot be regarded as unreasonable, nor did the inconsistency of the contested
the decree with the following provisions.
67. Above and beyond that, it is desirable to note that argumentation
the appellant was not in General unfit to justify the alleged
non-compliance with the constitutional order. The realization of rights according to art. 31 of the Charter
depends on the volume of financial resources through the
public health insurance is spent on health care. This
the volume must reflect any increase in costs arising from
connection with its provision, because otherwise, sooner or
later led to a worsening of the patients ' access to health care or
even their threats. As already mentioned, finding the optimal
the way of financing health care is in the full competence of the Parliament and of the
Executive. Therefore, if belongs to the Constitutional Court within the framework of proceedings for review of
standards the option exact ingerence, then its purpose is not to replace
the authorities in finding substantive solutions, but to ensure that those
properly perform its constitutional order resulting from the obligation to actively
they use their powers to protect the life, health and
the dignity of the individual. The scope for intervention by the Constitutional Court, in principle,
It may also occur if these authorities in the performance of their
regulatory powers envisaged the circumstances that could have an impact of
the perspective of the right to free health care under art. 31 of the Charter, between the
the increase in cost of covered health care services provision undoubtedly belongs.
Such assessment can be expected from them in relation to all
employers health care segments. It only remains to add that the implementation of
that right may, under certain circumstances, require an increase
public health insurance funds.
IN E)
The limitations of the above payments volume provided by the health services
68. in annex 3, the contested Decree is fixed point value for
specialized outpatient care, separately for each type of
performances. In the case of performances, which are exhaustively listed in part (A). 1
(a). a) to (f)) of this annex, the amount of up to € 1.08 per 0.68 point
the amount of payments for each of them shall be calculated as a multiple of the value of
point, expressed by the number of points. This is, however, no longer apply in the
the case of the powers set out under (a). g), therefore all other performances
specialized outpatient care. A base point value of 1.02 €
Here it's just the calculated volume of the provided health
care in a given skill, while for performances that transcend, it is
indicating a reduced point value of 0.30 €. This volume is calculated
According to a mathematical formula so that the total number of the provider
declared and recognized health insurance, that were not considered
the reference period paid in reduced the value of point, multiplied by the share of
number of unique insured persons treated by the provider in a given skill
in the year 2013 and their number in 2011, and then multiplying the 0.98.
In other words, it can be expressed by the number of points that were the providers of
health services paid in full already in the year 2011, increased or
reduced proportionately depending on how much in 2013 has increased or decreased
the number of unique insured persons treated by the provider in a given skill
compared to the year 2011, and at the same time reduced by 2%.
69. The achievement of the volume is significantly affects the amount of the remuneration,
you will create a specialized outpatient care providers claim
against a health insurance company, however, has no effect on the extent to which they are
obliged to provide health care. Indeed, even after you reach it
they cannot refuse to provide emergency care and unless the law
otherwise, as in the case of insured persons whose health insurance have
a contract, or care of another [(cf. section 48 of Act No.
372/2007 Coll., on health services and conditions of their provision
(Act on health services)]. In these circumstances, the question arises whether
referred to the distinction of the two values for the same point performances at all may
in terms of the Constitution.
70. it is evident that the full value of the point of 1.02 € does not allow
profit providers from each point represented the amount to two thirds of this
the amount, which means its decreased value of 0.30 €
may not be sufficient to cover the cost of the care provided or their
a substantial part of it. The purpose of the introduction is therefore to be found in the
the action of individual provider, when the provision of health
services followed effectively and thus wasting resources zamezovali
public health insurance. If they had,
they would get into a situation where, having regard to the volume by
health care will become an additional provision (for the rest of the calendar
year) economically disadvantageous.
71. The Constitutional Court, an assessment of this part of the proposal dealt with the question of
whether the obligation to provide health care under the reimbursement calculated from reduced
the point values according to part A paragraph. 1 (b). (g)) of annex 3 of the contested
the Ordinance is not in breach of article. 26 paragraph 2. 1 of the Charter, which guarantees
the providers concerned the right to entrepreneurship. Her answer yet
apply the above-mentioned test of reasonableness, in which in the first place
what needs to be examined from the perspective of the present case, be regarded as the essence of
and the meaning of that law (step 1).
72. The above stated that, although the right to do business and engage in other
economic activity does not imply a right to profit, the State is obliged to create
such conditions that will allow individuals to strive for its achievement.
This conclusion is fully applied in the specific circumstances of the business
in the area of health care, where they are in some fields of medicine
paid for by medical procedures mainly or even exclusively from public
health insurance. So are the consequence of the requirements in relation to
the regulation of payments for services rendered, in the normal run of things
odhlédnuv from potential risks associated with doing business naturally, should
allow (not provide) more than just cover the costs
of the services provided. From the perspective of the right to entrepreneurship would in turn was
is unacceptable to such an adjustment, which would cost, even if only partially,
systemically transmitted to a provider. The legal conclusion, according to which "the price
the regulation, if he does not exceed the limits of constitutionality, not clearly reduce the
the price to this due to all the proven and necessarily incurred
the cost of eliminating the possibility at least of their return, "(find sp.
Zn. PL. ÚS 3/2000), shall apply mutatis mutandis.
73. for the purpose of assessing whether the contested obligation touches so designated
the essence and the meaning of the right to entrepreneurship (step 2), it was crucial that the
the decrease in the value of the point may give rise to a situation where the total
the annual amount of reimbursement to which a provider is entitled will not be
cover or just necessary costs of health care provided. This would
meant that a certain part of the year will be the provision of this
in fact, subsidized by the provider. The Constitutional Court reiterates that
such a status is not in itself a problem in cases where the cause of the
the emergence of losses are its own business decisions, provider
You cannot, however, accept it, if it arises as a necessary consequence of the
setting the amount of the payments. Providers cannot predict the total range
health care services that will be required to provide in the course of the year, and
nor can they affect whether there will be significant increases in
as a result of the incidents, typically eg. the bulk of the accidents,
natural disasters or epidemics. The main reason for that is to be the
the question of the second step of the test being conducted to answer positively, however,
lies in the fact that the Decree does not give nor providers concerned as follows
just an additional claim for compensation for the resulting loss. A mere possibility,
the health insurance company such amount from its resources
(i.e., on a voluntary basis. on the basis of an individual agreement between it and the
provider pursuant to the last sentence of section 17(2). 5 of the Act on public
health insurance), should not be considered in relation to the providers for the
the relevant guarantee or system solutions to the problem. According To The Constitutional
the Court is already problematic the possibility of concluding such
individual agreements that has no transparent rules and of the
merits enables unequal access to providers by
health insurance companies. The contested Decree so totally unacceptably applies
for one addressee less and for another more.
74. In view of the fact that the contested obligation affecting the nature and
the meaning of the right to entrepreneurship, the Constitutional Court in this step
the test of reasonableness to assess whether the obligation in question stands as a
permissible interference with constitutionally guaranteed the right to entrepreneurship in the test
of proportionality. In this context, he had no doubt that the objective of
watched this obligation, which is to ensure the efficient provision of
health care, respectively. avoid wasting public resources
health insurance can be thought of in terms of limitations on the right options
the business is legitimate, and that the contested obligation is an appropriate
(eligible) means to achieve it. The Constitutional Court but did not find
the condition need to be assessed with a view to the eventual
the existence of other, constitutionally guaranteed right more sparing resources. (I)
When can in some ways to admit more effective limitations
the amount of remittances from other ways of checking the efficient spending of
resources for public health insurance, there is no reason to
determine the amount of reimbursement from the possibility of completely abstrahovalo that exceeded
set the volume of health care does not just as a result of waste or
its overuse, but also due to the fulfilment of the statutory
obligations on the part of the provider. The basic problem the
the legislation is so lack of the right to call or compensation that
would be turned out of this situation. Today finally, case law of courts grants
entitled to cover emergency care, even in cases when it was agreed
financial limit in a given period exhausted [cf. find SP. zn. I. ÚS
2785/08 dated March 13. 9.2011 (N 157/62 SbNU 373) or judgment of the Supreme
Court SP. zn. 25 Cdo 3507/2008 of 27 June. 4.2011], while being so
is beyond the scope of, and not on the basis of reimbursement of the order, in and of itself
It is about the content of the deficit. For this reason the contested
obligation to pass muster this step of the proportionality test, and is therefore in
contrary to providers in the business concerned under art. 26
paragraph. 1 of the Charter.
75. This line of argument does not question the constitutionality of the obligation to provide
health services pursuant to section 48 of the Act on health services in General, but
only in circumstances where the supplier for performances provided over volume
established by the contested Decree belongs to the remuneration calculated not according to
the point values of 1.02 €, but at a reduced level of 0.30 €. The detected
derogatory reason turns out only to the provisions of paragraph 1. 1 (b).
g) Annex 3 the contested Decree, and it as a whole. The Constitutional Court
Indeed significantly not only to the abolition of this provision,
governing in question exist, and a reduced point value changed by Decree
established a system of payments for a specific part of health care and in their
effect, in relation to certain providers of specialized performance
outpatient care increased their remuneration.
76. The Constitutional Court also notes that the derogatory reasons
mutatis mutandis also apply to limitation of payments according to the provisions of part B
point 2 (a). (b) the annex No. 1), the contested Decree, which relates to the specific
out-patient care provided under section 22 (b). (c)) of the Act on public
health insurance, referred to in points 1 and 2 of the annex No 4 the contested Decree,
concerning expertise 603 (obstetrics and Gynecology) and 604
(child psychology), under points 2 to 5 of the annex No 5, points 1, 2 and 4
of annex 6 and sections 1 and 3 of annex # 7 contested decrees
apply to covered services provided by providers of outpatient
health care in some specializations and items 1 and 2 of the annex No. 8
the contested Decree relating to paid services provided
providers of medical services.
77. The shortcomings of the contested legislation are not neutral, nor of the
point of view article. 31 of the Charter. The decree set the limitations for
the lack of a guarantee of any call de facto forcing individual
the provider to ensure that, in its own economic interest restricted the
provided health care (e.g., putting off an operation or other performances on
next year) or its provision in the maximum extent permissible
dodging. In a situation where, whether in a particular case, the urgent
care cannot be before providing health services clearly
to find out, as this can lead to a generally restrictive approach of the
doctors in this assessment, the parties, and in particular cases and to
threat to the life of individual patients, if under this pressure to
the fact that they have been refused care because of
incorrect assessment of the urgency. The Constitutional Court considers that, even on the
This negative page contested legislation must take the Ministry to
the future into account.
IN F)
Unequal status as contracting and non-Contracting providers in terms of the amount of the
reimbursement for emergency care
78. Within the meaning of § 17 para. 1 (b). and) of the Act on public health
insurance provider has that provided emergency care to the insured person,
entitlement to benefits in kind in respect of sickness insurance fund even if it does not have to
It concluded contract for the provision and payment of covered services. The amount of the
However, according to section 17 of the contested Decree calculates only the value of point in the
the amount of 75% of the value for this care otherwise provides for other
provisions (annex) of the Decree, which the appellant founds
an unjustified inequality between the contracting and non-Contracting providers.
79. the principle of equality in the rights within the meaning of article 87(1). 1 of the Charter in
its decision-making activity of the Constitutional Court has already dealt with the Czech and Slovak
The Federal Republic, which in this context, expressed his conclusion that
equality is to be understood as a relative, not an absolute category
(find SP. zn. PL. ÚS 22/92 of 8 March. 10.1992, published under no. 11 in
Collection of resolutions and of the findings of the Constitutional Court of CZECHOSLOVAKIA). On his concept of subsequently
established in a number of its decisions, as well as the Constitutional Court, which in general terms
He admitted the law-based inequality, but only provided that the
It can be justified on the basis of constitutionally acceptable aspects. About
such is not the case if it is based on the
arbitrage (neakcesorická inequality), or is a consequence of prejudice
one of the fundamental rights and freedoms (inequality ancillary) [cf..
for example. findings SP. zn. PL. ÚS 33/96 (1) 4. 6.1997 (N 67/8 SbNU 163;
185/1997 Coll.), SP. zn. PL. ÚS 36/01 of 25 June. 6.2002 (N 80/26 SbNU
317; 403/2002 Coll.), SP. zn. PL. ÚS 7/03 or SP. zn. PL. ÚS 17/11 of
on 15 December. 5.2012 (No 220/2009 Sb.)].
80. in the present case, the Constitutional Court had to first ask a question,
What actually follows the determination of different point values for
provided emergency care. Due to the fact that the obligation to
the grant to the same extent, both contractual and non-contractual
providers, can be the reason for this distinction is that, in the case of
the first of these payments are not considered separately, but as a
part of the health care provided in a specific skill, and from this
because of the restrictions and the total amount of the payments referred to in the contested Decree,
for example. through reduced point values or regulatory deductions.
However, because of these limitations may not apply to non-contracted
providers cannot be considered without further unacceptable to make this
the fact was reflected in their case in a certain way in the above
point values.
81. Provided that figuring the purpose would be considered
legitimate, the Constitutional Court had to assess in the context of the test
of proportionality, whether the non-contractual obligation to the provider to supply
urgent care when the value of the point of only 75% of the value of a point, from
which depends on the amount of the payment for contractors, passed as a reason
inequality in terms of the degree of damage to their related rights
do business. Non-contracted provider will have in this case significantly
worse position than contracting provider. The Constitutional Court has considered that the
such an obligation would undoubtedly be regarded as suitable
the means to achieve that purpose, within the measurement with the article. 1 in the
conjunction with article. 26 paragraph 2. 1 of the Charter, however, could be problematic
the difference amounting to 25%. It would be the case on the grounds that the
the point values in the provision of health services are manifestly not
set so that, in General, creating the conditions for a profit of up to the amount of
their 25%, and therefore, the question is whether the grant of emergency
care on the part of a non-Contracting providers in greater volume resulted in
a situation where he would be this care endowed. Just the lack of the mechanism,
that in calculating the amount of the repayments would prevent such a situation, the end
was the reason for which the Constitutional Court did not accept the contested Decree
set limitací editing the volume provided by the health care
through reduced point values.
82. The latter conclusion is ironically reflected in the questions
the legitimacy of the purpose of inequality under consideration. If it is to be the reason for the lower
the point values for non-Contracting providers the fact that they are
cannot apply the limitation levels applicable to contractual
and that otherwise they would be in a more favorable position actually they,
then this reason ceases to be a reasonable (and legitimate)
as a result of the above legal conclusions of the Constitutional Court [section E)
This finding], which call into question the possibility is to apply
the decree in question provided for restrictions in cases where it is
urgent care is provided.
83. In this context, the higher point value in the case of
represents the only certain providers beneficium, which has in General
the plane of the nature of the indirect compensation for other obligations arising from the
of the contractual relationship. The Constitutional Court, however, figuring the reason not considered
capable of justifying inequality in question at the rate of payments for emergency
care. In so doing, even if it were otherwise, a reduced point value in the amount of 75
% of the full value of the item would not be accepted without being
included in the calculation of the amount of payments under the guarantees to prevent the
will health care provision effectively subsidized by non-Contracting
providers. For these reasons, section 17 of the contested Decree is not in accordance with the
article. 1 in conjunction with article. 26 paragraph 2. 1 of the Charter.
84. As regards the other objections raised by the applicant (see inequality
paragraph 8), the Constitutional Court in General does not see any problem in the fact that the
to the amount of payments for in-patient care and reflected the differences between the
types of medical devices or differences resulting from the different structures
the population in individual regions. In the present case, however,
does not see any room for a detailed examination of any unjustified
inequalities, which as a result of the application of individual calculations may in
individual cases occur. Thus it is possible to join this
the question in detail in the future in the context of specific things, whether
in the proceedings of the constitutional complaint, or within a specific control standards.
Vi.
The conclusion of the
85. for reasons set out in detail the Constitutional Court came to the conclusion that
the contested Decree is in parts, which lays down the regulatory deductions in
contrary to the principle of predictability, and the prohibition of arbitrariness under article. 1 (1).
1 of the Constitution, the principle of equality in the rights under art. 1 of the Charter and the law
business according to article. 26 paragraph 2. 1 of the Charter. In part, laying down the
the limitations of the above payments through the reduced value of the point is contested
Decree in breach of article. 26 paragraph 2. 1 of the Charter. The provisions of section 17 of the Ordinance
is in breach of article. 1 and article. 26 paragraph 2. 1 of the Charter, as determined by
an unjustified inequality between the contracting and non-Contracting providers from
the standpoint of the amount of the reimbursement for emergency care.
86. The findings in the opinion of the Constitutional Court to question the consistency of the
the entire decree with the constitutional order. Through it, made
setting the amount of the reimbursement is mutually interconnected and cannot be put into it
hit by the cancellation of some of its parts in the
essentially changes the meaning of the other parameters, with the result that there would be
without any constitutional justification to increase or decrease
some of the claims against health insurance providers
and thus a threat to the stability in the framework of the public health system
insurance.
87. The Constitutional Court is aware of the factual and the legal limits of their
any derogačního intervention in the present case and does not conceal that
legal conclusions contained in this finding to reflect primarily the
the form of the payment orders to be issued for the following years.
Immediate cancellation of some parts of the contested Decree would result in large
number of cases, the providers of health services may, in
due to the absence of legislation, the amount of the payments find themselves in much worse
position than what they should for its effectiveness. Instead of deleting the intervention
to their constitutionally guaranteed rights, so this finding on the contrary led to the
his deepening, which would be totally contrary to its purpose.
But you can't overlook the possible impact in relation to public finance,
where would any unintended increase in expenditure for public health
insurance as a result of the partial abrogation of the contested decree had to be
compensated for in the coming years.
88. in the light of the above, it was necessary to consider deferment
enforceability of this finding in the meaning of article 87(1). 89 para. 1 of the Constitution, which would
prevent referred to negative consequences. The Constitutional Court in the first place
He considered the possibility that the contested Decree canceled the day 31.
December 2013, since this Ordinance would apply to just could not
calculation of the amount of payments for health services, for which there would be
in 2014, after this time. Such a step, however, prevents
the fact that this Decree would otherwise remain beyond the end of 2013
effective legal regulation, which, in addition to remain applicable
in relation to what is already provided by the health services (which would be nothing
not much has changed and the potential loss of efficiency), will continue to be based
at least permission to exercise regulatory health insurance
precipitation. To those in the nature of things can occur until after the end of the evaluation
period. It should be noted that their application is the legal act of
(legal acts), which can cause alteration of the amount of the claim providers
to cover only, provided that such a result will be with him
associate the effective legal norm. Therefore, if the contested Decree was counting on
with the application of regulatory deductions, and adjust the amount of money
each of the other parameters, then the Constitutional Court, through the above
referred to criticism of their legislation, cannot to this fact with
regard to the possible negative consequences of purported established practices as described above. For
the purpose of creating a sufficient amount of time for clearing space
payments by individual providers of health insurance,
as well as to the eventual application of regulatory restrictions, ruled Constitutional
the Court on the abolition of the contested Decree until the end of March 31. December 2014.
89. The contested Decree may, and despite the reservations listed, continue to
to perform its regulatory function in relation to expenditure for public health
insurance relating to the year 2013. Conclusion on its unconstitutionality
in so doing, cannot be interpreted in the sense that it should not be at all
applied, which in the end is not the scope or nature of the derogačních
reasons. In this context, the Constitutional Court notes that the contested Decree
Despite its cancellation of the applicable legal regulation still in
relation to the assessment of the amount of payments for individual health services provided by the
in the year 2013, as she established a claim to this effect individual
providers already at the moment of their granting. Health insurance companies
However, you can apply the regulatory restrictions in relation to the amount of the payments for the year
only by the end of 2013 to 2014, taking in their application are
required to proceed along the lines of this finding. The ability to claim in
reasonable remuneration for the urgent cases care even if the
If the exceeding of the limits laid down by this Decree shall remain in
as has been recognized by the existing case law of the Constitutional Court and the
The Supreme Court, despite the conclusion on the delay of enforceability shall remain unaffected.
Finally, the Constitutional Court adds that with regard to the article. 89 para. 2 of the Constitution,
The Department of health required to proceed with the issue of reimbursement
regulations for other years (including the year 2014) in such a way that in
relation to them no longer were not relevant to the above derogation reasons.
90. For all these reasons, the Constitutional Court had decided, pursuant to section 70 para. 1
the law on the Constitutional Court, as stated in the statements of this finding.
The President of the Constitutional Court
JUDr. Rychetský, v. r.
Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, a decision of the plenary, the judges adopted a
Stanislav Package and Vladimir crusts.
