In The Matter Of An Application For Annulment Of The Decree For Reimbursement 2013

Original Language Title: ve věci návrhu na zrušení úhradové vyhlášky pro r. 2013

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=81002&nr=396~2F2013~20Sb.&ft=txt

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.