8/2017 Sb.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court ruled under SP. zn. PL. ÚS 19/16 on 13. December 2016
the plenary consisting of the President of the Court, Pavel Rychetského and judges Louis
David, Jaroslav Fenyka, Josef Fiala, Jan Filip, Jaromir Jirsy,
Jan Musil, Vladimir Sládečka, Radovan Suchánka, Catherine Šimáčkové,
Vojtěch Šimíčka (reporter judge), Milady Tomková, Uhlir and David
Jiří Zemánek proposal for a group of 24 Senators of the Senate of the Czech
States for which the Senator is Jiří Čunek, represented by JUDr.
Tatianou a bust of Jirásek, barrister, established Kamenická 2378/1, London, on
abolition of Decree No. 273/2015 Coll., on the establishment of the point of the above payments
covered services and regulatory limits for the year 2016, and more specifically in
the words "and (e))" contained in the provisions of § 4 para. 2 and in annex No.
1 in part B, point 2 (a). (b)), with the participation of the Ministry of health as a
a party and a group of 15 senators of the Senate of the Czech
States for which the Senator is MUDr. Přemysl Sobotka, represented by
Prof. JUDr. Aleš Gerlochem, CSc., lawyer, established Botičská 4,
Prague 2, as a secondary party to the proceedings,
as follows:
The provisions of § 4 para. 2 and annex 1, part B, point 2 (a). (b)) Decree
The Ministry of health no. 273/2015 Coll., on the establishment of the point
the amount of the reimbursement paid services and regulatory limits for the year 2016, in
the words "and (e))" is cancelled on the day of publication of this finding in the statute book.
Justification
(I).
The subject of the proceedings
1. the Group of 24 Senators Senate of the Parliament of the Czech Republic (hereinafter referred to as
"the plaintiffs") is a proposal sent to the Constitutional Court on 25 April. 4.2016
annulment of the Decree of the Ministry of health no. 273/2015 Coll.
determination of the values of the point, the amount of the reimbursement paid services and regulatory
limits for the year 2016, (hereinafter referred to as "Decree of the úhradová"),
specifically, in the words of "and (e))" contained in the provisions of § 4 para. 2 and in
Annex No 1 in part B, point 2 (a). (b)) (hereinafter referred to as "the contested
the provisions ").
2. reimbursement of the contested provisions of Decree:
section 4, paragraph 4. 2
For the paid services provided by providers of subsequent inpatient care,
providers of long-term care beds, special out-patient care
provided under section 22 (b). (c)) and e) of the Act and the specific provider
inpatient care, paid for by a flat rate zajeden day of hospitalisation or
According to the list of performances, with the point value, the amount of the reimbursement paid by the services and
regulatory restrictions set out in annex 1 to this notice.
Annex 1, part B, point 2 (a). (b))
Special outpatient care providers provided under section 22 (b).
(c)), and (e)) of the amount of remuneration referred to in the list of performances of remuneration for
provided performances ...
3. in the course of the procedure on this proposal received by the Constitutional Court on 10. 5.2016
the proposal of the Group of 15 senators Senate of the Parliament of the Czech Republic, which the
also annulment of the words "and (e))" contained in the contested provision of section
4 (4). 2 reimbursement of the Decree. Due to this fact, this
the proposal because of the lis pendens (article 35, paragraph 2, of Act No. 182/1993 Coll., on the
The Constitutional Court) according to the provisions of § 43 para. 2 (a). b) of law No.
182/1993 Coll., on the Constitutional Court, as amended in
conjunction with its § 43 para. 1 (b). e) rejected by order of 21 March 1997. 6.
2016 SP. zn. PL. ÚS 24/16. The Constitutional Court is thus a matter of compliance
the contested provisions of the reimbursement of the order, which was the essence of the
the rejected proposal, it will be dealt with in the (previously initiated) the proceedings for now
the present design of the appellants, even in terms of argumentation
contained in a subsequent proposal referred to a group of Senators [cf. find sp.
Zn. PL. ÚS 1/12 of 27 July. 11.2012 (N 195/67 SbNU 333; 437/2012 Sb.)
all decisions of the Constitutional Court are also available on the
http://nalus.usoud.cz]. This group of senators was under the provisions of
§ 35 para. 2 of the Act on the Constitutional Court granted the right to be in control of now
the present proposal for intervener.
II.
Recap of the appellants and the intervener design management
4. The contested provisions of the Decree according to the plaintiffs, the settlement provides for the
the year 2016, the value of point, the amount of the reimbursement paid services and regulatory constraints
for the nursing care provided on the basis of practice prescribing
a physician to the insured that are located in residential social services establishments
within the meaning of the provisions of section 22 (e). e) of Act No. 48/1997 Coll., on public
health insurance and amending and supplementing certain related
laws, as amended, (hereinafter referred to as the "law on public
health insurance "). According to the appellants, however, this regulation is
contrary to the article. 1 (1). 1 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), and
in particular article. paragraph 79. 3 of the Constitution, since the Decree was not úhradová
The Ministry of health in relation to nursing care insurance policy holders
placed in residential institutions of social services released in the limits and
on the basis of the law (secundum et intra legem), but outside the law (preater
legem).
II. A)
Regulation of reimbursement of medical services provided by the residence facilities
social services in the public health insurance system
5. first of all, in its proposal, the appellants point to the fact that the
at the same time with the creation of the conditions for the provision of nursing and
rehabilitative care pobytovými devices of social services (anticipated
in particular, the provision of section 36 of Act No. 108/2006 Coll., on social
services, as amended by Act No 206/2009 Sb.) had to be elected way
the payment of this care from public health insurance. For this case
He was elected to the so-called. power method of payment, i.e.,. payment for medical procedures
According to the list of medical procedures with point values, adjusted
Decree No. 134/1998 Coll. issuing the list of medical procedures with
point values, as amended, (hereinafter referred to as "Decree
No. 134/1998 Coll.). With effect from 1 January. 1.2007 (on the basis of Decree No.
620/2006 Coll.) I was assigned a new expertise "913-General nurse
in the social services "and the performances were modified to this
expertise, with a general nurse in the social services means
"General healthcare insurance policy holders in the residential
devices of social services, and health care is provided
exhibits on the basis of the doctor's Office of the attending physician competent performances
expertise of 913 ".
6. in the framework of the remuneration of nursing and rehabilitation care from the public
health insurance, which was provided to residential clients
social services, three entities: health
the insurance company, the attending physician and residential social services.
The attending physician is a provider of health care services, which has
own authority for the provision of health services and
health insurance company concluded a contract for the provision and payment of
health services (according to the provisions of § 17 of the Act on public health
insurance). In its essence it is about any registration
the doctor, whose relationship to the pobytovému social services is
defined only by the fact that some of his patients are also clients
the social facilities. These patients then the treating physician
takes care of mj. so, on the basis of established the nursing plan
orders performing specific medical procedures for residence
social services, which performs its own operations
staff with the appropriate expertise. If the residential facility
If you are a so called social services. a special agreement (within the meaning of the provisions of
section 17a of the Act on public health insurance), it is then entitled to
health care provided by health insurance report (specific
the procedure sets out the methodology for the acquisition and transmission of documents, which
made health insurance). In other words, "residential facilities
social services shall be entitled to reimbursement of provided care only to the extent
the orders of the attending physician, that the provision of this care has assessed
as needed, but this is by a separate provider
health services standing outside the contractual relationship health insurance and
refugee social services ".
7. In the case of the so-called. the rating method of payment is necessary to determine who is
allowed to set point value, because otherwise it could not be converted
the volume of provided health care to financial performance. According to the plaintiffs, it is
for the assessment of this proposal, the crucial question of whether it is the Ministry of
the health sector shall be entitled to lay down by Decree úhradovou point value for
payment of health services provided by the social pobytovými devices
services. According to the provisions of § 17 para. 5 of the Act on public health
insurance is the Ministry of health, shall be entitled to establish the point values,
the amount of the reimbursement paid services and regulatory restrictions for "Contracting
provider "who are legitimováni to participate in the conciliation proceedings.
To participate in the conciliation proceedings, however, are entitled to only the physical and
legal entities which are authorized to provide health services
According to Act No. 372/2007 Coll., on health services and conditions of their
provision (law on health services), as amended
Regulations (hereinafter referred to as the "law on health services"), and at the same time have
a contract for the provision and payment of covered services according to the provisions of
section 17 of the Act on public health insurance. In the opinion of the appellants
However, historical and grammar interpretation the provisions of § 17 para. 5
the Act on public health insurance, it cannot be concluded that the
"providers" are also the tourist facilities of the social
services, even providing health care services, and are in a contractual relationship with the
health insurance company. However, these agreements are not contracts
the provision and payment of covered services within the meaning of the provisions of section 17, but
the so-called. Special agreements with a specific purpose (to ensure a substantive
performance in the provision of nursing care) which are concluded by
the provisions of section 17a of the Act on public health insurance. Referred to
According to the plaintiffs, the finding is also confirmed by the fact that all the time
the effectiveness of Act No. 108/2006 Coll., on social services, as amended by
amended, (hereinafter referred to as "the law on social services") have not been
the expertise of 913 or nursing care provided to the insured
located in the facilities of residential social services, never the subject of a
Regulation of reimbursement of the Decree. To modify the expertise for the first time was in 913
the tender notice for the year 2016, which is, of course, according to the appellants '
the obvious excesem of Ministry of health, and the legal
the mandate for its release.
8. at the same time, however, the appellants point out that the exclusion of the application
reimbursement of the Decree on the homes of social services does not mean
the absence of any price regulation of services provided by them. A mandate
The Ministry of health to regulate remittances paid services is not
the only one who has a price, as the Ministry of normotvorbě
the health sector is to regulate prices of provided health services
empowered also by Act No. 526/1990 Coll., on prices, as amended
regulations, in conjunction with the law No. 266/1991 Coll., on the scope of the authorities
The United States in the areas of prices, as amended. With a link
to these laws then was in the journal of the Department of health,
Indeed, as every year, published price regulation of the Ministry of
Health 1/2016/DZP from day 1. 12.2015 on the regulation of prices
provided by the health services, the fixing of maximum prices for health
services provided by dentists covered by public health
insurance and specific medical procedures (hereinafter referred to as "Price
prescription "). In other words, when are the providers of social
services excluded from participation on the conciliation procedure before the adoption of the
reimbursement of the Decree within the meaning of § 17 of the Act on public
health insurance, then it is just the price of prescription regulativem jimi
provided by the health services.
II. B)
Shortcomings in the process of receiving reimbursement of the Decree
9. The plaintiffs in its proposal for a thorough review and progress
the process of receiving reimbursement of the order, and to advise on two significant
and questionable facts (their claims by the annexes to the proposal). The
the first is that the conciliation procedure foreseen in article 17 paragraph 2. 5
the Act on public health insurance did not participate in (and with regard to the
the text of the cited provision or could not attend) representative
social services providers (represented by the Association of providers of
social services of the Czech Republic). The provisions of § 17 para. 5 of the law on
public health insurance shows that the Ministry of health is
shall be entitled to, after the proběhnuvším conciliation, to issue a decree setting out the
the point values, the amount of the reimbursement paid services and regulatory restrictions.
Conciliation is a obligatorním step before issuing the appropriate
the Decree, as the task of the Ministry of health is to assess whether the
the result of the conciliation procedure is or is not in accordance with the legislation of
and the public interest, or act, if in the time prescribed by law
does not occur between the parties to the agreement. This is at the same time defined
the subject of the order, which can only be edited by payment of covered services
those providers who are legitimováni to participate in the conciliation
management, and thus to submit their proposals, discuss them or
access to a compromise solution. Otherwise, it would be completely
contested, meaning the conciliation procedure, which is to create an area of
to find a consensus of stakeholders on the cost of covered services and
the terms of their payments. If there is no participation of any of the
covered services providers on conciliation, then neither
The Ministry of health is unable to fulfill its basic duty, which
the assessment of the results of the conciliation procedure with the legislation or
the public interest.
10. a second claimant emphasised the fact is that the Ministry of
health care after the proposal for reimbursement in accordance with the Decree of
legislative rules of the Government presented to the consideration of the Working Commission
The Legislative Council of the Government for the public law II, in breach of article. 16
the legislative rules of the Government ignored the opinion of the Working Committee
of 12 October. 10.2015. In the work the Commission has responded to the original proposal
reimbursement of the Decree of Ministry of health, to which the provisions of §
1, and therefore under the control of the subject was included and expertise "913-
residential social services-expertise 913-General nurse
in the social services ". Against this, the Commission raised the working
a reminder, which has drawn the attention to the fact that the ' draft decree is in
a breach of the statutory authority, represented by § 17 para. 5
Act No. 48/1997 Coll., on public health insurance, as amended
the text of the Decree, when such release is preceded by a conciliation
providers of health services under the health services act.
Residential social services-expertise 913-General nurse
social services-health services providers are not, but
providers of social services, while ensuring a certain extent (i)
health services. Therefore, this expertise cannot be proposed by Decree
modified-its licensors, represented by the Association of providers of
social services were not to take part in the conciliation
proceedings, required by Act No. 48/1997 Coll. as a mandatory step before
by issuing the Decree, because it is not a health care provider representatives
services. Nursing care provided by nurses in General
devices, providers of social services, to be paid on the basis of
a separate agreement between the provider and the health insurance company closed
under section 17a of the Act No. 48/1997 Coll., and not according to the contract between the
the provider of health care services and health insurance company closed
According to § 17 para. 5 of Act No. 48/1997 Coll. ". For these reasons, the working
the Commission called for "delete the word, 913 ' from paragraph 1 (a). (g)), from section
10 and other provisions of the draft decree ' reimbursement.
11. According to the appellants, however, the Ministry of health to this
comment respond so that the word "913" design of reimbursement
the Decree, however, at the same time establishes the trust launched the texts of the provisions of § 4 para. 2
reimbursement of the Decree, according to which the annex No. 1 sets out the value of point,
the amount of the reimbursement paid services and regulatory restrictions for paid services
provided by mj. special outpatient care providers within the meaning of
the provisions of section 22 (e). e) of the Act on public health insurance, which is
nursing care provided by pobytovými devices of social services
in the expertise of 913. This procedure, according to the plaintiffs, the Ministry of
health care "completely flagrant way done not only the opinion of the
the work of the Commission, but also the offending legislative rules of the Government ".
II. (C))
The contradiction of the contested provisions with article. 1 (1). 1 of the Constitution
12. The appellants are of the opinion that the procedure described above of the Ministry of
health in the process of receiving reimbursement of the decree is in the
contrary to the article. 1 (1). 1 of the Constitution and the judikatorně [the appellants
refer to the findings of the Constitutional Court and cite from SP. zn. PL. ÚS 5/02 of
on 2 February 2005. 10.2002 (N 117/28 SbNU 25; 476/2002 Coll.), SP. zn. PL. ÚS 79/06
of 15 November 2004. 2.2007 (N 30/44 SbNU 349; 37/2007 Coll.) or SP. zn. Pl. ÚS
19/13 of 22 November. 10.2013 (N 178/71 SbNU 105; 396/Sb.)] deriving
in General, the principles governing standardisation, and specifically with the prohibition of
arbitrariness and arbitrariness and the principle of predictability. Although the design
quoted from the case law of the Constitutional Court's conclusions relate primarily to
the legislative process, the appellants submit that the applicable
also on the derived normotvorbu. "Neither the Executive power may not issue
secondary legislation proceed arbitrarily, but is also bound by
the law. In addition to the Constitution and laws are certainly also procedural rules
When receiving secondary standards, if they are souladná with higher values
the creation of the right, especially in a situation where these rules are
created by the power of the Executive, that is, itself, the Government of the Czech Republic. " According to the appellants '
the addressees of the legislation have undoubtedly also "the right to legitimately
expect to see legislation passed discourse not only in its content,
but also in terms of its formal correctness. If the originator of the proposal
Decree your procedure de facto prevents the possibility of professional discourse,
whether this legislation or some of its provisions are not inconsistent with
The Constitution, must be perceived as a violation of legislative rules
violation of the basic principles of standardisation resulting from article. 1 (1). 1
The Constitution ". Resignation to the control of the constitutionality of the legal adoption of the implementation
Regulation in accordance with legislative rules of the Government would be according to the
the appellants ' "meant the possibility of executive authorities, gifted by the law
derived standardisation, zaplevelit a wide range of legal order or regulation
Although the regulations issued on the basis of legal authorization, but otherwise
issued outside their competence ".
II. D)
The contradiction of the contested provisions with article. paragraph 79. 3 of the Constitution
13. The contested provisions of the Decree according to the plaintiffs, the settlement also
outside the constitutional technique, which lays down the article. paragraph 79. 3 of the Constitution.
The Ministry of health of the limits of the above legal authorization
enshrined in the provisions of § 17 para. 5 of the Act on public health
significantly exceeded, if the decree established "settlement
the point values, the amount of the reimbursement paid services and regulatory constraints for
special outpatient care provided under the provisions of section 22 (e). (e))
the Act on public health insurance, i.e.. for nursing care
provided the insured placed in residential facilities of the social
services, although those in any case cannot be considered as "Contracting
provider "within the meaning of article 17 paragraph 2. 5 of the Act on public
health insurance. The appellants therefore conclude that "completely
the unexpected inclusion of nursing care provided to clients in
residential institutions of social services to the reimbursement of the decree for the year
2016 is exceeding the legal authorization and a violation of the prohibition of arbitrariness and
the principle of predictability in the law ".
II. E)
Draft intervention procedure
14. the intervener its application for annulment of the contested
the provisions [of the words "and (e))" contained in the provisions of § 4 para. 2 reimbursement
the decree] also justifies the mainly by extending the scope of
decrees on the bodies, which are listed in paragraph 22 (b). (e))
the Act on public health insurance, does not have the support in the law on the one hand, to the
the implementation of the decree issued, and the payment of the addressees
in the contested Decree range turns out, may not be from this point
the Decree regulated at all, which represents crossing constitutional technique
given in the article. paragraph 79. 3 of the Constitution [intervener in this
context refers to the findings of the Constitutional Court and quoting SP. zn. Pl. ÚS
36/11 of 20 December. 6.2013 (N 111/69 SbNU 765; 238/2013 Coll.) or SP. zn.
PL. ÚS 17/15 of 9 April 2003. 2.2016 (77/2016 Sb.)].
15. In the opinion of the intervener in the proceedings to the extent in which the
úhradová Decree attacked, is not met either of the constitutional conditions
for the release of the podzákonného legislation. The legal basis in
There is a General (law on public health insurance), but
because in no way does the legislation provide payments for
nursing care was included in the podzákonném law.
On the contrary, the law on the public health insurance system referred to in paragraph
17A and section 22 (b). e) only and exclusively. a special agreement, which
health insurance company must conclude with each individual provider
social services. It necessarily follows, and the fact that the Ministry of
health is not empowered by law to regulate by means of podzákonného
legislation the amount of payment for provided care. "Eo ipso is
This Decree also finds himself out of bounds of the law, and that is why the law
allows you to issue a podzákonný law only for the purpose of providing
payments for health care providers of health services. " Exceeding the
the limits of legal authorization in the Act on public health insurance is
intervention management is so obvious that it is not necessary or
expand to explain. Moreover, this claim is supported by the fact that they have never
the amount of the reimbursement was not paid for the care of social services providers
enshrined in Decree no reimbursement for each of the previous years (IE.
for the year 2015 and the years prior). It is obvious that the Ministry of
Healthcare starting in 2007 and ending with the year of 2015, comply with the
the fact that he had such a regulation in the legal scope of the podzákonném
Regulation is not at all.
16. Beyond the argument that úhradová was in the contested Decree
the scope of the statutory competency outside released the Ministry of health (in the
the meaning of the provisions of § 68 para. 2 Act No. 182/1993 Coll., on the constitutional
the Tribunal, as amended by Act No. 48/2002 Coll.), the intervener in the
its proposal points out, and its "overall design that is very
also problematic from the standpoint of transparency requirements
the legislation ". There is no reason for it to the conservation of
desirable scheme of the legal regulation of social services providers,
If they could úhradová the decree at all turn out, were not included in the
the provisions of § 1, in addition to other entities úhradová Decree
turns out. "For the Ministry selected legislatively-technical solution does not see
no reason except that, in this way made the extension
personal scope of the Ordinances in conflict with the law at a glance
, does not beat in the eye '. "
17. Finally, the intervener submits in its proposal
(I) substantive reasons and with support in the case law of the Constitutional Court [, in particular
in that finding, SP. zn. PL. ÚS 19/13 or finding SP. zn. PL. ÚS 5/15
of 8 March. 12.2015 (15/2016 Sb.)] argues, second, infringement of the right
providers of social services for a business within the meaning of article. 26 paragraph 2. 1
The Charter of fundamental rights and freedoms ("the Charter") and, secondly, infringement of the
the principle of protection of legitimate expectations, as the nepominutelné folder
democratic State pursuant to article 4(2). 1 (1). 1 of the Constitution. Disputed
the unconstitutionality of the contested provisions of the settlement Decree, side
the Party sees in the way down default rules
for the calculation of reimbursement for care for the providers of social services. By
social services providers "neorganicky and nepromyšleně"
included under the personal scope of the Ordinance, subject to the same
the rules for calculating the amount of the payments that they have to pay for the provider
health care. The position of providers of social services, however,
status of health care providers is not comparable. At the same time but
It is not comparable to the status of providers of social services between the
with each other, due to the specific nature of the social
services.
18. This is reflected in particular in the calculation of remuneration, as referred to in
the provisions of § 2 (2). 1 reimbursement of the decree is one of the default
the parameters for the calculation of the amount of the reimbursement of the so-called. the reference period, which is the year
2014. The reference period shall be included any paid services
in 2014, provided the provider reported to 31. 3.2015 and
health insurance recognised until 31 March 2006. 5.2015 (§ 2 (3) of reimbursement
the Decree). According to the provisions of § 17 para. 2 reimbursement of the Decree, the
provider that did not exist in the reference period, arose during a
the reference period or did not have a contract with health
the insurance company, it's the health insurance reference values
comparable service providers. However, as according to the intervention
control of building law, until the end of the year 2016 were
social service providers completely exempt from the scope of the Ordinance, which
means that for a period of years, 2014, 2015, or even for all of the preceding
period, there was no objective common framework for the calculation of the reimbursement. All
providers of social services namely health insurance proplácely
They provide a service according to individual contracts within the meaning of
cited the provisions of § 17a and section 22 (b). e) of the Act on public
health insurance. The amount of the agreed payments are so varied on a case by
the case, and have to depend on the particular health insurance company and the specific
providers of social services. Whereas, in the absence of any
You cannot use the reference criteria (reference period do not even exist
comparable providers, since individual contracts have been concluded with
the individual provider), social services providers
make absolutely no idea of the amount of the payments, or whether the
Jim returns at least cost of the service provided. "This is the
without prejudice to the right to return not only of the costs incurred, respectively, the right to
the creation of such conditions, which give a real presumption of achieving
profits, but it is also without prejudice to the principle of predictability, the impact of the legal
modifications in the legal status of its recipients, because they are unknown
basic input values that need to be included in the calculation (cf. section
57 award SP. zn. PL. ÚS 19/13). "
19. Violation of the principle of protection of legitimate expectations then the intervener
management sees that social service providers referred to in
the provisions of section 22 (e). e) of the Act on public health insurance included
until the reimbursement under the effectiveness of the Decree, the provisions of § mode exclusively
17A of the Act on public health insurance, and therefore, how it was
repeatedly pointed out, the health insurance companies called. Special
of the Treaty. These years of experience backed up by a unique version of the law
led to the creation of an environment that forged a certainty and stability for
These service providers and influence their economic activity
(long-term investments in facilities and equipment operated by them
Similarly). The "change" caused by napadaným the provisions of the settlement Decree
brought to these stable relations element of uncertainty, as fundamentally
changed so the important fact for each economic entity, which is
the method of determining the amount of remuneration for the services provided by him.
20. In its observations on the draft of the appellants, delivered to the Constitutional Court
on 15 December. 8.2016, the intervener indicates that the "overall, with
the proposal identifies itself with the fact that in accordance with its original design
proposes that the contested provisions were repealed on the date of the publication of already
the award in the statute book, and that's because there is no reason the effects of the finding in
this case put off. " Although unlike the appellants does not have
intervener considered that the contested provisions would cost reimbursement
the Decree was contrary to article. 1 (1). 1 of the Constitution of the reasons in the design
referred to as "the rules of the regulatory process for the issue
secondary legislation deriving from the article. paragraph 79. 3 of the Constitution;
the importance of the article. 1 of the Constitution is in a given context so General that its
violations cannot be held unless the infringement of article 81(1). paragraph 79. 3 of the Constitution always
also a violation of article implikovalo. 1 of the Constitution ", a violation of the rules of reasoning
for issuing secondary legislation arising from article. 79
paragraph. 3 of the Constitution, was a crucial part of the design and intervention
control and, therefore, concludes that "the content of part VIII of the proposal completely
agree, since it is in the key points in the match with his own
the arguments ".
III.
Representation of the Ministry of health and a replica for him
21. The Constitutional Court pursuant to the provisions of § 42 para. 4 of law No. 182/1993 Coll.
on the Constitutional Court, as amended by Act No. 77/1998 Coll., posted by the
proposals for the annulment of the contested provisions of the Decree of the Ministry for reimbursement
the health sector. At the same time according to the provisions of § 69 para. 3 of Act No.
182/1993 Coll., on the Constitutional Court, in wording of later regulations, posted by
the Ombudsman to request the communication, whether entering the control
as the intervener. The Ombudsman nevertheless to that challenge
responded to administration of 25 June. 7.2016, in which the Constitutional Court declares that
"does not exercise his right to join the proceedings".
22. The Ministry of health in its observations, delivered to the constitutional
Court to 15 July. 10.2016, proposals to repeal the contested provisions
reimbursement of the decree is not considered justified and sees in them a violation of
None of the rights on which the alleged violation of appellants point out.
The Ministry of health in the first place "in the context of the proposal for the
the key to clarify the reasons that led to the inclusion of the expertise of 913
(General nurse in social services) in the text of the Ordinance "." settlement In
this respect agrees with the statement of the appellants, that the remuneration of health
services supplied by providers of social services shall be carried out according to the
the so-called. specific contracts concluded under the provisions of section 17a of the Act on
public health insurance. The inclusion of expertise to 913 reimbursement
the Decree on this fact changes nothing. In order to be health services
expertise of 913 covered from public health insurance funds,
must continue to be, even after the inclusion of this expertise to the reimbursement of the order, be
specific contract. Without the conclusion of a separate agreement, therefore, continue to
It is not the payment of health services public health insurance
Maybe.
23. The Ministry of health, however, points out that by including the
expertise to 913 reimbursement Decree "seeks to address two specific
the problems that arose in practice and in order to have a solution repeatedly
representatives of the providers of social services of the Ministry of health
the inclusion of the skill to the reimbursement requested 913 decrees ". The first of these
issues is a long-term practice, when contract providers as
health and social services with health insurance companies
generally do not contain terms and conditions of payments directly, but in the so-called. cost reimbursement
appendices that contain only an agreement about the transfers provided by the
health services and generally shall be concluded for a period of one year,
with every year, health insurance provider agrees
on the new úhradovém of the Appendix. "While health providers but
services, if the health insurance fund on the úhradovém of the appendix with
the provider agrees, are provided by the health services covered by
procedure laid down in the Ordinance (the "settlement agreement and
payment of covered services gives to both parties agree
through the reimbursement payments, Appendix on conditions different from the
the conditions laid down by Decree úhradovou) across the Board, with providers
Edit a cover provided by the social services, health services for
the case of the absence of appropriate reimbursement of the appendix in the past completely
Miss. " The problem then was mainly in the fact that although the health
insurance companies have under the provisions of section 17a of the Act on public health
insurance against the providers of social services of the contractual obligation,
for non-compliance with contractual obligations of health insurance
the law does not contemplate any further action, and so in practice, this provision is not
sufficiently enforced. In the absence of mutual agreement on the conclusion of
the so-called. reimbursement of the appendix as "legal relationship with the provider of the insurance undertaking
social services as regards remuneration for provided health services,
He remained in a legal vacuum. There was no obvious way to when the non-conclusion
reimbursement of medical services provided by the Appendix, in accordance with the Special
agreement to pay, and there were disputes that had to be addressed legally
with very badly předjímatelným the result ".
24. This is related to the second problem, according to the Ministry of health, which
lies in the fact that "there was no adjustment payments, from which
negotiations with health insurance provider of social services
could unfold. " The inclusion of the skill to the reimbursement of the Decree therefore 913 from the
the Ministry of health "were a necessary step to address
in the long term the existing legal vacuum between health insurance companies, and
social services providers ... promised to simplify and streamline the
the legal relationships of providers of social services with health
insurance reimbursement for special case nesjednání Appendix to the Treaty,
to facilitate the negotiation of reimbursement and prevent unnecessary additions
litigation that unsatisfactory rules in the past, often
arose ".
25. In this context, the Ministry of health "beyond the scope of this
the argument "mentions that in the period from the issue of reimbursement of the Decree of the highest
the Court has issued 28 July. 4.2016 judgment SP. zn. 23 Cdo 1988/2014, from which
It follows that "If there is a special agreement was concluded úhradový Appendix for
realization of payments, you can use the úhradovou Decree, by analogy,
the provisions of the decrees for the year reimbursement substantively nearest
expertise of 913 [for the year 2012 by judikátu it was a payment for
providers listed in section 22 (a). (c)) of the Act on public health
insurance]. " Therefore, the Ministry of health adds that "in the light of
in this case the decision shall include expertise in 913 reimbursement
the Decree may now appear to be redundant, since the exact same
the result can now be achieved using the closest analogous provisions
reimbursement of the Decree relating to the providers of health services ",
nevertheless considers it important to point out that at the time of the Decree has not been
such "precedents it was necessary to anticipate and solve
the factual situation of the legal vacuum, when the question of whether it is or is not possible
úhradovou notice on the situation described above apply, was not
answered in a convincing way. "
26. the Ministry of health in its observations not identify with the
criticised the violation of the article. paragraph 79. 3 of the Constitution, since the authority to issue
reimbursement of the decree in the provisions of § 17 para. 5 of the Act on public
health insurance "refers to payments paid by the health services,
and does not distinguish which of the qualified entities is provided. Pursuant to §
11 of the Act on health services is the health services shall be entitled to
provide both, a provider of health care services ', so under the
conditions, the provider of social services ' ". It also does not agree that the
his procedure (in the form of expertise in the text include 913 reimbursement
the Decree) was unpredictable or arbitrary, since it is "a reaction to the
the above-described the long-term efforts of providers of health care services. In this
respect, therefore, you cannot talk about an unpredictable process of the Ministry, but
the response to this effort. It is also for this reason, it is not about arbitrary
the procedure, which would amount to a simple issue of subordinate legislation, without
prior consultation with the parties concerned. This consultation
in the framework of the dohodo bags control, which in this case
took place ".
27. Similarly, the Ministry of health does not matter
the parties to the infringement of article 81(1). 26 of the Charter, since the "úhradová Ordinance is
the right to entrepreneurship immediately, in no way does not regulate the conditions under
where can I get permissions to the provision of health services, shall not prevent the
providers of health care services to offer these services, whether in terms of
services paid or unpaid public health insurance, etc. ".
The only down point values, the amount of the reimbursement paid services and regulatory
limit, the General characters for all selected and specified in advance
category. "If a specific provider of health services to the
category, the payment for health care provided by the calculated
same as any other provider of health care services, which
It falls into the same category. "
28. The Constitutional Court referred to the observations of the Ministry of health has sent
the appellants and cross-party to the replica.
29. in its reply, the appellants remain in their argument that the
The Ministry of health by issuing the contested provisions in the reimbursement
the Decree has exceeded the statutory mandate (article 17, paragraph 5, of the Act on public
health insurance), with the representation of Department of health
justifying his "belief of plaintiffs confirms", with
the shortcomings of the statutory legislation cannot be solved along the way changes in secondary
legislation, IE. reimbursement of the Decree. "The Ministry would undoubtedly have
enough time and opportunity to change the law on public health
insurance and to remedy the alleged legal vacuum. " The plaintiffs further
specifically take issue and does not agree with the above reasons for rekapitulovanými
("problems in practice"), which led the Ministry of health to the adoption
the contested provisions. As well, the appellants do not agree with the arguments
The Ministry of health, in which it rejects the violation of article. paragraph 79. 3
The Constitution, as the Ministry from the provisions of § 17 para. 5 of the Act on public
health insurance dovozený how to be considered only after
conciliation takes place, which is a obligatorním step before issuing
reimbursement of the Decree. "Providers of social services are not to participate in the
conciliation legitimováni, and never in the past have not been podřazeni
under the úhradovou Ordinance. This design is completely understandable, since in
the case of a person who has become a social service provider, client
There was only one change of its move from the home environment
the equipment of the provider of social services, where she is to be provided
comprehensive health and social services. "
30. at the same time, the appellants point to the fact that in dvojkolejnosti
building a system of providers of health services and the system
providers of social services is still continued, and even
the contribution of the Ministry of health, is an example of the law No.
340/2015 Coll., on special conditions the effectiveness of certain contracts,
disclosure of those contracts and contracts registry (registry law contracts),
and related amendments to the law on public health insurance
(Act No. 200/2015), of which the submitter has been the Ministry of
the health sector. "According to the existing legislation of the Act on public
health insurance contracts are published in the registry maintained by the
health insurance companies all contract and payment
health care, including appendices governing the amount of the payments. However, special
contracts with the providers of social services are subordinate to
the law on registry agreements and are published in the registry maintained by the
The Ministry of the Interior. Each of these laws, however, combines with
failure to meet the requirement to publish the contract completely different consequences. "
The appellants thus reject the efforts of the Ministry of health should be inferred
in this state of things the analogue use of reimbursement of the Decree on the
social services providers as "entirely ad hoc, inconsistent with
legislation and contrary to the intention of the legislature formulujícího
the position of providers of social services through laws ".
31. the intervener in its reply, also rejects the argument
The Ministry of health and the remains of the opinion that the regulation of care
supplied by providers of social services could be carried out in
reimbursement notice "only if changes to statutory adjustments. That, however,
There has been, and it was therefore not entitled to the payment of the Department for the care
provided by social services to regulate the devices in such a way
who elected ". If the Ministry of health considers support for the
issue of contested provisions in the Ordinance the provisions of reimbursement section 17(2).
5 of the Act on public health insurance in connection with the provision of section 11
the law on health services, cannot be said to be from the mere fact that
provision of health services is also possible in the establishments of the social
services, concluded that "the Ministry may decree úhradovou
regulate whether or not such health care. The provisions of section 11 of the Act on
health services refers to the provision of health permission
services and cannot be inferred from the identical position of the providers
health services and social services providers. The provisions of § 17a
the Act on public health insurance is without a doubt a lex specialis
to section 17 of the law ". In addition, if the argument of the Ministry of
correct, the question is, why not care providers
social services included in the regulation of úhradovou by a decree from
the effectiveness of Act No. 372/2007 Coll., i.e.. from the 1. 4.2012.
32. In the opinion of management, the legislature gave the intervener adoption
the legislation contained in the provisions of section 17a of the Act on public health
insurance undoubtedly clear that "remuneration for nursing care in
devices of social services should be provided in a different mode than the
payment for health care provided in health facilities in
the meaning of § 17 of the same Act ". If the legislature intended to pay
nursing care providers of social services in the same mode
as for medical equipment, could quite easily include
provider of social services between the entities to which turns out cited
the provisions of § 17 of the Act on public health insurance. "Definitely, however,
cannot be considered as admissible, such a result amounted to
through a decree, that in this respect, clearly legal support
lacks. "
IV.
Oral proceedings
33. pursuant to the provisions of § 44 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, the Constitutional Court ruled in a case without holding
an oral hearing, as was to be expected from him, further clarification of the matter.
In the.
The constitutional conformity of adoption of the contested provisions
34. in proceedings for review of the standards referred to in article. 87 para. 1 (b). (b)) of the Constitution
should the Constitutional Court within the meaning of the provisions of § 68 para. 2 Act No. 182/1993
Coll., on the Constitutional Court, as amended by Act No. 48/2002 Coll., first examine
that "other legislation" was adopted and issued by constitutionally Conformal
the manner and within the limits of the Constitution laid down the competence.
35. As has already been rekapitulováno, úhradová Decree No 273/2015 Sb.
the contested provisions are a part of, was released by the Ministry of
the health sector. The power to legislate to ministries
implementation of the law is formally established article. paragraph 79. 3 of the Constitution, which
provides that (among other things) the Ministry may, on the basis and within the limits of the law
legislate if they are empowered by law to do so. This is a
legal standard, which in general terms determined by the power of the executive authorities to
the formation of secondary laws provided that the implementation of this
the powers of the given expression in the law in relation to a specific competency (to
certain defined part of the exercise of State power). "The reason the anchoring
This power directly in the Constitution is the fact that this is a key
the question of the separation of powers between the legislative and executive power in the field
norm-setting. The provisions of article. paragraph 79. 3 of the Constitution on the one hand
creates the power of the Executive to a derived normotvorbě and so actually
its limits in relation to the Act, on the other hand, it should be this
provisions to perceive so that also provides protection against Executive
protiústavními interventions by the legislative power. As a result, taken to
If the regulatory power of the Executive was only konstituována
by law, it would be in the direct disposal of the legislature, which would power the legislative
itself could interfere with the powers of the Executive, for example,
so that such a power of the Executive Branch to withdraw completely "[cf. e.g. find
SP. zn. PL. ÚS 28/06 of 16 June. 12.2008 (N 222/51 SbNU 753; 69/2009
SB.) or find SP. zn. PL. ÚS 6/07 of 9 June. 2.2010 (N 20/56 SbNU 207;
66/2010 Sb.)].
36. The material is then jurisdiction pursuant to art. paragraph 79. 3 of the Constitution, subject to the
the existence of explicit legal authorization and its limits, which is
the fulfillment of this power in terms of scope and content (competences). The
It is necessary to interpret the provisions in the context of the whole of the Constitution so as to
also other commands were preserved and the principles of the constitutional order
arising. Therefore, with regard to the requirement of predictability of law [the principle of
odvozovaný the case-law of the Constitutional Court of the rule of law
laid down in article 4(1). 1 (1). 1 of the Constitution-cf. for example. find SP. zn. Pl. ÚS
21/02 of 22 March. 3.2005 (N 59/36 SbNU 631; 211/2005 Coll.) or quoted
find SP. zn. PL. ÚS 79/06] and the principle of separation of powers (article 2, paragraph 1, of the Constitution)
legal warrant must, if possible, to define as precisely as possible the content, purpose
and extent of the modifications made to the one foreseen by Decree, and to ensure that
certainty of legal authorization [cf. find SP. zn. PL. ÚS 3/2000
21.6. 2000 (N 93/18 SbNU 287; 231/2000 Coll.)]. As the Constitutional Court
He emphasized in that finding SP. zn. PL. ÚS 6/07, "as defined by law
specialty such standardisation of different functional concepts [cf.
a partial definition of the scope of ministries also compared, the management, the control and
' the role of the Government of the Union pursuant to Act No. 2/1969 Coll., on establishment of the
ministries and other central bodies of State administration of the Czech Republic,
as amended, (hereinafter referred to as law, competence ')]. When
respect for the separation of powers (the restrictive interpretation of legal authorization) and the
the principle of legal certainty, it is (and should be) the mandate for the edition of the legal
prescription so accurate and specific as to their scope, content and
the purpose of the Ministry or other administrative authority does not have the option of
legal limits to depart and to apply. their own legal
(political) will stand Parliament ". In other words, in this way
the legislature on the one hand (while respecting the principle of separation of powers)
sets out the boundaries of the ministries for their normotvorbu, the content of which
in no case shall change the laws, or is outside the will of the legislature
Supplement [cf. opinion similarly distinct Elišky Wagner to award
SP. zn. PL. ÚS 28/06 (see above)], of the other part (while respecting the
the principle of certainty and clarity of rights) reflects the requirement
the predictability of the law, not only in relation to government departments,
that expect a clear and essential guide to define materie, whose
issued by them podzákonný has details of legislation, but in the edit
ultimately, in relation to individual entities as a potential
the addressees of the podzákonného law, which already from the very
the content of the legal authorization for them must be detectable, in which
cases and in what range of the Ministry pursuant to art. paragraph 79. 3 of the Constitution
shall be entitled to proceed to its release. "Failure to respect any of the
those elements enabling standards leads to the conclusion about the lack of legal
authorisation to issue an implementing regulation "(see judgment SP. zn.
PL. ÚS 6/07).
37. only in circumstances where the statutory mandate meets the above
requirements, the Constitutional Court examines whether the podzákonný legislation
issued by a competent State authority, and within the limits of its competence,
namely whether in the exercise of this power was moving within the limits and on the basis of
Act (secundum et intra legem), rather than outside the law (preater
legewi). Basically, the point is that, in the case where the
the law of X, the law has provided that Y should be, but that has to be X 1, x 2,
X 3 [cf. find SP. zn. PL. ÚS 7/03 of 18 May. 8.2004 (N 113/34 SbNU
165; 512/2004 Sb.) or find SP. zn. PL. ÚS 19/13 of 22 November. 10.2013 (N
178/71 SbNU 105; 396/Sb.)].
Vi.
Its own review of the Constitutional Court
38. The mandate of the Ministry of health to issue a reimbursement of the order,
establishing a point value, the amount of the reimbursement paid services and regulatory
restrictions, it follows from the provisions of § 17 para. 5 of the Act on public health
insurance, which reads as follows: "unless otherwise provided by this Act, the value of point,
the amount of the reimbursement paid services and regulatory restrictions in respect of the following
calendar year in conciliation the parties agree that the representatives of the General
health insurance companies in the Czech Republic and other health insurance companies
and relevant professional associations as representatives of the providers
providers. Svolavatelem of conciliation is the Ministry of
the health sector. If there is agreement, the Ministry will assess its contents
health care in terms of compliance with the law and the public interest.
If the agreement is in accordance with the law and the public interest, it shall issue
The Ministry of health as a decree. In the absence of the conciliation
management of the agreement until 30 June. 6. the calendar year or, if the Court finds
The Ministry of health that this agreement is not in conformity with the laws and
legislation or public interest, determines the value of a point, the amount of remittances
covered services, the amount of the advances to the payment of covered services and regulatory
restrictions for the following calendar year of the Ministry of health
the decree by the deadline of 31 December 2006. October of the calendar year. The decree by the phrase
the fourth and fifth shall apply, if the provider and health insurance company
in compliance with the health insurance plan health insurance
agree on the method of payment, amount of payment and regulatory constraints
otherwise. "
39. the Constitutional Court, which the plaintiffs neither side
the appellant did not do not challenge, that the úhradová Decree No.
273/2015 Coll. was released on the basis of the provisions of § 17 para. 5 of the law on
public health insurance and State body authorized to do so.
40. The appellants and the intervener, mutatis mutandis, however its
the argument regarding the unconstitutionality of the contested provisions of reimbursement
the Decree based on the allegation that the Ministry of health has exceeded the
its competence within the meaning of article 87(1). paragraph 79. 3 of the Constitution, as the contested
the provisions of the settlement decree lies outside the limits of the legal authorization
enshrined in the cited provisions of section 17(2). 5 of the Act on public
health insurance.
41. the Constitutional Court concurs with this view, and that of the following
reasons.
42. The Constitutional Court is to begin with the argument of the appellants and aligns itself with the
intervention procedure, that the challenged provisions of the envisaged
Regulation of remittances through the úhradovou decree for special outpatient care
provided under the provisions of section 22 (e). e) of the Act on public
health insurance, i.e.. for the nursing care provided by
affiliated persons located in the facilities of residential social services,
located outside the limits of the cited legal authorization laid down in
the provisions of § 17 para. 5 of the Act on public health insurance. Referred to
the provisions must be seen and interpreted in the context of the whole Act
on public health insurance, which, inter alia, reflects and
the position of the device-specific residential social services, if
provide health care services, on which indicate not only
the plaintiffs, but the Ministry of health.
43. the status of providers of social services in General regulates (with
effect from 1. 1.2007) cited the law on social services, which
It also provides that in the case of social services providing
residential services (according to § 34 paragraph 1 of the law on social services is
for example. about the weekly care centres, homes for persons with disabilities,
homes or homes for the elderly with special regime) are clients
In addition to the social services also provided medical services which are
covered by public health insurance (section 36 of the Act on social
the services). In order to fulfill the obligations of the providers of accommodation
social services to provide health care to its clients has occurred in
connection with the adoption of the law on social services to amend
(Law No. 109/2006 Coll., with effect from 1. 1.2007) related
the legislation, first, if a valid Act No. 20/1966 Coll., on
care for the health of the people, in the wording of later regulations, and act on the
public health insurance. For the first time cited the law was (with
effect from 1. 4.2012) is replaced by the law on health cited
services, however, on the status of devices residential social services
as providers of health care services, this change did not have a major impact,
for the law on health services only clarifies the rights and obligations of
residential social services facility in the provision of health care.
44. the law on public health insurance was provided for amendments to the
affected specifically by the existing provisions of section 17 was inserted a new
the provisions of § 17a (subsequently in connection with the adoption of the Act on the
health services has seen the terminology changes), which (with effect
from the 1. 4.2012) reads: "in order to ensure the provision of contributions in kind in the
nursing care insurance policy holders located in the facilities of the social
services providing residential social services concluded General
health insurance company of the United States and other health insurance companies
set up under a special zákona28 special contracts with providers)
social services. Appropriate health insurance agreement
closed, if the provider of social services and at the same time asks the
It proves that the nursing care will be provided by healthcare professionals.
provider of social services workers who are eligible for
medical profession under special legal předpisů28a). "
At the same time it was amended and the provisions of section 22 of the Act on public
health insurance, which define the types of "special care"
as the services paid for by public health insurance, and according to the
subparagraph (e)) of the cited provision is also considered for it
"nursing care provided on the basis of practice prescribing
a physician to the insured that are located in residential social services establishments
the competent employees of these facilities, unless
providers of residential social services have concluded a specific agreement with the
the health insurance company pursuant to section 17a ".
45. From the above rekapitulované the legislation regulating the status of the device
residential social services as providers of health services,
Thus, inter alia, that: (a) residential social device clients)
the service is provided by nursing and rehabilitative care
through these devices, employees who have professional
eligibility for the medical profession (section 36 of the Act on social
the services); b) nursing care is provided in the form of special
outpatient care [section 22 (b), (e)) of the Act on public health insurance]
based on the Office of the attending physician, but this is about the care
paid for by public health insurance.
46. the essential constitutional court considers the fact that the
the position of the device-specific residential social services as
providers of health care services is the reflection in the specific adjustment
method of payment for health care services provided by them, when, in order to
providing benefits in kind in the provision of nursing care facilities
residential social services concluded with the health insurance company called.
a special agreement within the meaning of the provisions of section 17a of the Act on public
health insurance, in which mj. agree the conditions of payment. According to the
the provisions of section 17a of the Act on public health insurance is appropriate
health insurance fund shall conclude this special agreement, provided that
social service provider so requests and proves that the nursing care
will be provided by healthcare professionals social
services, who are eligible for the medical profession. On this
the fact also points out in its observations, the Ministry of health
("Health services to be paid from the funds of 913 skill
public health insurance, must continue, even after the inclusion of this
expertise to the reimbursement of the order, be concluded a special agreement. Without
the conclusion of a special agreement, the remuneration is not, therefore, continue to be those health
services from public health insurance, maybe ").
47. From the above according to the Constitutional Court clearly shows that different
the position of providers of health care services and providers of social
services, even if these devices (specifically the residential social services in
the meaning of the provisions of sections 34 and 36 of the Act on social services) can
provide health services in the form of special outpatient care borne from the
public health insurance [within the meaning of the provisions of section 22 (b), (e))
the Act on public health insurance], located in the law on public
health insurance in particular in reflection different legislation regulating
specific conditions for reimbursement of health care services provided in
the system based on the so-called. the rating method of payment (a modified
Decree No. 134/1998 Coll.). Specific starting point in this respect is no longer
the provisions of § 11 (1) 1 (b). (b)) of the Act on public health
insurance, which ensures the right of the insured to choose a provider
health services in the territory of the United States and establishes a legislative
the abbreviation "provider", the latter term is further defined in
the provisions of § 2 (2). 1 of the law on health services as a "natural or
legal person who has the authority for the provision of health services
under this Act ", and to provide health care services can only
referred to in the provision of health services (section 11 (1)
This Act). In contrast, without obtaining permission to provide
health services it is possible to provide health services in facilities
social services according to the law on health services [article 11, paragraph 2,
(a). (b) of the Act)], while it is sufficient to meet the
notifiable to the competent regional authority (paragraph 8 of the
of the cited provision).
48. in relation to the question of financing of health care services providers
regulates the provisions of § 17 of the Act on public health insurance, which
It assumes the conclusion of "contracts for the provision and payment of covered services"
between health insurance and health services providers
(paragraph 1), you must follow the so-called. framework contract, which "is
the result of the conciliation procedure between the representatives of associations of health
insurance companies and representatives of the relevant group of providers
represented their interest associations "(paragraph 2); Agreement crafted with
on the basis of the conciliation procedure is foreseen and in order to establish
the point values, the amount of the reimbursement paid services and regulatory restrictions always on
the following calendar year (paragraph 5), and in both cases, when
the agreement does not occur within a specified time, or after an assessment of its
the content reaches the Ministry of health to the point that "this agreement
It is not in accordance with the law or the public interest ", it is
The Ministry of health shall be authorized to "make a decision" (paragraph 2),
"lay down, respectively, the amount of remittances point value paid services, the amount of the advances
on payment of covered services and regulatory restrictions on the following
calendar year by Decree "(paragraph 5).
49. As has already been pointed out above, however, in relation to the device
residential social services providing health care services is the question
their remuneration is expressly regulated specifically only in the provisions of § 17a
the Act on public health insurance, in the form of the conclusion of the so-called.
Special agreements and provisions explicitly refers to section 22 (b). (e))
the Act on public health insurance, and, ultimately, indirectly
(referring to this provision) and challenged the provisions of the settlement Decree.
These so-called. special treaty cannot in any way be equated
contracts within the meaning of article 17 paragraph 2. 1 of the law on public
health insurance, and the law on public health insurance
in no way does not regulate the content closer to the elements and, after all, not even
the method of determining the point values, etc., as is just in relation to the
contracts according to the provisions of § 17 para. 1 of the law on public health
insurance, establishes the obligation of the contracting only interested bodies.
50. the Constitutional Court agrees with the opinion of the appellants and of secondary
party to the proceedings, that for now the present case assessment is essential
the question of whether the Department of health is authorized to úhradovou
Decree to establish the point value and residential social
services, as does through the contested provisions of the Decree, with reimbursement
concluded that the statutory authority, i.e. the provisions of § 17
paragraph. 5 of the Act on public health insurance, a clear answer on the
This question does not provide. Without, therefore, the Constitutional Court began
the interpretation held by the applicant, or the interpretation held by
The Ministry of health, seen "only" through the prism of the above
the conclusions of the case-law of the Constitutional Court rekapitulovaných to the necessary
the requirements for legal authorization to display the elements of issue
implementing regulation within the meaning of article 87(1). paragraph 79. 3 of the Constitution, cannot be according to
The Constitutional Court, the provisions of § 17 para. 5 of the Act on public
health insurance be regarded as a clear, comprehensible and for the
the bodies of the predictable notice authorising Department of health
úhradovou by decree to regulate also the payment of health services
provided devices residential social services [within the meaning of
the provisions of section 22 (e). e) of the Act on public health insurance].
However the Constitutional Court seems to a large extent rational reasons,
the Ministry of health which justifies their action, not so
do outside the limits of the legal authorization, and therefore in breach of article 88(3). paragraph 79. 3
The Constitution, limiting the competent public authorities in the context of the regulatory
the powers before the side (contrary to article 2, paragraph 1, of the Constitution) ingerencí
in the area of governance.
51. The Ministry of health on the Link "case the conclusions" of the
the judgment of the Supreme Court cited SP. zn. 23 Cdo 1988/2014 so
Paradoxically, in fact, demonstrates the need to practice to clarify and remove the
some doubts regarding the way of regulating payments for health
services provided by residential social services devices, it cannot be
However, be considered as a confirmation of the opinion of the Ministry of health regarding the
the existence of legal authorization ("analogous use of the nearest
the provisions of the Ordinance relating to the reimbursement of the provider
health services ") within the meaning of article is qualifying. paragraph 79. 3 of the Constitution
to accept the (extension) Ordinance and regulation through úhradovou to this
the question.
52. In sum, if, according to the Ministry of health in the framework of the
payments for medical services provided by residential social devices
There are such services "problems in practice", which can only be addressed on the way
Regulation through the úhradovou decree which issue should be
competence must necessarily primarily for that purpose to initiate the change
the Act on public health insurance, which should, moreover, from 1. 1.
2007 (effectiveness of Decree No. 621/2006 Coll., newly embracing the expertise of 913
in the list of medical procedures with point values), many opportunities
plenty of time-space. The existing situation in the result
means that the law on public health insurance on the one hand, while
expressly assumes a specific mode of specific contracts
devices residential social services with health insurance companies (§
17A), outside the framework of the mechanism of concluding contracts laid down in the
the provisions of § 17 of the same Act, however, on the other hand the contested part of the
the provisions of § 4 para. 2 Decree No. 273/2015 Sb. "en route"
in the same mode, as is the case with providers of health care services; It
However, without any explicit legal support.
53. From the above-mentioned provisions of § 17 of the Act on public health
It is apparent that the insurance of the legislature within the framework of the set of
the so-called. the rating method of payment for the specific method of determining the value
point, the amount of the reimbursement paid services and regulatory restrictions have preferred
before the authoritative decision (Regulation) Department of health
by mutual agreement between the health insurance companies and representatives of the
providers to be the result of the conciliation procedure. The purpose of the
the conciliation procedure is to achieve agreement on a common
the content of the framework contracts and the determination of the point values, the amount of remittances
covered services and regulatory restrictions and it is an obligatory part of the
(part of) the process of determining the value of a point, the amount of the reimbursement paid by the
services and regulatory restrictions in the context of payments for the provision of health
services by Contracting providers. Its terms and conditions
(including the definition of circuit of stakeholders) then instantiates the
cited the provisions of § 17 of the Act on public health insurance. How
the Constitutional Court also stressed "the central principle of that authorization is to be
found in the legislature recognised the priority agreement to be
the result of the conciliation procedure. Having regard to this purpose is preferred
should be interpreted, and other terms and conditions of the conciliation procedure,
or to interpret itself, enabling standard "(see judgment
SP. zn. PL. ÚS 6/07). A systematic interpretation of the provisions of section 17 and 17a
the Act on public health insurance. section 22 (b). (e)) of the cited
the law, which expressly establishes the § 17a, it can be concluded that section 17
the Ministry did not refer to adjust payments for provided health services
Depending on the outcome of the conciliation procedure according to § 17, but according to
special contracts concluded according to § 17a.
54. The evaluation procedure, the Ministry of health when you release
the contested provisions of the Decree settlement in breach of article. paragraph 79. 3
The Constitution and the statutory authority contained in the provisions of § 17 para. 5
the Act on public health insurance, therefore, the Constitutional Court cannot
overlooked that the Ministry of health through the contested provisions
reimbursement of the decree to regulate remittance and joined for health services
provided by residential social services devices [within the meaning of
the provisions of section 22 (e). e) of the Act on public health insurance].
The Ministry of health has done so, however, without a representative
providers of social services had the option at all
the conciliation procedure, which is served from "Final
the Protocol 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 the year 2016 "of 19 May.
8.2015 (annex to the proposal) as well as of the opinions of the work cited, the Commission
The Legislative Council of the Government. In Mr. but this claim could not
to apply, because the device in question is the conciliation procedure, as
indicated above, under the provisions of section 17 of the Act did not apply,
so even if its participants, they would not bail out unconstitutional and
How to extend the scope of the contested unlawful decrees on them.
55. The last group of the opposition of the appellants and the intervener control
related to the procedure of the Ministry of health in the framework of the adoption process
the contested provisions reimbursement regulations. Specifically, it was argued that
The Ministry of health of the above rekapitulovaným the procedure failed to meet
cited opinion (comment) Working Committee of the Legislative Council
the Government, and so the offending article. Article 16(1). 10 legislative rules of the Government.
Although the Constitutional Court agrees with this conclusion, you cannot
regard to the opinion (held by the applicant) that this procedure also
There has been a violation of article 6(1). 1 (1). 1 of the Constitution and judikatorně derived
principles relating to standardisation, specifically the prohibition of arbitrariness and the principle of
the predictability of the law.
56. Problematic aspect referred to the appellants ' argument is
the fact that the reference criterion (measure) checks the constitutionality of
the adoption of the legislation is itself podzákonného the legislative
the rules of the Government, whose violation would then in effect and in itself
represent the reason leading to the cancellation of the derogation thus accepted by the
legal regulation. However, the internal normative instruction reference
the criterion of constitutionality and legality of the legislation cannot be. How to
Indeed, it has been previously stated by the Constitutional Court in finding SP. zn. Pl. ÚS
7/03 of 18 May. 8.2004 (N 113/34 165 SbNU; 512/2004 Coll.), "[p] orušení
... legislative rules ... without further, IE. without a breach of the Constitution and
statutory competence. without violating the constitutionally prescribed
the method of acceptance and release of other legislation (e.g., the absence of
publish the specified way in the collection of laws), derogation reason
pursuant to § 68 para. 2 Act No. 182/1993 Coll., as amended
regulations, for failure to comply with the prescribed method of adoption of the law is constitutionally
or other legislation does not constitute ". The above circumstances rekapitulované
the adoption of the contested provisions of the decree now but so tender
a serious breach of the founding even conflict with the constitutional principle
the rule of law according to art. 1 (1). 1 of the Constitution, the Constitutional Court did not find.
VII.
The conclusion of the
57. in the light of the above, the Constitutional Court concluded that the úhradová
the decree is in the scope of the contested provisions moves out of bounds
legal authorization laid down in § 17 paragraph 2. 5 of the law on
public health insurance, and the Ministry of health
issued in breach of article. paragraph 79. 3 of the Constitution. Therefore, the Constitutional Court referred to in
the provisions of § 70 para. 1 Act No. 182/1993 Coll., on the Constitutional Court, in
amended by Act No. 48/2002 Coll., the subject of the proposal and challenged
the provisions of the Decree as a "settlement illegal and unconstitutional.
Given the situation, however, the Constitutional Court for an obvious redundancy did
the substantive objections in intervention proceedings concerning contradicting
the contested provisions with article. 26 paragraph 2. 1 of the Charter.
58. The Constitutional Court finally points out that the concept of control.
abstract review of standards is based on the principle that to cancel the
legislation occurs with the effects of the ex nunc and not ex tunc (see
in particular, the provisions of § 70 para. 1 and section 71 of the Act No. 182/1993 Coll., on the
The Constitutional Court, as amended by Act No. 48/2002 Coll.). It for now
rozhodovanou thing specifically means that the effects of the annulment of the contested
the provisions cannot manifest itself in relation to the services, which were of
residential social services of the device provided prior to the
the enforceability of this finding, as they were in relation to health
services carried out in circumstances where the legislation applied by the
The Constitutional Court subsequently found unconstitutional and illegal. From
derogation from the contested provisions of Decree No. 273/2015 Coll. made by this
finding, therefore, in any case, it cannot be inferred that the device in question
provide paid services illegally, or that those services should not be
be for the rating period of the year 2016 health insurance paid.
The President of the Constitutional Court:
JUDr. Rychetský in r.
