Key Benefits:
Public health institutions, clinical research actors, hospital foundations.
Purpose: Definition of rules for the creation and operation of hospital foundations.
Entry into force: the text comes into force on the day after its publication.
Notice: This text sets out the rules for the creation and operation of hospital foundations, i.e. foundations created by a public health institution(s) and, where applicable, involving public or private actors in clinical research. In this regard, the general rules of these new foundations, the modalities of State control, as well as the applicable rules in financial matters, human resources and accounting.
References: this decree is taken for the application of theArticle L. 6141-7-3 of the Public Health Codein its drafting articles 8 of Act No. 2009-879 of 21 July 2009 reform of the hospital and related to patients, health and territories and 20 of the Act No. 2011-940 of 10 August 2011 amending certain provisions of Law No. 2009-879. The provisions of Public Health Code Amended by this decree may be consulted, in their drafting, on the website Légifrance (http://www.legifrance.gouv.fr).
The Prime Minister,
On the report of the Minister of Social Affairs and Health,
Vu le Civil codeincluding article 910;
Vu le Trade codeincluding article L. 822-1;
Vu le Public Health Codeincluding article L. 6141-7-3;
Vu la Act No. 83-634 of 13 July 1983 the rights and obligations of civil servants;
Vu la Act No. 87-571 of 23 July 1987 modified on the development of the patronage;
Vu le Decree No. 86-83 of 17 January 1986 the general provisions applicable to contracting agents of the State taken for the application of theArticle 7 of Act No. 84-16 of 11 January 1984 bringing statutory provisions relating to the public service of the State;
The State Council (Social Section) heard,
Decrete:
Chapter I of Book I, title IV of Part VI of the Public Health Code is supplemented by a section 4, which reads as follows:
“Section 4
« Hospital foundations
"Subsection 1
“General provisions
"Art. R. 6141-53.-Hospital foundations are non-profit private legal entities. They consist of one or more public health institutions and, where appropriate, one or more persons of public or private law. They are created at the initiative of one or more public health institutions.
"Art. R. 6141-54. -The statutes of hospital foundations define the organization and internal rules of operation of the hospital foundation in accordance with the provisions of the Act No. 87-571 of 23 July 1987 amended on the development of patronage, section L. 6141-7-3 and this section.
"The directors of the relevant public health institutions present to the supervisory boards the draft statutes of the hospital foundation. This project is accompanied by the advice of medical establishment commissions.
"When one of the public health institutions is a university hospital, this project is accompanied by the advice of the Vice-President of the Research Directorate.
"The draft statutes, accompanied by the deliberations of the supervisory boards and the acts by which the other founders demonstrate their accession, are addressed to the Minister for Health and to the Director General of the regional health agency in whose jurisdiction the head office of the foundation is located. When one of the public health institutions is a university hospital, the same documents are also sent to the Minister for Research. The statutes are approved by decree issued, after the advice of the Director General of the Regional Health Agency, on the report of the Minister of Health or, if one of the public health institutions is a university hospital, ministers responsible for health and research. The opinion of the Director General of the Regional Health Agency is deemed favourable if, within thirty days of the receipt by him of the draft statutes, he did not notify the Minister for Health of his opinion.
"The foundation acquires the legal personality from the publication of the extract of approval of its statutes in the Official Journal of the French Republic.
"Subsection 2
« Operation of hospital foundations
"Art. R. 6141-55. -The foundation is administered by a board of directors and headed by a director.
"Art. R. 6141-56.-I.-The board of directors is composed of representatives of public institutions who have irrevocably assigned property, rights or resources to the purpose of the foundation or who have made a contribution to the staffing.
"He understands:
« 1° Representatives of the founding public health institutions:
“(a) Directors of establishments, chairs of medical establishment commissions, and, for university hospital centres, vice-presidents of the research board;
“(b) One or more representatives designated after consultation with the directors of institutions;
« 2° Representatives of other founding public institutions.
"The statutes may provide for a second college composed of qualified personalities designated by the members of the board of directors referred to in 1° and 2° above on the proposal of all persons who have irrevocably affected the property, rights or resources under the foundation or who have made one of the contributions to the staffing. The mandate of qualified personalities cannot exceed five years. It can be renewed once.
"The representatives mentioned in 1° above have a majority of votes on the board of directors.
"II.-Subsist on advisory voices at Board meetings:
« 1° As the Commissioner of the Government, the Director General of the Regional Health Agency in whose jurisdiction is the head office of the foundation or its representative; it may obtain a communication of any document or document relating to the activity or management of the foundation and shall be the recipient of all deliberation projects of the board of directors;
« 2° The director of the foundation;
« 3° The President of the Scientific Council;
« 4° When one of the public health institutions is a university hospital centre, a representative of the research minister.
"III.-The auditor or his alternate attends meetings of the Board of Directors.
"IV.-The functions of a member of the board of directors are provided free of charge. However, members of the board of directors may be reimbursed for transportation and travel expenses incurred for the purposes of the foundation, upon presentation of the evidence, under conditions defined by the rules of procedure.
"Art. R. 6141-57.-The chair of the board of directors is elected by the members of the board of directors among the representatives of the founding public institutions.
"He presides over the board of directors, summonses him and sets his agenda.
"He represents the foundation in justice and in all acts of civil life.
"He may give delegation to the Director under the conditions defined by the rules of procedure.
"Art. R. 6141-58.-The Board of Directors:
« 1° Deliberates on the research support policy promoted by the foundation;
« 2° Approves the Foundation's programme of work and the guidance of its annual activity;
« 3° Vote the statement of income and expenditure forecasts, annual accounts and the allocation of results;
« 4° Accepts donations and bequests and authorizes, in addition to current management, transactions in the management of funds consisting of the endowment, acquisitions and assignments of movable and immovable property, contracts, leases and leases, the establishment of mortgages and borrowings, and bonds and guarantees granted on behalf of the foundation;
« 5° Setting authorized staff by staff category;
« 6° Describes, on the proposal of the Director, the Commissioner of Accounts of the Foundation and his alternate, chosen from the list mentioned in theArticle L. 822-1 of the Commercial Code ;
« 7° Deliberates on any changes in the statutes;
« 8° Consider the annual activity report submitted by the Director;
« 9° Adopts, on the proposal of the Director, the rules of procedure.
"It may grant the Director, under conditions that it determines and dependants the Director to report to the Director at each meeting of the Board of Directors, a permanent delegation to ensure the proper functioning of the foundation. This delegation can only address changes in the statement of income and expenditure on an urgent basis and, below a threshold established by the Board of Directors, the conclusion of contracts, leases and leases and the acceptance of bonds and guarantees granted on behalf of the foundation.
"Art. R. 6141-59.-The director of the foundation is appointed by the president after notice of the board of directors. He is terminated under the same conditions.
"The director is competent to settle the affairs of the foundation other than those listed in R. 6141-58. It prepares and implements the Board of Directors' deliberations. He runs the foundation's services.
"The functions of director and board member are incompatible.
"The functions of director and director of a public health institution are incompatible.
"Art. R. 6141-60.-The foundations have a scientific council. This board is composed of medical and scientific personalities, outside the foundation, designated by the board of directors in terms defined by the statutes. The Scientific Council meets at least once a year. Its composition is defined by the statutes and its rules of operation are defined by the rules of procedure.
"The scientific council is consulted on the research support policy promoted by the foundation, its programme of work and the directions of its annual activity. It provides expertise to the Director in the implementation of the research policy defined by the Board of Directors.
"Subsection 3
“Financial arrangements and foundation control
"Art. R. 6141-61. -The endowment of the foundation is constituted by contributions of the founding members in material and intangible property, in rights or in resources defined by the statutes.
"The allocation is expendable for part on the terms specified in R. 6141-62.
"It can be increased by donations and bequests and a fraction of the annual surplus.
"Any increase in staffing is approved by the Board of Directors.
"Art. R. 6141-62.-The annual resources of the foundation are composed of:
« 1° Endowment income;
« 2° Of the consumable portion of the endowment set by the statutes within the annual limit of 20% of the endowment. The unconsumed share of the endowment may not be less than 10% of the original endowment or, for foundations with an endowment of more than 10 million euros, to 1 million euros;
« 3° Financial products;
« 4° The product of gifts and bequests;
« 5° Grants from international organizations, the state and public authorities;
« 6° Sales and remuneration for services rendered;
« 7° Income from intellectual property;
« 8° Operating credits that affect its founding members.
"The statement of income and expenditure forecasts and possible corrigenda statements cannot be voted and executed with an imbalance greater than the annual expendable portion of the staffing.
"In the six months following the end of each social year, the foundation shall establish the annual accounts certified by the External Auditor or his/her alternate.
"Art. R. 6141-63.-The rules of procedure of the foundation may come into force only in the absence of opposition within one month of the Director General of the Regional Health Agency. It is modified under the same conditions.
"The statement of income and expenditure forecasts and the accompanying statements voted by the Board of Directors are submitted for approval to the Director General of the Regional Health Agency. The silence of the latter for two months is approved. The annual accounts are transmitted to the Director General of the Regional Health Agency after their adoption by the Board of Directors.
"With the exception of the current management operations of the foundation funds, the Board of Directors' deliberations on the disposition of the immovable and immovable property comprising the endowment are valid only in the absence of opposition within one month of the Director General of the Regional Health Agency. The same applies to the deliberations of this council on the establishment of mortgages or borrowings.
"The acceptance of donations and bequests by the Board of Directors takes effect under the conditions provided for in theArticle 910 of the Civil Code.
"Subsection 4
" Staff of hospital foundations
"Art. R. 6141-64.- Hospital foundation staff may be:
« 1° Public servants of a public legal entity referred to in theArticle 2 of Act No. 83-634 of 13 July 1983 the rights and obligations of civil servants and placed in a position consistent with their status;
« 2° Contractual staff Decree No. 86-83 of 17 January 1986 the general provisions applicable to contracting agents of the State taken for the application of theArticle 7 of Act No. 84-16 of 11 January 1984 bringing statutory provisions relating to the public service of the State made available to the foundation;
« 3° Hospital practitioners detached from the foundation or made available;
« 4° Private law employees.
"Subsection 5
"Change of the statutes and dissolution
"Art. R. 6141-65. -The amendment of the statutes of the foundation may not be proposed to the Supervisory Board of the public health institution(s) that took the initiative to establish the foundation after two deliberations of the board of directors taken at two months of intervals and by a three-quarters majority of the members present or represented. However, only one deliberation is sufficient when the amendment was unanimously decided by the members present or represented. The amendment of the statutes is approved in accordance with the terms and conditions set out in Article R. 6141-54.
"Art. R. 6141-66. -The foundation is dissolved by a decision of the board of directors made under the conditions provided for in section R. 6141-65 or in the event of a repeal of the decree approving its statutes or, at the latest, on the date on which the unused share of the endowment becomes less than 10% of the original endowment or, for foundations with an endowment greater than ten million euros, to one million euros.
"The board of directors shall designate one or more commissioners to proceed with the liquidation of the property of the foundation and to which it confers all the powers necessary to carry out this mission.
"The Board of Directors assigns the net assets to one or more hospital foundations or, if not, to one or more similar, public or recognized public utility institutions.
"The dissolution is, as the case may be, approved or issued by order made on the report of the Minister for Health and, where applicable, the Minister for Research. »
In article R. 6152-50 of the Public Health Code, the words: "a group of health cooperation or a group of social and medico-social cooperation which is a member of their institution of assignment" are replaced by the words: "a group of health cooperation, a group of social and medico-social cooperation or a hospital foundation of which is a member of their institution of assignment".
The Minister of Social Affairs and Health is responsible for the execution of this Order, which will be published in the Official Journal of the French Republic.
Done on August 21, 2014.
Manuel Valls
By the Prime Minister:
Minister of Social Affairs and Health,
Marisol Touraine
