DECISION NO 9 OF 1 JUNE 2010 ON CONSTITUTIONAL CASE № 4/2010
The introduction of criteria to be met by hospitals (medical institutions for hospital care) in order to join the health insurance coverage system is a matter of legislation appropriateness which is beyond control for compliance with the Constitution. The purpose of such criteria is to ensure the quality of medical service and the protection of public (citizens') health and not the discriminatory treatment of patients and the curtailment of the patients' right to accessible and affordable medical care.
The proceedings is based on Art. 149, para 1, item 2 of the Constitution.
The case was filed on 10 February 2010 upon a challenge of 54 Members of the 41 st National Assembly of the constitutionality of § 38, item 3 of the Act Amending the Health Insurance Act (AAHIA) (DV, No 101/18 December 2009) that established a new paragraph 12 of Art. 59 of the HIA and § 39 of the AAHIA that established a new Art. 59c of the HIA (DV, No 70/1998, last amendment, DV, No 101/2009). The MPs insisted that the challenged texts disagreed with Art. 6 and Art. 52, para 1 of the Constitution that proclaim the equality of citizens before the law and the right of citizens to medical insurance guaranteeing them accessible and affordable medical care. The former challenged text generates inequality among patients from place to place and from region to region. The inequality derives from the fact that the medical care in definite hospitals falls short of the patients' needs since the providers must be medical professionals that are listed in the new paragraph 12 of the HIA Art. 59. Further, this text brings inequality among the medical doctors as those who are specialists in the listed specialties are entitled to conclude contracts of employment for extra work under the Labor Code whereas those who are unrelated to the listed specialties are disentitled.
The latter challenged text, in the opinion of the MPs supporting the challenge, violated the Constitution-guaranteed right to accessible and affordable medical care (Art. 52, para 1) since the HIA new Art. 59c introduced criteria that restrict this right of citizens from place to place and from region to region. Hospitals that fail to meet the said criteria shall be disallowed to conclude contracts with the National Health Insurance Fund (NHIF) and consequently may be closed down in disregard of the citizens' specific needs. As a result, citizens will be deprived of accessible and affordable medical care despite their paid up health insurance contributions. Accordingly, the Constitutional Court was approached with the challenge of the constitutionality of the HIA Art. 59, para 12 and Art. 59c that were established by the AAHIA § 38, item 3 and § 39.
To rule, the Constitutional Court considered:
1. The starting position to conform to in the consideration of the case pertains to the characteristics of the challenged texts as elements of the legislation of the reform in the national health insurance system.
The goal of the reform is to improve the quality and efficiency of the medical care service provided to citizens while it faces a cut budget which is made available. The measures planned to achieve this goal, some of them being codified measures, are the challenged HIA texts that were passed as a last amendment (DV, No 101/2009) and express a definitive governance concept of how to make optimum the operation of the healthcare system of the society.
Art. 52, para 1 of the Constitution reads that citizens shall have the right to medical insurance guaranteeing them accessible and affordable medical care, and to free medical care in accordance with conditions and procedures established by law, that is, a Constitution-delegated legislation is to arrange a healthcare system. For this reason the health reform concept is fulfilled by the amendments to the HIA. The amendments stand for a political and economic purpose that is inspired by the changing socio-economic reality in a transition-period society and that by themselves are not subject to control for compliance with the Constitution. Whatever the case may be, the Constitutional Court's position cannot be one of commitment or authority but must stay within the confines of the juridical perspective which is relevant to the compliance of the challenged texts with the Constitution. In that context, inasmuch as the Constitutional Court decision contains criticisms against certain legal arrangements in the healthcare sector, that criticism shall not be confined to their compliance with the Constitution and shall not be an evaluation of their presumed positive or negative impacts on the society's healthcare system.
2. On the challenge of the constitutionality of the HIA Art. 59, para 12 established by § 38, item 3 of the AAHIA
The text that the MPs challenged reads as follows:
“Medical institutions for hospital care which do not meet the requirements of para 10 may conclude employment contracts for extra work under the Labor Code with medical professionals working in hospital units without beds, for the following specialties:
,, 1. virology;
2. clinical microbiology;
3. clinical parasitology;
4. clinical pathology;
5. nuclear medicine.”
The quoted text must be considered in relation to the text of paragraph 10 of the HIA Art. 59 as it is applied if a hospital fails to meet the requirements to conclude a contract with a Regional Health Insurance Fund (RHIF). This is the assumption in which the hospital is short of medical professionals on a primary employment contract to provide the hospital medical service that Art. 45 of the HIA defines as eligible for a contract with the RHIF. In that context a hospital enjoys further opportunities to conclude a contract with the Health Insurance Fund for activities which can be contracted out as extra work if medics possessing a primary contract of employment are not available.
The choice of specialties listed in the challenged text is determined by their specifics and by shortage of medics who are competent in these specialties. Unlike therapeutical medicine, such specialties allow involving in activities in which the physical presence of the patient is unneeded – in laboratories and not in hospital units without beds, as Art. 59, para 12 of the HIA provides for.
Further, the nature of these specialties is such that an employment contract for extra work will not meddle if work in one hospital is discontinued for the sake of the second job and the discontinuation will not impact negatively the performance for the primary contract of employment. This is in compliance with the Labor Code provision of the conclusion of an employment contract for extra work with a second employer (outside additional work). The listed medical specialties improve the diagnostics and increase the number of hospitals (medical institutions for hospital care) that are eligible to conclude contracts with a RHIF.
2.1. The challenged Art. 59, para 12 of the HIA is not in conflict with Art. 6, para 2 of the Constitution. The text in question does not bring about inequality among patients from place to place and from region to region since: first, all hospitals shall meet identical requirements that Art. 59, para 10 of the HIA provides for if a contract with the NHIF is to be concluded, and; second, the place of residence is not among the social criteria in Art. 6, para 2 of the Constitution.
In this instance the challenge makes an inadmissible mix-up of the actual inequality of individual hospitals in terms of the quality of the services they provide on account of their location and of the legal texts that require a minimum of medical standards that are binding on a hospital if it is to conclude a contract with a RHIF to perform the said activities. Equality of patients is not to be seen as a condition of the healthcare system where the whole possible set of medical services is to be provided even in the remotest places in terms of variety and quality for which otherwise financial or human resource is not available; equality should stand for identical standards that the law requires from hospitals in terms of availability of professionals on a primary contract of employment for the NHIF-financed activities – Art. 59, para 10 in relation to Art. 45 of the HIA. There is no need why the Government should create nor can the Government afford to create sameness of the medical services that are provided by hospitals located in different regions of the country as the regions differ in terms of size and density of population and the social and age breakdown that condition the differences in the disease incidence and type. The law provides for the elaboration of a National Health Map to identify the health system's needs, on a region by region basis, of adequate hospital service.
The patients have the freedom to choose a hospital and are not ,, enchained” to the local hospital. In a modern society with developed communications and freedom of movement and with the lift of administrative restrictions on residence in cities and in the capital city, the freedom of choice becomes even greater. For that reason the challenged HIA text is not seen as restrictive on certain categories of health insured patients nor is it considered to be among the socially determined restrictions that Art. 6, para 2 of the Constitution enumerates.
In that context Art. 59, para 12 of the HIA should not be seen as restrictive; on the contrary, it affords further options to patients in the choice of medical services. This is so as hospitals that do not have their own professionals on a primary contract of employment for the activities in Art. 45 of the HIA are free to hire such professionals on a contract of employment for extra work for the specialties that are enumerated in the text and to conclude contracts for RHIF financing. This increases the number of hospitals that benefit from such financing. The abolition of this contracting under easier terms by a ruling on the unconstitutionality of Art. 59, para 12 of the HIA will not improve the patients' access to medical services that are covered by the health insurance scheme. The abolition would condition still higher requirements to be met by hospitals in terms of the appointment of medical doctors with a degree in a specialty that is present in the challenged text. Though such professionals are few, they will be allowed to work only if they have a primary contract of employment. In consequence, services for which such professionals are needed will have to close down and patients who need the special services will be left with a limited choice.
2.2. Art. 59, para 12 of the HIA does not create discrimination within the medical profession as the challenge insists, on grounds of the different requirements that are enumerated and that the medical professionals must meet in order to work in NHIF-financed hospitals. The text referred to does not infringe on doctors' freedom to enter into relations of employment with hospitals that seek NHIF financing. The text allows easier terms of recruitment only to hospitals that are understaffed in terms of professionals with a primary contract of employment for activities that are described in Art. 45 of the HIA but that want to conclude contracts for NHIF financing. The exception in Art. 59, para 12 of the HIA is justified by the small number of professionals in the specialties that are listed in it and the medical work specifics which allows outside additional work and by the need to make sure there is a sufficient number of hospitals that meet the staff competence standard.
Doctors who have a specialty other than what is listed in Art. 59, para 12 of the HIA, may work without discrimination in accordance with the terms and conditions of their contracts of employment and with the Labor Code texts that, inter alia, provide for an employment contract for extra work. In that context account must be taken of the circumstance that the field of application of the text is quite limited and covers a relatively small number of medical institutions. The text includes hospitals but leaves out providers of other kind of medical service. Also left are out are hospitals which do not provide services for which professionals for the activities listed in Art. 59, para 12 are to be hired. From that angle the principle of equal treatment has not been infringed on inasmuch as it presupposes equal treatment for identical cases and discriminatory treatment for dissimilar cases. As it is Art. 59, para 12 of the HIA is a manifestation of the principle as a special assumption vis-à-vis the general medical standard of competent staff hired under a primary contract of employment under paragraph 10 of the same text as a condition for the hospital to conclude a contract with the NHIF.
The challenged text does not lead to any privilege or restriction of social rights on grounds of education as per Art. 6, para 2 of the Constitution. In the case dealt with these are regulated activities in the field of medicine that require special knowledge and skills. With that in mind legislation may be passed to pose different requirements to practice such activities, more specifically, a requirement of educational qualification – a competence acquired in the proper form in a special field of medicine. Such a requirement does not infringe on the principle of equality since definite activities require education and experience and the law sees to that which is not dissonant with Art. 6, para 2 of the Constitution. The restriction is not discriminatory as it is intended to protect the health of citizens as a Constitution-enshrined value – Art. 52, para 3. Hence the need of strict regulation in the risky field of healthcare, including the required educational qualification and a certificate to provide competent and good quality medical service to the patients who need it.
2.3. Art. 59, para 12 of the HIA is not in conflict with Art. 52, para 1 of the Constitution. The text cannot support a conclusion that patients are discriminated on the basis of a certain criterion and that their access to medical care which is covered by the insurance scheme is restricted. The text referred to is not neglectful of the citizens' concrete needs as the challenge maintains, nor does it infringe on the citizens' right under Art. 52, para 1 of the Constitution; on the contrary, the text seeks to strengthen the focus on these needs. With that purpose in mind a deviation from the prescription of Art. 59, para 10 of the HIA is allowed so as to let as many hospitals as possible to conclude contracts with the NHIF on the basis of an employment contract for extra work with professionals who are “in short supply”.
Art. 59, para 12 of the HIA introduces requirements for specific skills in the specialties that it lists as a precondition for an employment contract for extra work with medics to practice these specialties. As stressed above, these requirements are justified by the fact that medicine is a profession subject to legal regulation due to the risks to the health and life of citizens in the process. For the State to fulfill its obligation that derives from Art. 53, para 3 of the Constitution, it shall make sure the quality of the medical service is good by the introduction of standards that are binding on the hospital medical staff.
The claim that access to medical care is restricted in this way is untenable as it puts in confrontation the accessibility/affordability and quality of medical service and practically associates the former with inferior quality of medical services all around and in the same measure. The idea of the challenged text is very different as it expresses an agreed stand on the principles of Art. 52, para 1 and para 3 of the Constitution. This is to indicate that: first, quality service must be accessible and affordable in terms of a NHIF-financed healthcare service package and freedom for the patients who are covered by the health insurance scheme to choose a provider; and second, the accessible and affordable medical service to people who need therapy must be of a quality to conform to the law-set criteria of hospital staff skills. If so, in pursuance to Art. 59, para 12 of the HIA the hospital may conclude a contract with the NHIF on the provision of medical services to patients who are covered by the national health insurance scheme.
In view of all above stated the challenge of the constitutionality of Art. 59, para 12 of the HIA established by § 38, item 3 of the AAHIA is to be dismissed as unsustainable.
3. On the challenge of the constitutionality of the HIA Art. 59c established by § 39 of the AAHIA
The text challenged introduced the following criteria of accessibility/affordability and quality of medical service:
“1. financial security of the medical establishment under Art. 9 of the Act on the Medical Establishments with medical professionals on a primary employment contract;
2. availability of the statutory medical equipment and technology which are operational and are on the grounds of the respective medical establishment;
3. provision by the medical establishment under Art. 9 of the Act on Medical Establishments of non-stop 24-hour medical care in emergency cases;
4. provision of medical care in compliance with the established medical standards and the Good Medical Practice Rules.”
The text challenged relates to Art. 59b, para 1 of the HIA that enables a RHIF director to conclude a contract with medical care providers who meet the requirements of Art. 55, para 2, item 1 of the HIA and the criteria of accessibility/affordability and quality of medical care in Art. 59c. The conditions in Art. 55, para 2, item 1 of the HIA are special requirements to be met by the medical care providers as per the National Framework Agreement and along with the fulfillment of criteria in pursuance to Art. 59c of the HIA provide justification for joining the health insurance system as they conclude contracts with the NHIF regional offices, the RHIFs.
3.1. The introduction of criteria to be met by hospitals (medical establishment for hospital care) if they are to join the health insurance system is a matter of governance and legislation conceptually and as appropriate and these are beyond control for compliance with the Constitution. Art. 52, para 1 of the Constitution delegates legislation as it provides for the modi in which the citizens' right to health insurance is subject to procedures that are established by law. This indicates that the State, while it opts for a mandatory health insurance scheme, regulates, by means of legislation, the medical services thus provided by posing requirements to their quality. The quality rests on medical standards that were approved in the procedure set in Art. 6, para 1 of the Act on Medical Establishments and the Good Medical Practice Rules that were adopted and ratified in the procedure as laid down in Art. 5, item 4 of the Act on the Professional Organizations of Medical Doctors and Dentists – Art. 80 of the Health Act which is, inter alia, a criterion of the accessibility/affordability and quality of medical service in the meaning of Art. 59c, item 4 of the HIA. This is the way in which the Government fulfils its obligations deriving from Art. 52, para 3 and para 5 of the Constitution to protect the health of all citizens and to exercise control over all medical facilities and doing so should not imply that the quality-related requirements introduced restrict the accessibility to and the affordability of medical care in the meaning of paragraph 1 of the same Constitution article. In that context, Art. 81, para 2 of the Health Act attaches the right to accessible and affordable medical care to the application of the principles of timeliness, sufficiency, quality and non-discrimination in the provision of the service which is expressed in the remaining criteria of Art. 59c, items 1, 2 and 3 concerning the appointment of competent staff on a primary contract of employment, the availability of medical equipment and technology and 24-hour operating emergency ward.
3.2. Constitution delegation is provided by Art. 52, para 2 of the Constitution on the legislation that treats the conditions of healthcare financing. Thus the Government is free to pose codified requirements to be met by hospitals that have NHIF contracts. This derives from the nature of health insurance which is dual-funded: by the central (Government) budget and by the public funds that are accumulated in the NHIF and that are generated by other sources – primarily individual or collective health insurance contributions (installments) that must be managed by the NHIF administration in a way to make sure the spending is optimum and most efficacious for the protection of the health of the scheme-covered individuals. That optimum won't materialize unless the legislation sets definite quality-related criteria to the medical service providers, i.e. the hospitals, with respect to the package of NHIF-financed activities. If each hospital is free to negotiate and obtain NHIF financing while it disregards the standards of the quality of the service that it provides, then the health insurance limited resource cannot be spent sufficiently and efficiently for the purpose it has: accessible and affordable medical care. Hospitals that fail to meet the criteria that are enumerated in Art. 59c of the HIA will get financing though patients are not provided with good quality healthcare service whereas hospitals that could have provided good quality service will be underfunded as a result of misspending the NHIF global resource and this will impact negatively the quality of service that these hospitals provide.
3.3. The assertion in the challenge that the introduced criteria as per the text are discriminatory and might cause the closing down of hospitals cannot be a proof of noncompliance with the Constitution of the challenged Art. 59c of the HIA. The MPs attribute such an outcome to an assumption that once hospitals fail to meet these criteria, they won't get financing from NHIF and thus the accessibility to and affordability of medical services to citizens who have paid up health insurance contributions (installments) would be limited, as a matter of fact.
This understanding is at variance with the above statement of medical care as a Government-regulated activity. To reject regulation which is to reject criteria to be met by hospitals so as to be eligible for NHIF financing is the same as to let medical services to be provided by providers who fail to meet these requirements that constitute the guarantees of the life and health of the insurance scheme-covered individuals who need therapy. Thus construed, the accessibility to and affordability of medical services would infringe on the Constitution-granted powers of the State under Art. 52, paras 3 and 5 related to the protection of public health.
The introduction of the criteria of the HIA Art. 59c is not discriminatory as none of these criteria relates to any of the social aspects in Art. 6, para 2 of the Constitution on the grounds of which rights are restricted or privileges are granted and consequently the principle of the equality before the law is breached. These criteria are neural and of basic importance for medical activities performance. These criteria do not discriminate hospitals in terms of type, ownership or location nor do they discriminate between the health-insured patients who avail of the medical services. Therefore the criteria in Art. 59 of the HIA do not restrict the citizens' freedom to choose medical services in a hospital that they think is the right place no matter where they reside. Thus a hospital is free to provide services in its field of specialty to patients who come no matter from what town or village. There is no restriction in this way of the accessibility to and affordability of medical care as an opportunity to health-insured patients to get treatment under nondiscriminatory conditions.
3.4. The restriction of access to medical care as introduced by the criteria in Art. 59c of the HIA is justified by the MPs who support the challenge and who cite the real dissimilar conditions of the health service provision in certain hospitals which would fail to meet these criteria and would be ineligible for NHIF financing contracts. Such a reason is irrelevant as control on the compliance with the Constitution is to see whether the challenged Art. 59c of the HIA complies with the principle of equality before the law and, as stated above, this principle has not been violated.
Justices Emilia Drumeva, Vladislav Slavov, Blagovest Punev, Tzanka Tzankova, Stefka Stoeva and Roumen Nenkov are of the opinion that the challenge of the constitutionality of Art. 59c, item 1 of the HIA should be dismissed altogether whereas justices Evgeni Tanchev, Dimitar Tokushev, Plamen Kirov, Krassen Stoichev, Georgi Petkanov and Vanyushka Angusheva are of the opinion that Art. 59c, item 1 of the HIA should be challenged on the following grounds:
Art. 52, para 1 of the Constitution reads that citizens shall have the right to medical insurance guaranteeing them accessible and affordable medical care. This text proclaims a fundamental civil right from the social rights category. The right to health insurance is a public subjective right which correlates with an obligation of the public authorities; this right makes it binding on the State to establish a health insurance system and to codify it in a way to make it an insurance law segment. The Health Insurance Act (DV, No 70/1998, last amendment, DV, No 101/2009) regulates the obligatory and voluntary health insurance. The obligatory health insurance covers all Bulgarian citizens, the persons with a status of refugees, humanitarian status or granted right to asylum. The collecting of installments and the using of the raised resources shall be based on the principle of solidarity. Each insured person is individually entitled to medical care within the National Framework Agreement whenever a need arises. In that sense the reduction of Art. 52, para 1 of the Constitution by the remaining Constitutional Court members to a state policy which is judged only as appropriate defaces the spirit and the substance of the text and makes them a surrogate. Such reflections have no other aim but the desire to deny the existence in general of the so-called different social rights as a separate type of citizens' Constitution-granted rights along with their individual rights. The Constitution of the Republic of Bulgaria provides for social rights and the right to health insurance is one of them. These rights enjoy protection though it is more specific compared to that extended on individual rights. More specifically, the Constitutional Court can rule on the noncompliance with the Constitution of legal texts that pertain to these rights inasmuch as it finds inconsistence between the legislation and the Constitution provisions.
The obligation that Art. 52, para 1 of the Constitution vests the public authorities with has precise and clearly defined parameters. In addition to the proclamation of the citizens' right to health insurance, the Constitution sets an extra requirement for this right to be codified in a way that will make sure the availability of accessible and affordable medical care. Therefore, the constituent authority, in addition to the firm provisions for a social right, took definitive steps to couch this right in legal terms. On its part, in the exercise of its power under Art. 149, para 1, item 2 of the Constitution, the Constitutional Court is bound by the approach chosen and by the concrete text.
By itself the introduction of criteria of the accessibility/affordability and quality of medical care as a task assigned by Art. 59c of the HIA is not counter to the Constitution since it is incorporated in the Constitution. The condition is that these criteria should be capable of guaranteeing the accessibility to and affordability of medical care. The requirement that Art. 59c, item 1 of the HIA introduces, viz. that a hospital shall, under Art. 9 of the Act on Medical Establishments, be staffed with medical professionals on a primary contract of employment in fact appears to restrict rather than to guarantee the accessibility to and affordability of medical care in the meaning of Art. 52, para 1 of the Constitution. The criterion of accessibility to/affordability of medical care that is used in this legal text has nothing to do with medical care provision and its real task is to reduce the number of medical establishments. Moreover, a primary contract of employment is just an opportunity, a kind of contract of employment to which an employer and an employee may resort to agree on their relations, along with other contracts of employment that the Labor Codes provides for. The more so that the criterion ,, primary contract of employment” is presented to the Regional Health Insurance Fund to apply for a permission to conclude a contract with a hospital provider without any further requirements of the number of primary employment contracts and of the specialty. The kind of activity does not predetermine the kind of the contract of employment, therefore, the introduction of such a criterion which is external to the specifics of the activity does not guarantee the possibilities for medical service provision but restricts them.
Premising on the above stated considerations the justices Evgeni Tanchev, Dimitar Tokushev, Plamen Kirov, Krassen Stoichev, Georgi Petkanov and Vanyushka Angusheva agreed that Art. 59c, item 1 of the HIA was discordant with the Constitution and should be pronounced unconstitutional. In return, it is to be noted that to pronounce Art. 59c, item 1 of the HIA unconstitutional would practically make the provision of Art. 59, para 12 of the HIA nonsensical since the sole purpose of the latter is to soften the peremptoriness of the former.
As the required majority of seven votes of all justices was not obtained to proceed with the challenge in the part contesting the constitutionality of Art. 59c, item 1 of the HIA, the challenge should be dismissed as unsustainable altogether.
Председател: Евгени Танчев