The Constitutional Court found No 15 / 2016 Coll.
The Constitutional Court found of 8 December 2015 sp. zn.
Valid
15
FIND
The Constitutional Court
On behalf of the Republic
On 8 December 2015, the Constitutional Court decided under sp. z. pl. Pl. ÚS 5 / 15 on 8 December 2015 in plenary composed of the President of the Court of Paul Rychetský and the Judges Louis David, Jaroslav Fenyk, Jan Filip, Jaromír Jirsy, Vladimir Krorka, Tomáš Líčník, Jan Musil, Vladimir Sládeček, Radovan Sučánek (Judge of the Rapporteur), Kateřina Šimáková, Vojtěmích Šimíček, Milady Tomková and Jiří Zemánek, on the motion of the group 17 Senators, for which is represented by Senator Ing. František Bradáč, represented by Mgr. Peter Krátký, the lawyer, on the cancellation of its Article 4 (1), paragraph 12 to, paragraph and Annex 3, and Annex 13 to the Republic of the Court of the Court of the Chamber of the Chamber of the Chamber of the Chamber of the Chamber of the Chamber of the Chamber of the Chamber of the Chamber of the Chamber of the Chamber of
as follows:
Motion denied.
Reasons
Subject matter
1. On 5 February 2015, the Constitutional Court received a proposal from a group of 17 senators ("the appellant '), under which Senator František Bradáč is acting, on the annulment of Decree No. 324 / 2014 Coll., on the determination of the value of the item, the amount of the payment of the services paid and the regulatory restrictions for 2015 (" the reimbursement order' or "the contested decree '), or, as the case may be, only point 3 of Part A of Annex 1 thereto. According to the appellant, this decree is contrary to the right to do business under Article 26 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter), as well as the principle of equality under Article 1 of the Charter and the principle of legality under Article 2 (3) of the Charter, as it does not sufficiently take into account the financial requirements of health service providers in geographically and demographically disadvantaged areas. Instead, they are subject to liquidation effects, thereby indirectly threatening the implementation of the right to health under Article 31 of the Charter. The annulment of the contested order is proposed with effect from 30 September 2015, with the view that the case should be dealt with as a priority. However, should the Constitutional Court repeal only that provision, it should do so with effect from 30 June 2015.
2. In the course of the proceedings on the appellant's proposal, the Constitutional Court received a proposal from a group of 16 Senators (hereinafter referred to as "the intervener '), for which Senator RNDr. Jitka Seitlová is acting. This proposal was intended to repeal Paragraph 4 (1) in the words" 12 to' and Annexes 12 and 13 in the order for reimbursement, setting out the conversion coefficients for insured persons, which express the annual changes in the number of insured persons by region on 1 January of the comparable calendar years. According to the intervener, their use in the calculation of the total amount of remuneration to which the provider has been entitled for the services to be paid results in an unfair setting of the conditions for the purchase by health insurance companies of such services. As a result, this increase or reduction takes place exclusively depending on the number of insured persons of the health insurance company in the county, without taking into account whether the change was reflected in the scope of the health services provided. This is the result of the non-compliance of those provisions with the right to do business under Article 26 (1) of the Charter, the right to a fair remuneration for work under Article 28 of the Charter, the right to free health care under Article 31 of the Charter and the principle of equality under Article 1 of the Charter.
3. The procedure for the latter proposal was originally conducted under the sp. zn. The Constitutional Court therefore had to deal with the question of compliance with certain provisions of the contested order, the annulment of which was the substance of the rejected application, in the earlier proceedings on the appellant's proposal, including in the light of the arguments of the latter group of senators [cf. Case C-437 / 2012 sp. zn. This group has acquired the status of intervener in this proceeding.
Summary of the appellant's proposal
4. As mentioned above, the appellant's proposal to abolish the recovery order as a whole, possibly to abolish point 3 of Part A of Annex 1, is justified by reference to its negative impact on the management of health service providers operating in geographically and demographically disadvantaged areas. An example of one of them, on which this impact is illustrated in detail in the proposal, is the company JESENIC NEMOCNICE, spol. s r. o., IČO 47973927, based in Jeseník, Lipovská 103, which is the only provider of comprehensive bed health care in the county of Jeseník. According to the applicant, the status of this hospital is characterised by several peculiarities. Due to its location and availability, it can only provide health services to persons normally present in its catchment area, located on the border of the Czech Republic with the Republic of Poland and is geomorphologically separated from the rest of the Czech Republic by the Massif Hrubý Jeseník. This is an area characterised by negative demographic and social developments (e.g. population decline, high unemployment levels, or below average real and nominal wages). These factors exclude that the hospitals in question have their own activities to increase the population to which they provide health services. In the case of citizens of the Republic of Poland, the flat-rate provision of health services prevents complications in the payment of border health care.
5. In 1994, when that hospital was privatised, its acquirer had a legitimate expectation that it would be able to provide health services to the extent and at prices that would enable that hospital to cover the legitimate costs of its activities while at the same time generating a reasonable profit. The reality is, however, that although the management of the company JESENIC NEMOCNICE, spol. s r. o., is carried out in full compliance with the relevant legislation, each year, as a result of the remuneration decree, there is aggregate damage. Reimbursement orders for 2011, 2012 and 2013 (Decree No. 396 / 2010 Coll., on determining the value of the point, the amount of health care paid from public health insurance and the regulatory limitation of the amount of health care provided from public health insurance for 2011, Decree No. 425 / 2011 Coll., on determining the value of the point, the amount of the payment of health care paid from public health insurance and the regulatory limitation of the amount of the provided health care paid from public health insurance for 2012, Decree No. 475 / 2012 Coll., on determining the value of the points, the amount of the payment of the paid services and the regulatory restrictions for 2014), this damage was estimated at CZK 100 044 071, in the event of the reimbursement order for 2014 (Decree No. 428 / 2013 Coll., on the value of the points, the amount of payments paid services and the regulatory restrictions for 2014). The management of this hospital is also influenced by other unilateral decisions by the State which have a significant negative effect on it in practice. These are primarily personnel expenditure, which is influenced by Government Decree No. 564 / 2006 Coll., on the pay ratios of employees in public services and administration, as amended. While this legislation sets the level of remuneration only for hospital health workers who are contributory organisations of the State or of the local authorities, in view of the number of workers in respect of which it is directly applied, it does, however, have the effect of adjusting the wage ratios of the employees and those not bound by it. According to the appellant, this regulation distorts the labour market throughout the healthcare sector. Only in the case of that hospital are personnel costs up to approximately 63,4% of its total turnover.
6. As unique as the situation of the company JESENIC NEMOCNICE, spol. s r. o., is to some extent unique, the promoters seem highly likely that other health service providers in other peripheral parts of the Czech Republic are in a similar situation. In his view, the contested decree is already unconstitutional because it does not provide these providers with income at least equivalent to their justified costs, thereby effectively transferring responsibility for providing health care that should be properly borne by the State. This puts the provider concerned before two possibilities. They either stop providing health services at all, or restrict them to profitable activities, or proceed to the sale of the hospital as a whole. However they decide, in both cases the return on the initial investment will be significantly reduced without adequate economic compensation. The appellant considers that that impact justifies the conclusion on the infringement of the right of the health service providers concerned and their members to do business under Article 26 (1) of the Charter. At the same time, it indicates a flagrant threat to the right of citizens of certain areas to receive free public health care under Article 31 of the Charter. For example, if, under the influence of the remuneration decree, some of the berth expertise were restricted in the Jeseník district, this would mean that the nearest available bed care could be provided only in an installation approximately 80 minutes away by car (70 km), even in the case of optimal weather and traffic conditions.
7. The appellant points out that in view of the total amount of funding in the public health insurance system, which amounted to almost CZK 230 billion in 2013, an increase in their funds would be sufficient to address the situation of the providers concerned. In the case of the hospital, it would be units of millions of CZK per year. In his view, the omission of different objective conditions under which individual providers offer health services constitutes an infringement of the principle of equality under Article 1 of the Charter. These shortcomings in their entirety also indicate that the issue of the reimbursement order did not take place in accordance with the legal authorisation contained in § 17 (5) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended ("the Act on Public Health Insurance '). The Ministry of Health was obliged to issue it in such a way that it was compatible with the legislation and the public interest. However, this should not have been shown to be the case in the present case, which is why its issue was also contrary to Article 2 (3) of the Charter. In conclusion, the appellant notes that the repeal of the contested decree would create room for a more comprehensive regulation which could better reflect the constitutional rights of both citizens and individual health service providers. This is because, in its case, one or only some of its provisions cannot be trivially pointed out, the abolition of which would lead to the elimination of these deficiencies. However, the repeal of point 3 of Part A of Annex No 1 to the Decree would remove at least the greatest weakness of the legislation in force.
Summary of the application
8. The application by the intervener refers only to certain provisions of the recovery order, for reasons other than the appellant's own. In particular, it calls into question the constitutionality of the transfer coefficients for insured persons, established as an index of the change in the number of insured persons of the relevant health insurance undertaking in the region where the health services are provided, between 1 January 2015 and 1 January 2014 (in short, Kpp14; Annex 12 to the contested decree) and between 1 January 2015 and 1 January 2013 (in short, Kpp13; Annex 13 to the contested decree). Those coefficients shall be applied cumulatively in the calculation of the total flat-rate remuneration to providers of bed-keeping and the first of them in the calculation of the maximum total remuneration to providers of outpatient care. Depending on whether their value is greater than or less than 1, there will be either an increase or a reduction in the amount of remuneration or an increase or a reduction in its limit. Their current setting in the case of the General Health Insurance Company of the Czech Republic as the most important health insurance company in the country, however, results in a reduction in the amount of remuneration in other regions, with the exception of the capital of Prague, where these coefficients are higher than 1, without fully compensating for this reduction by increasing the remuneration of other health insurance companies. Their share of the payments to individual providers is not large enough.
9. The underlying problem of the coefficients in question is that their value is based solely on the decline or increase in the number of insured persons in the regions, i.e. the mere movements (migration) of insured persons. At the same time, they do not take any account of the actual proportion of insured persons of individual insurance companies who have been provided with care in specific hospitals, nor are they concerned with the population structure from a health or age perspective. For example, in the case of migration of insured persons to Prague, it can be assumed that younger and healthier insured persons have moved there mainly to work there, while in the regions where such insured persons have been lost, the proportion of insured persons older and sicker has increased. Nevertheless, the remuneration coefficient was increased only for the capital of Prague. In this context, the intervener points out the dates of the Association of Czech and Moravian hospitals, which indicate that already at the end of the first quarter of 2015, the development of the number of insured persons deviates fundamentally from the rates of transfer of insured persons, as set out in the remuneration decree, compared to the first quarter of 2014. Similar developments can be expected in other quarters. Therefore, the allocation coefficients do not correspond to the actual amount of healthcare provided by individual hospitals. For almost 67% of hospitals, the changes in the number of insured persons thus determined are lower than the actual number of insured persons. It is not uncommon, however, that, although the number of insured persons in the hospital is increasing, the rates set by the remuneration decree result in the payment of a higher amount of care being reduced in contrast. Their setting for individual regions is either incorrect or based on facts that do not have a direct link with the immediate provision of health care (e.g. seeking a retroactive adjustment of final and preliminary monthly payments to suit health insurance companies). Moreover, the method of calculating the coefficients in question and the supporting documents were never made available and their value differed within the different versions of the remuneration order under discussion. The intervener therefore disputes not only the way in which the coefficients in question are created, but also their legitimacy, suitability, rationality, necessity and effect.
10. In the view of the intervener, the rates of transfer of the insured persons, as set out in the contested decree, cannot be met even in view of the requirement to set fair conditions for the purchase of health services resulting from the constitutionally guaranteed right to engage in other economic activities under Article 26 (1) of the Charter, whether it is a price or a level playing field between health insurance companies and hospitals. Any distortion of free competition between health service providers is caused by them rather than adequately compensated. In this respect, the proposal points out that these coefficients apply only in relation to bed or outpatient care and not also to a multiples larger sector of outpatient service providers. The hospitals that provide the same outpatient services as an external private ambulance are thus discriminated against. In addition, these coefficients also reduce the remuneration for outpatient emergency services provided today, except for exceptions only in hospitals, as well as the remuneration for extensive preventive screening and other health insurance services, to which insured persons are invited by health insurance companies.
11. The rates of the transfer of insured persons are criticised for the unconstitutionality of other fundamental rights. The intervener draws attention to discrimination against individual insured persons or their whole groups in their right to free health care from public health insurance under Article 31 of the Charter. Their unequal status depends on their affiliation with the health insurance company and is subject to a coefficient in the respective region. In fact, the seemingly small differences between the remuneration provided for individual insured persons in the order of several percent may also represent tens of thousands of crowns for more serious diagnoses, which may result in a particularly demanding treatment for certain hospitals. The coefficients in question should also affect workers' rights to a fair remuneration for work under Article 28 of the Charter. Government Decree No. 564 / 2006 Coll., as amended, including Government Decree No. 303 / 2014 Coll., increased the health pay tariffs by 5%, i.e. an amount whose coverage requires an increase in hospital payments of at least 3%. In view of the lack of nurses and doctors, hospitals that are not directly covered by this regulation had to respond to this increase. Although the Reimbursement Order nominally sets a 3% increase in flat-rate payments for bed care and a 3% cap for outpatient care, this increase, depending on the county and health insurance companies, is also reduced by different rates of transition between insured persons. As a result, more than half of hospitals did not achieve the increases needed to increase salaries and wages due to these coefficients.
12. The said facts are intended to indicate that the contested provisions of the recovery order, which determine the applicability of the transfer coefficients of the insured persons, should be assessed in the context of a test of rationality and proportionality. In the view of the intervener, it cannot be concluded that the public interest in the issue of the Decree in its form could outweigh the public interest in the stability of the hospital network, as well as the effects in terms of the principle of equality referred to in Article 1 of the Charter or above. The original Ministry of Health also states that the solution adopted was not necessary, which made the application of the coefficients in question conditional on the application of the coefficients in question not reducing the amount of remuneration to individual health service providers below 103%. This solution was not enforced by the lack of funds in the accounts of health insurance companies, as their balances were over CZK 15 billion on 31 December 2014 and are expected to amount to CZK 10.4 billion on 31 December 2015. In both cases, the amounts are in excess of the financial claims resulting from payments guaranteed by a minimum increase of 103%.
13. The imperfections of the current system of redistribution of insurance premiums between health insurance companies cannot be replaced to a large extent by artificial redistribution of health insurance costs between providers and at the expense of part of them. The objective of this settlement can be achieved in another way which would be more respectful of the aforementioned constitutional rights. While the intervener admits that no rights or constitutional principles have been affected by the coefficients in question in such a way that they are completely impaired or degraded, they have, for several years, been partially disturbed and diluted. The amendment of their amendment by the Constitutional Court could thus prevent this trend not only in relation to 2015 but also for the following period. It is, in a way, superfluous provisions which are not linked to the other provisions of the recovery order in such a way that they cannot be abolished separately, i.e. without altering the meaning of the other parameters laid down by it.
Proceedings before the Constitutional Court
14. The Constitutional Court pursuant to Article 69 (1) and (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court) sent both proposals to the Ministry of Health (hereinafter referred to as "the Ministry") as a party to the proceedings and to the Ombudsman, who is entitled to intervene as an intervener.
Expression of the Ministry of Health
15. The Ministry of Health has gradually expressed its views on both proposals, by observations of 16 March 2015 and 13 October 2015, signed by the Minister of Health, MUDr. Svatopluk, Germany, MBA.
16. On the appellant's proposal, the Ministry states that the remuneration decree itself does not directly affect the right to do business under Article 26 (1) of the Charter. It does not regulate the conditions under which the provision of health services can be authorised, nor does it prevent their providers from offering such services, whether they are covered or not covered by public health insurance. This decree only lays down general features for all selected and pre-determined categories the values of the point, the level of remuneration of the services paid and the regulatory restrictions. In each category, the remuneration for the health service provided is set in the same way and providers are in a level playing field and none of them are discriminated against. The Ministry stresses that health service providers, as entrepreneurs, cannot base their business on being fully risk-free from public health insurance. The insurance system has limited resources and cannot be exhausted and brought to collapse by unjustified and disproportionate payments. Such a situation would undoubtedly lead to an infringement of Article 31 of the Charter, which explicitly provides for the existence of a public health insurance scheme.
17. The non-compliance of the recovery order is not seen by the Ministry or by the right to free health care under Article 31 of the Charter. Health service providers may exclude its application by concluding an individual agreement with the health insurance company on how to pay, the amount of remuneration and the regulatory restrictions, in which at the same time geographical, population or other specificities related to the area in which health services are provided can be accentuated. In this context, it cannot be overlooked that according to Article 46 (1) of Act No. 48 / 1997 Coll., on Public Health Insurance, and amending and supplementing certain related laws, as amended by Act No. 369 / 2011 Coll., health insurance companies are obliged to provide paid services to their insured persons, including their local and temporal availability. They do so through the providers with whom they have a contract to provide and pay these services. In conclusion, the Ministry adds to the appellant's proposal that the contested decree was not issued in contravention of the authorisation under Section 17 (5) of the Public Health Insurance Act. The request for its annulment should therefore be rejected. However, should the Constitutional Court come to a different conclusion, it should at the same time decide to defer the enforceability of its finding in such a way that a new draft reimbursement order containing a different method of determining the remuneration can be prepared.
18. As regards the proposal by the intervener, the Ministry first of all expressed its views on the reasons for the application of the conversion coefficients of the insured persons. In 2015, as in previous years, hospitals are paid in the form of a global flat rate, which means that they always receive a certain percentage of the remuneration of the previous year from health insurance companies (in 2015 it is 103% of the remuneration of 2014) if they report similar production, i.e. the number of hospitalizations, as in the reference year. However, the total amount of remuneration is further modified in view of changes in the number of insured persons per insurance undertaking and region. The reason for this is that the loss of insured persons for the health insurance company means a reduction in the total amount of care for the remaining insured persons while the arrival of new insured persons increases them. The comparison of their number on 1 January is based on the fact that insured persons can only change their insurance company once a year, on this very date. Otherwise, during the year their number is essentially constant and changes occur only as a result of death, birth or departure of insured persons abroad. The coefficients shall also take account of the fact that during the year the insured persons are transferred between each county due to changes in their permanent residence.
19. According to the Ministry, the failure to take account of changes in the number of insured persons would result in an unequal position between health insurance companies, which would have to pay the same compensation to hospitals as in previous years, but each other had a different number of insured persons. The health insurance company that acquired the new insured person would thus pay less money to hospitals per patient than in previous years, while the insurance company from which the insured person leaves would have to pay more. In the end, the fact that such situations have been created in the past is one of the reasons for which the General Health Insurance Company of the Czech Republic is now paying higher remuneration to hospitals than other insurance companies. Non-application of the transfer coefficients for insured persons could also lead to a decrease in the remuneration of individual hospitals. According to the current set-up of the flat-rate bed-care payments, although the insurance company that acquired the clients would pay the hospital the same total amount of money, whereas the insurance company that left the clients could pay less, depending on whether their exit is so large that it makes it impossible for the hospitals to meet the condition of reporting a similar volume of production as in the reference year in which they still had enough. In these cases, therefore, the coefficients in question allow providers to maintain the same level of remuneration by reducing the production target, even if they would otherwise be reduced due to the decrease in production.
20. The possibility of calculating the coefficients in question is, of course, more, but the Ministry preferred its determination by the ratio of the number of insured persons in the region concerned between 1 January 2014 and 1 January 2015. This calculation procedure is trivial, verifiable and transparent. On the other hand, the weighting applied, for example, in the 2014 remuneration order, which the transferring clients weigh according to their predicted cost, can only be determined in a more complex and ambiguous manner and without the existence of a generally accepted methodology. An alternative to coefficients that would reflect changes in the number of patients treated in real life can also be described as problematic, as the number of patients could not be established at the beginning of the year. At the same time, the certainty of the decree, the planning capacity of health insurance companies and the Ministry's ability to predict the costs of the segment and respect the financial stability of the system would be reduced. Last but not least, it is also important to draw attention to the risk of purposeful behaviour of hospitals that could prefer care in terms of the need for care or morbidity of less demanding insured persons or to treat hospitalisation in cases that could be dealt with in an outpatient manner. The establishment of coefficients by region (and not by country or by municipality) is considered appropriate by the Ministry to achieve the objective of coefficients, which is to predict how the representation of the clients of insurance companies at the level of individual hospitals will change. In this respect, it also allows for adequate travel of health-care insured persons to be taken into account.
21. As regards the various partial objections of the intervener, the Ministry notes that if the increase in the remuneration of other insurance companies does not compensate for the decrease in the remuneration of the General Health Insurance Company of the Czech Republic, this is due to the fact that the insurance company is currently paying more for one insured person than the other insurance companies. Such a situation could be the result of a massive outflow of its insured persons in the past, which has not yet reflected in its flat-rate remuneration. As a matter of fact, the situation is being corrected today. The Ministry also disagrees with the alleged violation of the principle of equality and non-discrimination. The hospital outpatient segment is very different from outpatient treatment, which is reflected in their different payment mechanism. In hospital ambulances, it is difficult to distinguish between individual expertise. A similar regulation as in non-hospital ambulances (i.e. a regulation on a uniquely treated insured person) is not possible because of the connection with acute bed care, where part of the hospitalisation production can be performed in an outpatient and vice versa. The difference is then also given in the creation of network providers. In case of transfer of insured persons and costs between the county, the concentration of outpatient providers will increase in regions with a higher concentration of insured persons, but not in hospitals. These will only increase the amount of care provided, which is then reflected by the rates of transition of insured persons. These coefficients are therefore not needed for ambulances outside the hospital.
22. According to the Ministry, the coefficients in question have no impact on the implementation of patients' right to free healthcare under Article 31 of the Charter, or on their access to it, nor do they discriminate against them on the basis of their membership of the health insurance company. Health insurance companies have an obligation to ensure local and timely access to care for their insured persons. Even if the reimbursement mechanisms in the remuneration order were not suitable for a specific contractual relationship, the insurance company and the provider always have the opportunity to agree on an individual basis so as not to jeopardise the availability of healthcare for patients. Nor can the allegation of infringement of the right to a fair remuneration for work under Article 28 of the Charter be attested. According to the expert bodies (Council Economic and Social Agreement Working Team), a 5% increase in remuneration by 2.1% is sufficient to increase health care fees. The remuneration increase of 3%, although multiplied (and possibly reduced) by the appropriate coefficient, will always be higher and sufficient to cover increased personnel costs.
23. In conclusion, the Ministry stated that the method of calculating the coefficients and the need for their use were detailed in the relevant explanatory memorandum. The different calculation of coefficients in each version of the reimbursement order was due to a later correction of relevant data from the central register of insured persons, possibly a change in the method of calculation. For all these reasons, even after taking account of the arguments put forward by the intervener, the appellant's proposal should be rejected.
Communication from the Ombudsman
24. On 19 February 2015, the Constitutional Court received a communication from the Ombudsman Mgr. On 16 September 2015, the Constitutional Court also received the same communication from the Constitutional Court, which responded to the application by the intervener. By delivering this proposal, the deadline laid down in Article 69 (3) of the Law on the Constitutional Court in which it could enter the proceedings started again.
Replies by the applicant and intervener
25. The Constitutional Court has sent the applicant and the intervener the above observations relating to their proposals in the event that they wish to respond within the prescribed time limit. Only the appellant made use of this possibility.
26. In its reply of 4 November 2015, the appellant pointed out that the remuneration order had a clear bearing on its right to conduct business and referred again to a case study relating to the company JESENICA NEMOCNICE, spol. s r. o. It follows that the provider of emergency bed health care in a geographically and demographically disadvantaged territory does not, at the same time, have the possibility of making a profit under the payment order. On the basis of this, the calculated remuneration for the health services provided does not even cover the basic costs of this care. On the one hand, the State has also made business possible in such a disadvantaged territory where there is a real risk of endangering or violating the availability of health care as such, but on the other hand it has established conditions for it which effectively exclude its meaning. Failure to take account of these specificities in the remuneration order results in an unequal and discriminatory position of the providers concerned compared with those in other areas.
27. According to the applicant, the remuneration decree does not give the providers concerned sufficient compensation. The possibility of an individual arrangement with a health insurance company that depends solely on its will cannot be regarded as a relevant guarantee or systemic solution to the problem. If the practical application of the reimbursement order, which, moreover, seems to exceed the indicative indicators at the time the draft health insurance plan was approved, leads to the completion of all the planned resources, then health insurance companies lose the right to negotiate with the provider a different method of remuneration.
Oral proceedings
28. In accordance with Article 44 of the Law on the Constitutional Court, the Constitutional Court has ruled on a case without oral hearing, since further clarification of the case could not be expected.
Terms and conditions of the formal assessment of the proposal
29. The Constitutional Court notes that it is competent to consider an application for annulment of the contested decree or its provisions and that the appellants' and intervener's proposals fulfil all the formal requirements laid down by law and have been submitted by persons entitled [Paragraph 64 (2) (b) of the Law on the Constitutional Court]. At the same time, it finds none of the grounds for inadmissibility of the appellant's proposal or the grounds for the termination of the procedure. The conditions for its substantive assessment are therefore met, in view of the arguments put forward in the two proposals.
Assessment of whether the contested decree was issued on the basis and within the limits of the law
30. In accordance with Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Constitutional Court first addressed the question of whether the contested decree was adopted and issued in a constitutional manner and within the limits of the Constitution of the Czech Republic of the established competence.
31. The Constitution of the Czech Republic empowers ministries and other administrative authorities to legislate, but the implementation of which can only take place on the basis and within the limits of the law if they are empowered by law. That provision should be interpreted strictly in the sense that this authorisation must be specific, unambiguous and clear [cf. the finding of 21 June 2000 sp. zn. ÚS 3 / 2000 (N 93 / 18 CollNU 287; 231 / 2000 Coll.)]. If this is the case, the Constitutional Court is examining whether a statutory law has been passed by a state body authorised to do so and within the limits of its competence, that is, whether it has been within the limits and under the law and not outside the law in the exercise of that competence. Simply put, the point is that if it is to be under the X-law, this rule does not provide that it is to be Y, but that it is to be X1, X2, X3. At the same time, the legislator's will to regulate above the legal standard must be clear from the empowerment provision. In such cases, however, the substatutory legislation may not interfere with matters which can only be regulated by law (i.e. where the so-called "reservation of law 'applies) [cf., for example, the finding of 18 August 2004 sp. zn. Pl. ÚS 7 / 03 (N 113 / 34 SbNU 165; 512 / 2004 Coll.) or the finding of 25 March 2014 sp. zn. Pl. ÚS 43 / 13 (N 39 / 72 SbNU 439; 77 / 2014 Coll.)].
32. The empowerment of the Ministry of Health to issue a decree setting out the value of the point, the amount of the payments of the services paid and the regulatory restrictions is based on Section 17 (5) of the Public Health Insurance Act. This provision foresees that its issue will be preceded by a conciliation procedure of representatives of the General Health Insurance Company of the Czech Republic and other health insurance companies and representatives of the relevant professional associations of providers as representatives of contractors, which will be convened by the Ministry. If the outcome of this procedure is an agreement on those parameters, the Ministry will issue it as a decree. However, if the content of this Agreement would be contrary to legislation or public interest which, within the meaning of Article 17 (2) of the Public Health Insurance Act, means an interest in ensuring the quality and availability of the services paid, the operation of the health care system and its stability within the financial possibilities of the public health insurance scheme, or would not occur within 120 days of the end of the relevant calendar year, the Ministerial Decree sets the value of the point, the amount of the payments of the services paid and the regulatory limits for the following calendar year separately.
33. In view of the authorisation contained in Section 17 (5) of the Act on Public Health Insurance, it is clear that it was issued by a state body authorised to do so in the case of the contested decree. It is also submitted from the observations of the applicant, the intervener and the Ministry that, in accordance with that provision, the conciliation procedure in question took place, although within it only a timely agreement was made on certain segments of health care [the importance of the conciliation procedure for the use of the authorisation and commitment of the possible agreement, in accordance with the provisions of that provision, as well as the finding of the ÚS 6 / 07 of 9.2.2010 (N 20 / 56 SbNU 207; 66 / 2010 Coll.), paragraph 77. It remains to be added that the contested decree was properly published in the Collection of Laws, namely in its 129, which was circulated on 23 December 2014. Its adoption and extradition took place in a constitutional manner.
34. The Constitutional Court also found no reason to dispute that the contested decree was issued within the limits of the legal authorisation. In this context, it considers it sufficient to refer to a more detailed statement of reasons on this issue in the finding that the remuneration decree for 2013 was repealed [the finding of 22 October 2013 sp. zn. ÚS 19 / 13 (N 178 / 71 CollNU 105; 396 / 2013 Coll.), paragraphs 41 to 43]. This conclusion does not alter the appellant's assertion that the departure from these limits was due to the lack of compliance of the recovery order with the public interest, therefore it cannot be considered to be in accordance with Article 2 (3) of the Charter. It follows from the content of this claim that it is, in substance, a summary of its arguments by the parties to the violation of this decree with certain constitutionally guaranteed fundamental rights which the Constitutional Court is dealing with in other parts of this finding.
Summary of the contents of the contested parts of the order
35. The Charter in Article 31 guarantees citizens the right to free health care and to health care based on public health insurance. While this provision assumes that the conditions, in particular the extent to which citizens will have access to health care and medical supplies under those constitutional conditions, are only laid down by the legislator, it cannot be interpreted in the sense that there would be no limits [cf., the finding of 23 April 2008, sp. zl. ÚS 2 / 08 (N 73 / 49 SbNU 85; 166 / 2008 Coll.], paragraphs 52 to 56. In particular, the legal arrangements adopted by him must allow for the actual implementation of this right, namely to maintain its substance and meaning (Article 4 (4) of the Charter). If, as a result, it did not create conditions for equal access to health care, this would not affect life and health only those who would otherwise not be able to reach it. The situation would also raise doubts as to whether the State is in a position at all to fulfil one of its fundamental obligations arising from the first sentence of Article 1 of the Charter and is implicitly expressed by the provisions of social rights in the Charter, namely the obligation to ensure the conditions for the decent life of all its citizens.
36. In order to ensure equal access to healthcare, another requirement directly resulting from Article 31 of the Charter, which is the existence of a public health insurance scheme, is also used. The adoption of a legal regulation to ensure it, as well as its de facto implementation, is a duty of the State and, in particular, of legislative and executive powers within it. The legal definition of this system is currently based on the Public Health Insurance Act, which regulates legal relations between health insurance companies, their insurers and health service providers in order to implement a constitutionally guaranteed right to free health care. The Reimbursement Order, issued by the Ministry of Health on the basis of Section 17 (5) of the Public Health Insurance Act for the following calendar year, complements this legal regulation. It provides for the determination of the amount of remuneration to which individual providers are entitled to sickness insurance companies for the services they have provided to their insured persons in accordance with their statutory or contractual obligations. In fact, its content is price regulation. Although each provider may agree with the health insurance undertaking on a different method of determining the amount of the payments and thus, in relation to their legal relationships, exclude the use of the remuneration order, in general, this decree will significantly complement the conditions for the provision of health services. For this reason, it can also be considered to be a supplement to the legal regulation defining the legal framework applicable to these providers for the exercise of their right to conduct business under Article 26 (1) of the Charter.
37. The Constitutional Court finds no reason at this point for a more detailed summary of the contents of the contested decree. In the light of the arguments put forward by the applicant and by the intervener, it considers it sufficient to approximate the content of those parts of the applicant which are challenged by the petitioner's petition or the cancellation of which is sought by an intervener or, where appropriate, by certain other content-related provisions. In this respect, the relevant provisions of Paragraph 4 (1) of the contested order, and paragraphs 3.5 and 5.10 of Part A of Annex 1 and Annexes 12 and 13 thereto, can be acknowledged.
38. Paragraph 3 of Part In addition, Annex 1 to the contested decree, the cancellation of which was proposed by the appellant, provides that the payment for bed care, that is to say, the payment for the services provided and the health insurance undertaking of the recognised services provided by the provider to the insured person during hospitalisation completed in 2015, is to be fixed in the form of a case flat-rate. The method of calculating the total flat-rate remuneration for which he is entitled to payment in the course of a year against a health insurance undertaking shall be expressed in that provision in a formula whose individual variables are defined in words. The total flat-rate payment shall be calculated on the basis of the individual flat-rate payment made by the product of the following elements. First of all, the sum of the total flat-rate remuneration for the same defined services provided during hospitalizations completed in 2014 and the acute bed-care regulatory fees collected by the provider in 2014. The sum of the amounts thus determined shall then be multiplied by a factor of 1,03, expressing an increase in the remuneration by 3%, as well as the conversion coefficient for Kpp14 insured persons, contained in Annex 12, to the statement of payment, which expresses changes in the number of insured persons in the region where the services are provided between 1 January 2015 and 1 January 2014. Depending on whether this coefficient is higher or less than 1, the individual flat-rate remuneration is increased or reduced on the basis of this coefficient.
39. The total flat-rate remuneration shall be determined on the basis of the individual flat-rate remuneration thus calculated, but may be lower if the number of hospitalisation cases completed in the 2015 evaluation period does not reach at least 96% of the number of hospitalisation cases completed in 2013. This percentage shall be multiplied, for each provider, by the transfer coefficient of Kpp13 insured persons, as set out in Annex No 13, expressing changes in the number of insured persons of the health insurance undertaking in the county where the services are provided between 1 January 2015 and 1 January 2013. Depending on whether this coefficient is higher or less than 1, it increases or decreases the limits of the decrease in production of that provider, which is not yet proportional to the reduction in the individual flat-rate remuneration. Finally, the total value of the requested extramural care shall be deducted from the amount so calculated in the context of hospitalisation cases by the provider declared and the health insurance undertaking recognised, which have been completed in the assessment period. Extramural care means care related to the hospitalisation of an insurer with a provider requested by the provider and provided to the insurer at the time of hospitalisation by another provider charging it to the health insurance company. The resulting amount after this deduction shall be the total flat-rate payment.
40. The basic principle of that calculation can therefore be summed up by the fact that the flat-rate remuneration to which the bed-keeping provider is entitled to the health insurance undertaking for the services it has provided during the hospitalisation completed in 2015 is determined from the amount representing the flat-rate remuneration to which it was entitled for the same services provided during hospitalisation completed in 2014 plus 3%. However, its amount may be further increased or reduced in proportion to changes in the number of insured persons of the relevant insurance undertaking in the relevant region, and may be reduced proportionally even if the number of hospitalisation cases is reduced more significantly compared to 2013.
41. Paragraph 4 (1) of the order for reimbursement, the partial cancellation of which was proposed by the intervener, reads as follows:
(1) For paid services provided by bed care providers, with the exception of paid services provided by post-bed care providers, long-term bed care providers and special-bed care providers, the value of the point, the amount of payment of the services paid and the regulatory limit shall be set out in Annexes 1, 9, 10, 12 to 14 to this Decree. ';
The application by the intervener was addressed to its part defined by the words "12 to ', which express the reference to Annexes 12 and 13 to this Order as its relevant parts for determining the amount of compensation paid for the services provided by bed care providers. Those Annexes set out the conversion coefficients for insured persons to be used for the calculation of the remuneration to be incurred by providers in respect of the health insurance undertaking during 2015. The two consist of tables showing, according to the county and the health insurance undertaking, indices of changes in the number of its insured persons between 1 January 2015 and 1 January 2014 (in short, Kpp14; Annex 12 to the contested order) and between 1 January 2015 and 1 January 2013 (in short, Kpp13; Annex 13 to the contested order). For that calculation, the coefficient laid down at the same time for the region in which the provider provides health services and the health insurance undertaking of which the recipient was insured shall always be applied. There are currently seven health insurance companies in the Czech Republic, the General Health Insurance Company of the Czech Republic, the Military Health Insurance Company of the Czech Republic, the Czech Industrial Health Insurance Company, the Insurance Company of the employees of banks, insurance companies and construction companies, the Employee Insurance Company Škoda, the Health Insurance Company of the Ministry of Interior of the Czech Republic and the Regional Brotherhood Fund, the Health Insurance Company.
42. The value of the transfer coefficient of the insured persons Kpp14 is between 0.951 and 1.097 depending on the specific health insurance company and the county, in the case of the General Health Insurance Company of the Czech Republic it is between 0.982 and 1.014. The value of the transfer coefficient of the insured persons Kpp13 ranges from 0.955 to 1.207 and in the case of the General Health Insurance Company of the Czech Republic ranges from 0.930 to 1.017. The two coefficients were calculated as higher than 1 for the City of Prague only, in other cases their value was lower.
43. Although the intervener proposes only the cancellation of part of Section 4 (1) of the remuneration order and its annexes No 12 and 13, it cannot be overlooked that the conversion coefficients of the insured persons and the reference to those annexes are included in the remuneration order at other points. These coefficients apply to the calculation of the total flat-rate remuneration to the providers of bed-keeping, contained in point 3.5 of Part A of Annex No 1, and the maximum total remuneration to the providers of outpatient care, contained in point 5.10 of Part A of Annex No 1. The nature of the first calculation was explained in detail above (see paragraphs 38 to 40). The maximum total remuneration to outpatient care providers for the services paid in the 2015 evaluation period is calculated on the basis of the total amount of remuneration granted in 2014, multiplied by 1,03 (thus increased by 3%) and by a coefficient of change in the proportion of Kpp14 insured persons. In this case, it is not a flat-rate remuneration, but a limit on the amount of remuneration calculated according to the value of the point, depending on the amount of performance performed.
44. The assessment of the rates of transfer of insured persons from the point of view of their alleged unconstitutionality provides an explanation of their importance for calculating the amount of remuneration to which the providers are entitled. It has already been stated that these coefficients, depending on whether their value is greater than or less than 1, increase or reduce the total flat-rate remuneration to bed care providers and the maximum total remuneration to outpatient care providers. However, as regards the total income of these public health insurance providers, this consists of the sum of the payments to which they are entitled against all health insurance companies. Thus, although the transfer rates for insured persons may lead to a reduction in remuneration by one health insurance company, it may be the opposite for another health insurance company. However, it does not apply that the overall impact of their use must be neutral in terms of the sum of the individual payments. The increase or decrease of insured persons in the county where the health service was provided shall always be reflected in their amount. In addition, the amount of the payments made by individual insurance undertakings up to now may (and according to the Ministry's observations) be set in a different way, which means that a health insurance company pays on average higher amounts than another insurance company for a certain comparable range of health services provided. Therefore, it cannot be excluded that, as a result of the application of these coefficients, the total amount of remuneration to which it is entitled will not be increased by 3%, but by an amount lower, or even reduced, despite the maintenance of the same level of health services provided in the previous year.
45. According to the Constitutional Court, the reason for which the Ministry incorporated those coefficients in the reimbursement order can be seen in the request for adjustment or equalisation of the expenditure of individual health insurance companies in view of changes in their number of insured persons. These changes affect the amount that individual health insurance companies will have at their disposal on the basis of the collection of insurance premiums to cover health services to their insured persons. The use of coefficients is aimed primarily at a fairer or more even distribution of health insurance expenditure among health insurance companies.
Assessment of the contested decree in terms of the right to do business pursuant to Article 26 (1) of the Charter
46. Proposals by the appellant and intervener contest the constitutionality of the recovery order, or parts thereof, in particular with regard to the right of health service providers to do business under Article 26 (1) of the Charter. The Constitutional Court therefore first of all addressed the question of whether this decree did not cause its inadmissible restriction.
Background of the review
47. The substance and purpose of the right to choose and prepare for the profession, as well as the right to engage and engage in other economic activities pursuant to Article 26 (1) The Charter is the freedom of an individual to choose and implement the way in which it will provide its resources for its needs. It is irrelevant whether the activity that should lead to the achievement of this objective will be carried out on its own responsibility in an employment relationship or as an entrepreneur.
48. Those rights may be invoked by an individual within the meaning of Article 41 (1) of the Charter only within the limits of the laws transposing Article 26 (1) of the Charter. Article 26 (2) The Act may lay down conditions and restrictions for the pursuit of certain professions or activities for any purpose which is not constitutionally inadmissible [cf. The legislature therefore has a relatively broad, albeit not absolute, scope for a specific definition of the content and manner of implementation of that right [cf. the finding of 23 May 2000 sp. zn. Pl. ÚS 24 / 99 (N 73 / 18 CollU 135; 167 / 2000 Coll.) or the finding of 12 July 2001 sp. zn. Pl. ÚS 11 / 2000 (N 113 / 23 SbNU 105; 322 / 2001 Coll.), Part VIII (H). Even in the case of fundamental rights referred to in Article 26 (1) However, the Charter shall apply the requirement of Article 4 (4) of its provisions to investigate their substance and meaning when establishing the limits of those rights. This means that, if a restriction is affected by the very nature and meaning of fundamental law, such a restriction will not constitute a breach of it only if it is necessary to achieve its legitimate (or constitutional) objective. In the case of the right to choose and prepare a profession, as well as the right to do business and to pursue other economic activities, restrictions on their substance and their meaning would be if, as a result, a particular group of individuals were significantly hampered or prevented from having access to a particular profession or the possibility of carrying out a particular activity, or if, as a result of that activity, they ceased to be eligible to provide funds for their needs to those who carry them out. Of course, any restriction must respect the principle of equality in rights within the meaning of the first sentence of Article 1 of the Charter, or Article 3 (1) thereof [finding sp. zn.
49. The Constitutional Court, when assessing the compliance of a law or other law with the right to conduct business which is of the nature of economic law, treats the same procedure as in the case of social rights, the review of which in the present case was designed and developed by the so-called "sp. zn.
(a) the definition of the meaning and substance of economic or social law, namely its essential content;
(b) an assessment of whether the law or other legislation does not affect the very existence of economic or social law or the actual realisation of its essential content;
(c) an assessment of whether the legislation contained in the law or other legislation pursues a legitimate objective, that is to say, whether it is an arbitrary substantial reduction in the overall standard of fundamental rights; and
(d) consider whether the means used to achieve it is reasonable, albeit not necessarily the best, the most appropriate, the most effective or the wisest.
50. If the Constitutional Court, in the second step of the proportionality test, concludes that the contested legislation concerns the very existence of one of these rights or the actual realisation of its essential content, it shall not continue to implement it and shall instead assess the admissibility of the interference with that law within the framework of the (stricter) proportionality test. This means that he will continue to evaluate in the following order,
(a) whether the intervention in question pursues a legitimate (or constitutionally challenged) objective of limiting the fundamental right in question;
(b) whether this intervention is appropriate to achieve this objective (suitability requirement);
(c) whether this objective cannot be achieved in any other way that would be more efficient to that right (requirement of necessity); and
(d) whether the interest in achieving this objective, within the framework of a legal relationship, outweighs the fundamental right in question (the requirement of proportionality in the strict sense).
51. The legislation which affects constitutionally guaranteed social, economic or cultural law does not constitute an unacceptable restriction only if it, as a whole, complies with all such requirements. If this had not been the case, the Constitutional Court would have had to come to its opinion on its conflict with constitutional order.
Definition of the proposed intervention
52. The conduct of the proportionality test presupposes, first of all, a definition of whether and how the contested legislation interferes with the right of undertakings under Article 26 (1) of the Charter. The Constitutional Court notes that the intervention in question must be understood in the present case as to the limitation of the right of providers to pay for the services rendered in 2015 by setting out the total flat-rate remuneration for the providers of bed-keeping in Section 3.5 of Part A of Annex 1 and the maximum total remuneration for providers of outpatient care in Section 5.10 of Part A of Annex 1 to the contested decree. It is these provisions that the arguments put forward by the appellant and intervener in order to calculate the amount of remuneration, which consist, on the one hand, of the alleged lack of taking into account the financial requirements of health service providers in geographically and demographically disadvantaged areas (see paragraphs 4 to 6) and, on the other hand, of the alleged negative impact of the application of the transfer coefficients for insured persons (see paragraphs 8 to 10). In fact, the fact that the contested decree states that the level of remuneration is so low with respect to certain providers that it justifies the conclusion that they infringe their right to do business.
53. In order to illustrate the way in which the delimitation in question affects that fundamental right, it is desirable to refer to certain specificities of the provision of health services. First of all, they are characterised by extensive public regulation, which, in a simple way, ensures that all persons have access to health care of certain qualities in accordance with Article 31 of the Charter. In order to achieve this objective, the law imposes on health service providers a number of obligations, including that in certain cases (e.g., urgent care), patients must not be denied the necessary health care. However, these obligations would not be fulfilled if the related costs were borne solely by health service providers or individual patients as their recipients. As regards these entities, it would not be possible to consider those costs as acceptable. It is for this reason that there is a public health insurance system in the Czech Republic, the participants of which are compulsory persons as defined in Section 2 (1) of the Public Health Insurance Act, to which the services covered by it can be provided. This system, taking into account the total number of insured persons and the amount of funds collected, has a completely dominant share of the expenditure on health services. It is therefore not surprising that the business of a substantial part of the health service providers is, to a decisive extent, dependent on whether and to what extent they will be entitled to reimbursement from this very system (see, more specifically, the finding in point sp. zn. The rules for determining its amount, as laid down in the remuneration decree, substantially affect the overall income of individual providers and thus all their business activities which must be adapted to the possibilities arising therefrom. In their broadest sense, they interfere with their right to do business.
Assessment of the intervention in terms of substance and meaning of the right to do business
54. The substance and meaning of the fundamental rights guaranteed by Article 26 (1) of the Charter, as defined above (see paragraphs 47 and 48), may be specified in relation to the right to conduct business and other economic activities by means of the freedom to pursue a particular occupation on its own account and the responsibility for making a profit. This right guarantees the possibility of carrying out such an activity itself, as well as that the obligations and restrictions relating to it will not prevent its main purpose [cf. sp. zn. Pl. ÚS 19 / 13, paragraph 66, or the finding of 15 September 2015 sp. zn. This is not to say that any entrepreneur should be guaranteed the right to profit, but that the extent of the legal obligations that individual entrepreneurs must fulfil in relation to their activities must not make their business meaningless in terms of the possibility of achieving it.
55. Reimbursements calculated on the basis of the reimbursement order constitute a wholly predominant source of income for a substantial proportion of health service providers. At the same time, the obligations associated with the exercise of this activity in order to ensure the availability of health care significantly limit the scope for these providers to reduce their expenditure in response to possible low levels of remuneration. In particular, they cannot do so at the expense of the legally required scope and quality of the health services provided. The remuneration order would therefore affect the nature and meaning of the right to do business if, on its basis, the amount of compensation provided was so low that, in fact, without any other compensation, the costs of healthcare provided free of charge, which should be covered by public health insurance, were to be passed on to individual providers, and would therefore make it impossible for them to obtain at least a reasonable profit. However, such a consequence could only be established in relation to a certain segment of health services as a whole, defined according to the form or field of healthcare provided, although not necessarily throughout the Czech Republic. This would have to be a situation in which, in view of the setting of the remuneration rules in this segment, providers could in principle not make separate decisions that would at least potentially open the way for them to profit if their activities continued. Such an intervention, which would affect the substance and meaning of the right to conduct business, may be assimilated to such a setting of rules for calculating such remuneration, which would make their final amount unpredictable for each provider, e.g. as a result of the authorisation of health insurance undertakings to reduce that amount without any justification (cf. sp. zn. Pl. ÚS 19 / 13, paragraphs 60 to 62). It remains to be added that the substance and the meaning of the fundamental law concerned do not yet constitute a breach of it, even if the possibility of doing business in a particular area is substantially limited or even excluded. However, such intervention would have to be assessed, as mentioned above, much more strictly in terms of both its need and intensity of interest in achieving its objective (see the proportionality test in point 50).
56. The contested decree sets out the total flat-rate payment to bed-care providers and the maximum total payment to outpatient care providers for the services provided in 2015 according to the amount of compensation they received for the services provided in the previous year. They are calculated in the same way as the remuneration orders issued for previous years, on the assumption that individual providers will also have comparable performance in that year. However, this does not mean that the amount of remuneration thus determined remains unchanged. It shall be adjusted by means of different variables and coefficients, including conversion coefficients, designed to strike a balance between the financial requirements of providers on the one hand and the possibilities of the public health insurance system on the other. It is clear that the solution in question maintains the continuity of the legislation as regards setting the level of remuneration. At the same time, this allows their predictability, although the resulting amount may be higher or lower than the previous year, taking into account further considerations taken into account. In fact, when issuing a remuneration order, providers have to count on and adapt to a certain change each year.
57. The Constitutional Court notes that the very principle of calculation based on the above principles clearly does not affect the substance and the meaning of the right to do business. This conclusion also applies to its specific implementation in the contested decree, in which the rates of transfer of insured persons are applied (in this respect, however, the Constitutional Court leaves aside the question of whether, in the case of a limitation on the amount of compensation to providers of outpatient care, the remuneration decree contains an effective method of offsetting the costs of urgent care provided beyond those limits, since this was not the subject of the present procedure). Neither the applicant nor the intervener contends that the calculation of the level of remuneration thus determined in a particular segment of health services generally excludes the relevance of the business in terms of achieving its purpose. The appellant contests this consequence only in relation to providers in geographically and demographically disadvantaged areas. In turn, the intervener expressly admits that it does not take place, but does not rule out the possibility that the use of the changeover coefficients in future years could cause such a situation. In particular, its objections to these coefficients are that, as a result of their use, the large majority of providers have reduced the amount of remuneration to which they would otherwise be entitled without corresponding (often unchanged) to the extent of their production. In a situation where neither the appellant nor the intervener claimed the existence of an intervention affecting the substance and meaning of the right to do business and did not mention any facts from which such a factual consequence could be considered, the Constitutional Court does not find room to make further findings beyond the own-initiative proposals which might justify the conclusion on such an intervention. The existence of such facts cannot even be considered to be generally known at the moment.
58. The method of calculating the level of remuneration does not preclude certain health service providers (possibly even for more than one year) from managing losses, but this does not in itself affect the nature and meaning of the right to do business. In particular, each provider must strive to make its activity as effective as possible and not incur unnecessary costs. Even if it were shown that some providers, given the specific conditions at their place of business, under the current setting of the level of remuneration, could in fact not achieve profit, this would be the result of their own decision on the way and place of business and the associated business risk.
59. Nevertheless, it should be recognised that public interest may be given in order to ensure the activities of certain providers, in particular as a result of the constitutional requirement to ensure access to locally and timely healthcare provided free of charge on the basis of public insurance. However, the identification of this interest in a particular case and its taking into account when calculating the amount of the remuneration so that the activity of these establishments is economically paid is no longer in excess of the subject matter of the recovery order, which is merely a comprehensive establishment of rules for the calculation of such remuneration. On the other hand, other instruments may be used to assess and ensure this public interest, which may include the possibility for health insurance undertakings to enter into an agreement with the relevant provider in accordance with § 17 (1) and (5) of the Fine Public Health Insurance Act, the subject of which will be a different (from the provider's point of view) determination of the level of remuneration or regulatory restrictions. The Constitutional Court points out that the exercise of that authorisation cannot be understood as merely a manifestation of the autonomy of the will of a health insurance undertaking. First of all, it is a means to be used by a health insurance undertaking if it is necessary to fulfil its obligations under Paragraph 46 (1) of the same Act to ensure that the services paid to its insured persons are provided, including their local and time availability. In short, its purpose is not to provide a certain benefit to one of the providers on the basis of the discretion of the health insurance company, but to make adjustments to the level of payments under the remuneration decree if its application in specific cases would jeopardise the availability of health care. In the case of bed-care providers, the amount so modified would be a starting point for the total flat-rate remuneration to which they will be entitled under the remuneration orders in the coming years, if their current concept is maintained in this respect.
60. That reference to the possibility of an individual arrangement does not imply a departure from the legal opinion set out in the sp. zn. This authorisation follows a different purpose, namely the possibility to take into account when determining the level of remuneration of individual providers which are significant in terms of the availability of health care and cannot be taken into account in a meaningful way in the calculation of the level of remuneration under the remuneration order.
Legitimity of the target of intervention
61. Since the contested order does not affect the substance and meaning of the right to do business, the Constitutional Court did not carry out its review in the context of the proportionality test. Instead, he took the next step of a reasonable test to assess whether he was pursuing a legitimate objective, namely whether he was arbitrary by reducing the overall standard of fundamental rights.
62. In general, it can be concluded that the limit on the amount of the payments - which has been made by setting the total flat-rate payment to the providers of bed-keeping as well as the maximum total payment to the providers of outpatient care - contributes to a balance between the financial requirements of the health service providers and the possibilities of the public health insurance system and thus to a fair redistribution of its resources. It is one of the means of operating on health service providers to carry out their activities effectively (see sp. zn. The Constitutional Court finds no reason for such a stated purpose not to be constitutional. In order to achieve this in a broader context, the application of the transfer coefficients of the insured persons is also used, although their primary objective is only to adjust or offset the expenditure of individual health insurance undertakings in view of changes in their number of insured persons (see paragraphs 44 and 45). However, this partial purpose is not constitutional.
63. The need to settle expenditure is a consequence of the existence of more health insurance companies. The Constitutional Court points out that the provision of the right to free health care must be ensured regardless of which health insurance company which is part of the public health insurance system in the Czech Republic is insured. Therefore, it cannot be accepted that the lack of funding from one of the health insurance companies, which is essentially a random consequence of the structure of its insured persons, would make it impossible to pay the public insurance services. Only whether there is sufficient funding in the public health insurance system as a whole must be essential. As much as it can certainly be disputed as to the effectiveness of the reallocation of these funds among several health insurance companies which perform the same function and cannot, in substance, affect the extent of their expenditure on the provision of health services, the Constitutional Court does not see the primary objective referred to above of the conversion coefficients of insured persons arbitrary or illegitimate. This does not change either its partial projection into the calculation of the total flat-rate payment to providers of bed care and the maximum total remuneration to providers of outpatient care.
Sensitivity of intervention in terms of achieving its objective
64. Finally, the Constitutional Court dealt with the question of whether the intervention under consideration is also reasonable in terms of achieving the objective pursued by it. The fulfilment of this condition can be established in relation to the above mentioned partial objective of equalising the expenditure of individual health insurance undertakings with regard to changes in the number of their insured persons. The use of transfer coefficients for insured persons in calculating the amount of remuneration is clearly eligible to contribute to its achievement. However, as regards the objective of finding a balance between the financial requirements of health service providers and the possibilities of the public health insurance system, the calculation method already in question raises some doubts. It cannot be overlooked that, as a result of the application of those coefficients, a significant proportion of the providers will not be expected to increase their remuneration by 3%. Instead, this increase will be lower depending on the changes in the number of insured persons of individual insurance undertakings in each region, but they may not in themselves be of any importance in terms of costs - and hence financial requirements - of health service providers. The application of these coefficients may not be and will generally not be neutral in terms of the sum of all payments to be made to providers for services paid in 2015 to individual health insurance undertakings (see paragraph 44). On the basis of the principle of calculation, for a number of providers, in particular those operating outside the capital of Prague, their use will result in a reduction in the total amount of remuneration compared to what they would receive in a different way of calculation.
65. That impact can be summarised by the fact that the use of transfer coefficients for insured persons in order to balance expenditure between individual health insurance companies means, as a result, a reduction in remuneration for certain providers. This is despite the fact that the link between this purpose and the level of remuneration for individual providers is not clear or very free. In this respect, the Constitutional Court does not rule out that the settlement in question could have been achieved in another way which would have been more efficient in relation to the level of remuneration of individual providers, including outside the remuneration decree. At the same time, however, the chosen solution is not considered unreasonable in view of the main objective of the intervention under consideration. The compensation of the costs of individual health insurance companies is necessary to enable the public health insurance system to fulfil its function, i.e. to cover the health care provided to its insured persons by health service providers.
66. The illegality of the contested order is clearly not given in the light of the other elements of the calculation of the total flat-rate remuneration or the maximum total remuneration. Therefore, the intervention under assessment in the right to do business will stand up to all steps of the reasonable test.
67. Of course, those conclusions cannot be interpreted in the sense that they call into question the effectiveness of any increase in payments to healthcare providers in the future. However, in a situation where their current setting does not depart from the constitutional order of the defined framework for determining the conditions and limitations of the right to conduct business, answering whether such a move should take place does not lie with the Constitutional Court. Indeed, its assessment is the nature of the political decision-making for which it is called (and is much better equipped) a democratic legislator and his responsible government.
Alleged inequality due to the application of the transfer coefficients of the insured persons
68. Both the applicant and the intervener justify the non-compliance of the contested order with the right to do business pursuant to Article 26 (1) The Charter also claims that the method of calculating the total flat-rate remuneration or the maximum total remuneration will not be sufficient for the principle of equality, as expressed in the first sentence of Article 1 of the Charter. In their opinion, this decree does not reflect the different conditions of individual providers or their financial requirements resulting from the scope of healthcare provided. The Constitutional Court cannot testify to these objections either.
69. The Reimbursement Order sets out the methods for calculating the amount of remuneration to be applied to all providers depending on the type of health services provided. If, in the case of bed care, differences are made in relation to the comparison of the resulting value of these payments by individual providers, this is because this value depends on the amount of the payments in previous years, which has gradually evolved in view of the extent of their health services and their related financial requirements. These differences indicate that setting the optimal level of remuneration for individual providers, which will take into account all relevant (even very specific) circumstances and allow a balance between public health insurance expenditure and the financial requirements of health service providers, is very complex. The chosen solution, whereby the remuneration decree, even with certain modifications, maintains continuity and thus predictability of the total amount of remuneration, cannot therefore be regarded as necessarily leading to unjustified inequalities. In the opinion of the Constitutional Court, a general statement of all relevant circumstances at the level of the substatutory legislation under consideration is unlikely to be made in a meaningful manner, since, in the end, it would not have been possible without some discretion in their individual assessment.
70. It is also unfounded to object to the inequality of the fact that, unlike hospitals, the transfer rates of insured persons do not apply to the calculation of the level of remuneration to providers of external outpatient services. According to the Constitutional Court, such a comparison is too simplistic, since for both types of providers a different method of calculation is applied which reflects the specificities of their activities (see the Ministry's argument in paragraph 21). A comparison of the level of remuneration between the different types of providers, if it is to have a significant value, cannot simply be reduced to an isolated comparison of how the partial remuneration for a particular type of health services is reflected in the total amount of remuneration. No further claim to specify in more detail any relevant differences is made by the intervener.
71. It can therefore be concluded that the objections raised by the applicant and by the intervener do not justify the finding that the contested order or some of its provisions are incompatible with the right to engage in business pursuant to Article 26 (1) of the Charter. This conclusion shall also apply in relation to the alleged infringement of the principle of equality referred to in the first sentence of Article 1 of the Charter.
Assessment of the contested decree as regards the right to free health care under Article 31 of the Charter
72. As regards the other objections, both the applicant and the intervener argue that the contested order may lead to a breach of the right to free health care under public insurance under Article 31 of the Charter. However, in the view of the Constitutional Court, such a consequence can only be indirect. The reimbursement decree does not in any way affect patients' rights to provide health services of a certain quality. It does not regulate their relationship with providers or health insurance companies. Therefore, the possibility that there would be a limitation on that right can only be accepted in a factual level, that is to say, if the remuneration order would restrict the right of individual providers to do so so, that they would not be able to fulfil their obligations in the provision of health services which, as a result, could become inaccessible to patients (this consequence has already been accepted by the Constitutional Court in its sp. v. ÚS 19 / 13, see paragraph 77). In this case, however, it would not be possible to view the cause of this situation in isolation. The provision of the right of access to free health care is subject to extensive legal regulation, contained in a number of laws, of which, in addition to the Act on Public Health Insurance, Act No. 372 / 2011 Coll., on health services and the conditions for their provision (the Law on Health Services), as amended, and not just the reimbursement decree, which is more complementary in this respect. In any event, it is not just a question of setting the level of remuneration.
73. For these reasons, the Constitutional Court does not consider the argument of the appellant and the intervener, who see the inconsistency of the contested order with the right to free healthcare under Article 31 of the Charter in its possible future factual consequence, to be justified. The conduct of a reasonable test at this point is no longer considered in the absence of direct interference with this law.
Assessment of the contested decree in respect of workers' right to a fair remuneration for work under Article 28 of the Charter
74. For similar reasons, the intervener's objection, according to which the contested order endangers the ability of health service providers to financially bear the increase in health pay and thus the exercise of the right of the employees concerned to a fair remuneration for their work under Article 28 of the Charter, will not last. The remuneration decree does not affect the content of employment relations between providers and their employees. At the same time, the conclusion of a breach of this right cannot be based simply on the hypothetical possibility that these employees will not be paid wages due to a lack of funds.
Conclusion
75. For all these reasons, the Constitutional Court has concluded that the contested decree is to the extent that it provides for the calculation of the total flat-rate remuneration to the providers of bed-keeping and the maximum total remuneration to the providers of outpatient care, as well as the related conversion coefficients, namely to the extent defined in particular by Article 4 (1) thereof, and points 3.5 and 5.10 of Part A of Annex 1 thereto and Annexes 12 and 13 thereto, in accordance with Articles 1, 26 (1), 28 and 31 of the Charter. The application for its annulment, based on the above objections of the appellant and the intervener, is therefore not justified and the Constitutional Court has therefore decided to reject it pursuant to Article 70 (2) of Act No 182 / 1993 Coll., on the Constitutional Court.
76. For the sake of completeness, the Constitutional Court notes that this finding does not address the constitutionality of the recovery order in its entirety, namely in those parts against which the arguments of the appellant or intervener were not directed and which were not even subject to a constitutional legal assessment.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found No 15 / 2016 Coll., on the application for annulment of Decree No. 324 / 2014 Coll., on determining the value of the item, the amount of the fees paid and the regulatory restrictions for 2015 |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 21.01.2016 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0