The Constitutional Court found No 396 / 2013 Coll.
The Constitutional Court found of 22 October 2013 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
06.12.2013
396
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 19 / 13 on 22 October 2013 in plenary composed of the President of the Court of Paul Rychetský and the Judges Stanislav Balík, Louis David, Jaroslav Fenyk, Jan Filip, Vladimir Krorka, Jan Musil, Jiří Nykodemí, Vladimir Sládeček, Catherine Šimáková and Michaela Židlická, on the proposal of the group 39 Senate Senators of the Parliament of the Czech Republic, on behalf of the Senator MUDr. Alena Derner, on behalf of the Ministry of Health No. 475 / 2012 Coll., on the determination of the values of the paid services and regulatory restrictions on the cancellation of § 17, Annexes No. 1, Annex No. 3, paragraph 1 (g) and Part B, Annex 5, Annex 14 to Decree No. 475 / 2012 Coll.
as follows:
I. Decree No. 475 / 2012 Coll., establishing the value of the item, the amount of the fees paid and the regulatory restrictions for 2013, is contrary to Article 1 (1) of the Constitution of the Czech Republic and Articles 1 and 26 (1) of the Charter of Fundamental Rights and Freedoms.
II. Decree No. 475 / 2012 Coll., on the determination of the values of the points, the amount of remuneration of the services paid and the regulatory restrictions for 2013, shall be repealed with effect from 31 December 2014.
Reasons
Definition and recap of the proposal
1. On 25 March 2013, the Constitutional Court received a proposal from a group of 39 Senators of the Senate of the Parliament of the Czech Republic (hereinafter referred to as the "applicant ') pursuant to Article 87 (1) (b) of the Constitution of the Czech Republic (hereinafter referred to as" the Constitution') and pursuant to the provisions of § 64 (2) (b) of Act No 182 / 1993 Coll., on the Constitutional Court, on the annulment of Decree No 475 / 2012 Coll., on the setting of the values of the point, the amount of the fees paid and the regulatory restrictions for 2013 (hereinafter referred to as "the Decree 'or" the Decree of the Constitutional Tribunal'), possibly on the annulment of Section 17, Annex No 1, Annex 3 (A) (1) (g) and Part B, Annex No 4, Annexes 5 (Annex No 14) and other provisions of the statement of reimbursement, which will be found in a constitutional non-conformance. According to the appellant, the contested order is contrary to Articles 1 and 79 (3) of the Constitution and Articles 1, 26 (1), 28, 31 and 36 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter). The proposal was accompanied by a request for priority consideration.
2. The appellant sees an infringement of Article 1, namely the prohibition of libido and insolence contained therein and the principle of predictability as fundamental values of the rule of law, and Article 79 (3) In particular, the Constitution, in contrast to previous years, reduced the remuneration decree in almost all segments of the health services covered, despite the fact that operating costs in 2013 will be shown to increase. Therefore, health service providers (hereinafter referred to as "providers') expected a remuneration increase which would at least partially cover the price of inputs. Even staying at existing levels, which has been happening since 2009, is unsustainable for them in the long term. The reduction of the remuneration was not justified by the Ministry or in a constitutional manner.
3. The providers were not informed in advance of the change in the remuneration as the content of the remuneration order, which took effect on 1 January 2013, was published only by the publication of the Decree in the Collection of Laws on 31 December 2012. In reality, however, the actual amount of the payments is not clear even after its issue. The method of calculation is set so that providers in a number of segments will not know by mid-2014 how much they will be paid for the work done during 2013. They will only receive so-called monthly advance payments, the amount of which will be determined by the health insurance company according to the remuneration in the reference period, which is two years ago, but not linked to the actual amount of care declared. In the appellant's view, the unpredictability has several causes. For bed care providers, the method of calculating the remuneration (using 14 formulae with 45 variables) is set in such a complex and overcombined manner that without expert assessment it is not possible to "decipher" the mathematical formula. Only the payment of bed care consists of 5 separately calculated payment components and a separate calculation for each ambulance and professional workplace. For hospitals with 20 ambulances, the calculation of the remuneration should therefore be carried out separately in 25 components of the remuneration for each of the 7 health insurance companies, representing a total of 175 parts of the remuneration. In addition, the decree can be interpreted differently, and the values added to it do not logically result from anything and are an expression of the propensity of the legislator. This system makes care provided by hospitals unmanageable and the possibility to comply with restrictions and regulations is minimal. As compared to the previous period, only specially equipped institutions, not even all health insurance companies, can actually make the calculation even harder, and hospitals are unable to verify the accuracy of the calculation of the remuneration. Even the best equipped General Health Insurance Company of the Czech Republic (hereinafter referred to as "General Health Insurance Company" or "SZP") makes mistakes and repairs in the calculation, since at the time of this proposal, a number of hospitals did not yet calculate the remuneration for 2011 and some even for 2010.
4. It makes the Decree and the dispersion of the level of remuneration between the various providers. According to statistics from 58 hospitals published by the Association of Czech and Moravian hospitals, there is a spread of pre-payments from 83% to 101% of pre-payments in 2012, although the 2011 entry dates, including the structure of care provided, remained essentially unchanged. The hospital is therefore faced with a decision whether to provide limited care for the whole of 2013 in proportion to the reduction of remuneration or to stop the provision of care in November. Ambulant specialists cannot at the moment know what price they are working at, as this price will be set only after the end of the calendar year, but first at the end of the first half of 2014, according to the number of insured persons treated and how expensive care they will have to be provided in summary. It is also disproportionate to the date when the bill will occur. According to the appellant, the entire decree is designed to make payments retroactively and can be set up by health insurance companies in a way that ensures their balanced management. All health insurance risks are thus transferred to health service providers.
5. By creating a combination of methods of payment, the Ministry exceeded the scope of the legal authorisation resulting from 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"). According to Article 17 (5), the Ministry of Health may, if it does not reach an agreement in the conciliation procedure, determine by decree the value of the point, the amount of the payments of the services paid and the regulatory restrictions. Paragraph 2 of that provision provides for contracts between providers and health insurance undertakings to determine how the reimbursement of the services provided is to be made, as well as the rights and obligations of the parties to the contract, if they are not provided for by law. Contrary to this, the Decree sets out the method of reimbursement, including a detailed definition of its individual components, as well as the rights and obligations of the parties to the contract, which is reserved only for the law or contract.
6. The judgment of infringement of Articles 26 (1) and 28 of the Charter is based on the fact that the remuneration decree reduces the costs of operating medical establishments. As a result, despite their equally demanding and responsible work, doctors and other healthcare professionals are not fairly rewarded for the work they have done. However, there is no public interest in reducing the remuneration since the collection of health insurance premiums in 2012 reached 102% of the 2011 withdrawal. The restriction affects the selected providers in particular. The Decree, on the one hand, calculates those providers which are not limited by the volume of health services provided (for which the remuneration is transparent, easily calculated and predictable) and those who are limited, which means that part of the services are paid in full and part of the reduced value of the point. The proportion of these parts cannot be affected by the provider. In full, it will be reimbursed at most what it reported in the reference period (i.e. 2011) and 98% of this value. All health services provided above this value will be paid at a reduced point value. On the model example, the appellant demonstrates that a significant part of the services can and is provided at a reduced point value. Nor does the decree contain any development clause requiring the health insurance company to pay the full amount of the service where the provider justifies its necessity or higher cost. In the event of an excess of the fixed amount of medical care paid, the payment is made at a completely disproportionate amount and does not cover the costs of the providers (the applicant points out cases where the care provided above the fixed amount is paid at CZK 0.30 per point, the full value of the point being CZK 1.02). In his view, it is the arbitrage of the publisher of the decree, the form of a kind of fine for exceeding the amount of care. However, such remuneration is non-transparent because, during the relevant period, the provider does not know and cannot know which care and how it will be paid, because he does not know whether he has already exhausted the permitted health care limit. But even if he did, as another businessman, he cannot say that he has exhausted the limit and will not work at a cost-free price.
7. An infringement of equality in rights, guaranteed by Article 1 of the Charter, is seen by the appellant in the way in which urgent care is paid. For urgent care provided by non-contracting providers, the value of the point of 75% of the normal remuneration shall be determined. Such inequality in the remuneration of the same work is, according to the appellant, completely unfounded. Ironically, this type of service usually places higher demands on healthcare professionals. Both the Supreme Court and the Constitutional Court imposed an obligation on health insurance companies to pay urgent care to providers beyond the agreed amount of care. It is not clear why the same (urgent) care should be paid in different ways to individual providers, even if the term "non-contracting provider" is not entirely clear. The Public Health Insurance Act obliges health insurance companies to provide contractual care for their insured persons, failure to fulfil this obligation - many smaller health insurance companies do not provide care throughout the Czech Republic - but paradoxically they offer 25% reduction in remuneration.
8. Further inequality of the decree introduces the amount of remuneration according to the change in the number of insured persons of health insurance companies in each region by applying the KPp coefficient, which takes into account, in addition to the number of patients actually treated, the number of insured persons of the insurance company in that region. Differences in the payment of the same care for individual insured persons are then given not only according to the health insurance company but also according to the region in which they were treated. The greatest inequality is only a partial respect for the principle of equal payment for the care provided, as the combination of the so-called technical national base rate and individual base rates as variables leads to a dispersion of payments to hospitals of CZK 17,000 to 39,000 for its most important component - bed care. Similarly, the Decree establishes an inequality in care not covered by the payment for diagnosis with a basic rate of payment calculated on the basis of the individual price of a point different for each bed care provider.
9. Article 31 The insured person shall have the right to require available treatment, including to be covered by public health insurance. The decree sets the parameters so that providers will not be able to provide care to insured persons by law, but in fact not paid by insurance companies.
10. The dispute with the right to a fair trial is seen by the appellant in the complexity of its application, which will not be without an expert mathematical assessment. In the Czech Republic there are 2 to 3 companies with several experts capable of calculating (at least according to existing, less complicated regulations). The need to verify any claim disproportionately complicates pending legal disputes between health insurance companies and providers of remuneration. In one particular procedure, the Court of Appeal has already called on the Court of First Instance to request a recalculation from the Ministry of Health. Such delegation is jeopardised by the very principle of division of power, in any case, the complexity of the decree is an obstacle to the exercise of the right to judicial protection. In addition, the method of reimbursement by way of a payment for diagnosis is not legally captured and modified in any way, but only works with a methodology developed by the General Health Insurance Agency. The decree thus operates with the terms in no way and nowhere legally undefined, whose interpretation is ambiguous.
Expression of the Ministry of Health
11. The Ministry stated in its observations that the power to regulate the amount of care provided by the Decree and the amount of remuneration for it is based on the authorisation clause of § 17 (5) of the Public Health Insurance Act, as confirmed by the judgment of the Supreme Court in sp. zn. 32 Cdo 3067 / 2010 of 31 July 2012. The Decree respects the scope and limits of the legal authorisation in question and the Ministry acceded to it on the grounds envisaged here, or after no agreement had been reached between its participants in the conciliation procedure. The 2013 conciliation procedure was convened on 6 March 2012 and concluded by the final meeting on 21 August 2012, with only three of the 11 healthcare segments reaching an agreement. This positive outcome was taken into account in the Decree. In general, the outcome of the conciliation procedure between the representatives of health insurance companies and professional associations of health service providers must be a compromise. The amount of payments cannot be set only taking into account the interests of providers, as they are against the interest of health insurance companies and indirectly the public interest in maintaining the stability of the financing of health care from public health insurance. Therefore, the decree issued in the event of a unsuccessful conciliation procedure does not necessarily reflect the profits of providers. They cannot even calculate with the fact that all their business costs will be fully reimbursed in every situation. The opposite approach, while maintaining the current number of providers, would mean destabilising the public health insurance system, which is in the decline of CZK 4 billion. As a result, this would lead to a reduction in the availability of health care, as insurance companies would be forced to conclude fewer contracts. Finally, in 2012, CZK 6 billion from the reserves of health insurance companies was extremely redistributed, making the hedge fund more or less exhausted, making it impossible to take a similar step in 2013. In this context, the Ministry points out the finding of sp. zn. The Ministry respects that health service providers have the right to make a reasonable profit, which is the purpose of business, while at the same time not being able to provide health care at their expense. This purpose was also reflected in the Decree. At the same time, however, the decree must reflect the fact that the health insurance system is unable to finance the reimbursement of all the costs of the providers and that the maintenance of the health insurance system is a public interest which the Ministry is obliged to protect.
12. Since no agreement was reached on the level of remuneration for 2013, the Ministry had to issue a decree. However, it refuses to see its progress being unpredictable or untransparent. Although the results of the conciliation procedure were obtained on 3 September 2012, the Ministry had to wait until November for documents from the General Health Insurance Insurance Company (the system of redistributed public health insurance funds operated about 66%, and therefore the Ministry could not manage without these data and had to wait). On 28 November 2012 the draft Decree was circulated into the internal comment procedure, from 29 November 2012 the first version of the draft was publicly available (i.e. one month before the appellant indicates), and comments were then discussed operatively. In principle, the final version of the decree was published at the moment of its transmission to the Legislative Council of the Government's working committees (nothing changes at this stage in the standard way of discussing proposals), i.e. on 17 December 2012. Representatives of health service providers and the public were able to get to know the content of the decree already this day. Moreover, where possible, the Decree respected the results of the conciliation procedure. As regards the alleged unpredictability, the Ministry has already declared to its parties at the beginning of the conciliation procedure that, in view of the financial situation of the health insurance scheme, a more restrictive form of the Decree should be envisaged compared to 2012. The content of the decree is not fundamentally different, it is based on the same principles, in the case of acute bed care mainly on the so-called case flat-rate - DRG. It has been used in a number of other countries, it has been used in the Czech Republic since 2007 and is still developing to be as fair as possible to small and large hospitals. Even in the case of outpatient specialists, the system of remuneration is not new on the basis of a point-to-point evaluation of regression performance in the designated performance. The Ministry does not hide that the calculation of the remuneration is particularly more complicated in the case of the acute bed service and is certainly not intended for laymen, i.e. persons who do not move in health care, who do not have experience with the payment system. However, the Ministry provides assistance and advice in cases where difficulties may arise with the application. For the reasons set out above, it refuses to object to the libel and insolence of law making.
13. The values and restrictions in the Order shall be set out for the pre-defined categories of providers differentiated by the general characteristics. Each provider in that category shall be calculated in the same way. The fact that the different categories are calculated differently reflects the different categories in real life and the related objectively different cost levels. However, the categorisation follows a previous modification.
14. The right to do business does not concern a decree which does not in any way regulate the conditions for obtaining authorisation to provide health care because it does not prevent providers from offering these services, whether or not covered by public health insurance. However, providers cannot base their business on the fact that their activities will be reimbursed without further payment from public health insurance, with limited resources, which, moreover, must be distributed fairly. In addition, according to the principle of contractual freedom, providers may conclude a contract with the health insurance company on the method and level of remuneration and regulatory restrictions which will exclude the application of the Decree. According to the Ministry, the binding of the issue examined on the Charter guaranteed the right to a fair remuneration is all the less.
15. Also, the right to a fair trial lacked any link with the legislation contained in the Decree. The decree has no influence on whether, with whom, for what purpose, in which court or by which procedural means providers will seek the protection of their rights before the courts. Both providers and health insurance companies whose relationship has also been declared private-law by the Constitutional Court have the opportunity to contact the general courts to resolve their disputes. Difficulties with the expert to verify the accuracy of the calculation due to its exceptional complexity are speculations of the appellant; in addition, on the Ministry's website there is a manual for calculating the remuneration.
Opinion of the Ombudsman
16. The Ombudsman informed the Constitutional Court that he did not exercise his right to intervene.
Replication of comments and opinions
17. The applicant submitted a reply to the submitted statement by the Ministry of Health. In his view, the Ministry refutes arguments with which it has not worked at all and, on the contrary, does not comment on the fundamental questions that have been raised. It is not so clear what it considers to be constitutionally conformal when the provider receives less than one-third of the amount for the same health services and another (after exceeding the limit). The same applies to the reduction of payments for urgent health services provided by non-contracting providers. The Ministry also fails to answer the question raised as to how providers are to fulfil legally imposed obligations when they do not have basic economic assumptions. On the contrary, it is extensively concerned with the procedure for adopting the decree and claims that it corresponds to the legal authorisation, although the appellant did not object. Similarly, it did not accentuate the right of providers to a reasonable profit as claimed in the statement, but pointed out in particular that the current setting of payments did not allow them to cover the current costs, let alone make a reasonable profit, which is the situation of most providers of bed health services and some providers of outpatient health services. The appellant does not challenge the DRG as such as it is accused of, but a system that categorically limits DRG payments regardless of the composition and diagnosis of treated patients. Nor does it see the inequality in the setting of a different remuneration for practitioners, practitioners for children and adolescents, outpatient specialists, bed service providers, etc., as the Ministry has submitted, but in the fact that a remuneration of less than one third of the normal remuneration is granted for the same health services when the prescribed amount is exceeded, although the excess was necessary if the provider did not break the law. The Ministry did not comment on the other key point, namely the provision of urgent health services by the non-contractual provider for a remuneration of 25% lower, although it is the same service, provided in addition under more difficult conditions.
Expression of amicorum curiae
18. During the hearing, the plenary of the Constitutional Court concluded that it was desirable to obtain the contents of the draft observations of the General Health Insurance Company of the Czech Republic, the Association of Health Insurance Companies of the Czech Republic (hereinafter referred to as the Association of Health Insurance Companies or Association) and the Association of Hospital Services of the Czech Republic (hereinafter referred to as the Association of Hospital Services) as a representative of the health service providers.
19. VZP does not agree with the appellant's arguments. According to the appellant, the terms "fancy and arbitrary 'are used rather emotionally, in fact, by the Ministry based on clear legal authority. This even imposes an obligation to issue a decree, but it leaves individual providers and health insurance companies free to negotiate both the level of remuneration and the regulatory restrictions. When issuing the decree, the Ministry is obliged to monitor the public interest, which in addition to the availability of quality health care and the financial balance of the system. On the other hand, the issue of an implementing regulation in the form of a non-reflective financial possibility and the stability of the public health insurance system would therefore exceed the authorisation. The latter is long-term in decline, and increasing remuneration according to the requirements of providers would destabilise it. In this respect, providers could expect an overall reduction in the remuneration during the period of economic crisis and its recovery. The decree follows a conciliation procedure in which only certain segments were agreed. Its form is a compromise arising from a series of negotiations in which the parties concerned were able to comment, but all their comments cannot be accepted. The text of the decree is understandable, there are no difficulties in calculating the payments. It considers it completely misleading to consider the applicant's assertion that health insurance companies concentrate their funds on their accounts and that the final accounting of the services provided is very delayed. Conversely, payments are ongoing, even overpayments are made, which the insurance undertaking must ask for back after the bill. The share of pre-payments in the total total of the payments is between 88% and 101,1% according to the statistics, making the bulk of the financial resources available to providers at a pre-agreed level. The decree does not interfere with the principle of equality either, as differences between different categories of a wide range of providers correspond to their objective needs. Overall, there was no room for an increase in the remuneration, the appellant's argument that the increase in the selection of insurance premiums by health insurance companies was taken out of the context of other circumstances. At the same time, the cost of health care is continuously increasing, even at a rate that is much higher in recent years. In addition to the above data on the increase in insurance premiums and the increase in health costs, the health insurance scheme will have higher expenses than income, despite the restrictions of the contested decree, a cumulative assessment of the expected development of the public health insurance system in 2013 on the basis of the assessment of insurance insurance plan data. The decree thus clearly has a stabilising character. As regards the reservations against regulation, the reduction in the value of the point in the event of exceeding the limits is, according to the ZIP sui generis, a quantitative discount for transactions granted above the agreed volume. At the same time, the Decree allows all the exceeding limits to be omitted from regulatory restrictions. As regards the reimbursement of urgent care provided by the non-contractual provider, according to the SZP, this is not a minor assessment of the care provided, but merely an expression and consequence of the fact that the provider does not have a contract with the insurance undertaking, so it is not obliged to provide the full range of services paid by the insurance undertaking from the contractual partners, which is, in addition to material non-profit and lucrative services as well as material demanding and non-lucrative services. In any event, the proportion of the payments calculated from the degressive value of the point was around 3% of the total remuneration in 2011, which is rather negligible. Finally, it refuses to intervene in Article 31 of the Charter of Fundamental Rights. This presupposes the existence of a financially stable public health insurance system, which helps to implement the Decree.
20. The association of health insurance companies considers the alleged contradiction with constitutional rules only to be presumed and does not identify with their arguments. The Ministry issued a decree in terms of legal authorisation in response to the fact that the conciliation agreement took place only in several segments of health services. On the specific substance of the decree, namely whether the remuneration is set at the correct level, corresponds to the economic possibilities of the State and whether the amount of the remuneration thus set could be expected, the Association did not comment, since the assessment of these aspects could not be examined by the Constitutional Court. It therefore draws attention to some aspects relating to the publication of the Decree. First of all, the Ministry is empowered to issue a remuneration order for the following year and only for the entire calendar year. Therefore, even if the Constitutional Court had complied with the application and annulled the contested decree, the Ministry could not have issued the decree only for the remainder of the year, as this is contrary to Article 17 (5) of the Public Health Insurance Act. If it issued a new decree for the whole of 2013, it would be retroactive, which is unacceptable. It would enter into price agreements concluded in good faith in the constitutionality and legality of the decree now challenged. As regards the influence of the decree on its addressees, the Association admits that some structures are not the easiest, but the decree as a whole cannot therefore be considered negative or even unconstitutional. It notes that under the Decree, only if the insurance company does not agree with the provider of the level of remuneration and regulation otherwise. The regulation is therefore in the nature of a recommendation, with the possibility of deviating from its content, which is also the case in most contractual relations on the reimbursement of the services paid. It also stresses that the proposal is unfounded in substance, since the hypothetical repeal of the Decree cannot have any impact on the price agreements already concluded for 2013. Finally, the Association is opposed to some of the claims contained in the proposal, for example, that insurance companies do not have a computerised system to apply the Order or that insurance undertakings abuse regulation to their advantage. According to the Union, the proposal to repeal the Decree as a whole should be rejected; it considers the alternative proposal to repeal its selected provisions even absurd, as it pursues the interests of only some of the selected providers.
21. In its report, the association of hospitals stated that its members considered by decree the reduced payment of bed care to be unjustified, not appropriate to the economic situation. If hospitals and hospitals have to deal with VAT increases, energy prices and state-mandated pay adjustments for health workers, the reduction of payments threatens the basic functioning of individual facilities and the task of providing health care to the extent laid down by the laws, especially after the exhaustion of internal reserves. The lack of funding is reflected in the planning of care provision, leading to its overall limitation, deferral of non-acute care, redundancies of employees. In the Association's view, the complexity of the remuneration calculation continues to increase and confirms that, for this reason, health institutions can hardly predict what actual remuneration they will eventually receive. The association coincides with the party promoter of the alleged unpredictability of payments based on the complexity of the calculation mechanism. While the decree seeks to correct some imbalances, inequality in remuneration persists, for example, that each insurance company pays a different price for the same care. The decree further criticises that it works with DRG outputs, which are instruments that are unanticipated by law. Finally, the Association expresses concern that a possible repeal of the Decree during its effectiveness would make it even more difficult for providers to prepare a new one if the Ministry did not prepare a new one.
Information on foreign legislation
22. The Constitutional Court has also provided information on how the rules on the reimbursement and regulation of healthcare provided in the surrounding countries, namely Slovakia, the Federal Republic of Germany, Austria, Poland and France are set up in order to obtain a better overview of the issues addressed. In particular, for completely different starting parameters of each adjustment, the management reports submitted were not applicable as they were not reflected in the justification. Therefore, their content is not recap in nature.
Summary of the content of the contested decree and the classification of some of its provisions
23. The contested decree sets out the values of the point, the level of compensation of the services paid and the regulatory constraints for the contracting entities in the specified fields or expertise and, in the context of urgent care, also for non-contracting providers. These parameters are specified in its individual annexes, namely in Annex 1 for paid services provided by bed care providers, in Annex 2 for paid services provided in the field of general medical practice and in the field of practical medicine for children and adolescents, in Annex 3 for specialised outpatient care, in Annexes 4, 5, 6 and 7 for outpatient health care in various disciplines and in Annex 8 for covered services provided by health transport service providers. Annexes 9 to 13 contain the lists related to the previous Annexes, Annex 14 contains coefficients for the change in the number of insured persons of health insurance companies according to the Czech regions and Annex 15 contains medicinal products excluded from payment by case flat rate.
24. Since the Constitutional Court did not consider it appropriate to reproduce at this point the full text of the contested order, it limited itself to citing its provision of § 2, which contains certain relevant definitions, to the provision of § 17, which sets out the level of remuneration for non-contracting providers and, finally, to a substantial part of Annex 3, which refers to the level of remuneration for outpatient health care providers, and at the same time to illustrate the way in which the decree sets limits and other regulatory restrictions. These parts of the Order read as follows:
"According to Article 17 (5) of Act No. 48 / 1997 Coll., on Public Health Insurance, and amending and supplementing certain related laws, as amended by Act No. 117 / 2006 Coll., Act No. 245 / 2006 Coll., Act No. 261 / 2007 Coll., Act No. 298 / 2011 Coll. and Act No. 369 / 2011 Coll.:
...
(1) The reference period is the year 2011 for the purposes of Annexes 1, 3 to 8 to this Decree.
(2) The evaluation period is the year 2013 for the purposes of Annexes 1, 3 to 8 to this Decree.
(3) For the purposes of this Decree, a single insured person of the relevant health insurance undertaking treated by the health service provider (hereinafter referred to as the provider) in the relevant professional experience in the evaluation or reference period shall mean at least once, the fact that it is not decisive whether it is a treatment in the context of its own services or services requested. If the insured person has been treated more than once by the provider in the relevant expert in the relevant assessment period or reference period, the number of individual insured persons shall include the relevant health insurance undertaking treated in that professional only once. In the event of a merger of health insurance undertakings, the number of unique insured persons shall be the sum of the unique insured persons of health insurance undertakings which have merged. If the insured person has been insured by more than one health insurance company during the reference period, the number of individual insured persons shall be included only once.
(4) When calculating the total number of points declared by the provider and the health insurance undertaking as performance for the reference period referred to in Annexes 3, 5 to 8 to this Regulation, those points shall be understood as those points converted in accordance with the list of performance as effective on 1 January 2013.
(5) Where two health insurance undertakings have merged in the reference period or in 2012, the sum of the data for the reference period of the merged health insurance undertakings shall be used for the calculation of the remuneration.
...
For urgent medical care provided by non-contractual providers covered by the performance list, the point value shall be set at 75% of the point value set out in Sections 8, 12 and 14 and Annexes 1 to 8 to this Decree. The resulting point value is rounded to 2 decimal places.
...
Příloha 3
Annex 3
Value of the point, amount of payments of services paid and regulatory restrictions pursuant to § 6
(A) Value of the point and amount of the payments
1. The amount of the payments shall be determined on the basis of the list of performances by remuneration for the medical performance provided with a point value of
(a)...
...
g) 1.02 CZK for providers of paid services providing specialised outpatient health care not mentioned above, up to the volume calculated for individual expertise according to the list of performances as follows:
Pbro xPOPOPOProx 0,98
where:
PBRo total number of those recognised by the provider and health insurance undertaking of recognised points that have not been paid for the reference period at a reduced point value
POPho number of unique insured persons treated by the provider in a given professional capacity during the evaluation period
POPO Number of unique insured persons treated by the provider in a given expertise in the reference period
Health care provided by the provider above the calculated volume in the given expertise, expressed in terms of number of points per performance declared by the provider and by the health insurance company recognised for the reference period, shall be paid according to the list of performances with a value of CZK 0,30.
2. For a provider who did not exist during the reference period or who did not provide care in the relevant professional, the health insurance undertaking may use for the purpose of calculating the volume average points per unique insured person treated in that professional period for the reference period of comparable providers.
3. For a provider where there is an increase in the average number of points per unique insured person compared to the reference period, the amount of points referred to in point 1 (g) shall be increased by the number of points corresponding to the provider declared and the health insurance undertaking recognised by the newly contracted health performance, due to a change in the contracted amount of the services provided in a given professional capacity.
4. The reduced value of the point in the competence referred to in point 1 (g) shall not apply:
(a) in the case of a provider who has treated 100 and less unique insured persons in the reference period or in the assessment period in the framework of a single professional activity with the contracted capacity of the services provided at least 30 working hours per week. In the case of contracted capacity of paid services less than 30 working hours per week, the limit of 100 treated unique insured persons shall be converted by the coefficient n / 30, where n is equal to the capacity of the contracted paid services for the professional.
(b) in the case of paid services provided to foreign insured persons.
In the cases referred to in (a), all performances shall be paid with the value of CZK 1.02.
5. The monthly advance payment shall be granted to the provider at the rate of one twelfth of the amount of remuneration for the corresponding reference period or at the level of the value by the provider of the declared and recognised services for the relevant month. The chosen form of pre-financing shall be maintained by the health insurance undertaking throughout the period of assessment unless the provider requests a reduction in the amount of pre-financing during the period of assessment. Prepayments for the period under assessment shall be settled financially within the framework of total financial settlement, including regulatory restrictions, no later than 120 days after the date of expiry of the period under assessment.
(B) Regulatory restrictions
1. If the provider reaches an average remuneration per unique insured person for a particular medicinal product, with the exception of the specially charged medicinal products marked with the symbol, S 'in accordance with § 39 (1) of the Decree, and the separately charged material in the reference period, the health insurance undertaking may reduce the payment to the provider, after the end of 2013, of the 40% amount by which the total payment for the medicinal products specifically charged and the material specifically charged in the reference period has exceeded that remuneration.
2. If the provider reaches an average remuneration per individual insured person for the prescribed medicinal products and medical devices in the assessment period of more than 100% of the average remuneration per unique insured person for the prescribed medicinal products and medical devices in the reference period, the health insurance undertaking may, after the end of the evaluation period, reduce the payment to the provider by 50% of the amount by which the total payment for the prescribed medicinal products and medical devices in the evaluation period has exceeded such remuneration in the reference period in the manner contained in the contract of the provider and health insurance undertaking. The average remuneration per individual insured person shall also include drug supplements for which the prescribing physician excluded the possibility of substitution under Section 32 (2) of the Act.
3. If the provider achieves an average remuneration per individual insured person for the requested care in the listed experts in the evaluated period of more than 100% of the average remuneration per unique insured person in the reference period, the health insurance undertaking may, after the end of the assessed period, reduce the payment to the provider by 40% of the amount by which the total remuneration for the requested care in the listed professions in the evaluated period exceeded such remuneration in the reference period, in accordance with the methods contained in the contract of the provider and the health insurance undertaking. The requested care is not included... For the purpose of determining both the amount of the average remuneration and the amount of any deduction under the first sentence, the performance of the requested care in both the assessed and the reference periods shall be valued in accordance with the list of performances as effective on 1 January 2013 at the value of the point in force in the assessment period.
4. The regulatory restrictions referred to in points 1 to 3 shall not apply where the provider justifies the services provided and the average payments referred to in points 1, 2 and, where applicable, 3 have been exceeded.
5.... "
The relevant case law of the Constitutional Court so far
25. The application for annulment of the order for reimbursement is not submitted to the Constitutional Court for the first time. The finding of sp. zn. Pl. ÚS 24 / 99 of 23.5.2000 (N 73 / 18 SbNU 135; 167 / 2000 Coll.) was annulled by the then wording of the provision of § 17 (5) of the Act on Public Health Insurance. This determined that the value of the point and the amount of the payment of health care paid from public health insurance would be agreed in the conciliation procedure between its designated participants, and that if the outcome or outcome of the conciliation procedure were not achieved in contravention of legislation or public interest, the government would decide on the value of the point and the amount of the payments and declare its decision in the Ministry of Health Bulletin. The reason for the deregulation was that, given its general nature, the relevant act of the Government was not a decision but a law. The sources (forms) of law cannot be used by the legislature or executive in any way, and if, pursuant to Article 78 of the Constitution, the regulation is the only form of legislative act which the Government is entitled to adopt, then the case under consideration has created a contradiction between the legislative content of the Government act and the absence of appropriate legal form. This plenary procedure was initiated by the Third Chamber of the Constitutional Court in the context of the hearing of a constitutional complaint by a group of doctors against the part of the Government's decision of 23 June 1999 on the values of the point and the amount of the health care payments paid by the public health insurance. The actual constitutional complaint was then rejected in view of the conclusions of the plenary because of the lack of active legitimacy of the applicants by the finding of sp. v. III. ÚS 407 / 99 of 9.11.2000 (N 165 / 20 SbNU 171). The conclusion on the legal nature of the act of the Government was also not published in the other decisions: by resolution sp. zn. III. ÚS 60 / 2000 of 10.11.2000 (in the Collection of Found and Order of the Constitutional Court not published; all resolutions available at http: / / nalus.ujud.cz) were rejected by the Constitutional Complaint of the Doctor against the Government's decision on the value of the point and the amount of the payment of the public health care paid for the IVth quarter of 1998.
26. By order sp. zn. IV. ÚS 407 / 99 of 15.6.2001, the Constitutional Court rejected as a manifestly unfounded constitutional complaint by a group of private practitioners against the measures of the Ministry of Health - Results of the conciliation procedure on the value of the points and the amount of the public health insurance payments for the 3rd and 4th quarters of 1999. The complainants argued that the outcome of the conciliation procedure was not in line with price legislation, as it did not allow a reasonable profit to be realised, that setting the regulatory limits placed them in an unequal position vis-à-vis health insurance companies, and that the principle of representativeness had been infringed, since they either did not grant power of attorney to anyone or were granted by representatives who did not vote for regulation. The Ministry should not have accepted the outcome of the conciliation procedure and the government should have decided on the remuneration. The Constitutional Court found that the empowerment provision of the Act on Public Health Insurance, according to which the value of the point and the payment of health care is determined in the conciliation procedure, has the character of a special law against the Price Act (Act No. 526 / 1990 Coll., on Prices, as amended). The purpose of the Institute is to reach an agreement between health insurance companies and groups of providers on balanced health insurance payments so that the economic requirements of health care establishments are enforced while maintaining the financial stability of the health insurance system. In the conciliation mechanism, it shall be up to each provider whether and how it authorises the relevant professional association to defend its interests. The omission or inaction of a particular provider in this respect cannot call into question the regularity of the whole process. It was up to the complainants and their professional associations to act in a spirit of opinion and interest. If an agreement on the amount of the remuneration has been reached in the conciliation procedure, the complainants of the obligations under this agreement cannot, by way of reference to the interference with fundamental rights, be relieved.
27. By resolution sp. zn. Pl. ÚS 13 / 03 of 25.8.2004, the Constitutional Court expressed its opinion on the power of the Ministry of Health to decide on the values of the point and the amount of the medical payments. He refused as a manifestly unfounded proposal by a group of senators to repeal the Decree of the Ministry of Health No. 101 / 2002 Coll., amending Decree No. 134 / 1998 Coll., which publishes a list of health performance with points, possibly the abolition in the draft precisely marked provisions of this decree. The proposal was based on the claim that, after the deregation (finding sp. zn. The Constitutional Court did not give any evidence to that effect that the abolition of the provision in question could not be based on the compliance of the Ministry of Health with the outcome of the conciliation procedure in determining the value of the item and the amount of the remuneration in the manner that the applicants do. The purpose of the legal provision governing conciliation is to establish a mechanism for negotiating stakeholders and thus to minimise the public-law effects of price regulation. However, this provision is not based on the normative competence of those non-state actors (within the meaning of the corporate system), as it remains the Ministry of Health.
28. By resolution sp. zn. IV. ÚS 127 / 03 of 7.4.2003 (U 9 / 30 of SbNU 523), the proposal of a group of 53 health institutions to abolish part of the Decree of the Ministry of Health No 532 / 2002 Coll., setting out the amount of health care payments paid from public health insurance, including regulatory restrictions for the first half of 2003, was rejected as manifestly unfounded, as the legislative activity consisting in the issue of a generally binding legislation cannot be considered as an intervention by a public authority capable of violating fundamental law or freedom. For the same reason, by resolution sp. zn. IV. ÚS 128 / 03 of 11 November 2003, the proposal of the Association of Practical Physicians of the Czech Republic and the Association of Practical Physicians for Children and Adoption of the Czech Republic to repeal the same decree was rejected, this time as a whole.
29. A group of senators and a group of Members also submitted a proposal for the annulment of the latter decree for conflict with the law and constitutional order. In particular, the proposal argued that the regulation carried out by the Decree went beyond legal authorisation. By order of sp. zn. Although the decree did not expire before the end of the procedure, the legal relations arising from it were undoubtedly already largely implemented and the decree was no longer capable of producing legal effects. A substantive assessment would not make sense even because the main purpose of the assessment would be a general specification of the scope of legal authorisation for the Ministry of Health, the authorisation provision being revoked.
30. The Group of Senators also proposed to repeal Decree No. 50 / 2005 Coll., setting the amount of health care payments paid from public health insurance, including regulatory restrictions, for the first half of 2005, with the argument that the procedure for adopting the Order was infringed, that the Ministry issued the Order outside and outside its legal mandate and that it is retroactive for the period from the first to the 25th January 2005. Resolution sp. zn. Pl. ÚS 16 / 05 of 4.5.2007 The Constitutional Court rejected the application as manifestly unfounded for the same reason as in sp. zn. In the meantime, the empowerment clause under which the contested order was adopted was repealed and replaced by a new, otherwise formulated provision. In view of the absence of material conditions for further regulatory action, given the lack of legal authorisation, the Decree remains a valid law, but it has become a regulation which is neither effective nor applicable, that is to say, one that would be able to produce legal effects for futuro in reality.
31. The Constitutional Court ruled in the proceedings of PSC 23 / 06. According to the appellants, the Ministry did not, in fact, provide room for the conclusion of an agreement on the level of medical care payments when the parties to the conciliation procedure, under the pretext of public interest, returned the agreements concluded, thereby creating an artificial precondition for the issue of the contested decree. In addition, it exceeded the legal authorisation, since it also adjusted the relations which are not for it to regulate and set up an inequality between the parties concerned by setting the level of remuneration. By order of 13 March 2007, the Constitutional Court rejected the application by way of order of 13 March 2007, for the reasons already put forward in the case sp. zn. Pl. ÚS 53 / 03, namely the annulment of the relevant empowerment clause, and stopped the procedure because a substantial part of the order was annulled during the procedure.
32. The same regulation - Decree No. 550 / 2005 Coll. - proposed to abolish, within the framework of a specific constitutional check, two other complainants, doctors who defended the constitutional complaint against the specific decisions of the health insurance company on the application of regulatory mechanisms. Resolution sp. zn. I. ÚS 701 / 06 of 10.7.2007 and sp. zn. IV. The ÚS 1544 / 07 of 21.8.2007 was rejected as inadmissible (the complainants did not take advantage of the possibility of seeking protection against the procedure of the contracting party - health insurance undertakings - in the General Court) and the accompanying proposals for the repeal of the legislation were procedural to share their fate.
Own review
33. Although the provision of health services is subject to private legal relations between their providers and patients, it is an area in which contractual freedom is significantly restricted and, at the same time, there is considerable scope for public regulation. The law reflects the risks involved in providing health care with physical integrity, and sets out rules to eliminate them as far as possible. At the same time, however, there are other obligations which are intended to ensure that citizens have generally real access to health care, thereby creating conditions for their decent lives even in cases where they cannot afford such care from their own resources. In all these cases, the imposition of the relevant obligations justifies the requirement to protect human life and health as well as its dignity.
34. The compulsory public health insurance system is used to achieve these purposes in the Czech Republic, the legal regulation of which explicitly foresees the second sentence of Article 31 of the Charter. This system significantly modifies the legal relationship between the health service provider and the patient. If the provider is in a contractual relationship with the health insurance undertaking, it is now obliged (to the extent defined by the legislation and the contract) to pay the health services provided to its insured persons. At the same time, there is a public law relationship between the patient and the insurance company, which includes, first, the State insurer (Section 7 of the Public Health Insurance Act) and the statutory obligation to pay the premiums. It can only be added that the law does not prevent individual providers from providing health services to health insurers with whom they do not have a contract. However, with the exception of urgent care and certain other legally defined cases of the provision of health services (Section 17 (1) of the Public Health Insurance Act), these providers are not entitled to their reimbursement against health insurance companies but directly towards patients.
35. As the participants in public health insurance are, in principle, all persons living or working on the territory of the Czech Republic, it is understandable that this system has a dominant share of health expenditure. According to published (preliminary) statistics, in 2011 health insurance companies' expenses amounted to CZK 225 547 million from the total amount of CZK 242 410 million from public expenditure, while private expenditure represented CZK 46 376 million (cf. Health as part of the national economy 2011. Time series of selected financial indicators. Institute of Health Information and Statistics of the Czech Republic, p. 33, available at http: / / www.uzis.cz / system / files / drunnarekon2011.pdf). In addition, direct payments for medical performance, which in principle relate only to their narrow circle (e.g. dental care, aesthetic surgery), constitute only part of the latter group of expenditure, which is further represented by, for example, payments for medicines and medical devices or regulatory fees. In these circumstances, it is not disputed that, in the case of health service providers, the possibility of their business depends to a decisive extent on whether they will be entitled to reimbursement against one of the health insurance companies for the performance (or general services) carried out. The terms and conditions of their business will then complete the regulation of the level of payment of paid services, which takes place according to Section 17 (5) of the Public Health Insurance Act for the period of the calendar year, so-called reimbursement decree of the Ministry of Health.
36. The value of the item, the amount of the payment of the services paid and the regulatory measure provided for in this Decree shall be reflected in the content of the contracts between providers and health insurance undertakings. As is apparent from the wording of the framework agreements provided for in Decree No. 618 / 2006 Coll., which are issued by the Health Ministry pursuant to Article 17 (2) of the Public Health Insurance Act, those contracts provide for the amount of the payments to be included in their supplement (the price supplement). This amendment shall, as a general rule, be concluded annually and shall normally refer to the wording of the recovery order effective for the period concerned, unless the parties agree on the amount of the payments otherwise. The decree in question shall apply directly to such relations only if they do not agree on the amount of the remuneration. However, it shall always apply to legal relationships between so-called non-contractual providers and health insurance companies which have arisen because of the provision of urgent care to the insured person or for any other legal provision provided for. This decree, issued for 2013, is hereby annulled by the appellant.
Assessment of whether the contested decree was issued on the basis and within the limits of the law
37. 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 dealt with the question of whether the contested decree was adopted and issued in a constitutional manner and within the limits of the constitutional competence provided for. While, in assessing the procedure for its adoption, the Constitutional Court, of the nature of the case, dealt with the Order as a whole, in the case of the question of whether it was issued within the limits of legal authorisation, limited itself to those parts of it which are affected by the appellant's arguments.
38. The Constitution confers powers on ministries and other administrative authorities to legislate, but it can only be implemented on the basis and within the limits of the law if they are empowered by law. That provision should be interpreted in a restrictive manner in the sense that such authorisation must be specific, unambiguous and clear [find sp. zn. If that is the case, the Constitutional Court examines whether the statutory law was passed by a state body authorised to do so and within the limits of its competence, that is, whether it was within the limits and under the law (secundum et intra legem) and not outside the law (preater legem) 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. The legislator's will to regulate above the legal standard must be evident from the authorisation provision. However, even in such a case, the substatutory law may not interfere with matters reserved for regulation only by law (so-called reservation of the law) [cf. sp. zn.
39. The empowerment of the Ministry of Health to issue a decree setting out the value of the point, the amount of the payment of the services paid and the regulatory restriction is based on Paragraph 17 (5) of the Public Health Insurance Act. At the same time, this provision presupposes that its issue is 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 the 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 were to 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 functioning of the health care system and its stability within the financial possibilities of the public health insurance scheme, or if the agreement in question did not occur within 120 days before the end of the relevant calendar year, the Ministry shall assess the value of the item, the amount of compensation of the services paid and the regulatory constraints for the following calendar year separately.
40. The contested Decree was issued on the basis of Article 17 (5) of the Public Health Insurance Act, which was the subject of a reasoned decision by the State authority, whereas, as the Constitutional Court found out from the requested observations, in accordance with that provision, the conciliation procedure in question had also taken place, although the participants had a timely agreement on only three of the 11 segments of health care [on the issue of the importance of the conciliation procedure for the use of authorisation and the commitment of the possible agreement, in accordance with the provisions of that provision, in accordance with the provisions of section Pl. ÚS 6 / 07 of 9.2.2010 (N 20 / 56 SbNU 207; 66 / 2010 Coll.), paragraph 77]. Since the contested decree was also published in the Collection of Laws, namely under No 475 / 2012 in the amount of 178, which was circulated on 31 December 2012, it can be concluded that its acceptance and extradition took place in a constitutional manner.
41. As regards the question whether the contested decree was issued within the limits of the legal authorisation, the powers in question do not specify exactly what is meant by the value of the point, the level of the remuneration of the services paid and the regulatory limit. The Constitutional Court considers that the concept of the amount of the remuneration is wider and that the power to determine the amount of the item and the regulatory restrictions, which are essentially merely the means of determining the item, includes the power to determine it without further need. However, by considering them to be explicitly mentioned, the legislature made it clear, first of all, that it had an idea of how to calculate these payments, which, although to be based on the so-called point system, is to depend on the number of points per health performance, but with the possibility of their overall limitation, which would also take into account other relevant factors, particularly in terms of the stability of the health system. In view of the last sentence of Section 17 (5) of the Public Health Insurance Act, it is clear that this authorisation also includes the possibility of determining the method of payment, albeit not the method of making payments (Section 17 (2) of the Act and contrario). In particular, the method of payment should be understood as a time distribution, e.g. by the provision of monthly payments.
42. The essence of the regulation of the level of remuneration is that, in the cases provided for, providers are obliged to provide health services at a certain price. This obligation has the nature of the terms and conditions or restrictions on the exercise of the right to business (see below) in view of its content, and is thus subject to the reservation of the law provided for in Article 26 (2) of the Charter, which does not, however, rule out the possibility that the statutory legislation - as is the case in the case of the contested decree - should be more precise and the detailed provisions laid down by law [cf. The specific level of remuneration, which is determined by decree, must then depend on the total (anticipated) income of the public health insurance scheme, while at the same time reflecting the extent of the health care paid and the public interest criterion already mentioned under Section 17 (2) of the Public Health Insurance Act. It can only be added that the legislator's will to regulate above the legal standard is clear from the authorisation provision of Paragraph 17 (5) of that law.
43. While, in assessing the procedure for adoption, the Constitutional Court, of the nature of the case, dealt with the Order as a whole, in the case of the question of whether it was issued within the limits of legal authorisation, limited itself to those parts of it which, in its view, are affected by the arguments put forward by the appellant. It did not conclude that any of these parts would not be issued within the limits of the authorisation under Section 17 (5) of the Public Health Insurance Act.
Background of the review in particular with regard to the right of health service providers to business (Article 26 (1) of the Charter) and the principle of predictability of law (Article 1 (1) of the Constitution)
44. The contested decree, according to the appellant, improperly interferes with the status of health service providers, as a result of which it is not in accordance with their right to do business under Article 26 (1) of the Charter. The main part of its objections concerns its unpredictability (or a breach of the principle of predictability and the prohibition of arbitrage within the meaning of Article 1 (1) of the Constitution), taking into account, on the one hand, the overall reduction in the level of remuneration and the complexity of their calculation. It is also criticised for establishing, in several ways, an inequality between the various providers, whether between contractual and non-contractual or only between contracting parties, in terms of the level of remuneration and that, because of the discrepancy between their obligation to provide certain services and the level of remuneration to which they are entitled, they operate in a disproportionate manner in relation to some of them. These deficiencies should also be reflected in the availability of health care and therefore be contrary to patients' right to free health care under public health insurance under Article 31 of the Charter.
45. The Constitutional Court considered it desirable that at least in the general context of its basic starting point, it should at least define its own review of the contested decree.
46. Article 1 (1) of the Constitution, according to which the Czech Republic is a state of law, provides for the fundamental principles applicable in general to standard production. They include the principle of predictability of law, its clarity and internal inconsistencies [cf. Any legislation may comply with this requirement only if it is adequately accessible so that persons are able to know that the rule they have created affects a particular matter. At the same time, however, it must be formulated sufficiently precisely to enable persons to adapt their behaviour to it. A person must be able, where appropriate equipped with appropriate expert advice, to anticipate the consequences which may result from certain (its) behaviour, with a degree of certainty which corresponds to the circumstances [cf. sp. zn.
47. When assessing whether the legislation is compatible with the requirement of internal coherence of the rule of law and its certainty and clarity [cf. However, the very fact that such cases may occur does not yet justify the conclusion on its unconstitutionality. This would be considered only if the text of the legislation would not allow the determination of its normative content even by the usual interpretation methods [to this end, in particular, the finding of sp. zn. Pl. ÚS 2 / 97, also the finding of sp. zn. Pl. ÚS 83 / 06 of 12.3.2008 (N 55 / 48 SbNU 629; 116 / 2008 Sb.), paragraph 186; the finding of sp. zn. Pl. ÚS 1 / 12 of 27.11.2012 (No 437 / 2012 Sb.), paragraphs 338 and 1939].
48. The contested Decree has the character of price regulation (cf. the legal conclusions contained in the finding in the sp. zn. Pl. ÚS 24 / 99), which, by determining the level of the remuneration of the services paid by virtue of Article 17 (5) of the Public Health Insurance Act, significantly affects the overall conditions for the provision of health services, thereby interfering with the right of providers to do business under Article 26 (1) of the Charter. As a result, individual providers are obliged to provide health services in the specified cases, precisely for the remuneration provided for under this decree. In the past, the Constitutional Court has already stated, although in the form of obiter dicti, that "the protection of the freedom of the contractual will, which is a derivative of the constitutional protection of property law under Article 11 (1) of the Charter (the essential component of which is the Ius disposnendi), is also an essential part of the democratic rule of law. Therefore, price regulation is an exceptional and acceptable measure only under very limited conditions," taking into account "important factors (in the area concerned, the level of insurance premiums, the cost of health care, etc.), the possibility of generating profits must also be taken into account when determining the price. As a result of the absence of this maximum in price regulation," in fact, "a certain area of business can become impossible and the creation of a state monopoly, i.e. the substance and meaning of the fundamental law of Article 26 of the Charter." It is worth stressing that the purpose of business is to achieve profit. Although the right to profit does not result from a constitutionally guaranteed right to do business and to pursue other economic activities, the State is obliged to create conditions that allow individuals to make real efforts to achieve it. In relation to the subject matter of the regulation under review, this means setting fair terms and conditions for the purchase of health services, both in terms of their price and the equality of the parties to the contract, protecting free competition between them and adequately offsetting any distortions.
49. Rights of business pursuant to Article 26 (1) The Charter may only be invoked by an individual within the meaning of Article 41 (1) of the Charter within the limits of the laws implementing it. Article 26 (2) At the same time, the Charter foresees the possibility of restricting the exercise of certain professions or activities by law without specifying the purpose of such a restriction [cf. sp. zn. Pl. ÚS 38 / 04 of 20.6.2006 (N 125 / 41 CollNU 551; 409 / 2006 Coll.), paragraph 29. The legislature therefore has relatively wide availability for a specific definition of the content and manner of implementation of this article, but it is not absolute either. In its discretion it is bound in particular by Article 4 (4) of the Charter, which prevents the restriction of the fundamental right to engage in business from affecting its very nature and meaning [cf. the finding of sp. zn. Pl. ÚS 24 / 99, also the finding of sp. zn. It is, however, also obliged to respect the principle of equality in rights within the meaning of Article 1 of the Charter and Article 3 (1) of the Charter, respectively.
50. The Constitutional Court, when assessing the conformity of the contested legislation with the right to engage in business which is the nature of economic law, treats the same procedure as in the case of social rights for which, in the present case, the so-called "reasonable test '[cf.
1. the definition of the meaning and substance of economic or social law, namely its essential content,
2. an assessment whether the law does not affect the very existence of economic or social law or the actual realisation of its essential content;
3. an assessment of whether the legal regulation pursues a legitimate objective, namely whether it is not an arbitrary substantial reduction in the overall fundamental rights standard; and
4. considering whether the legal means used to achieve it is reasonable (rational), although not necessarily the best, most appropriate, most effective or wisest.
51. If, in the second step of this test, the Constitutional Court concludes that the contested legislation concerns the very existence of one of these rights or the actual realisation of its essential content, it shall assess the admissibility of the interference with that right in the context of the proportionality test. This means that in the following order he will evaluate whether
(a) the intervention in question pursues the legitimate (constitutional) objective of its limitation;
(b) this intervention is appropriate to achieve this objective (suitability requirement);
(c) this objective cannot be achieved in any other way that would be more favourable to the fundamental law in question (requirement for necessity); and
(d) the interest in achieving this objective within the framework of a legal relationship outweighs the fundamental right in question (requirement for proportionality in the strict sense).
If one of these conditions is not met, the Constitutional Court will have no choice but to find an inconsistency with the constitutional order. In the same way, the Constitutional Court also applies where the reason for the infringement should be a violation of the principle of equality.
52. With regard to the right of citizens to health care free of charge and to medical supplies based on public health insurance under Article 31 of the Charter, the Constitutional Court has in the past defined the substance of that right in the sense that it is in compliance with the obligation of the State to establish a public health insurance system and to ensure that citizens have a fair, i.e. the emergence of possible inequalities excluding access to health care of adequate quality [Resolution sp. zl. ÚS 23 / 98 of 5.5.1999 (U 33 / 14 SbNU 319)]. All insured persons should therefore be entitled to treatments and treatments which meet objectively identified needs and requirements of the appropriate level and medical ethics [cf. Even in the case of this social law, the Constitutional Court applies the above-mentioned test of reason. At the same time, he is aware that the contested Decree does not directly lay down the rights and obligations of patients and, therefore, its possible non-compliance could only be established if, as a result, the actual implementation of that right would be threatened or even prevented.
53. Finally, in the general part of its reasoning, the Constitutional Court notes that the appellant also objected to the non-compliance of the contested decree with the right of employees to a fair remuneration under Article 28 of the Charter. However, this objection cannot be borne by the fact that health service providers have the standard status of entrepreneurs or non-profit organisations and, therefore, their income cannot be given the degree of protection that is expected for employees. Similarly, it was not necessary to continue to address the objection to the contested order with the right to a fair trial under Article 36 (1) of the Charter, since its content is essentially identical to the objection to the unpredictability of the legislation. It is not possible to assess the projection into current litigation in this proceeding.
Predictability of the amount of fees paid for services to which the providers are entitled
54. The Constitutional Court accepted the assessment of the various objections, the first to address the objection of complexity and unpredictability by the decree on the method of calculating the amount of compensation to which the provider is entitled towards the health insurance company for the services provided.
55. First of all, it should be noted that the level of these charges depends on the number of points for which such performance is assessed and the value of the point expressed in terms of cash amount, which is determined differently for each group of performances, defined by a generally exhaustive list or by expertise. The precise list of performances and their evaluation of the number of points that should reflect their financial and professional performance, on the basis of the authorisation provided for in Section 17 (4) of the Public Health Insurance Act for all types of health care, is laid down in Decree No. 134 / 1998 Coll., which publishes a list of health performance with points, as amended. This classification is followed by the Decree pursuant to Section 17 (5) of the Public Health Insurance Act, which sets out the specific values of the point for each calendar year. The calculation of the amount of remuneration for a given performance essentially consists of multiplying the value of the point by the appropriate number of points.
56. The method of calculation outlined in this simple form is only exceptionally applied, since the contested decree complements it in different directions and modifies it. In particular, it does so by reducing the value of the point above a certain amount of healthcare provided or regulatory rainfall in the event of exceeding the specified amount of remuneration. The purpose of both restrictions is to influence individual providers in order to comply with those limits, as if they were exceeded, the provision of additional health services would no longer be economically profitable. For this reason, it is in their own interest to ensure throughout the year that health care and other services are provided only when necessary. Otherwise, they are exposed to the risk that they will themselves bear the costs of the health services provided at the end of this period. Further modifications to the calculation method may consist in supplementing it with tools to reflect certain differences between different providers, which affect their cost levels and which could constitute a barrier to ensuring quality and available health care.
57. The appellant's alleged unpredictability of the contested order, from which it imports its non-compliance with Article 1 (1) of the Constitution and hence also with Article 26 (1) of the Charter, has several planes. It is clear that the determination of the total amount of remuneration to which the provider is entitled in 2013 requires the application of more or less complex mathematical operations. Its calculation, depending on the type of health services, may even consist of dozens of sub-calculations involving a large number of variables. However, the Constitutional Court did not conclude that these characteristics alone were sufficient to conclude that the contested decree was uncertain (cf. paragraphs 46 and 47). It took into account that it is a law affecting a very specific range of legal relationships, the subjects of which are expected to have a certain degree of expertise, and that its complexity is, to the extent, not an insignificant consequence of the complexity of the material itself which it regulates. Without the Constitutional Court taking a position on the Order as a whole at this point, and in this regard, in general establishing an obstacle to the matter decided in the future, in the case of those parts of the case which it dealt with in the present proceedings, the standard expression of the individual calculations was always sufficiently certain to allow them to be carried out once the input values (variables) were established. If, therefore, the unpredictability of the contested order can be considered, its main reason cannot be seen in its mere complexity, but it is necessary to address in detail the structure of the calculation of the amount of the remuneration, including those limits and regulatory limits, which allow the amount of the remuneration to be reduced. It was in this section that the Constitutional Court also focused on assessing these two types of restrictions, namely whether, in view of its regulatory function, when the excess of the limits is effectively sanctioned by a reduction in the value of the point or the possibility of a reduction in the level of remuneration, is sufficiently certain and foreseeable in relation to health service providers.
58. The essence of the limitation on the provision of certain health services is that the reduced value of the point is used to calculate the amount of performance payments given above the fixed amount. However, this volume is defined by means of a formula for which only aggregated data on health services provided for the reference period 2011 are not relevant for its use, but also for the evaluation period 2013, which, by nature, cannot be known to providers already in its course. This can be illustrated, for example, at the value of the point in the case of specialised outpatient care referred to in point (g) of Part A (1) of Annex 3 to the contested Decree (see detail point 68), where that volume is calculated by multiplying the number of recognised and recognised points by the provider and the health insurance undertaking for 2011, paid in full value of the point by the share of the number of unique insured persons treated by the provider in the relevant professional capacity in 2013 and their number in 2011. The Constitutional Court therefore addressed the question of whether these providers can adapt their behaviour to such regulation at all when the fixed volume they should comply with during the year can only be accurately determined after its completion. It concluded, despite some reservations, that it could be answered positively. Providers can and should have an overview of the extent of healthcare provided by them and the number of individual insured persons and can therefore also monitor the evolution of the value of the limit in question during the year. In the end, they may already have a view of this development because of the fact that this method of limitation was also used in the payment orders for previous years. The appellant did not change the fact that in practice there were situations where some providers did not have aggregated data for 2011 at the beginning of 2013, as this was not a lack of regulation but a failure of the relevant health insurance company.
59. It should be added that these conclusions and will only awaken the way in which the limit is set through a summary of the number of unique insured persons for 2013, but do not mean that the Constitutional Court considers that the specific regulation of the limitation of the amount of healthcare provided to be constitutionally consistent. The problem is that it does not take into account the extent of the urgent care provided, or in general care to which the provider is obliged, regardless of any limits, and its constitutional consequences are addressed in part V. E) of this finding.
60. On the contrary, for predictability, the Constitutional Court found the regulation of regulatory rainfall. According to Section B (2) of Annex 3, the health insurance company may, after the end of 2013, reduce the remuneration by 50% of the amount by which the total remuneration for such funds in 2013 exceeded the total remuneration in 2011. Similarly, although only up to 40%, this reduction may be applied if the limit in question is exceeded for the medicinal products specifically charged (paragraph 1) or for the required care in certain fields of expertise (paragraph 3). These reductions are applied by the health insurance company in relation to the amount of remuneration to which the providers are entitled for 2013. In essence, this is a penalty for exceeding those limits, which is designed to prevent unnecessary prescription of medicines or requiring care for other providers. This adjustment shall, in general terms, be supplemented by paragraph 4, according to which those regulatory restrictions shall not apply if the provider justifies the services provided and the services on the basis of which the average remuneration has been exceeded. In practice, providers receive information from health insurance companies to what extent regulations will be applied to them, with the possibility of expressing and applying objections which the insurance undertaking either recognises or does not recognise.
61. The first problem of this legislation is already seen by the Constitutional Court in that the limits in question are not in any way related to the above limits for the total annual amount of healthcare provided or are much more restrictive. This means that the Decree, on the one hand, allows providers to provide a certain amount of health services without any restrictions, but on the other hand it lays down significantly lower limits for the prescription of medicines, which are, however, inextricably linked to the provision of health services. Thus, there is bound to be scope for a substantial part of providers to apply regulatory rainfall (i.e. for the application of a penalty!) already as a result of the fact that the provider, when providing health services in the contracted volume or volume for which no limit is applied through a reduced value of the point, fulfils its obligation and prescribes medicinal products to be effective. A similar situation arises in the case of requested care, where, moreover, the provider is not able to influence whether the other provider from whom the health care was requested does not charge the care to a greater extent than was requested, which, in terms of the possibility of regulatory rainfall being applied, would be to the detriment of the former provider. A further and equally serious issue from the point of view of predictability is that, in the absence of cases where the application of a regulatory haircut is prevented by the provider within the meaning of Part B (4) of Annex No 3, the provision of the service paid (which in practice depends mainly on the assessment of a health insurance undertaking) or, where appropriate, by another decree set out for that reason, the health insurance undertaking is not in any way limited in its discretion as to whether and to what extent (within a percentage definition) it applies the regulatory haircut. This means that the insurance undertaking can apply these haircuts selectively and, according to its own considerations, favour certain providers (by applying them) and favour others (by not applying them). In the same way, the insurance undertaking may use them without any criteria in any way to reduce its own expenditure and thus, in fact, unilaterally modify the amount of the remuneration compared to that laid down in the Decree. Therefore, those providers who do not have the possibility to anticipate the extent to which regulatory rainfall will be applied remain free to accept in 2014 an additional decision by the health insurance company on the extent to which they were actually entitled to reimbursement in 2013, and with their head down, hope that the insurance undertaking will be a little more accommodating in the management of the public funds entrusted to them in a year.
62. Such a situation makes the regulation of regulatory rainfall contrary to the principle of predictability and the prohibition of arbitrage under Article 1 (1) of the Constitution as well as the principle of equality under Article 1 of the Charter. This contradiction has a clear overlap in the right of health service providers to do business under Article 26 (1) of the Charter, as it allows the health insurance undertaking, without any criteria, to unilaterally change the level of remuneration for the health services provided and thus the conditions for doing business in this field. In this sense, this regulation affects the very nature of the right to do business. It can only be added that that derogation ground applies in relation to the whole of Part B of Annex 3 to the Decree and in relation to Part D of Annex 2 and Part B of Annex 4 to the Order.
Reducing the total amount of health services payments
63. The appellant also objects to the fact that the contested decree, surprisingly (overall), reduces the level of remuneration of the health services provided by them by 2%, despite the fact that this year is expected to increase both the cost of health services providers and the increase in the collection of insurance premiums from the previous year. This fact, in his view, constitutes a non-compliance with the right to do business under Article 26 (1) of the Charter and, in view of the anticipated consequences of this situation (limitation of the scope and quality of healthcare), also with the right to free healthcare within the meaning of Article 31 of the Charter.
64. On the basis of the explanatory memorandum to the contested Decree, the Constitutional Court found that the Ministry of Health, as the basic parameter of the level of remuneration for 2013, had determined a rate of 98% of the volume of the reference period (2011) with a significant degression over that volume. With this reduction, the Ministry wanted to exert pressure to increase the efficiency of the entire public health insurance system and to prevent unnecessary overproduction of care, including in view of the anticipated nominal reduction in health insurance income by 1.4% this year. In the text of the Decree, it is expressed by applying a coefficient of 0,98 for the calculation of the number of points which are limited to the full value of the point of health care.
65. It should be pointed out that the concrete setting of the level of reimbursement of public health insurance health services depends primarily on the political decision to which Parliament is responsible under its legislative competence and, to the extent and within the limits of the statutory authorisation granted by it, the Ministry of Health. On the contrary, it is not in principle for the Constitutional Court to enter into their jurisdiction and to replace or reassess their decision on the basis of a different opinion on its correctness or effectiveness, and therefore, even in the procedure for the control of standards which are the subject of the legislation expressed in the reduction of the amount of such remuneration, it must be limited to assessing their compliance with the constitutional order. The basic question which he had to answer in the present case is whether the obligation of providers to provide health services in return for payment of such a reduced amount will stand for their right to do business under Article 26 of the Charter.
66. The Constitutional Court, of course, cannot carry out such an assessment on a flat-rate basis in relation to all providers, as the level of remuneration varies depending on the specific specialisation or segment of health performance, as well as the impact of their possible reduction. In order to conclude that such reductions were affected by the nature and purpose of the right to do business, it would not be sufficient to simply establish that the conditions for profit for individual providers have become more difficult or that the number of providers has even decreased. There would have to be a real situation where, on the one hand, the State formally allows entrepreneurship in a particular area, but, on the other hand, it lays down conditions for it which effectively exclude its meaning. However, the Constitutional Court did not find, in this respect in any material way, any relativisation of the related arguments of the applicant and of the observations of the Association of hospitals. Similarly, it had no reason to conclude that such a reduction would result in changes in the health system which would jeopardise the availability and quality of healthcare provided. In this context, it cannot be concluded that this reduction would affect the substance and meaning of the rights under Articles 26 (1) and 31 of the Charter. Moreover, since the measure is capable of achieving the objective pursued (see paragraph 64) and cannot be considered unreasonable, it did not find that the contested decree was incompatible with those provisions.
67. In addition, it should be noted that the appellant's argument was generally not ineligible to justify the alleged non-compliance with the constitutional order. The implementation of the law under Article 31 of the Charter depends on the amount of funds spent on health care through public health insurance. This volume must also reflect the potential increase in costs incurred in the context of its provision, otherwise sooner or later would result in the patient's access to or even in a threat to health care. As has already been mentioned, finding the optimal way of financing health care is in Parliament's full competence and executive. It is therefore not the intention of the Constitutional Court, in the context of the procedure for the control of standards, to replace the institutions concerned in seeking a substantive solution, but to ensure that they properly fulfil their constitutional obligation and actively use their powers to protect the life, health and dignity of the individual. In principle, the scope for the intervention of the Constitutional Court may also arise if, in the exercise of their legislative powers, those authorities would not address circumstances which could have an impact on the right to free health care under Article 31 of the Charter, which undoubtedly include an increase in the cost of providing health services. Such an assessment can be expected from them in relation to all segments of covered health care. All that remains to be said is that the exercise of that right may require an increase in public health insurance funds under certain circumstances.
Limitation of the amount of compensation for the volume of health services provided
68. Annex 3 to the contested decree sets out the value of the point for specialised outpatient care, separately for each type of performance. In the case of performances which are listed in paragraph 1 (a) to (f) of Part A of this Annex, the amounts shall be CZK 0,68 to 1.08 per point, the amount of the payments for each of them being calculated as a multiple of the value of the point, expressed as the number of points. However, this calculation shall no longer apply in the case of the performance referred to in (g), i.e. all other performance of specialised outpatient care. The basic value of the point of CZK 1.02 is used only in the calculated amount of healthcare provided in the given expertise, whereas the reduced value of the point of CZK 0.30 is decisive for the performance that goes beyond it. This amount shall be calculated according to the mathematical formula by multiplying the total number of those recognised by the provider and the health insurance undertaking of recognised points that have not been paid for the reference period at a reduced value of the point by the proportion of the number of unique insured persons treated by the provider in that professional capacity in 2013 and their number in 2011, and then by 0,98. In other words, it can be expressed by the number of points paid in full to the health service provider already in 2011, increased or reduced in proportion to the number of individual insured persons treated by the health service provider in 2013 and reduced by 2% at the same time.
69. However, the achievement of that amount significantly affects the amount of remuneration to which providers of specialised outpatient care are entitled vis-à-vis a health insurance undertaking will not affect the extent to which they are obliged to provide health care. In fact, even after it has been reached, they cannot refuse to provide immediate care and, unless the law provides otherwise, in the case of insured persons with whose health insurance company they have a contract or other care [cf. section 48 of Act No. 372 / 2011 Coll., on health services and the conditions for their provision (Health Services Act)]. In these circumstances, the question arises as to whether the distinction between the two values of the point for the same performance can, from a constitutional point of view, be sustained at all.
70. It is evident that the full value of a point of CZK 1.02 does not allow the profit of providers from each point to be up to two thirds of that amount, which also means that its reduced value of CZK 0.30 cannot be sufficient to cover the costs of care provided or a substantial part of it. Therefore, the purpose of its introduction should be seen in the application of individual providers in order to act effectively in the provision of health services, thereby avoiding waste of public health insurance. If they did not do so, they would be in a situation where, given the amount of healthcare they provide, their continued provision (for the rest of the calendar year) would become economically unfavourable.
71. In assessing this part of the proposal, the Constitutional Court addressed the question of whether the obligation to provide health care for remuneration calculated from the reduced value of the point referred to in point A (1) (g) of Annex 3 to the contested decree does not conflict with Article 26 (1) of the Charter which guarantees the providers concerned the right to business. In answer to this, he applied the already mentioned test of reason, in which he first examined what had to be regarded as the substance and meaning of that law in the present case (step 1).
72. It was stated above that although the right to profit does not result from the right to do business and to pursue other economic activities, the State is obliged to create conditions that allow individuals to seek to achieve it. This conclusion is also fully applicable in specific business conditions in the field of health care provision, where in some experts medical performance is covered mainly or even exclusively by public health insurance. As a result, the requirements in relation to the regulation of remuneration for the performance provided, which, in the normal course of things, should be taken into account from the risks naturally linked to the business, should allow (not provide) more than covering the costs of the services provided. On the contrary, from the point of view of the right to business, such an adjustment would be unacceptable which, even partially, would systematically pass on these costs to providers. The legal conclusion that "price regulation, if it is not to exceed the limits of constitutionality, must clearly not reduce the price in such a way as to eliminate at least their return, given all the costs demonstrated and necessarily incurred '(the finding of the sp. zn.
73. In order to assess whether the contested obligation affects the substance and the meaning of the right to business (step 2), it was decisive that the reduction in the value of the point in question could result in a situation where the total annual amount of the payments to which the provider is entitled would not cover even the necessary costs of healthcare provided. This would mean that, for a certain part of the year, its provision will in fact be subsidised by this provider. The Constitutional Court reiterates that such a situation is not in itself a problem in cases where the provider's own business decisions are the cause of the loss, but cannot be accepted if it arises as a necessary consequence of setting the level of remuneration. Providers cannot predict the overall extent of health services they will be forced to provide during the year, nor can they influence whether they will be significantly increased as a result of emergencies, such as mass accidents, natural disasters or epidemics. However, the main reason for answering the question of the second step of the test is that the Decree does not grant the providers concerned any additional entitlement to compensation for the loss thus incurred. The mere possibility that the health insurance company will provide such an amount on a voluntary basis from its sources (i.e. on the basis of an individual arrangement between it and the provider under the last sentence of Section 17 (5) of the Public Health Insurance Act) cannot be regarded as a relevant guarantee or systemic solution to the problem in relation to providers. According to the Constitutional Court, the possibility of concluding these individual agreements is already problematic, which has no transparent rules and, by definition, allows unequal access to providers by health insurance companies. The contested decree thus completely unacceptable applies less to one addressee and more to another.
74. As the contested obligation was affected by the substance and the meaning of the right to business, the Constitutional Court, in this step of the proportionality test, agreed to assess whether the obligation in question would be a permissible intervention in the constitutionally guaranteed right of business and in the proportionality test. In this context, he had no doubt that the objective pursued by this obligation, which is to ensure the effective provision of health care or to avoid the waste of public health insurance, could be considered legitimate in terms of the possibility of limiting the right to business and that the contested obligation is an appropriate (eligible) means of achieving it. However, the Constitutional Court did not find it necessary, which is assessed in the light of the possible existence of others, to the constitutionally guaranteed right of more efficient means. Although, in some ways, it is possible to allow greater efficiency in limiting the amount of compensation to other ways of controlling the economic use of public health insurance funds, there is no reason for the determination of the level of remuneration to be completely abstract from the possibility that the amount of healthcare provided will not be exceeded solely because of waste or overuse, but also because of the proper performance of legal obligations by the provider. Thus, the fundamental problem of the legislation in question is the absence of a right to compensation or compensation which would affect this situation. In the end, the case law of the courts has already recognised the right to urgent treatment even in cases where the agreed financial limit has been exhausted during the period [cf. sp. zn. I. ÚS 2785 / 08 of 13.9.2011 (N 157 / 62 of the SbNU 373), or the judgment of the Supreme Court in sp. v. 25 Cdo 3507 / 2008 of 27.4.2011], in so far as it goes beyond the scope and not on the basis of the recovery order, it alone speaks of its content deficit. It is for this reason that the contested obligation did not stand up to the proportionality test in this step and is therefore contrary to the right of the providers concerned to do business under Article 26 (1) of the Charter.
75. This argument does not call into question the constitutionality of the obligation to provide health services under Section 48 of the Health Services Act in general, but only under conditions where the provider is entitled to reimbursement calculated not according to the value of the point of CZK 1.02, but reduced by CZK 0.30 for the performance provided above the amount of the contested decree. Therefore, the finding of a derogation is limited to the provisions of Section A (1) (g) of Annex 3 to the contested Decree as a whole. It is not, in principle, for the Constitutional Court to change the system of payments for a certain part of healthcare by cancelling only part of that provision, which regulates the limitation and the reduced value of the point, and thus, in its substance, to increase their remuneration in relation to certain performance of specialised outpatient care providers.
76. In addition, the Constitutional Court notes that those derogatory reasons also apply to the payment limits in accordance with the provisions of point 2 of Part B. (b) Annex No 1 to the contested Decree concerning special outpatient care provided under Section 22 (1) of the Directive. (c) the Act on Public Health Insurance, in accordance with points 1 and 2 of Annex No 4 to the contested Regulations concerning the expertise 603 (gyno and obstetrics) and 604 (paediatric psychology), in accordance with points 2 to 5 of Annex No 5, points 1, 2 and 4 of Annex No 6 and points 1 and 3 of Annex No 7 to the contested Regulations concerning the services covered by the outpatient health care providers in certain fields, and points 1 and 2 of Annex No 8 to the contested Regulations concerning the services provided by the health transport service providers.
77. Those shortcomings in the contested legislation are not neutral even in the light of Article 31 of the Charter. As a result, because of the lack of guarantees of any overcompensation, it effectively forces individual providers to limit, in their own economic interest, the healthcare provided (e.g. postponement of operations or other performances for the next year) or to avoid providing it to the maximum permissible extent. In a situation where it cannot be clearly ascertained whether urgent care is involved in a particular case, it may lead to a generally restrictive approach by doctors in this assessment and, in specific cases, to a threat to the lives of individual patients, if under this pressure, they were rejected because of an incorrect assessment of urgency. The Constitutional Court considers that even this negative aspect of the contested legislation must be taken into account by the Ministry in the future.
Unequal position of contractual and non-contractual providers in terms of the level of remuneration for urgent healthcare provided
78. For the purposes of Article 17 (1) (a) of the Public Health Insurance Act, the provider who has provided urgent care to the insured person shall be entitled to benefits in kind against his health insurance undertaking even if he does not have a contract with him to provide and pay the services paid. However, according to Paragraph 17 of the contested Decree, its amount is calculated only from a point of 75% of the value otherwise provided for in the other provisions (or annexes) of the Decree, which, according to the appellant, constitutes an unjustified inequality between contractual and non-contractual providers.
79. Content of the principle of equality in rights within the meaning of Article 1 In its decision-making activities, the Constitutional Court of the Czech and Slovak Federal Republic, which concluded in this context that equality should be understood as a category of relative and not absolute (the decision-making body No 22 / 92 of 8 October 1992, published under No. 11 in the Collection of Resolutions and Finances of the Constitutional Court of CSFR). It was subsequently followed by the Constitutional Court in a number of its decisions, which, in general, admitted a statutory inequality, but only provided that it could be justified on the basis of constitutionally acceptable considerations. Such a case is not the case if it is based on an arbitrary nature (inequality of non-accesory) or is the result of any of the fundamental rights and freedoms (inequality of acesoric) [cf., the findings of sp. zn. Pl. Pl. ÚS.
80. In the present case, the Constitutional Court first had to ask itself, what purpose is the determination of the different value of the point behind the urgent care provided. Given that both contractual and non-contractual providers have the same obligation to provide it, the reason for this distinction can be seen as not being assessed separately for the first of them, but as part of the healthcare provided in a given professional capacity, and for this reason they are also subject to a limitation of the total amount of remuneration under the contested decree, e.g. through a reduced value of the point or regulatory haircuts. However, since these restrictions cannot be applied to non-contractual providers, they cannot be considered as inadmissible in any way in order to reflect that fact in their case to the value of the point in a certain way.
81. Provided that the purpose thus defined could be considered legitimate, the Constitutional Court would have to assess, in the context of the proportionality test, whether the obligation of the non-contractual provider to provide urgent care at a point value of only 75% of the value of the point from which the level of remuneration for the contractual providers is derived would have been a reason for the inequality as regards the relevant degree of intervention in their right to do business. In this case, the non-contracting provider will have a significantly worse position than the contractual provider. The Constitutional Court considers that such an obligation could undoubtedly be regarded as an appropriate means of achieving that purpose, in the context of a measure with Article 1 in conjunction with Article 26 (1) However, the Charter could be a problematic difference of 25%. This would be the case because the values of the point in the provision of health services are clearly not designed to generally create conditions for profits of up to 25%, and therefore the question is whether the possible provision of urgent care by the non-contracting provider would not lead to a situation where he would himself be subsidizing such care. In the end, the absence of a mechanism to prevent such a situation from being created when calculating the amount of the payments was a reason for which the Constitutional Court did not accept the contested decree by adjusting the limits on the amount of healthcare provided by the reduced value of the point.
82. Paradoxically, that conclusion is reflected in the question of the legitimacy of the purpose of the inequality under assessment. In fact, if the lower value of the point for non-contracting providers is to be due to the fact that the limitation of the level of remuneration applicable to contractual providers cannot apply to them and that otherwise they would in fact be in a more favourable position, that reason ceases to be justified (and thus legitimate) as a result of the above-mentioned legal conclusions of the Constitutional Court [part V. E) of that finding, which call into question the possibility of applying the restrictions laid down by the Decree without exception, precisely where urgent care is provided.
83. In this situation, the higher value of the point in the case of contract providers is only a certain benefit, which is generally the nature of indirect compensation for other obligations arising from the contractual relationship. However, the Constitutional Court does not consider the reason thus defined as eligible to justify the inequality in question in the amount of the remuneration for urgent care. However, even if this were otherwise the reduced value of the point of 75% of the full value of the point could not be accepted without being included in the calculation of the amount of the remuneration under the guarantee order preventing the provision of health care from being effectively subsidised by non-contractual providers. For these reasons, Article 17 of the contested order does not comply with Article 1 in conjunction with Article 26 (1) of the Charter.
84. As regards the other contests of inequality raised by the other appellant (see paragraph 8), the Constitutional Court generally does not find the problem of projecting, up to the amount of the bed-care payments, differences between the different types of health care establishments or differences arising from the different population structure in each region. However, in the present case, it does not find the scope for a detailed examination of any unjustified inequalities which could arise from the application of individual calculations in individual cases. This does not preclude him from speaking in detail on this issue in the future in the context of a particular matter, whether in the proceedings on a constitutional complaint or in the context of a specific control of standards.
Conclusion
85. For the reasons set out above, the Constitutional Court has concluded that the contested decree is contrary to the principle of predictability and the prohibition of arbitrage under Article 1 (1) of the Constitution, the principle of equality in rights under Article 1 of the Charter and the right to engage in business under Article 26 (1) of the Charter. The contested decree is in breach of Article 26 (1) of the Charter in the parts setting limits on the amount of the remuneration by means of a reduced value of the point. Paragraph 17 of the Decree is then contrary to Articles 1 and 26 (1) of the Charter as it constitutes an unjustified inequality between contractual and non-contractual providers in terms of the level of remuneration for the urgent care provided.
86. In the opinion of the Constitutional Court, these findings call into question the compliance of the entire Order with the constitutional order. In fact, it is interconnected by setting up the level of remuneration and cannot be intervened by essentially changing the meaning of other parameters with the abolition of some of its parts, which would, without any constitutional justification, result in an increase or reduction of certain claims by individual providers towards health insurance companies and thus in the risk of stability within the public health insurance system.
87. The Constitutional Court is aware of the actual and legal limits of its possible derogatory intervention in the present case and does not hide that the legal conclusions contained in this finding are to be reflected, in particular, in the form of remuneration orders to be issued for the following years. The immediate abolition of certain parts of the contested decree would lead in a large number of cases to the possibility that health service providers may find themselves in a much worse position than they would have for its effectiveness as a result of the absence of legislation on the level of remuneration. Instead of eliminating interference with their constitutionally guaranteed rights, this finding would, on the contrary, lead to deepening it, which would be completely contrary to its purpose. However, it is not possible to overlook the possible impact in relation to public finances where any unintended increase in public health insurance expenditure due to the sub-deregulation of the contested decree would have to be compensated in the coming years.
88. In view of these considerations, it was appropriate to consider delaying the enforceability of this finding within the meaning of Article 89 (1) of the Constitution to prevent such negative consequences. Thus, the Constitutional Court considered, first of all, the possibility that the contested decree would be annulled by the end of 31 December 2013, since that order could not apply to the calculation of the level of the remuneration for health services which would not have been granted until 2014, that is to say after that moment. However, such a step is hindered by the fact that this decree would otherwise remain an effective law after the end of 2013, which, apart from remaining applicable in relation to the services already provided (which would change nothing even if it were to become ineffective), will further establish at least the authorisation of the health insurance company to apply regulatory haircuts. These can only occur from the nature of the case after the end of the evaluation period. It should be stressed that their application is a legal act (a legal act) which may cause a change in the amount of the provider's entitlement to reimbursement only if such a consequence is linked to an effective legal standard. Therefore, if the contested Decree envisaged the application of regulatory haircuts and adapted the amount of each of its other parameters, the Constitutional Court, despite the criticisms of their legislation, cannot take this into account the possible negative consequences described above. In order to create sufficient time to settle the amounts of the remuneration of individual providers by health insurance companies as well as the possible application of regulatory restrictions, the Constitutional Court decided not to revoke the contested decree until 31 December 2014.
89. Thus, despite the reservations, the contested Decree may continue to fulfil its regulatory function in relation to public health insurance expenditure relating to 2013. The conclusion on its unconstitutionality cannot be interpreted in the sense that it should not be applied at all, which ultimately does not correspond to the scope or nature of the derogatory reasons. In this context, the Constitutional Court notes that, despite its annulment, the contested order remains applicable in relation to the assessment of the level of remuneration for individual health services provided in 2013, since it established, to that effect, the right of individual providers at the moment of granting them. However, health insurance companies may apply regulatory restrictions in relation to the level of payments for 2013 only until the end of 2014, and are obliged to follow the objectives of this finding when applying them. The possibility of seeking payment for urgent care provided in justified cases, even if the limits laid down by this decree were exceeded, remains unaffected in the sense that the present case-law of the Constitutional Court and the Supreme Court has been recognised, despite the conclusion that the enforceability is delayed. Finally, the Constitutional Court adds that, in the light of Article 89 (2), The Constitution is required by the Ministry of Health to proceed with the issue of remuneration decrees for subsequent years (including 2014) in such a way that the above-mentioned derogatory reasons are no longer relevant to them.
90. For all these reasons, the Constitutional Court decided, pursuant to § 70 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., as stated in the statements of this finding.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the Judges Stanislav Balík and Vladimir Krok to decide.
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Regulation Information
| Citation | The Constitutional Court found No 396 / 2013 Coll., on the application for annulment of Decree No. 475 / 2012 Coll., on the determination of the value of the points, the amount of the fees paid and the regulatory restrictions for 2013 |
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| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 06.12.2013 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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