The Constitutional Court of the Republic of Bulgaria has ruled against the rule of non-payment for the activities of medical establishments (including hospitals) when they exceed pre-established monthly values. This decision was taken after the National Union of Private Hospitals challenged this article before the Supreme Administrative Court, which appealed to the Constitutional Court of the Republic of Bulgaria to declare it unconstitutional.
Article written by Krasimir GRUDEV, Chairman of the Board of Directors of the Bulgarian National Union of Private Hospitals
Factual legal circumstances:
In Bulgaria, the monthly amount paid by the National Health Insurance Fund (NHIF) to the medical facilities is done by multiplying the number of the performed and completed by them medical activities, by the prices fixed in the National Framework Agreement.
Since 2016, each medical facility working under a contract with NHIF has pre-set monthly and annual amount, determined on a territorial basis, which must not be exceeded.
According to Art. 55a. (2) of the Health Insurance Act (HIA) ”The National Health Insurance Fund does not pay for medical and dental care provided by medical facilities in violation of the terms specified in their contracts under Art. 59, paragraph 1 volumes and values.”
At the same time and according to this same Act, Bulgarian citizens with health insurance have the right to freely choose a medical facility on the territory of the entire country in which to be treated.
For this reason, the medical institutions preferred by the patients often exceed their specified monthly values, but according to the cited article, this excess is not paid to them. In order to comply with these values, some of these medical facilities refuse treatment to patients, which violates their rights and in some cases leads to lawsuits. Still others, who do not comply with the pre-set monthly values, suffer financial losses due to non-payment by NHIF and are forced to seek their money through court proceedings.
These were the reasons why the National Association of Private Hospitals challenged this article before the Supreme Administrative Court, which appealed to the Constitutional Court of the Republic of Bulgaria (CC) to declare it unconstitutional.
The decision of the Constitutional Court of the Republic of Bulgaria:
On April 11, 2024, the Constitutional Court repealеd the provisions of HIA, which introduced a ban on payment of activity that exceeds the monthly values of hospitals.
The court considers as unconstitutional the limitation of the payment by NHIF for the medical care provided only to the amount of the previously determined values of the medical institutions and the transformation of these values into imperatives with a mandatory and precisely defined maximum. This is a violation of the constitutional right to health care under Art. 52, paragraph 1 of the Constitution of the Republic of Bulgaria (CRB), because it forces patients to “make the choice of a medical facility not according to their health and life needs, but in such a way that it should be adequate to the dynamics with which the various medical facilities throughout the country fulfill the pre-set volumes and values for medical assistance.”
(CRB) Art. 52. (1) Citizens have the right to health insurance, guaranteeing accessible medical care, and to free use of medical care under conditions and according to the procedure determined by law.
In the sense of Art. 52, paragraph 1 of the Constitution, the concept of “accessible medical care” should be understood as the possibility of medical treatment for all citizens in case of illnesses under equal conditions and equal opportunities to use the treatment.
By virtue of the contested norm, the possibilities of using treatment in the medical facilities that have concluded a contract with NHIF appear to be dependent on an unforeseeable fact for the patient: whether at a particular moment the medical assistance he needs falls within the volume pre-set for the medical facility, or would it lead to transcending it. According to this provision, the possibility of freely choosing a provider of medical care can only be exercised until the financial resource specified for the relevant medical facility is exhausted. The court considers that this provision administratively forcibly redirects patients from one medical facility to another that is not their first choice.
If the patient still prefers to have his treatment at the medical institution he originally chose, this leads to his inclusion in the waiting list, which leads to a delay in the time of his treatment. This makes obtaining medical care more difficult to access and may cause the patient irremediable or difficult-to-cure harms. And this, according to the court, is unacceptable, because medical assistance only makes sense if it is provided on time.
The state has the right and the obligation to regulate the spending of a limited public resource, such as the health care budget, but this must be achieved in accordance with the principle of proportionality.
The fact that the state cannot effectively fulfill its obligation to control budgetary funds for health care cannot be a reason for introducing restrictions on fundamental rights, and such a restriction is constitutionally intolerable. The Supreme Court has ruled more than once that any limitation of fundamental rights of citizens, which in reality is intended to compensate for the inability of the state to fulfill its obligations, is inadmissible in the rule of law.
In view of the above, the Constitutional Court finds that the provision of Art. 55a, paragraph 2 HIA contradicts Art. 52, paragraph 1 of the Constitution and cancels it as unconstitutional.