Pl. ÚS 36/11 of 20 June 2013 “Standard and above-standard health care”

HEADNOTES
It is true that the general foundation for basic and more expensive alternatives is contained directly in the Act. However, from the Constitutional Court’s point of view it is important whether the framework in the Act, in and of itself, i.e. without an implementing regulation, is sufficiently understandable to persons governed by the Act and whether it would be capable of application. An implementing regulation is meant to only provide details. The contested framework for care alternatives at present works so that, apart from the general framework presented above that is in the Public Health Insurance Act, the decree that issues a list of health care services with point values also contains health care services identified by the Ministry of Health for which insured persons can be offered a choice between the basic and more expensive alternatives. Only from the decree is it clear to health care services providers, insurance companies, and insured persons what is a basic alternative and for what health care services, medical aids, resources and health care materials it is possible or necessary to pay beyond the level of public insurance coverage. It is not evident from the Act itself, and cannot be derived from it by even the loosest interpretation. Thus, the Public Health Insurance Act only took the first step toward defining standard and above-standard care (in the words of the Public Health Insurance Act, basic and more expensive alternatives). The second, though essential, part, without which the institution could not survive, i.e. the specific determination of what is, within the intent of Art. 31 of the Charter, free care, is regulated only in the implementing regulation. In the Constitutional Court’s opinion, here the legislature did not meet the requirements established by the constitutional order and repeatedly interpreted by current case law.
The fee for inpatient care is basically payment for “hotel services.” This is also supported by the arguments of the Ministry of Health regarding the concrete level of the fee, which is derived from per capita expenses for food, beverages, energy, water, etc. Thus, it is seen as the  equivalent of expenses that the patient would necessarily have anyway (even outside the medical facility). The Constitutional Court’s first constitutional law criticism results from this. The obligation established does not in any way differentiate cases where the hospitalization is merely a routine component of treatment, only related to health care services, and in extreme cases can be replaced by a stay outside the health care facility, even if that were not a practical and optimal solution for the patient, and when the hospitalization is a necessary component of the medical service itself. We can hardly accept that during hospitalization in an intensive care unit the patient is being provided “hotel services.” In these cases the obligation to pay the  fee conflicts with the text of Art. 31 of the Charter. Hospitalization that is health care in the narrow sense, covered by public health insurance, must be provided free, because for the patient there is no other alternative to it. Another factor that causes the constitutionality deficit is the lack of limits for this payment; in this regard the Constitutional Court had to fully agree with the petitioners. The Public Health Insurance Act imposes obligations in a blanket manner; they have to be paid by non-earning persons, including socially at-risk groups, children, persons with health disabilities, etc. Likewise, the obligation to pay the fee is not limited in time; the patient is to pay it in full regardless of the length of hospitalization. The combination of these factors can evoke a financially unbearable situation, not only for the abovementioned categories of patients.
In any case, it denies the essence of solidarity in receiving health care. The exemption from fees for those insured persons who present a decision, announcement, or confirmation issued by a body providing assistance in material need about the benefits allocated is not a measure that effectively mitigates the effects of the obligation. This requires the activity involved in arranging an obtaining official documents, which can hardly be expected or required from precisely those persons who are most socially burdened by the fee.
The postulate of equality does not give rise to a general requirement that everyone must be equal with everyone else, but it does give rise to a requirement that the law not give an advantage or disadvantage to one group over another with justification. Thus, the Constitutional Court also accepts statutorily established inequality, if there are constitutionally acceptable reasons for it. However, that is not so in this case. The dominant position of the insurance companies, especially Všeobecná zdravotní pojišťovna, in combination with the authorization to impose penalties and regulations on health care services providers, specifically limitations of services, financial penalties for medicine prescriptions and requested care that exceed the set limits, is not balanced out by anything on the side of the health care services providers, such as an obligation to enter into contracts on the part of insurance companies in cases where conditions set forth by generally binding legal regulations have objectively been met. Thus, the insurance companies’ authorization to impose penalties, which is based in the contested provisions of § 16a par. 10 and 11, as well as § 32 par. 5 and § 44 par. 5 and par. 6, in the words “imposed under paragraphs 1 to 5" of the Public Health Insurance Act, exceeds the bounds of constitutionally acceptable inequality, as the Constitutional Court defined it in the abovementioned judgments. This inequality is multiplied by the large range of most of the penalties, which is not unconstitutional in and of itself, as will be stated below, but emphasizes it, in combination with the abovementioned circumstances. Thus, the indicated designated statutory provisions are inconsistent with Art. 1 of the Charter, which guarantees equal rights.