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The imperfection of the legal regulation of modern medicine

Feb. 27, 2018, midnight

Day-to-day involved in the implementation of the program of obligatory medical insurance (hereinafter – "the program of OMS"), health insurance companies and medical organizations, providing appropriate assistance, faced with the problem of ambiguous interpretation of the provisions of the laws and regulations in the field of health protection and imperfection of the existing mechanism of payment for services provided under this program.

The fact is that, on the one hand, the legislator establishes the right of the patient's choice of medical organizations and physician (subject to his consent), which should provide him with medical assistance under the program of the MLA. This right, the patient may use not more than 1 time per year (except in cases of change of residence or place of stay of the citizen) (article 21 of the Federal law of 21.11.2011 No. 323 – FZ "About bases of health protection of citizens in the Russian Federation"). The realization of this right is ensured by the state by fixing such guarantees – the principles of health as rights of citizens in sphere of health protection and social protection in case of loss of health, including at the expense of means of obligatory social insurance; the availability and quality of health care, including the duty of medical institutions to provide medical care in accordance with the program of compulsory medical insurance; the inadmissibility of the denial of medical organizations involved in the implementation of the MLA, in providing medical care and collection of charges for such service, etc.

On the other hand, the same legislator establishes a number of rules based on literal interpretation which implies that the medical organization should be involved in the framework of the OMC is strictly guided by the limits of volumes of medical aid established by decision of the Commission on the development of the programme (article 36, article 39 of the Federal law of 29.11.2010 № 326 – FZ "About obligatory medical insurance in the Russian Federation"). Due to the fact that payment for medical care provided to the insured person, is carried out based on the medical organisation and registers accounts accounts to pay for medical care in the limits of the allocated amounts (article 39 of the Federal law of 29.11.2010 № 326 – FZ "On mandatory medical insurance in the Russian Federation"; p. 110 of the Rules of obligatory medical insurance, approved by order of the health Ministry of Russia dated 28.02.2011 No. 158 h).

The distribution of medical assistance made by the Commission for the development of territorial program OMS between medical insurance organizations and between healthcare organizations, typically 1 time per year on the basis of their claimed reasonable offers. When making this decision takes into account the established territorial program of the volume of provision of medical care to medical care, providing medical care, in the context of profiles offices (beds), medical specialties, including indicators of consumption of medical care according to personalized accounting information about medical care provided to the insured persons the number of insured persons attached to the medical organizations providing medical care in the outpatient setting, the size and age structure of insured persons.

Accordingly, at the time of distribution of volumes of medical aid are not taken into account the possibility of implementing the patient in the future the right to choose (change) the medical organization in which he is serviceable. In addition, nevsegda set for medical organizations limit the volume of medical care in the framework of the implementation of the MLA met her justification.

The above circumstances are often the cause of a dispute between a medical organization and health insurance company regarding the denial of payment of medical services rendered in excess of the assigned to it by the decision of the Commission on the development of territorial program OMS limits the volume of medical care.

Believe "lifeline" in such a difficult situation for a medical company involved in the MLA, the transfer of the matter in the trial. In particular, in our view, you can:

  • if there are grounds to challenge the decision of the Commission on the development of territorial program OMS on distribution of volumes of medical aid;
  • to recover from the insurance company the expenses incurred in connection with the rendered in excess of the limits of medical care.

As a rule, the courts in such situations, proceed from the need the full realization of the rights of citizens to timely receipt of free qualified medical care and support the position of the medical organization (the Decision of Arbitration court of far East district from 01.03.2017, № F03-54/2017; the judgement of the Nineteenth arbitration court of appeal dated 14.10.2014 according to case number A36-6671/2013).

Please note that in the second method of protection by the legislation of the Russian Federation in the field of OMS in General provides a mechanism for insurance companies to obtain money from standard insurance stock of territorial Fund in case of excess of the established volume of means for payment of medical assistance (article 38 of Federal law of 29.11.2010 № 326 – FZ "About obligatory medical insurance in the Russian Federation").

However, I can not help noting that both the presented method of protection can't be 100% reimbursement guarantee medical organization costs incurred in connection with the provision of medical assistance under the MLA in excess of the limits and imply a significant time interval between the fact of provision of services and receipt of funds. It is recognized that in the present conditions of legal regulation in the sphere of healthcare, medical companies involved in the implementation of the MLA, are in a disadvantaged condition. Change the situation can only "adjustment" legislation, for example: the introduction of the rule that a direct indication of the possibility of increasing the limits of medical care and funding in proportion to the services actually rendered, or providing for the establishment of reserves in the volume of medical care