(In)consistency of the measures adopted in the new Healthcare Intervention Measures Act to curb “moonlighting” the healthcare sector
On 14 July 2022, the National Assembly adopted the Healthcare Intervention Measures Act (“ZNUZSZS”), which entered into force on the day following its publication in the Official Gazette, i.e. on 26 July 2022. The Act provides for, inter alia, a temporary measure regarding waiting periods in the healthcare sector by guaranteeing healthcare providers in the public health service network payment for healthcare services provided beyond the regular scope of the healthcare plan until 31 December 2023 (Article 15 of the ZNUZSZS). Payment for healthcare services will be provided by the Health Insurance Institute (“ZZZS”) without the need to conclude a specific written contract, provided the healthcare provider has previously fully delivered on the regular scope of the plan of the specific type of healthcare activity for which there is a waiting period.
For public healthcare institutions, the transitional provisions of the ZNUSZSZZ set down an additional condition for receiving funds from the ZZZS. By 31 August 2022, they must verify whether the healthcare professionals they employ are still eligible under Article 53b(3) of the Health Care Act (“ZZDej”) to provide healthcare services with another healthcare provider or as a healthcare provider. The Act does not detail the verification process. The director of a public healthcare institution shall thus give written permission to a healthcare worker if, inter alia, that public healthcare institution does not require the healthcare professional in question to cover other positions or work overtime at his/her place of employment.
It is to be expected that directors of public healthcare institutions will deem the provision of healthcare services beyond the regular scope of the healthcare plan as a change of circumstances that require healthcare professionals at those institutions to provide job cover and work overtime. As a result, many healthcare professionals will likely have their existing permissions revoked. Article 53b(6) ZZDej states that a permission shall be revoked if a public institution’s requirements for job cover and overtime change.
The ZNUSZSZ also imposes an additional negative condition on healthcare providers with a concession since the latter may not include healthcare professionals employed by the public healthcare institutions in the provision of healthcare services beyond the regular scope of the programme (Article 15, paragraph 1, of the ZNUSZSZ). An explanation of this restriction in the legislative material is hard to come by. According to the draft ZNUSZSZ, the purpose of the restriction is to “limit the spill-over of staff, which in practice could make it impossible to provide services beyond the healthcare plan. This is because the employees of the concessionaires are primarily supposed to provide healthcare services for their own employer.” The wording is not entirely clear. However, it can be assumed that it “targets” those employees whom concessionaires only employ on a supplementary basis (e.g. for 20%) or for whom the concessionaire is not the principal employer. The reasoning is also unclear in explaining the scope of the restriction. On the one hand, it details that the exclusion of healthcare professionals applies to all forms of cooperation, i.e. employment contracts (e.g. part-time), civil law contracts (e.g. subcontracting, business cooperation agreements), services rendered as a sole proprietor, etc. On the other hand, there is no explanation as to why the ban only covers additional work for concessionaires and not, for example, additional work for other public healthcare institutions. Both public healthcare institutions and concessionaires make up the public healthcare service and are (or should be) equal. The umbrella Institutes Act (“ZZ”), which regulates public services in the Republic of Slovenia, provides that public services are to be carried on by public institutions as well as, based on a concession, by other institutions (i.e. institutions entrusted with the provision of a public service), which have the rights, duties and responsibilities of a public institution by virtue of an explicit statutory provision with respect to the performance of a public service. In addition, a concession may also be granted to a company, association, other organisation or individual that fulfils the requirements for public service provision.
Furthermore, there is no explanation as to why, in light of the newly adopted restriction on the choice of work for healthcare professionals employed in public healthcare institutions, the regulation still allows, contractual cooperation between public healthcare institutions and those healthcare professionals who, as concession holders, are also healthcare providers themselves (Article 53c(7) of the ZZDej). On the same legal basis, contractual cooperation between public healthcare institutions and healthcare providers who are legal persons is still allowed. Such a legislative measure seems inconsistent and unsystematic, as it only restricts the provision of healthcare services to healthcare professionals simultaneously employed by a public healthcare institution and the concession holder, but not to healthcare professionals who, as concession holders, are still allowed to simultaneously provide healthcare services privately and on a contractual basis also for a public healthcare institution.
As of September, healthcare professionals providing healthcare services to several different healthcare providers face the prospect of choosing which healthcare provider to give up in case their principal employer withdraws permission for them to work for other healthcare providers. One of the criteria they are likely to consider is the possible forms of compensation for the additional healthcare services provided by one employer and the other. The ZNUSZSZ has no specific provisions in this area. The three new bonuses provided for in Article 16 of the ZNUSZSZ, including the increased workload bonus, apply only to primary healthcare services. Here, however, additional or complementary work by several healthcare providers is almost non-existent in practice since healthcare workers are usually either full-time employees of the health centre or are themselves healthcare providers by virtue of a concession.
The compensation of health professionals working at the secondary or tertiary level for additional health services will therefore continue to be regulated as before. This means that employees of public healthcare institutions will also receive part of their performance-based salary for the increased workload with their employer, in line with the conditions and subject to the limits laid down by the Act on the Salary System in the Public Sector (“ZSPJS”). However, if, despite the above, they still have the director’s permission to subcontract for another public healthcare institution, the latter will take into account in their remuneration the maximum gross hourly rate of pay in relation to grade 53, in accordance with Article 3 of the Rulebook on the Criteria for determining the Amount of Payment for the Provision of Medical Services under a Business Contract or other Civil Law Contracts. Given an average monthly work obligation of 176 hours for public servants and considering that the 53rd grade provides for a gross monthly salary of EUR 3,385.03, an hour’s work amounts to EUR 19.23 gross.
Concessionaires are not subject to the above statutory ceilings. They will therefore be able to pay their employees for the additional healthcare services they provide in line with their general internal rules, either on an hourly basis or based on the scope of services provided. In particular, payment by scope of services rendered is not (yet) feasible for public healthcare institutions due to the absence of a mechanism to quantify the number of healthcare services rendered per healthcare professional.
Author: Katja Triller Vrtovec, Attorney-at-Law
