Stamen Filipov and Biljana Zhivkovska to the Constitutional Court

The Petitioners, Stamen Filipov and Biljana Zhivkovska, challenged a provision excluding certain health services from the Law on Health Insurance (the Law). Article 9 of the Law specified certain services that would be paid for under a compulsory health insurance scheme administered by the Health Insurance Fund (the Fund). Article 10 specified certain services that would be excluded from the compulsory health insurance scheme. Specialist care was included in the scheme under Article 9. However, “specialist consultative and hospital health services without referral from the chosen doctor or provided health services in health care facilities where the Fund had not provided health service at its own expense” were excluded from the scheme under Article 10.

Other provisions in the law set up a system where the Fund would buy services from health providers by entering into contracts with them. In an earlier case, U.No.45/2006, the Constitutional Court had determined that the Fund was obligated to pay for the items listed in Article 9 regardless of whether or not such contracts had been concluded with the relevant providers. The new exclusion in Article 10 for “specialist consultative and hospital health services without referral from the chosen doctor or provided health services in health care facilities where the Fund had not provided health service at its own expense” had been added to the Law in response to this ruling.

The Petitioners challenged this new exclusion under Article 34 (social protection and security), Article 35 (social justice), and Article 39 (right to health and health care) of the Macedonian Constitution. They argued that the provision effectively restricted the entitlement to secondary care under the Law to those providers that had entered an agreement with the Fund, thus leaving persons seeking care at other facilities to bear the expenses out of pocket, and that this was inconsistent with rights to health services and social security under the Constitution.

The Court held that the challenged provision violated the Constitution, and repealed the provision. It first considered that the Law and the relevant constitutional provisions created a right to health insurance for the items listed in Article 9, while stating that the right did not extend to other items listed in Article 10.

The contested provision, however, did not exclude treatments based on their medical characteristics, as the other provisions did, but instead introduced new conditions on services insured people were already entitled to, based on whether or not the service provider had entered into an agreement with the Fund. The effect of the provision was to exclude basic services provided by the Law to the extent that the scheme no longer operated as health insurance, but as a discretionary scheme operated by the Fund.

The challenged provision therefore infringed the right of users of health services to choose a doctor, and did not regulate healthcare in a way that was consistent with the Constitution.

“Regarding the submitted initiatives, the Court appraised that the contested provision does not specify any health service which should be excluded from those provided at the expense of the Fund in line with its medical nature (such as aesthetic surgeries), but that a certain health service in the Law (in Article 9 as specialist service) is additionally conditioned by the decision of the Fund to enter into agreement with a certain health care facility. In other words, these health services can be used by insurees only in relation to whether the Fund entered into agreement with these health care facilities, i.e. to exclude all the basic health services listed in Article 9 of the Law, which are covered at the Fund’s own expense.” Para. 5.

“[H]ealth care based on insurance is not exercised anymore under the conditions stipulated in the Law, but in accordance with additional condition, such as the discretion of the Health Insurance Fund. Because of that, the Court appraised that, with the contested provision, not only is the right of the users of health services to choose a doctor infringed, but it also essentially infringes the constitutional level of lawful regulation of the rights and obligations from health insurance.” Para. 5.

“[…] the users of health services in health care facilities which do not have an agreement with the Fund, are not able to reimburse the expenses in the amounts that are certainly borne by the Fund, which unequivocally refers to the conclusion that the contested resolution in the Law is not in accordance with the marked provisions of the Constitution.” Para. 5.