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4.
Considerations on the definition of health authority and doctrinarian
interpretations It is rather difficult to strictly define the typology
of a health authority (USL). For some it may be considered to be a part
of the institution of the Special Enterprise (regulated by law 142/90),
which is an instrument of the specific local authority (Municipality
and Province) but which has its own legal status in order to meet with,
in autonomy, the principles of efficiency, effectiveness and balanced
budget (6).
The
drawback of this interpretation is the fact that the health authority,
unlike a special enterprise, is not granted financial autonomy. It is
difficult to assimilate the model of the health authority to that of
a city-owned enterprise, since the first does not belong to the municipality
system.
According
to the decree 502/92, the term enterprise is not sufficient alone to
describe the nature of economic public body of the USL. In the absence
of the profit requirement and an explicit normative qualification within
the decree made under delegate power, and given that the acts of the
general manager are similar to provisions, thus in contrast with that
private regimen the company activity should follow, it is necessary
to establish general criteria for the USL in order to define its nature
of public economic unit. In this context, profit should be intended
as “a mere possibility of making profits or covering costs” (7). The
adjective “economic” does not mean that the USL should make profits,
but it rather implies the necessity to meet the demand for health care
with minimum expense, in order to balance the budget.
As far as the “provisions” adopted by the general manager are concerned,
they can be interpreted as “restricted public law profiles that are
not incompatible with the nature of economic unit of the USL”. However,
the contradiction between the economic nature of the USL and the juridical
system to which its personnel is subject, i.e. the general policy law
on state employees 98/83, which explicitly concerns employees of “local,
non economic public units” (law 93/83, art. 1, c.1), is still insoluble.
In order to avoid this paradox, some analysts propose an even more generic
definition for the USL: it is a “firm-enterprise”, as it offers a series
of services for payment. However, while the goal of an enterprise is
profit, the objectives of the public health authority are more complex
to define and that creates some difficulty at management level, where
two levels can be underlined: “a political decisional level and a business
decisional and implementation level” that, while lacking in firms with
single and solid management, inevitably mean slowness and rigidity with
respect to changes in the environment. Moreover, being a non-profit
body, the USL has no “adequate criteria to define effectiveness” revealing
its success: considering the degree of satisfaction of citizens is right
but also dangerous, due to the many variables implied (standard of living,
the level of medical culture, etc.).
A national and regional health programming is thus increasingly required
to define what are the minimum levels of health care to achieve, the
resources to use and the financial supports to have recourse to. All
that will provide the criteria according to which a single health authority
can plan the services offered, evaluate their quality, and verify their
effectiveness with respect to the demand of health care on the territory
and their efficiency given the resources used. Other analysts also tend
to position health authorities among non-profit firms, thus similar
to ONLUS (non-profit organizations for common good, which are granted
by our constitution but were formally recognized only with the decree
n. 460 of 4 December 1997). “In fact, they are obliged to adopt public
accounting of costs and returns (which requires the inventory of assets
and capital amortization), they can keep the budget surplus and partly
use it for investment and partly to offer bonuses to personnel (other
than making good a loss), they are given the possibility of taking out
loans, and they can alienate non sanitary assets for investments”.
One
could object that, as compared with non-profit businesses, the USL has
no property autonomy and it is always under the authority of a public
body (State and Region) that guarantees that the constitutional text
is complied with. Even though granting autonomy to USLs, the Region
in particular takes on the role of a holding that, with respect to the
controlled company, takes the most important decisions concerning strategic
objectives, management appointment and revocation, budget control, funding
of 95% of current expense, authorization for taking out loans, assets
alienation, recruitment, and settlement of eventual deficit. With regard
to the relationship between the USL and credited private organizations,
these cannot be considered as additional with respect to the national
health service, but they join USLs to provide health services.
“However, public health authorities, which have not been set up to compete
with other companies, keep on bearing transparent costs (for example,
for personnel selection, contracts for supplying goods and services)
or are subject to obligations (for access to assets) that disadvantage
them with respect to competition”. The decree 502/92 has decidedly started
the privatisation process of the national health service but, assigning
an atypical economic character to USLs, has left numberless unsolved
issues, thus making it necessary to complete the reform with the aim
of eliminating the numerous contradictions that risk of altering the
autonomy established by law, making it ineffective.
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