YearXVI-Issue,09-2000

During this last period, with the recent Amato Government and the coming of Prof. Veronesi to the Ministry of Health, the need has been felt to introduce specific adjustments to the rules and regulations governing intramural freelance activity.The Minister of Health has constituted a special working party having the specific assignment of investigating and correcting the application difficulties concerning the so-called freelance activity pursued "intramurally".

The ministerial Group has produced the legislative decree no. 254, containing "Corrective and supplementary regulations to complete the legislative decree 19 June 1999 no. 229, for the strengthening of the facilities required for the performance of health executives' freelance activity".

In its final version, the legislative decree no. 254/2000 gives due consideration to the remarks made by Parliament and by the Regional administrations, as regards the crediting of military facilities, which the so-called "civilian users" may now also take advantage of, as well as to the requests relating to the acknowledgment of the seniority of personnel operating within the National Health Service, such as outpatients' department specialists and first-aid station personnel, emergency staff and personnel from other services possibly interested in shifting towards a subordinate employment contract.

The hard-fought course faced by the measure has however produced "prominent victims", which means missed opportunities of codification, with the failure to grant requests coming from the Senate.

The measure has finally reconfirmed, from a normative point of view, the broadly criticised will to cause the postponement of the decision to bring forward the retirement of medical staff operating within the National Health Service to 65 years of age, by putting off the whole issue until the outcome of the activity of a specially constituted working party is available.

Article 1 of the legislative decree introduces the measures relating to the facilities required for freelance activity, as well as specific regulations governing the denomination of executives and the establishment of an observatory of intramural activity.

One of the main reasons for the difficulties in starting the new system has been, first of all, the lack of buildings for freelance activity. The regulation in question entrusts the Regional administrations with the task of finalising, by 31 December 2000, a programme for the accomplishment of health facilities for freelance activity pursued intramurally.

Furthermore, the regulation in question complies with the requirement of re-defining the denomination of health executives, with the main purpose of facilitating the identification by citizen users of the various levels of responsibility within the medical staff in charge of safeguarding their health.

Depending on their specific professional category, field of activity and organisation, medical executives are given the following denominations: a) director, for complex organisations; b) person in charge, for simple organisations.

This normative measure has therefore simplified the denomination of executives in the face of the complex indications provided in this regard by the ministerial Group.

Article 1 of the legislative decree 254/2000 also provides for the constitution of a body for continuous monitoring of freelance activity, to be arranged by 10 October 2000, by means of a decree of the Minister of Health in agreement with the permanent Committee for the relations among State, regional and self-governing province administrations. The monitoring body, denominated Observatory, is meant to obtain, by means of the regional administrations, the necessary evaluation factors and hence prepare, in conjunction with the same organisations, the reports to be forwarded to Parliament on an annual basis. The measure 254/2000 tackles, in the subsequent regulation (art. 2), the problem arising from the lack of personnel to be employed, even in an exclusive or prevailing way, for freelance activity.

This article, whilst confirming the priority to be given to resorting to subordinate National Health Service employees to satisfy the requirements related to the performance of freelance activity, also allows the resort to extra-National Health Service staff, based on certain modalities.

The financial charges for the employment of extra-National Health Service staff are for the exclusive account of the administration receiving the proceeds of the same intramural activity, and the staff employed on a temporary appointment, or on a professional relationship basis, is subject to an exclusive relationship, save in the case of an explicit exception made by the health firm, in the event that the appointment exceeds the six-month period but is in any case temporary. The exception may only be granted once, also in the event of a new relationship with another health firm.The provision relating to the formation of private contracts for freelance activity backup staff also appears to be vitiated by excessive delegation. In fact, in regulating this aspect, the spirit of the Government delegated law no. 419 of 30 November 1998 has not been obeyed, and therefore there has been an open violation of art. 76 of the Constitution, whereby the exertion of the legislative function cannot be delegated to the executive body unless the governing principles and criteria have been determined in advance, and can be exerted for a limited period of time and for well-defined purposes. In fact, the law 419/98 refers to other specific types of employment agreements, already provided for by the decree 229/99:

- Temporary contracts for executive assignments, in other than medical profiles, for non-retired subjects who have a university degree and other specific requirements;

- Temporary job-training contracts with subjects who have a university degree or with subjects who do not have a university degree but do have other specific requirements, only for projects with a specific purpose and not replacing ordinary activity.

The regulation introduced with respect to intramural back-up staff, is also criticisable because of the farraginous economic and accounting obligations this regulation is subject to.

By this, we refer to the application risks and doubts related to the procedure to be adopted in compliance with the measures which provide for:

a) the charges arising from personnel employed according to the new modalities to be born by the separate administration managing the proceeds arising from the freelance activity;

b) the validity of the contracts to be "subject to invalidity in the event that the resources are not actually available at the time of their drawing up". Such a complex regulation is likely to generate, on one side, administrative inertia, and, on the other side, a strongly contentious attitude during the application stage, owing to the possible "gap" between the time when the separate accounting capacity is established and that in which the contracts are made. Article 3 of the law regulates the subject of private surgeries.

For professional freelance activity and only for outpatients' treatment, it will be possible to make use of one's own surgery until 31 July 2003.

The health firm has the right to forbid the use of the surgery only in the case in which a clash of interests is established, whereas the regional bodies are granted the possibility of adopting in this field a different and more restrictive regulation, depending on local requirements.

As regards the crediting of private surgeries, to be used for intramural purposes, we feel we ought to point out that it would have been advisable to plan for a duration extending beyond the three year period provided for by the law, in the event that, by 31 July 2003, the health firm has not completed the internal facilities specifically designed for this intramural activity. Article 4 of the "Third-Reform" decrees the possibility of carrying out a consultation activity, outside ordinary working hours, only for the cases that the health firm itself identifies and regulates. This type of services may be provided directly by the selected executive to the beneficiary:

a) in the event of a request contemplating special medical services;

b) in the event of occasional or exceptional services, or of pre-existing fiduciary relations between the medical executive and the beneficiary requesting the service.

Article 5, also provides for the extraordinary involvement of collegiate bodies, of the management college and of the department committee, even without the applicable regional resolution.

The above-mentioned bodies will act according to the makeup and modalities set by the individual health firms, provided that for the management college the presence of the members by right is guaranteed. With article 6, the legislative decree in question provides for alterations to the provisions in force as regards the management of staff operating within the National Health Service.

First of all, the adjustment addresses trade-union representativity evaluation modalities for medical staff operating with the National Health Service, taking as the basic and only evaluation factor the associative solidity (that is of the delegation for the collection of the trade union subscriptions).

This regulation was probably introduced to overcome the remarks made by the Council of State which had, on the other hand, pressed for the introduction of other parameters, based on the provisions of the former general medicine convention and of the legislative decree 29/93 concerning government employees, but above all as a result of the administrative legislation arising on the subject, which has on several occasions detected "the unlawfulness of exclusively referring to the delegation criterion".

The normative intervention with respect to trade unions also appears to be vitiated by excessive delegation, owing to the non-provision for the intervention itself within the original delegation, so much so that the legislative activity of the Government is regarded as unlawful, since - as reiterated - this should not involve the revision of subject matters for which it has not received an assignment by law.Article 6 defines the criteria regulating access to the general medicine convention. It establishes for general medicine access to the functions based on parameters established within the regional agreements, so as to grant access to the physicians who have the certificate or diploma referred to in art. 21 of the legislative decree 368/99 or equivalent qualification; it provides for the wise requirement that the annual classification should highlight the names of the aspiring physicians who possess a certificate or a diploma, so as to set aside for them a prevailing percentage of posts to cover the shortage areas, whilst awarding an adequate number of points to take into account the specific commitment required to achieve the certificate. The measure also requires complete regulations for the participation of physicians in cooperative enterprises; this is aimed at avoiding possible clashes of interest.The regulations also acknowledge the requirements emerging from the State-Region Conference, that is the need to remit to an action of address and coordination the identification of the criteria relating to the evaluation of the past activity of outpatients' specialists to be assigned to the management of the National Health Service, both for seniority calculation and for social security purposes. It then remits to a decree by the Minister of Health the establishment of a Committee, made up of representatives of the Ministers of Health, of the Treasury, of the Budget and Economic Planning, of Labour and Social Security, as well as by regional representatives, the task of identifying the modalities which may ensure age limit extension in favour of the staff operating within the National Health Service.The effect of the related measure contained in the legislative decree 229/99 is suspended until the Committee has implemented its resolutions.

The regulation of the access modalities to the general practitioner functions is one of the most contested and disputed aspects of the text of the third Adjustment in the health field. The most debated point relates to the establishment of the compliance of the adopted regulations with the related EU directives as regards free circulation of medical staff and the acknowledgement of their educational qualifications. The legislative decision to favour prevalence of posts for access to general medicine to be reserved to medical doctors with a training certificate rather than to those who have an equivalent qualification appears to clash with the contents of the European Community measures, which, on the other hand, "include provisions aimed at acknowledging the qualification as specialist as well as the training qualifications irrespective of the material equivalence of the training the diplomas refer to".

Article 7 deals with the contractual agreements between military health facilities and the National Health Service.

A decree issued by the Minister of Health, in agreement with the Minister of Defence, establishes the beneficiary categories and the type of services to be supplied by the military health facilities.

On the other hand, a decree issued by the Minister of Health and by the Minister of Defence, in agreement with the permanent Committee for the relations among State, regional and self-governing province administrations, identifies, in compliance with the indications and programming tools coming from the regional administrations, the creditable military health facilities, as well as the type of services supplied by such facilities which may be the subject of contractual agreements.

The agreements are drawn up by the military health facilities in question and by the Regional administrations in full compliance with their autonomy.

The normative mechanism relating to the contractual agreements with the military health facilities and the National Health Service mirrors in fact the legislative mechanism introduced with the legislative provisions covering the relations between the National Health Service and Universities.

Furthermore, the system introduced, which is also not covered by the provisions of the delegated law 419/98, must come to terms with a set of rules which, as from 1926, govern military health, whose reorganisation certainly represents a laborious task in view of the understandable difficulties involved in regulating such a particular subject.

Such difficulties are quite obvious; suffice it to think of the endless number of draft bills which have been lying in a drawer of the Senate Defence Committee since 1997, with no follow-up at all.

Finally, the last provision of the legislative decree 254/200 introduces some amendments and integrations aimed at bridging the gaps of the 229/99 regulation, as well as overcoming the difficulties which have surfaced during the implementation of the legislative decree 502/92, as subsequently amended, with respect to the management of medical executives, of other health professions as well as of the other professional assignments and facility management.

The adoption of the illustrated legislative decree represents further evidence of the confirmed bad habit that our legislator has, of codifying "too much, intermittently and badly" in health matters, so much so that it has produced to date, "the Reform of the reform of the Reforms".

We hope that for a reasonably long time no further reforms are produced, but that we finally manage to apply existing regulations properly and "consistently".

(traduzione Interpres sas-Giussano)