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On payment for healthcare services with the funds of compulsory health insurance in view of the level of the hospital

Case No. 18/2010

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF THE PROGRAMME FOR THE THIRD STAGE OF THE RESTRUCTURING OF THE HEALTHCARE ESTABLISHMENTS AND SERVICES AS APPROVED BY THE RESOLUTION (NO. 1654) OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA “ON THE APPROVAL OF THE PROGRAMME FOR THE THIRD STAGE OF THE RESTRUCTURING OF THE HEALTHCARE ESTABLISHMENTS” OF 7 DECEMBER 2009 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND WITH THE LAWS

 6 November 2013

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas

The court reporter—Daiva Pitrėnaitė

Janina Kumpienė, an adviser to the Minister of Health of the Republic of Lithuania, Jolanta Iždonienė, Director of the Health Economics Department of the Ministry of Health of the Republic of Lithuania, Nerija Stasiulienė, Director of the Legal Department of the same ministry, Danguolė Milkevičiūtė, a chief specialist of the Representation and Law Application Division of the said department discharging the functions of the head of the same division on a temporary basis, and Donatas Parulis, a chief specialist of the same department, acting as the representatives of the Government of the Republic of Lithuania, the party concerned

The Constitution of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 14 October 2013, heard constitutional justice case No. 18/2010 subsequent to the petition (No. 1B-20/2010) of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether:

– the Resolution (No. 1654) of the Government of the Republic of Lithuania “On the Approval of the Programme for the Third Stage of the Restructuring of the Healthcare Establishments” of 7 December 2009, in view of the extent of its regulation and the content of its norms, as well as in view of the procedure of its entry into force, is not in conflict with Paragraph 2 of Article 5, Article 19, Paragraph 4 of Article 46, and Item 2 of Article 94 of the Constitution of the Republic of Lithuania, with the constitutional principles of a state under the rule of law, the equality of persons, and fair competition, with Article 3 (wording of 16 April 2002) and Item 2 (wording of 14 June 2007) of Article 22 of the Law on the Government of the Republic of Lithuania, Paragraph 1 of Article 26 of the Republic of Lithuania’s Law on Health Insurance (wording of 3 December 2002), Paragraph 2 of Article 4 (wording of 9 April 2009) of the Republic of Lithuania’s Law on Competition, and with Item 2 of Article 6 (wording of 1 December 1998) and Item 2 (wording of 24 May 2007) of Paragraph 1 of Article 15 of the Republic of Lithuania’s Law on the Health System;

– the Resolution (No. 1654) of the Government of the Republic of Lithuania “On the Approval of the Programme for the Third Stage of the Restructuring of the Healthcare Establishments” of 7 December 2009, in view of the procedure of its adoption, is not in conflict with Paragraph 2 of Article 5 and Item 2 of Article 94 of the Constitution of the Republic of Lithuania, with the constitutional principle of a state under the rule of law, and with Paragraph 1 (wording of 14 June 2007) of Article 40 of the Law on the Government of the Republic of Lithuania.

The Constitutional Court

has established:

I

The petition of the group of members of the Seimas, the petitioner, is substantiated by the following arguments.

  1. The Programme for the Third Stage of the Restructuring of the Healthcare Establishments (hereinafter also referred to as the Restructuring Programme) as approved by the Government Resolution (No. 1654) “On the Approval of the Programme for the Third Stage of the Restructuring of the Healthcare Establishments” of 7 December 2009 (hereinafter also referred to as government resolution No. 1654 of 7 December 2009) categorises healthcare establishments as belonging to 3 levels—district, regional, and republic. Due to such new categorisation of healthcare establishments, some healthcare establishments categorised as belonging to the district level do not have the right to render the healthcare services provided for in Items 18, 20, and 21 of the Restructuring Programme.
  2. Item 55 of Measure VI of the Third Part of the Programme of the Fifteenth Government of the Republic of Lithuania, which had been approved by the Resolution (No. XI-52) of the Seimas of the Republic of Lithuania “On the Programme of the Government of the Republic of Lithuania” of 9 December 2008 (hereinafter referred to as the Programme of the Government) established the Government’s obligation to draft a strategic plan for the further development of the health system in 2008–2012 and submit it to the Seimas for approval, however, the Restructuring Programme, which decides the essential issues of the development of health system, was adopted and came into force without submitting the aforesaid strategic plan to the Seimas for approval; Article 3 and Item 2 of Article 22 of the Law on the Government, which obligate the Government to observe its own programme and to implement it, were thus violated.
  3. The Measures to Implement the 2008–2012 Programme of the Government of the Republic of Lithuania (hereinafter referred to as the Measures to Implement the Programme of the Government) as approved by the Government Resolution (No. 189) “On the Approval of the Measures to Implement the 2008–2012 Programme of the Government of the Republic of Lithuania” of 25 February 2009 provided that the Programme for the Third Stage of the Restructuring of the Healthcare Establishments would be drafted in the third quarter of 2010. Thus, while planning their activities for 2009–2010, all healthcare establishments could reasonably expect that the legal regulation governing their status would not be amended by the end of the second quarter of 2010 and that the Strategy for the Restructuring of the Healthcare Establishments as approved by government resolution No. 335 of 18 March 2003 would be followed; due to the changes in the legal regulation that had been determined by the adoption of the Restructuring Programme and its entry into force, the constitutional principle of a state under the rule of law (legitimate expectations of the healthcare establishments) was violated.
  4. After the healthcare establishments had been categorised as belonging to three levels, whereas according to the criteria established in the Restructuring Programme, the district hospitals had subsequently been categorised as belonging to three groups, some of those hospitals experienced discrimination—they had been deprived of the right to receive payment for certain healthcare services from the funds of the budget of the Compulsory Health Insurance Fund. Due to the regulation established in the Restructuring Programme, different competition conditions could arise among the healthcare establishments on the district level—those establishments whose services of reanimation, surgery, obstetrics, and gynaecology will no longer be paid with the funds of the budget of the Compulsory Health Insurance Fund, will have to leave their market share to be taken by other healthcare establishments. Such limitation of competition is not provided for in any law. Due to this fact the legal regulation established in the Restructuring Programme violates Paragraph 4 of Article 46 of the Constitution and Paragraph 2 of Article 4 of the Law on Competition.
  5. Paragraph 1 of Article 26 of the Law on Health Insurance provides that the payment of the personal healthcare costs of the insured shall be based on the contract between the territorial health insurance funds and healthcare establishments. This law does not provide for any limitation for healthcare establishments that have licences for concrete healthcare activity on the conclusion of contracts with territorial health insurance funds on the rendering of such services; the Restructuring Programme has established such additional limitation—some healthcare establishments, even though possessing both licences for corresponding activities and respective valid contracts with territorial health insurance funds, have lost their right to receive payment for certain healthcare services from the funds of the budget of the Compulsory Health Insurance Fund. Thus, the regulation established in the Restructuring Programme is in conflict with Paragraph 1 of Article 26 of the Law on Health Insurance.
  6. After the restructuring of the healthcare services, the access to certain healthcare services (reanimation, surgery, obstetrics, and gynaecology) will be limited in an artificial fashion for residents of certain districts’ municipalities; due to this fact, Item 2 if Article 6 and Item 2 of Paragraph 1 of Article 15 of the Law on the Health System might be violated.

In addition, most of the persons covered by compulsory health insurance reasonably expected that they would have an access at district-level hospitals to the healthcare services paid with the funds of the budget of the Compulsory Health Insurance Fund at least by the end of the term established in the measures for the implementation of the Programme of the Government, i.e. by the end of the second quarter of 2010, therefore, the legitimate expectations of the persons covered by compulsory health insurance have been violated.

  1. It is impossible to relate reanimation services II with only the second-level inpatient surgical and obstetrics services—reanimation services II are also needed in the cases of acute dysfunctions of bodily systems caused by sudden illnesses or accidents, where, in case of failure to render reanimation services II, the state of a patient might deteriorate or there could even be a threat to his or her life. Therefore, there are doubts as to whether the regulation established in the Restructuring Programme is not in conflict with Article 19 of the Constitution.
  2. In the course of the consideration and adoption of the draft government resolution, there had not been any assessment of a predictable impact that might be created by the relevant legal regulation, whereas such an assessment is compulsory according to Paragraph 1 of Article 40 of the Law on the Government and Item 11 of the Work Regulations of the Government, in addition, there had not been any note of the assessment of a predictable impact that might be created by the relevant legal regulation as required by the law-making rules approved by government resolution. Thus, Paragraph 2 of Article 5 and Item 2 of Article 94 of the Constitution and the constitutional principle of a state under the rule of law were also violated.

Due to the fact that the Restructuring Programme exerts big influence on the economic and social life of the state, an extended assessment of its predictable impact should also have been made subsequent to the Government Resolution (No. 276) “On the Approval and Implementation of the Methods of a Predictable Impact That Might Be Created by Relevant Draft Decisions” of 26 February 2003.

II

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from J. Iždonienė, Director of the Health Economics Department of the Ministry of Health of the Republic of Lithuania, N. Stasiulienė, Director of the Legal Department of the same ministry, D. Milkevičiūtė, a chief specialist of the Representation and Law Application Division of the said department, acting as representatives of the Government, the party concerned, in which it is maintained that the legal regulation impugned in the case at issue is not in conflict with the Constitution and the laws. The position of the representatives of the party concerned is substantiated by the following arguments.

  1. The Restructuring Programme was adopted in the course of the implementation of the Programme of the Government (according to Item 1290 of the measures of its implementation). The measure—the Government’s obligation to draft a strategic plan for the further development of the health system in 2008–2012 and submit it to the Seimas for approval—contained in the Programme of the Government that is mentioned by the petitioner is a separate measure of the implementation of the Programme of the Government; the implementation of a separate measure of the Programme of the Government should not be regarded as relevant for the implementation of other measures of the same programme.
  2. Under Paragraph 2 of Article 4 of the Law on Competition, it is not allowed to create any differences in the conditions of competition for economic entities competing in a relevant market except where the difference in the conditions of competition may not be avoided when meeting the requirements of the laws of the Republic of Lithuania; in this sense, the laws are enforced by means of the provisions of the Restructuring Programme.

The budget resources allocated for the funding of healthcare services are limited, therefore, the amount of healthcare services must be subject to limitation; in case the amount of the services that could be provided is not subject to limitation, the budget of the Compulsory Health Insurance Fund that is approved by law might be exceeded.

  1. Paragraph 1 of Article 26 of the Law on Health Insurance is only one of the norms that regulates the conditions of the payment for healthcare services with the funds of the budget of the Compulsory Health Insurance Fund.

In Lithuania, as well as in many other European countries, the institutions that implement compulsory health insurance apply the concluding of selective contracts; it means that the contracts are only concluded for the services that are in line with the provisions of the development of healthcare services and the priority lines. The Restructuring Programme provides for the concluding of namely such selective contracts.

The healthcare establishments that render services in the amount that is less than that provided for in the Restructuring Programme do not ensure the safety of such services, since their staff does not gain sufficient professional and clinical experience and their infrastructure is not used efficiently enough. In addition, the healthcare establishments that no longer, or will no longer, render concrete healthcare services (surgery, obstetrics) were allocated the additional funds in order to compensate the services rendered at reception and urgent aid departments.

  1. The Restructuring Programme established one of the main criteria of the restructuring of healthcare services—the geographical distance to the nearest hospital; the access to the services is also ensured by proper transportation of patients.
  2. The healthcare establishments that no longer render reanimation services II will render the services of reanimation and intensive therapy, i.e. reanimation services I-2 and reanimation services I-1. District-level healthcare establishments, which do not render inpatient surgery and orthopaedics, can render much more required services of urgent surgery and planned surgery under conditions of one-day surgery, as well as the reception and urgent aid.
  3. Before submitting a draft Restructuring Programme, a note of the assessment of a predictable impact that might be created by the relevant legal regulation had been prepared, and, in addition, the draft Restructuring Programme had been prepared in the light of the review of Lithuania’s social sectors public expenditure prepared for the Republic of Lithuania by the World Bank Group, which might be regarded as an extended assessment of a predictable impact that might be created by the relevant legal regulation.

III

In the course of the preparation of the case for the judicial consideration, the Letter (No. (1.1.20-283)10-7484) of Republic of Lithuania’s Health Minister V. P. Andriukaitis “On Provision of Information” of 10 September 2013 was received, which contained the reports of an analysis of the results of the implementation of the Programme for the Third Stage of the Restructuring of the Healthcare Establishments.

IV

At the Constitutional Court’s hearing, J. Kumpienė, an adviser to the Minister of Health, J. Iždonienė, Director of the Health Economics Department of the Ministry of Health of the Republic of Lithuania, N. Stasiulienė, Director of the Legal Department of the same ministry, D. Milkevičiūtė, a chief specialist of the Representation and Law Application Division of the said department who discharges the functions of the head of the same division on a temporary basis, and D. Parulis, a chief specialist of the same department, acting as the representatives of the Government, the party concerned, virtually reiterated the arguments set forth in the written explanations of J. Iždonienė, N. Stasiulienė, D. Milkevičiūtė—representatives of the Government—and answered the questions of the justices of the Constitutional Court.

The Constitutional Court

holds that:

I

  1. The petitioner requests an investigation into whether the Government Resolution (No. 1654) “On the Approval of the Programme for the Third Stage of the Restructuring of the Healthcare Establishments” of 7 December 2009, in view of the extent of its regulation and the content of its norms, as well as in view of the procedure of its entry into force, is not in conflict with Paragraph 2 of Article 5, Article 19, Paragraph 4 of Article 46, and Item 2 of Article 94 of the Constitution, with the constitutional principles of a state under the rule of law, the equality of persons, and fair competition, with Article 3 (wording of 16 April 2002) and Item 2 (wording of 14 June 2007) of Article 22 of the Law on the Government, Paragraph 1 of Article 26 of the Law on Health Insurance (wording of 3 December 2002), and with Paragraph 2 of Article 4 (wording of 9 April 2009) of the Law on Competition, Item 2 of Article 6 (wording of 1 December 1998) and Item 2 (wording of 24 May 2007) of Paragraph 1 of Article 15 of the Law on the Health System, and whether the Government Resolution (No. 1654) “On the Approval of the Programme for the Third Stage of the Restructuring of the Healthcare Establishments” of 7 December 2009, in view of the procedure of its adoption, is not in conflict with Paragraph 2 of Article 5 and Item 2 of Article 94 of the Constitution, with the constitutional principle of a state under the rule of law, and with Paragraph 1 of Article 40 of the Law on the Government (wording of 14 June 2007).

1.1. Although the petitioner requests an investigation into the compliance of government resolution No. 1654 of 7 December 2009, in view of the content of its norms and the extent of its regulation, with Article 3 (wording of 16 April 2002) and Item 2 (wording of 14 June 2007) of Article 22 of the Law on the Government, its petition makes it is clear that it impugns the compliance of this government resolution, in view of the procedure of its adoption and entry into force, with the said provisions of the Law on the Government.

1.2. Although the petitioner requests an investigation into the compliance of government resolution No. 1654 of 7 December 2009, in view of the procedure of its entry into force, with Article 19 and Paragraph 4 of Article 46 of the Constitution, with Paragraph 1 of Article 26 of the Law on Health Insurance (wording of 3 December 2002), Paragraph 2 of Article 4 (wording of 9 April 2009) of the Law on Competition, Item 2 of Article 6 (wording of 1 December 1998) and Item 2 (wording of 24 May 2007) of Paragraph 1 of Article 15 of the Law on the Health System, its petition makes it is clear that the petitioner impugns the compliance of this government resolution, in view of the content of its norms and the extent of its regulation, with the said provisions of the Constitution and of the laws.

1.3. Thus, the petitioner requests an investigation into whether:

– government resolution No. 1654 of 7 December 2009, in view of the content of its norms and the extent of its regulation, is not in conflict with Paragraph 2 of Article 5, Article 19, Paragraph 4 of Article 46 and Item 2 of Article 94 of the Constitution, with the constitutional principles of a state under the rule of law, the equality of persons, and fair competition, and with Paragraph 1 of Article 26 of the Law on Health Insurance (wording of 3 December 2002), Paragraph 2 of Article 4 (wording of 9 April 2009) of the Law on Competition, and Item 2 of Article 6 (wording of 1 December 1998) and Item 2 (wording of 24 May 2007) of Paragraph 1 of Article 15 of the Law on the Health System;

– government resolution No. 1654 of 7 December 2009, in view of the procedure of its adoption and entry into force, is not in conflict with Paragraph 2 of Article 5 and Item 2 of Article 94 of the Constitution, with the constitutional principle of a state under the rule of law, and with Article 3 (wording of 16 April 2002), Item 2 (wording of 14 June 2007) of Article 22, and Paragraph 1 of Article 40 (wording of 14 June 2007) of the Law on the Government.

  1. The petitioner requests an investigation into the compliance of government resolution No. 1654 of 7 December 2009, inter alia, in view of the extent of its norms and the extent of its regulation, with the Constitution and the laws. Although the petitioner requests an investigation, from this aspect, into the compliance of government resolution No. 1654 of 7 December 2009 with the Constitution and the laws, however, it is clear from the arguments of the petition that the petitioner impugns the compliance of the Restructuring Programme as approved by the said government resolution with the Constitution and the laws.
  2. It should be noted that, in the operative part of its petition, the petitioner did not point out any concrete provisions of the Restructuring Programme whose compliance, in view of the content of its norms and the extent of its regulation, with the Constitution and the laws it impugns.

The restructuring programme includes state and municipal inpatient personal healthcare establishments (save the maintenance treatment and care inpatient establishments) and the services rendered by them (Item 5); the restructuring of healthcare services is one of constituent parts of this programme (Item 2.2). The most important purpose of this programme is to render safe, good quality and accessible healthcare services for residents and to use the funds allocated for healthcare in an effective manner (Item 6), whereas the most important tasks of this programme are, inter alia, the formation of a more rational structure of the services rendered by healthcare establishments, where the purpose of such a structure would be the ensuring of safe and good quality services (Item 8.2), the strengthening of the infrastructure of district-level hospitals designated for treatment of widely spread and simple illnesses, where the technology of diagnostics and treatment of complex illnesses would be concentrated at region-level and republic-level hospitals (Item 8.3).

3.1. The petitioner’s doubts about the compliance of the provisions of the Restructuring Programme with Item 2 of Article 6 and Item 2 of Paragraph 1 of Article 15 of the Law on the Health System (wording of 1 December 1998) are substantiated by the fact that, after the restructuring of the healthcare services, the access to certain healthcare services (reanimation, surgery, obstetrics, and gynaecology) will be limited in an artificial fashion for residents of certain districts’ municipalities.

Item 2 (wording of 24 May 2007) of Paragraph 1 of Article 15 “Mandatory Conditions of Health Activities” of the Law on the Health System provides that, inter alia, the accessibility of the healthcare of persons and society is a mandatory condition of health activities. Paragraph 10 of Article 2 “Definitions as Used in This Law” of the Law on the Health System provides, inter alia, that “accessibility of healthcare” means the conditions of healthcare recognised according to the procedure established by the state, which ensure economic, communicative and organisational acceptability of healthcare services to persons and society.

It should be noted that the petitioner, when asserting that the access to certain healthcare services (reanimation, surgery, obstetrics, and gynaecology) was limited in an artificial fashion for residents of certain districts’ municipalities, did not present any arguments substantiating the actual limitation on the economic, communicational and/or organisational accessibility of the services of reanimation, surgery, obstetrics, and gynaecology.

3.2. The petitioner’s petition requesting an investigation into the compliance of the Restructuring Programme with Article 19 of the Constitution is substantiated by the fact that it is impossible to relate reanimation services II with only the second-level inpatient surgical and obstetrics services—reanimation services II are also needed in the cases of acute dysfunctions of bodily systems caused by sudden illnesses or accidents, where, in case of failure to render reanimation services II, the state of a patient might deteriorate or there could even be a threat to his or her life.

The written explanations of the representatives of the Government, the party concerned, assert that the healthcare establishments that no longer render reanimation services II will render the services of reanimation and intensive therapy, i.e. reanimation services I-2 and reanimation services I-1.

The petitioner did not present any concrete arguments explaining why and how the right of patients to life could be violated in case of the limitation on the rendering of reanimation services II and why reanimation services I-2 and reanimation services I-1 rendered instead of reanimation services II were insufficient.

3.3. The petitioner’s petition requesting an investigation into the compliance of the provisions of the Restructuring Programme with Paragraph 4 of Article 46 of the Constitution, with the constitutional principles of fair competition and the equality of persons, and with Paragraph 2 of Article 4 (wording of 9 April 2009) of the Law on Competition that provides, inter alia, that entities of public administration shall be prohibited from adopting legal acts or other decisions which grant privileges to or discriminate against any individual undertakings or their groups and which give rise to or may give rise to differences in the conditions of competition for undertakings competing in the relevant market, except where the difference in the conditions of competition cannot be avoided when the requirements of the laws of the Republic of Lithuania are complied with, is substantiated by the fact that, after district hospitals had been categorised as belonging to three groups subsequent to the criteria established in the Restructuring Programme, some of the hospitals experienced discrimination—they had been deprived of the right to receive the payment for certain healthcare services from the funds of the budget of the Compulsory Health Insurance Fund, due to which different conditions of the competition among healthcare establishments of different levels might occur.

It should be noted that the petitioner has not substantiated nor explained these statements of general character in any manner. In view of the fact that the Restructuring Programme encompasses state and municipal inpatient personal healthcare establishments as well as the services rendered by them, it is unclear whether the petitioner discerns discrimination, or whether it perceives possible different conditions for competition within the network of state and municipal healthcare establishments or between those establishments and other (private) healthcare establishments.

  1. When impugning the compliance of the provisions of the Restructuring Programme, in view of the content of its norms and the extent of its regulation, with Paragraph 2 of Article 5 and Item 2 of Article 94 of the Constitution, with the constitutional principle of a state under the rule of law, and with Paragraph 1 of Article 26 of the Law on Health Insurance (wording of 3 December 2002), the petitioner asserts that the legal regulation of the Restructuring Programme, subsequent to which district hospitals were categorised as belonging to three groups, discriminates a certain part of such hospitals, because they lost the right to receive the payment for certain services from the funds of the budget of the Compulsory Health Insurance Fund. Some healthcare establishments, even though possessing both licences for corresponding activities and respective valid contracts with territorial health insurance funds have lost their right to receive payment for certain rendered services from the funds of the budget of the Compulsory Health Insurance Fund. It is clear from these arguments of the petitioner that it doubts about the compliance of Item 29 of the Restructuring Programme that establishes that, as from 1 April 2010, the personal healthcare services shall be paid for with the funds of the budget of the Compulsory Health Insurance Fund, where the services are related to the fact that healthcare establishments are categorised as belonging to certain levels, with the Constitution and the laws.

Thus, the petitioner’s petition requesting an investigation into the compliance of the Restructuring Programme, in view of the content of its norms and the extent of its regulation, with the Constitution, should be treated as the petition requesting an investigation into the compliance of Item 29 of the said programme with the Constitution and the laws.

  1. Taking account of the arguments set forth, in the constitutional justice case at issue the Constitutional Court will investigate whether:

– government resolution No. 1654 of 7 December 2009, in view of the procedure of its adoption and entry into force, is not in conflict with Paragraph 2 of Article 5 and Item 2 of Article 94 of the Constitution, with the constitutional principle of a state under the rule of law, and with Article 3 (wording of 16 April 2002), Item 2 (wording of 14 June 2007) of Article 22, and Paragraph 1 of Article 40 (wording of 14 June 2007) of the Law on the Government;

– Item 29 of the Restructuring Programme is not in conflict with Paragraph 2 of Article 5 and Item 2 of Article 94 of the Constitution, with the constitutional principle of a state under the rule of law, and with Paragraph 1 of Article 26 of the Law on Health Insurance (wording of 3 December 2002).

II

  1. On 7 December 2009, the Government adopted resolution No. 1654 that came into force on 20 December 2009. The said resolution prescribed:

“In order to implement the Programme of the Government of the Republic of Lithuania that was approved by the Resolution (No. XI-52) of the Seimas of the Republic of Lithuania of 9 December 2008 (Official Gazette Valstybės žinios, 2008, No. 146-5870), and measure 1290 (“to prepare a programme for the third stage of the restructuring of the healthcare establishments”) of the Measures to Implement the 2008–2012 Programme of the Government of the Republic of Lithuania as approved by the Resolution (No. 189) of the Government of the Republic of Lithuania “On the Approval of the Measures to Implement the 2008–2012 Programme of the Government of the Republic of Lithuania” of 25 February 2009 (Official Gazette Valstybės žinios, 2009, No. 33-1268), the Government of the Republic of Lithuania resolves:

  1. To approve the Programme for the Third Stage of the Restructuring of the Healthcare Establishments (attached) <…>.”

Thus, the Restructuring Programme was approved through this government resolution; by means of this government resolution, the Programme of the Government and a concrete measure of its implementation are implemented.

  1. It has been mentioned that the petitioner, inter alia, requests an investigation into the compliance of government resolution No. 1654 of 7 December 2009, in view of the procedure of its adoption and entry into force, with the Constitution and the laws.

2.1. The petitioner’s doubt about the compliance of this government resolution with Article 3 (wording of 16 April 2002) of the Law on the Government, according to which, in its activity the Government, inter alia, invokes the Programme of the Government, and with Item 2 (wording of 14 June 2007) of Article 22 of the same law, which, inter alia, provides that the Government implements its programme, is substantiated by the fact that Item 55 of Measure VI of the Third Part of the Programme of the Government consolidated the Government’s obligation to draft a strategic plan for the further development of the health system in 2008–2012 and submit it to the Seimas for approval, however, the Restructuring Programme, which decides essential issues of the development of health system, was adopted and came into force without submitting the aforesaid strategic plan to the Seimas for approval.

2.1.1. On 9 December 2008, the Seimas adopted Resolution (No. XI-52) ““On the Programme of the Government of the Republic of Lithuania” by Article 1 whereof it approved the Programme of the Government of Republic of Lithuania that had been submitted by Prime Minister Andrius Kubilius. Item 55 of Chapter VI “Health Reform: The Most Important Actions in 2009” of the Third Part of the Programme of the Government provided the following: “We shall draft a strategic plan for the further development of the health system in 2008–2012 and submit it to the Seimas for approval, where this plan will specify the concrete measures and terms of, and the persons responsible, for its implementation, as well as its continual monitoring and control.”

The material of the constitutional justice at issue makes it is clear that the strategic plan for the further development of the health system in 2008–2012 that was specified in Item 55 of the Programme of the Government of 2009 has never actually been submitted to the Seimas for approval, whereas the Restructuring Programme, as mentioned before, was approved through government resolution No. 1654 of 7 December 2009.

2.1.2. When disclosing the constitutional concept of the programme of the Government, the Constitutional Court has noted that the programme of the Government is a legal document wherein the main landmarks of state activities for a certain time period are set forth; this programme determines the actions of the institutions forming the Government and ensures the interaction between the Government and these institutions (the Constitutional Court’s rulings of 10 January 1998 and 15 February 2013). In its ruling of 10 January 1998, the Constitutional Court also held that the Seimas, by approving the programme of the Government, confers the powers to the Government to act; the constitutional norms regulating the activity of the Government, as well as those consolidating the principle of Government’s responsibility to the Seimas, are thus implemented; the basis of the programme of the Government is the programmes of the political parties which have won the elections, however, the provisions of these programmes acquire a legal meaning only through the programme of the Government and obligate both the Government and the majority of the Seimas supporting it to act respectively; attempting to gain the confidence of the Seimas, in foreseeing the directions of its activities for a certain time period, the Government must take into consideration the possible approval or non-approval by members of the Seimas Government; by expressing its confidence in the programme of the Government, the Seimas takes an obligation to supervise as to how the Government will be acting in implementing its own programme; the programme of the Government is the basis of political-legal responsibility of the Government to the Seimas because the Government is jointly and severally responsible to the Seimas for its general activities; the Seimas that has conferred the powers to the Government to act may express no-confidence in the Government or the Prime Minister; the consequence of the expression of no-confidence is the resignation of the Government.

The Constitutional Court has also held that the approval of the programme of the Government by the Seimas means that the Government is empowered to implement its programme provisions; the Seimas not only empowers the Government to act but also, conforming to Item 9 of Article 67 of the Constitution, supervises the activities of the Government; under Paragraph 1 of Article 101 of the Constitution, upon the request of the Seimas, the Government or individual ministers must give an account of their activities to the Seimas (the Constitutional Court’s ruling of 20 April 1999).

Thus, in the programme of the Government, non-normative programmatic provisions of the Government are consolidated and non-normative landmarks of state activities for a certain time period are set forth. The Seimas’ approval of the programme of the Government through which its confidence in the Government is expressed and the powers are granted to the Government so that it could implement the provisions of this programme may not be regarded as a normative commissioning of the Seimas that is binding on the Government. The Constitutional Court has stated that the Seimas may not give the Government any direct instructions of normative character otherwise than under the procedure of legislation (the Constitutional Court’s rulings of 19 January 1994 and 28 September 2011).

In the context of the constitutional justice case at issue it should be noted that, under the Constitution, the supervision of the implementation of the programme of the Government is not within the jurisdiction of the Constitutional Court and the compliance of government acts with any programmatic provisions consolidated in the programme of the Government is not a matter of constitutional review.

2.1.3. Consequently, in itself, the petitioner’s statement of a general character that the government resolution is not in line with the provisions of the Programme of the Government cannot serve as the grounds for impugning the compliance of such a resolution with legal acts of higher power, inter alia, with the Constitution. Therefore, this statement of the petitioner should not be regarded as a legal argument substantiating the petitioner’s doubt about the compliance of government resolution No. 1654 of 7 December 2009, in view of the procedure of its adoption and its entry into force, with Article 3 (wording of 16 April 2002) and Item 2 (wording of 14 June 2007) of Article 22 of the Law on the Government.

2.2. The petitioner’s doubt regarding the compliance of government resolution No. 1654 of 7 December 2009, in view of the procedure of its adoption and its entry into force, with Paragraph 1 (wording of 14 June 2007) of Article 40 of the Law on the Government, with Paragraph 2 of Article 5 and Item 2 of Article 94 of the Constitution, and with the constitutional principle of a state under the rule of law, is substantiated by the fact that, in the course of the adoption of the draft of the said government resolution, there had not been any assessment of a predictable impact that might be created by the relevant legal regulation, which, according to the petitioner, is compulsory according to Paragraph 1 of Article 40 of the Law on the Government and Item 11 of the Work Regulations of the Government. In addition, there had not been any note of the assessment of a predictable impact that might be created by the relevant legal regulation as required by the law-making rules approved by government resolution, nor had there been any extended assessment of its impact subsequent to the Government Resolution (No. 276) “On the Approval and Implementation of the Methods of a Predictable Impact That Might Be Created by Relevant Draft Decisions” of 26 February 2003.

2.2.1. Paragraph 1 (wording of 14 June 2007) of Article 40 of the Law on the Government prescribes: “Draft laws, draft government resolutions and other draft legal acts, draft conceptions of normative legal acts shall be prepared, co-ordinated and adopted, or draft laws or draft Seimas resolutions, shall be approved in the manner prescribed by the Work Regulations of the Government.”

According to the regulation established in Item 11 (wording of 30 September 2009) of the Work Regulations of the Government as approved by the Government Resolution (No. 728) “On the Approval of the Work Regulations of the Government of the Republic of Lithuania” of 11 August 1994, in the course of the drafting of government legal acts, the preparation of conclusions on draft government legal acts, the preparation of the conceptions on intended legal regulation, in assessing a predictable impact that might be created by the relevant legal regulation, publishing draft government legal acts, in the course of the public debates on draft government legal acts, in monitoring normative legal acts, one should invoke the law-making rules of the Government of the Republic of Lithuania.

According to the legal regulation established in Item 30 of the Government Law-making Rules as approved by Government Resolution No. 1244 “On the Approval of the Law-making Rules of the Government the Republic of Lithuania” of 30 September 2009, after an assessment of a predictable impact that might be created by the relevant legal regulation, a note of the assessment of a predictable impact that might be created by the relevant legal regulation shall be prepared.

On 26 February 2003, the Government adopted Resolution No. 276 “On the Approval and Implementation of the Methods of the Assessment of an Impact That Might Be Created by Relevant Draft Decisions” through which it approved the Methods of the Assessment of an Impact That Might Be Created by Relevant Draft Decisions. Item 2.2 of the said government resolution established that extended assessments of an impact that might be created by draft decisions shall be carried out as from 1 January 2004 only as regards the draft decisions whose further implementation might be very influential on the economic, social, and political life of the Republic of Lithuania and on the situation of a concrete area of social relations. According to Item 3 of the Methods of the Assessment of an Impact That Might Be Created by Relevant Draft Decisions, the basic assessment of an impact that might be created by relevant draft decisions is a stage of the process of the adoption of decisions during which the prognosis of a general character as regards possible consequences of the implementation of a draft decision is made and the reasons are provided whether it is expedient to carry out an extended assessment, whereas an extended assessment of an impact that might be created by draft decisions is a stage of the process of the adoption of decisions during which a comprehensive and exhaustive prognosis of any possible consequences that can occur after the implementation of a chosen decision is made.

2.2.2. It should be noted that the material of the constitutional justice case at issue makes it clear that, as regards the draft of the impugned government resolution, the note of the assessment of a predictable impact that might be created by the legal regulation provided for in the resolution had been drawn up. The said note pointed out, among other things, that it was not expedient to carry out an extended assessment of an impact that might be created by the said resolution, since the draft resolution had been prepared with consideration for the conclusions and proposals provided by the experts of the World Bank and other foreign experts, also, in view of the trends and results of health reforms in other Baltic and EU states. The Report (No. 48604-LT) “Lithuania Social Sectors Public Expenditure Review” prepared by the World Bank Group in 2009 and the draft of the impugned government resolution were submitted to the Government for consideration.

Thus, contrary to the statements of the petitioner, an assessment of a predictable impact that might be created by the legal regulation provided for in government resolution No. 1654 of 7 December 2009 had been made, whilst as regards an extended assessment, one had provided relevant reasons indicating that it was not expedient to make such an assessment. Consequently, the petitioner has not presented any such legal arguments that could substantiate its doubt about the compliance of the impugned resolution, in view of the procedure of its adoption and entry into force, with Paragraph 2 of Article 5 and Item 2 of Article 94 of the Constitution, with the constitutional principle of a state under the rule of law, and with Paragraph 1 (wording of 14 June 2007) of Article 40 of the Law on the Government.

2.3. The petitioner’s doubt about the compliance of government resolution No. 1654 of 7 December 2009, in view of the procedure of its adoption and entry into force, with the constitutional principle of a state under the rule of law is substantiated by the fact that this government resolution had been adopted and had come into force before than provided in the measures to implement the Programme of the Government (it was provided that the Restructuring Programme would be prepared in the third quarter of 2010), and that, while planning their activities for 2009–2010, all healthcare establishments could reasonably expect that the legal regulation governing their status would not be amended by the end of the second quarter of 2010 and that the Strategy for the Restructuring of the Healthcare Establishments as approved by government resolution No. 335 of 18 March 2003 would be followed.

2.3.1. On 18 March 2003, the Government adopted the Resolution (No. 335) “On the Approval of the Strategy for the Restructuring of the Healthcare Establishments” through which it approved the Strategy for the Restructuring of the Healthcare Establishments. Under Item 2 of this strategy, the Restructuring of the Healthcare Establishments must by accomplished in two stages: the first stage—in 2003–2005 (Item 2.1), whilst the second stage—in 2006–2008 (Item 2.2). Thus, the implementation of the said Strategy for the Restructuring of the Healthcare was over in 2008, whilst the government resolution (which is impugned by the petitioner) through which the Restructuring Programme was approved was adopted on 7 December 2009 and came into force on 20 December 2009.

2.3.2. On 25 February 2009, the Government adopted the Resolution (No. 189) “On the Approval of the Measures to Implement the 2008–2012 Programme of the Government of the Republic of Lithuania” by means of Item 1 whereof the Measures to Implement the 2008–2012 Programme of the Government of the Republic of Lithuania were approved.

Item 1290 of Table 3 “The Measures to Implement the 2008–2012 Programme of the Government of the Republic of Lithuania” provides for the date of the accomplishment of the measure to prepare the Restructuring Programme, which is the third quarter of 2010. Thus, the said measure had to be prepared no later than the specified date.

2.3.3. It has been mentioned that the Strategy for the Restructuring of the Healthcare Establishments, which was approved by government resolution No. 335 of 18 March 2003 and from which the petitioner derives the aforementioned legitimate expectations of healthcare establishments, had to be implemented in 2008. It has also been mentioned that, according to Item 1290 of the Measures to Implement the 2008–2012 Programme of the Government, the Restructuring Programme had to be prepared no later than in the third quarter of 2010.

Thus, the petitioner’s statement of a general character that, while planning their activities for 2009–2010, all healthcare establishments could reasonably expect that the legal regulation governing their status would not be amended by the end of the second quarter of 2010 and that the Strategy for the Restructuring of the Healthcare Establishments as approved by government resolution No. 335 of 18 March 2003 would be followed, should not be regarded as a legal argument substantiating the petitioner’s doubt about the compliance of government resolution No. 1654 of 7 December 2009, in view of the procedure of its adoption and entry into force, with the principle of protection of legitimate expectations that is an inseparable element of the constitutional principle of a state under the rule of law.

2.4. Under Item 5 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, the Constitutional Court, by its decision, refuses to consider petitions requesting an investigation into the compliance of a legal act with the Constitution if the petitions are grounded on non-legal reasoning.

Paragraph 3 of Article 69 of the Law on the Constitutional Court provides that, if the grounds for the refusal to consider a petition have been established after the commencement of the consideration of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

2.5. In the light of the foregoing arguments, the part of the case regarding the compliance of government resolution No. 1654 of 7 December 2009, in view of the procedure of its adoption and entry into force, with Paragraph 2 of Article 5 and Item 2 of Article 94 of the Constitution, with the constitutional principle of a state under the rule of law, and with Article 3 (wording of 16 April 2002), Item 2 (wording of 14 June 2007) of Article 22 and Paragraph 1 (wording of 14 June 2007) of Article 40 of the Law on the Government should be dismissed.

  1. In the constitutional justice case at issue, inter alia, the Constitutional Court investigates the compliance of Item 29 of the Restructuring Programme with the Constitution and the laws.

Government resolution No. 1654 of 7 December 2009 that came into force on 20 December 2009 and through which the Restructuring Programme was approved has been amended or supplemented on more than one occasion, however, the impugned legal regulation established in Item 29 of the Restructuring Programme has not changed.

Item 29 of the Restructuring Programme provides that, as from 1 April 2010, the personal healthcare services shall be paid for with the funds of the budget of the Compulsory Health Insurance Fund, where the services are related to the fact that healthcare establishments are categorised as belonging to certain levels.

  1. This legal regulation established in Item 29 of the Restructuring Programme should be construed in the context of the other provisions of the Restructuring Programme.

4.1. Item 16 of the Restructuring Programme provides that, pursuant to the criteria provided for in Items 14 and 15 of the Restructuring Programme, in view of the structure of the rendered services, healthcare establishments are categorised as belonging to 3 levels—district, regional, and republic:

– the establishments that do not meet both of the criteria—1,100 major operations and 300 births per year—shall be categorised as belonging to the district level;

– the establishments that meet both of the criteria—1,100 major operations and 300 births per year—shall be categorised as belonging to the regional level;

– the establishments that do not belong either to the district level or the regional level, shall be categorised as belonging to the republic level.

Item 14 of the Restructuring Programme establishes the following main criteria on the grounds of which the restructuring of healthcare services is provided for: the number of major operations performed per calendar year, the number of births per calendar year, and the geographical distance to the nearest hospital. Item 15 of the Restructuring Programme provides for additional criteria which are taken into account in the course of the restructuring of healthcare services.

4.2. Items 17–25 of the Restructuring Programme particularise concrete healthcare services that could be rendered at healthcare establishments of a respective level.

4.3. Thus, the Restructuring Programme establishes the main and additional criteria subsequent to which the healthcare services are being restructured at state and municipal inpatient personal healthcare establishments (save the maintenance treatment and care inpatient establishments). In addition, subsequent to those criteria, healthcare establishments have been categorised as belonging to three levels—district, regional, and republic—and concrete healthcare services have been specified which could be rendered by the healthcare establishment of a corresponding level.

  1. In order to construe the legal regulation established in Item 29 of the Restructuring Programme in conjunction with the one established in its Items 1425, it should be noted that, as from 1 April 2010, only those healthcare services are paid for with the funds of the budget of the Compulsory Health Insurance Fund whose rendering is allowed in the relevant establishment according to its level. It needs to be emphasised that, according to the provision of Item 29 of the Restructuring Programme, as from 1 April 2010, corresponding subjects are obligated to execute the payment for healthcare services from the funds of the budget of the Compulsory Health Insurance Fund on the grounds of the legal regulation established in the Restructuring Programme.
  2. As mentioned before, the petitioner’s doubt is virtually substantiated by the fact that, according to the impugned legal regulation, in the absence of the grounds provided for by law, some healthcare establishments, which were categorised as belonging to the district level and which possess both licences for corresponding activities and respective valid contracts with territorial health insurance funds, have lost their right to receive payment for certain healthcare services from the funds of the budget of the Compulsory Health Insurance Fund.
  3. The Constitutional Court has held that, having chosen the model of the funding of healthcare that is grounded, inter alia, on compulsory health insurance, the legislature must establish, among other things, the healthcare services funded from insurance funds and the principles of the distribution of these funds among healthcare establishments (the Constitutional Court’s ruling of 16 May 2013).
  4. Alongside, it needs to be noted that the requirement that the grounds for healthcare services’ funding be established by law is also consolidated in the Law on the Health System: Item 5 of Article 3 of this law (wording of 1 December 1998) provides, inter alia, that the grounds of health financing shall only be established by law.
  5. The legal regulation consolidated in Item 29 of the Restructuring Programme should be assessed in the context of the Law on the Health System and the Law on Health Insurance.

9.1. Under Paragraph 2 of Article 16 “The Right to Engage in Health Activities” of the Law on the Health System (wording of 1 December 1998), enterprises and establishments shall acquire the right to engage in healthcare activities only upon receiving the licences according to the procedure prescribed by the Government or the institution authorised by it; under Paragraph 4 of the same article, enterprises and establishments may be accredited for healthcare.

9.2. Paragraph 1 of Article 26 “Contracts between the Territorial Health Insurance Funds and Healthcare Institutions, and Contracts between Territorial Health Insurance Funds and Pharmacies” of the Law on Health Insurance (wording of 3 December 2002) provides, inter alia, that the expenses related to the healthcare of the insured shall be compensated on the basis on the contracts between the territorial health insurance funds and the healthcare establishments; the territorial health insurance funds shall conclude contracts with state, municipal and other personal healthcare institutions and pharmacies which possess the licence for healthcare or are accredited for these activities and express wish to conclude such contracts; all the insured persons shall have the right of access to such contracts.

9.3. In order to construe the legal regulation established in Paragraph 1 of Article 26 of the Law on Health Insurance (wording of 3 December 2002) in conjunction with the legal regulation established in Paragraphs 2 and 4 of Article 16 of the Law on the Health System (wording of 1 December 1998), it should be noted that, on the grounds of the contracts concluded between the healthcare establishments and the territorial health insurance funds, the funds of the budget of the Compulsory Insurance Fund pay for the healthcare services rendered by the said healthcare establishments that possess a licence for healthcare activities or are accredited for such an activity.

In this context it should be noted that, at the time of the adoption and entry into force of government resolution No. 1654 of 7 December 2009, the laws did not provide for any other grounds of the payment for healthcare services with funds of the budget of the Compulsory Health Insurance Fund.

9.4. Item 1 of Article 7 “The Structure of the National Health System of Lithuania” of the Law on the Health System (wording of 1 December 1998) provides that the National Health System of Lithuania (hereinafter referred to as the NHSL) shall consist, inter alia, of the executive bodies of the NHSL; Article 8 “The Executive Bodies of the NHSL” of the same law provides that the executive bodies of the NHSL shall be, inter alia, the state and municipal personal healthcare budgetary and public establishments possessing licences for healthcare.

Paragraphs 1 and 2 of Article 12 “The Levels of the Organisation of the NHSL Activities and Healthcare Levels” of the Law on the Health System (wording of 1 December 1998) prescribed:

“1. The levels of the organisation of the NHSL activities shall be:

1) municipal;

2) county; and

3) national.

  1. The healthcare levels shall be:

1) primary (primary healthcare);

2) secondary (secondary healthcare); and

3) tertiary (tertiary healthcare).”

9.5. On 20 April 2010, the Seimas adopted the Republic of Lithuania’s Law Amending Articles 9, 12, 13, 32, 41, 46, 64, 68 of the Law on the Health System and Recognising Article 66 Thereof as No Longer Valid, which, with certain exceptions, came into force on 1 July 2010. By means of Article 2 of this law, Article 12 of the Law on the Health System (wording of 1 December 1998 with subsequent amendments) was laid down in its new wording.

Article 12 “The Levels of the Organisation of the NHSL Activities, Healthcare Services’ Levels, and the Levels of the NHSL Establishments of Personal Healthcare” of the Law on the Health System (wording of 20 April 2010) prescribes:

“1. The levels of the organisation of the NHSL activities shall be:

1) municipal;

2) national.

  1. The healthcare services’ levels shall be:

1) primary (primary healthcare);

2) secondary (secondary healthcare); and

3) tertiary (tertiary healthcare).

  1. There shall be the following levels of the NHSL inpatient establishments of personal healthcare that render healthcare services and are funded from the funds of the budget of the Compulsory Health Insurance Fund:

1) district;

2) regional;

3) republic. <…>

  1. The criteria according to which the NHSL inpatient establishments of personal healthcare that render healthcare services and are funded from the funds of the budget of the Compulsory Health Insurance Fund are categorised as belonging to certain levels shall be established by the Government <...>.”

9.6. Thus, under the legal regulation established in Article 12 of the Law on the Health System (wording of 1 December 1998), there were the following levels of the organisation of the NHSL activities and the levels of healthcare services: municipal, county and national, as well as primary, secondary, and tertiary respectively; Article 12 (wording of 20 April 2010) of the Law on the Health System provides that the levels of the organisation of the NHSL activities and the levels of healthcare services are municipal and national, as well as primary, secondary, and tertiary respectively. The same article also establishes the levels of the NHSL inpatient establishments of personal healthcare that render healthcare services and are funded from the funds of the budget of the Compulsory Health Insurance Fund, where those levels are district, regional and republic.

9.7. Having compared the legal regulation established in Paragraph 3 of Article 12 (wording of 20 April 2010) of the Law on the Health System with that established in Paragraph 1 of Article 26 (wording of 3 December 2002) of the Law on Health Insurance, it should be held that Paragraph 3 of Article 12 (wording of 20 April 2010) of the Law on the Health System consolidates a new ground for the payment for the services of healthcare establishments with the funds of the budget of the Compulsory Health Insurance Fund—the categorisation of a healthcare establishment as belonging to a certain level—district, regional, and republic.

In the context of the constitutional justice case at issue it should be noted that Article 12 of the Law on the Health System (wording of 1 December 1998) did not establish any such ground.

  1. As mentioned before, in the constitutional justice case at issue one investigates whether Item 29 of the Restructuring Programme is not in conflict, inter alia, with Paragraph 1 of Article 26 (wording of 3 December 2002) of the Law on Health Insurance.

10.1. It has been mentioned that, under the legal regulation established in Item 29 of the Restructuring Programme, as from 1 April 2010, only those healthcare services are paid for with the funds of the budget of the Compulsory Health Insurance Fund whose rendering is allowed in the relevant establishment according to its level. Thus, the ground, established in Item 29 of the Restructuring Programme, for the allocation of the funds of compulsory health insurance to healthcare establishments is the healthcare services paid with the funds of the budget of the Compulsory Health Insurance Fund, where the services are related to the fact that healthcare establishments are categorised as belonging to certain levels (district, regional, or republic).

10.2. It has also been mentioned that, at the time of the adoption and entry into force of government resolution No. 1654 of 7 December 2009 (by means of this resolution the Restructuring Programme was approved), Paragraph 1 of Article 26 (wording of 3 December 2002) of the Law on Health Insurance and other provisions of either this or other laws did not provide for any other grounds of the payment for healthcare services with funds of the budget of the Compulsory Health Insurance Fund other than those of licences or accreditation for healthcare activities and contracts between territorial health insurance funds and healthcare establishments.

The ground for the payment for the healthcare services with the funds from the budget of the Compulsory Health Insurance Fund to healthcare establishments, which is identical to that established in Item 29 of the Restructuring Programme, was consolidated in Paragraph 3 of Article 12 (wording of 20 April 2010) of the Law on the Health System later than government resolution No. 1654 of 7 December 2009 was adopted and came into force, and even later than the date established in Item 29 of the Restructuring Programme.

10.3. Consequently, from the moment of the adoption of government resolution No. 1654 of 7 December 2009, through which the Restructuring Programme was approved, until the entry into force of Paragraph 3 of Article 12 (wording of 20 April 2010) of the Law on the Health System on 1 July 2010, Item 29 of the Restructuring Programme used to consolidate such a ground for the allocation of the funds of compulsory health insurance to healthcare establishments, which had not been established by the then valid Paragraph 1 of Article 26 (wording of 3 December 2002) of the Law on Health Insurance and Article 12 of the Law on the Health System (wording of 1 December 1998), thus, the legal regulation established in Item 29 of the Restructuring Programme had not been based on a law.

As mentioned before, the Constitutional Court has also held that the legislature must establish the healthcare services funded from compulsory health insurance funds and the principles of the distribution of these funds among healthcare establishments.

10.4. The Constitutional Court has held that the constitutional principle of a state under the rule of law implies the hierarchy of all legal acts and does not permit that sub-statutory legal acts regulate the relations which can be regulated only by law, nor does it permit that sub-statutory legal acts establish any such legal regulation which would compete with that established in the law or that such legal regulation would not be based upon laws (the Constitutional Court’s rulings of 14 March 2006 and 22 June 2009), because, otherwise, the constitutionally established supremacy of laws in respect to sub-statutory acts would be violated (the Constitutional Court’s rulings of 21 August 2002 and 22 June 2009). If the legal regulation established in government resolutions competed with the legal regulation established in laws or were not based on laws, not only the constitutional principle of a state under the rule of law and Item 2 of Article 94 of the Constitution, but also Paragraph 2 of Article 5 of the Constitution, in which it is established that the scope of power shall be limited by the Constitution, would be violated (inter alia, the Constitutional Court’s rulings of 24 September 2009 and 24 October 2012).

10.5. Thus, it should be held that the Government, when establishing, in Item 29 of the Restructuring Programme, the ground for the allocation of the funds of compulsory health insurance to healthcare establishments that had not been established in the then valid Paragraph 1 of Article 26 (wording of 3 December 2002) of the Law on Health Insurance and Article 12 of the Law on the Health System (wording of 1 December 1998), was not following the requirement, which stems from the constitutional principle of a state under the rule of law, that the hierarchy of legal acts should be heeded and, due to this fact, violated Paragraph 2 of Article 5 and Item 2 of Article 94 of the Constitution, the constitutional principles of a state under the rule of law and the separation of powers, as well as the provisions of the aforementioned laws.

10.6. In view of the foregoing arguments, the conclusion should be drawn that Item 29 of the Restructuring Programme was in conflict with Paragraph 2 of Article 5 and Item 2 of Article 94 of the Constitution, the constitutional principles of a state under the rule of law and the separation of powers, as well as with Paragraph 1 of Article 26 (wording of 3 December 2002) of the Law on Health Insurance and Article 12 of the Law on the Health System (wording of 1 December 1998).

  1. It should be noted that the implementation of the Restructuring Programme was supposed to be over by 2012, because, under Item 4 (wording of 19 December 2011) thereof, this programme is implemented in 2009–2012. It should also be noted that, as from 1 July 2010, when Paragraph 3 of Article 12 (wording of 20 April 2010) of the Law on the Health System came into force, the relations governed by Item 29 of the Restructuring Programme, which were related to the payment for healthcare services with the funds of the budget of the Compulsory Health Insurance Fund, where the services are related to the fact that healthcare establishments are categorised as belonging to certain levels (district, regional, or republic), have been regulated by means of a law.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, 56, and 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

  1. To recognise that Item 29 of the Programme for the Third Stage of the Restructuring of the Healthcare Establishments as approved by the Resolution (No. 1654) of the Government of the Republic of Lithuania “On the Approval of the Programme for the Third Stage of the Restructuring of the Healthcare Establishments” of 7 December 2009 (Official Gazette Valstybės žinios, 2009, No. 150-6713) was in conflict with Paragraph 2 of Article 5 and Item 2 of Article 94 of the Constitution of the Republic of Lithuania, the constitutional principles of a state under the rule of law and the separation of powers, as well as with Paragraph 1 of Article 26 (wording of 3 December 2002) of the Republic of Lithuania’s Law on Health Insurance and Article 12 of the Republic of Lithuania’s Law on the Health System (wording of 1 December 1998).
  2. To dismiss the part of the case subsequent to the petition (No. 1B-20/2010) of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether the Resolution (No. 1654) of the Government of the Republic of Lithuania “On the Approval of the Programme for the Third Stage of the Restructuring of the Healthcare Establishments” of 7 December 2009, in view of the procedure of its adoption and entry into force, is not in conflict with Paragraph 2 of Article 5 and Item 2 of Article 94 of the Constitution of the Republic of Lithuania, with the constitutional principle of a state under the rule of law, and with Article 3 (wording of 16 April 2002), Item 2 (wording of 14 June 2007) of Article 22 and Paragraph 1 (wording of 14 June 2007) of Article 40 of the Law on the Government of Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

Justices of the Constitutional Court:                                    Toma Birmontienė

                                                                                                         Pranas Kuconis

                                                                                                         Gediminas Mesonis

                                                                                                         Ramutė Ruškytė

                                                                                                         Egidijus Šileikis

                                                                                                         Algirdas Taminskas

                                                                                                         Romualdas Kęstutis Urbaitis

                                                                                                         Dainius Žalimas