sou · H9B380 · 2021-10-08 00:00:00 — Förslaget om reglering av hur hälso- och sjukvården får finansieras är framför allt en kodifiering av vad som redan gäller och innebär således framför allt ett tydligare rättsläge. Vilka konsekven- ser som följer av förslagen om regionernas nya avtalsvillkor och om avtalsuppföljning beror på huruvida aktörerna redan agerar på det sätt som föreslås och tar sitt huvudmannaansvar. Förslaget om sär- redovisning medför en viss ökad arbetsbörda för de arbetsgivare som tillhandahåller privata sjukvårdsförsäkringar som en förmån åt sina anställda. Vissa av förslagen medför ekonomiska konsekvenser för staten, och då framför allt för de berörda myndigheterna , och . Författningsförändringarna föreslås träda i kraft . Förordningsändringarna kan träda i kraft tidigare. Vissa över- gångsbestämmelser föreslås. Förslagen behöver följas upp i syfte att överväga ytterligare åtgärder Bristen på ändamålsenliga och tydliga regler har lett till en otill- räcklig kunskap och kontroll av de privata sjukvårdsförsäkringarna. Det gör det angeläget att oron för konsekvenserna av sjukvårdsför- säkringarna inte leder till förhastade beslut som inte bygger på en juridisk analys och faktabaserade underlag. är det viktigt att en beredskap byggs upp för att kunna vidta de ytterligare åtgärder som uppföljningen av utredningens förslag motiverar. Myndigheten för vård- och omsorgsanalys bör få i upp- drag att följa upp förslagen. Uppdraget bör lämnas så att arbetet kan påbörjas och planeras. Utifrån ny kunskap och erfarenhet om privata sjukvårdsför- säkringar kan det framöver finnas behov av ytterligare åtgärder. Utredningens förslag ska således betraktas som ett första steg i frågor som rör privata sjukvårdsförsäkringar. A brief summary – voluntary private health insurances should be regulated Healthcare in is in large part a public responsibility where the regions are those primarily responsible for the funding and the provision of the healthcare. The majority of healthcare in is conducted by public healthcare providers, and is publicly funded. There are also a large number of private healthcare providers that provide healthcare to the public at the request of the regions, in accordance with a contract with the region. The regions are still responsible for this healthcare as the principal (sw: huvudman) of it, and this healthcare is also publicly funded. Furthermore, there are some forms of privately funded health- care. These are, however, of a marginal scope. Privately funded healthcare is mainly run by private healthcare providers. The regions are not principals of the privately funded healthcare. The principal- ship is regulated in the Swedish Health and Act (2017:30) (sw: hälso- och sjukvårdslagen) and means that the region keeps the overall responsibility over healthcare that has been contracted out to a private healthcare provider. A private healthcare provider can choose to only provide publicly funded healthcare, to only provide privately funded healthcare, or to provide both publicly and privately funded healthcare. It is only the publicly funded healthcare that the region is principal of, regardless of whether the healthcare provider provides both publicly and privately funded healthcare. The number of persons having voluntary private health insurance has increased during the 21st century. As of today, around 690 000 persons in have voluntary private health insurance. care funded by voluntary private health insurances is estimated to amount to around 0,7 percent of the total spending on healthcare.1 Voluntary private health insurances have been subject to multiple considerations during the last decades in connection to different legislative efforts. It is still the subject of rather intense debate. Recently, the debate has focused on what effect voluntary private health insurances have on healthcare and society, as a whole. The debate has also focused on whether voluntary private health insuran- ces are compatible with the Health and Act and the fundamental principles stipulated in that act, such as the ethical platform for prioritising in healthcare (below called the ethical platform). In the public debate it is sometimes expressed that there is a risk that patients with voluntary private health insurance “jump the queue” and that the voluntary private health insurance is “a gravy train” for those patients that have such insurance. With more people getting voluntary private health insurance, the Swedish Government has expressed its concern about the situation at hand. In the terms of reference to this Inquiry2 the Government states that it is vital that the legislation, as far as possible, guarantees that the fundamental principles of Swedish healthcare aren’t overridden. The Inquiry should therefore: –describe the crowding out effects, or the risks of such effects, that voluntary private health insurances have caused in the healthcare system, –propose legislation, or other measures, that, as far as possible, guarantees that patients with voluntary private health insurance do not get faster access to healthcare, or better healthcare, in the publicly funded healthcare system than patients without such insurances, and –propose legislation which entails restrictions regarding how healthcare, provided in accordance with a contract with a region, can be funded. In this report the Inquiry describes, from a legal perspective, what applies in terms of payment of healthcare with voluntary private 1In 2019 the spending on healthcare from voluntary private health insurances amounted to million, and the total spending amounted to million. The Inquiry sorts out the descriptions of “jumping the queue” and “having a gravy train”. Furthermore, the Inquiry will describe what it means when healthcare providers have a so-called “mixed form”. The Inquiry states which terminology is being used instead of the aforementioned descriptions. The Inquiry, further- more, describes how voluntary private health insurances can affect the healthcare system and society, as a whole, and reasons about different so-called “crowding out effects”. The Inquiry has taken a legal approach to describe and analyse questions regarding voluntary private health insurances. The Inquiry notes that this subject is largely unregulated. The lack of appropriate and clear legislation and regulations have created legal uncertainty. The Inquiry’s conclusion is that the central government and the regions need to take greater responsibility regarding voluntary private health insurances, in order to guarantee all patients a good and patient-safe care. The central government should take responsi- bility by providing a clear legal framework and by ensuring an effect- tive supervision of the provision of healthcare, including matters regarding voluntary private health insurances. The central govern- ment should also enable access to data and knowledge regarding payment of healthcare with voluntary private health insurances. The regions should be given the possibility and the obligation, in their healthcare oversight capacity (as principals), to ensure good and patient-safe care for publicly funded patients, by making demands on and by following up the healthcare providers that, apart from the regions, also have other contracts with other entities. Increased knowledge will lead to a clearer legal situation for the healthcare providers, but also for the patients and the public, regarding how the rules are supposed to be interpreted and applied. Given the Inquiry’s conclusions, the Inquiry proposes a regulation which entails restrictions regarding when healthcare can be privately funded. Furthermore, the Inquiry proposes regulations intended to guarantee that patients with voluntary private health insurances don’t receive care in violation of the fundamental prin- ciples about healthcare on equal terms for the entire population and that the person with the greatest need for care should be given priority to care. The Inquiry also proposes legislation that will widen the obliga- tion to register in the Health and Social Care Inspectorate’s health- care provider registry (sw: vårdgivarregister). The Inquiry further- more proposes that the Health and Social Care Inspectorate should be given the possibility to issue injunctions, if necessary, to ensure compliance with the regulations regarding registration in the health- care provider registry. The Inquiry also proposes that different registers and databases should entail information regarding form of financing for health- care. The over-all purposes of the proposals are two-fold: guarantee a good and patient-safe care, that is in accordance with the funda- mental principles in the healthcare legislation, and to increase the knowledge about voluntary private health insurances and their effects. By doing this, the public’s trust in the healthcare, and in the welfare state, can be strengthened. By the Inquiry’s proposals the legal situation regarding questions about voluntary private health insurances will be clearer. The Inquiry furthermore proposes that the effects of the pro- posals in this report should be reviewed. This assignment should be given as soon possible, in order to initiate the review. During this work, it should be considered whether further measures, and if so which measures, should be taken regarding matters of voluntary private health insurances. In the following a more detailed summary of the Inquiry’s report is presented, containing the Inquiry’s conclusions, considerations, and proposals. A more detailed summary of the report A neutral conceptual apparatus is needed for the discussion to be objective In the debate about voluntary private health insurances there are differing ideological perspectives regarding the consequences of those insurances, and how they affect the public’s view on healthcare and society. In order to give as neutral and correct a description as possible, the Inquiry uses legal, and other neutral terminology. This is also done in order to avoid any valuation of the terms from the readers. In the following there is a description of the most common and important terms and descriptions in the report. The region, as principal (sw: huvudman), is responsible for pro- and financing the healthcare. In accordance with the principle of local self-government, the region has the ability to choose whether to provide the healthcare itself, in their capacity as a healthcare provider, or to contract out the healthcare to others, e.g. private healthcare providers. Should a region choose to outsource a certain task, which otherwise would have been performed by the region, the region still has the over-all responsibility for the health- care provided. The principalship contains an obligation to, in addi- tion to providing healthcare (either through the regions’ own health- care providers, or by contracting the healthcare to private healthcare providers), finance, organize and plan the healthcare. Both the regions, in their capacity as principals, and the contracted private healthcare providers, are responsible for conformity to the rules. The healthcare provided by the region itself, and the healthcare provided by a private healthcare provider in accordance with a contract with the region, is publicly funded. A private healthcare provider can provide healthcare on behalf of different clients (sw: uppdragsgivare), such as different regions, patients who pay directly for their care (in cash for example), and insurance companies. It is only the healthcare that is provided in accordance with a contract with a region (i.e. on behalf of the region) that is publicly funded. Healthcare provided on other grounds is privately funded. When a private healthcare provider provides both publicly and privately funded healthcare, due to different contracts with different entities, the Inquiry primarily uses the description that the healthcare provider has different clients or different con- tracts with different entities. The term dual practice is also used to some extent. In the public debate the term “mixed form” sometimes is used. The Inquiry, however, avoids this word. A voluntary private health insurance is an insurance that pays for certain care. Currently, voluntary private health insurance in is focused primarily on offering short waiting times. In other coun- tries, the insurances can be focused on other aspects, such as better- quality care, or care that is not offered by the public healthcare. As far as the Inquiry has been able to find, voluntary private health insurances don’t exist in the publicly funded healthcare, regardless of whether it is a public healthcare provider or a private one. The Inquiry avoids the terms “queue”, “jumping the queue”, “faster access to care” and “gravy train”. Instead, the Inquiry de- scribes what is meant, primarily on the basis of the ethical platform, and the provisions in the Health and Act, regarding healthcare on equal terms for the entire population and that the person with the greatest need for care should be given priority to care (the so-called needs-solidarity principle). The Inquiry uses the term good and patient-safe care to describe the overall objectives and rules that applies to all healthcare. One important word that is used in the report, that is also mentioned in the terms of reference, is voluntary private health insurances’ effects. The Inquiry uses the term consequences syno- nymously. One type of effect is if the provisions in the Health and Act are not followed, e.g. healthcare is provided in a way that means that the person with the greatest need for care isn’t given priority. This could cause risks in regard to patient-safety, such as missed care (i.e. injuries occurring due to the fact that a patient isn’t given care, in time or at all). Effects from voluntary private health insurances can also be both positive and negative regarding the capacity of the healthcare (i.e. the healthcare provider’s ability to provide care), the patients’ demand on healthcare, the quality of the healthcare, and different so-called crowding out effects. Further- more, voluntary private health insurances can affect the support of the public healthcare system and the welfare society. Lack of information makes it hard to describe voluntary private health insurances and their effects There are no rules that enable the collection of data regarding the financing of healthcare, especially the privately funded healthcare. Because of this, there also is no national information infrastructure regarding things such as how much of healthcare that is paid through voluntary private health insurances, which healthcare providers pro- vide healthcare that is paid through insurances, which kinds of care are paid through insurances, or how many and which patients get their care paid through insurances. The lack of official data has made it difficult for the Inquiry to describe how voluntary private health insurances work. It has also been difficult to get a hold of facts to describe which effects voluntary private health insurances have on the healthcare and on society as a whole. Furthermore, the lack of data causes difficulties for the regions in their enforcement of the contracts with private healthcare providers. The Health and Social Care Inspectorate (sw: Inspektionen för vård och omsorg, ) also faces difficulties in their supervision of the healthcare due to the lack of data. Matters regarding voluntary private health insurances are unregulated The Inquiry notes that there is a general lack of regulations surrounding voluntary private health insurance matters. There are no public law regulations regarding such insurances.3 A level of clarity and predictability is missing regarding for example questions on how the healthcare can be funded (publicly and/or privately), the healthcare providers’ obligations in regard to the needs-solidarity principle, the principals’ responsibilities when healthcare is provided by private healthcare providers, the Health and Social Care Inspec- torate’s supervision regarding voluntary private health insurances, and data regarding voluntary private health insurances. There are, however, some regulations, for example in the Health and Act and the Patient (2010:659) (sw: patientsäkerhetslagen), that are applicable to all healthcare, regardless of form of operation and financing (i.e. regardless of if it’s a private or public healthcare provider and if it’s privately or publicly funded). There are no exceptions to these regulations regarding healthcare paid by voluntary private health insurances. There is also, however, practically no consideration given to private healthcare (private healthcare providers as well as privately funded healthcare) in the legislative history of the regulations. The lack of appropriate and clear regulations has created an uncertainty regarding the legal position. 3There are regulations in the insurance law, and about the Swedish Financial Supervisory Authority’s (sw: ) supervision of the insurance companies. Furthermore, there are regulations regarding the taxation of voluntary private health insurances. The patient’s need for care is what should decide The provisions in the 3rd chapter of the Health and Act applies to all healthcare providers, both public and private, and to all healthcare, both publicly and privately funded. One of these provisions states that the patient with the greatest need for care should be given priority. This provision is thus applicable also when a private healthcare provider provides both publicly and privately funded healthcare. The Inquiry has taken a legal approach, and has reviewed the legislation, the legislative history etc. The Inquiry cannot find anything that suggests that it isn’t allowed with differing waiting times. Guaranteed Access to Health- care (sw: vårdgarantin) and the contractually stipulated waiting times are, however, subordinate to the needs-solidarity principle. Whether a healthcare provider in a specific situation has acted in accordance with the needs-solidarity principle or not is a task for the Health and Social Care Inspectorate and the regions to investigate. Both the supervisory authority and the regions, in their capacity as principals, are responsible for guaranteeing good and patient-safe care. This Inquiry has not been able to audit if and how the private healthcare providers are acting in accordance with the regulations in the Health and Act. The needs-solidarity principle is intended to provide guidance both on a comprehensive level, in order to allocate the common resources, considering these are not enough to give “everything to everyone”, as well as on a more direct level, in the actual healthcare providing situations. The principle, therefore, contains a high degree of complexity. The ethical platform was also established in order to address priorities in publicly funded healthcare, i.e. not in privately funded healthcare. Thus, although the principles apply to both public and private healthcare providers, these providers operate under different conditions. Several actors have pointed out problems of interpretation with the ethical platform, and that it needs to be reviewed. Guidance from the regions and the authorities is missing The regions have, in their capacity as principals, a responsibility for the care provided by private healthcare providers in accordance with a contract with the region. The regions direct the private healthcare providers through the contracts and the procurement law regu- lations. The investigation made by the Inquiry shows that some, but not all, regions regulate matters regarding voluntary private health insurances in the contracts with private healthcare providers. The Health and Social Care Inspectorate hasn’t supervised matters relating to voluntary private health insurances and how these can affect the healthcare. There are therefore no precedents or advisory decisions from the supervisory authority. are there any other guidance or advisory documents from other authorities, such as (sw: ). Thus, there is a lack of conforming guidance from the regions and from the authorities regarding how private healthcare providers should act in matters regarding voluntary private health insurances, especially in a situation where the private healthcare providers have different contracts, stipulating different waiting times, with diffe- rent entities. Voluntary private health insurances can affect the healthcare and society in general The Inquiry, in accordance with the terms of reference, describes voluntary private health insurances’ effects on the healthcare and on society as a whole, in regard to both so-called crowding out effects and other consequences. The description is mostly based on two reports from Swedish authorities. In a feasibility study report from 2020 the Health and Social Care Inspectorate describes the risks regarding patient-safety that can arise, due to voluntary private health insurances. for Health and Analysis (sw: Myndigheten för vård- och omsorgsanalys) analyses possible risks as well as potentials with voluntary private health insurances, in regards to both the public and the system, in its report 2020:3. Apart from these reports there is not much research or other material which describes voluntary private health insurances and their effects on the healthcare in . For example, the Inquiry has not been able to find any specific reports regarding voluntary private health insurances and actual crowding out effects. There are, however, several reports on crowding out effects in the healthcare in general. These are, to some extent, relevant for the question about crowding out as an effect of voluntary private health insurances. The regions’ management of complementary employment are in parts lacking When healthcare personnel provide healthcare funded by voluntary private health insurances it can cause effects on healthcare, due to the fact that the healthcare resources are limited, among other reasons. Employees in public healthcare can have complementary employment with private healthcare providers, which have contracts with insurance companies and thus provides healthcare funded by voluntary private health insurances. These complementary employ- ments are subject to rules regarding complementary employment, that the regions, in their capacity as employers, are responsible for implementing and following. The Inquiry has reviewed several audit reports, which show that the regions are somewhat lacking in their compliance with the rules regarding complementary employment. The lack of compliance could result in a decrease of the public’s trust in the healthcare system. The Inquiry has conducted a brief international environmental scan regarding voluntary private health insurances, in order to increase the knowledge of how these matters can be handled. , , , and have been included. The develop- ment and the regulations surrounding voluntary private health insurances in the Nordic countries are, in large, similar to the development and regulations in . The number of insurance holders in the countries differ, though. In 12 percent of the population have voluntary private health insurance, in the insurance holders are 24 percent of the population, in 44 percent, and in it is 6,5 percent. In , there are some different regulations that restricts how healthcare can be funded by voluntary private health insurances. There is a ban on dual practice, meaning that the physicians cannot operate in the publicly and the privately funded healthcare, but need to opt-out of one. So-called supplementary voluntary private health insurances are almost non-existent in , due to a ban in several regions. This ban has been subject to a court decision from the Supreme Court, and has since been somewhat relaxed.