No. 07-00-440/2017-02   Date:  3 November 2017

Acting within its legally prescribed mandate[1] to monitor the implementation of anti-discrimination laws and to issue recommendations to public authorities and other entities aimed at achieving equality, the Commissioner for the Protection of Equality hereby issues to the Ministry of Health, to the Republic of Serbia Health Insurance Fund and to the Hospital for Internal Medicine V.B. the following

RECOMMENDATION FOR ACHIEVING EQUALITY

The Commissioner for the Protection of Equality hereby issues recommendation to the Ministry of Health, Republic of Serbia Health Insurance Fund and to the Hospital for Internal Medicine V.B. to:

– take all measures and activities within their scope of competence so as to ensure that all obstacles impeding the functioning of the Dialysis Department of the Hospital for Internal Medicine V.B. are removed, with an aim of securing the right to health services to persons undergoing dialysis on equal footing with citizens utilizing other health services offered by the Hospital for Internal Medicine V.B.

The Ministry of Health, Republic of Serbia Health Insurance Fund and Hospital for Internal Medicine V.B. shall notify the Commissioner for the Protection of Equality about planned measures geared towards implementing this recommendation within period of 30 days from receiving the present recommendation containing measures for achieving equality.

Pursuant to the law, neither appeal nor any other legal remedy against this recommendation containing measures for achieving equality shall be permissible.

Rationale

In the course of the complaint procedure initiated following a complaint lodged by a civil society organization, the Commissioner for the Protection of Equality has learned that the Hospital for Internal Medicine V.B. was fully equipped for performing dialysis procedure, but that due to certain problems it was not extending dialysis services to patients, thus preventing persons with disabilities undergoing dialysis from receiving this health care service.

In order to establish reasons due to which the Hospital for Internal Medicine V.B. was not extending dialysis services to its patients, the Commissioner for the Protection of Equality addressed the Hospital for Internal Medicine V.B. and Republic of Serbia Health Insurance Fund requesting that they explain why the dialysis department in this hospital was not functional and was not extending dialysis services to its patients.

In its declaration submitted to the Commissioner for the Protection of Equality, Republic of Serbia Health Insurance Fund stated that with regards to the Commissioner’s request, they have addressed its Branch Office for R. District in K. which has a signed Contract on Extending and Funding Health Care Services within Mandatory Health Care Insurance for 2017 with the Hospital for Internal Medicine, to clarify matters. In their response for clarification, Branch Office for R. District in K. stated that as of September 2013, funds have been allocated to the Hospital for Internal Medicine V.B. based on the Contract on Extending and Funding Health Care Services within Mandatory Health Care Insurance, for financing dialysis material and medications (except for epoetin) and C list drugs, but that the Hospital for Internal Medicine V.B. has not to that very day filed a single invoice for dialysis services based on which the Branch Office could transfer the funds. In addition, Branch Office for R. District in K. stressed that by “planning the budget item intended for dialysis”, the Republic of Serbia Health Insurance Fund had on its part created all the necessary conditions for extending dialysis services to patients in the Hospital for Internal Medicine V.B.

On the other hand, in its declaration submitted to the Commissioner for the Protection of Equality, the Hospital for Internal Medicine V.B. stated that in order to introduce a new health care service, in this particular case – extending hemodialysis service, all statutory requirements must be met so as to enable the inception of such service provision, hence the Ministry of Health and the Hospital for Internal Medicine have undertaken a string of activities so as to introduce the new activity in the area of extending dialysis services. Namely, dialysis machines were procured, reverse osmosis, rooms for hemodialysis were refurbished, new staff members were hired, staff were trained and equipment was procured. Following all these activities, the Hospital for Internal Medicine has from 2012 to 2016 repeatedly submitted requests to the Republic of Serbia Health Insurance Fund – Branch Office for R. District in K. for the necessary funds so as to enable them to, both legally and operationally, begin with operation of the hemodialysis department. However, Republic of Serbia Health Insurance Fund has not, to that very day, approved and contracted funds for these purposes. In its declaration the Hospital for Internal Medicine further stated that it needed, in order for the Hemodialysis Department to start with operation, to have funds specially allocated and contracted with the Republic of Serbia Health Insurance Fund for the purification of the ancillary system so as to enable patients to safely be hooked on to the dialysis machines, medications, medical and medication material, epoetin, dialysis material, heating supplies, food and other expenditures which are necessary to cover costs resulting from the introduction of a new health care service. They have also stressed that the Branch Office of the Republic of Serbia Health Insurance Fund for R. District in K. has in September 2013, added special purpose funds for drugs and medications included in the C list, compensation for dialysis material and drugs for dialysis (except the epoetin) for only 11 clients with 145 dialysis sessions per month. However, they also underlined that the Republic of Serbia Health Insurance Fund had not allocated additional special purpose funds for the inception of operation of dialysis machines that have been sitting at the hospital since 2008 in their original packaging. Furthermore, they stated that it would be illegal to reallocate already existing funds for the introduction of a new health care service, as it would result in a need to terminate the extension of basic services, hence the necessary special purpose funds have not been allocated for the inception of operation of the hemodialysis department i.e. the conditions have not been created for this department to become operational, as without the necessary funds, safe and high quality service cannot be provided and would pose a risk of infection to patients and jeopardize their health and life.

Bearing in mind the aforementioned, the Commissioner for the Protection of Equality has asked the Republic of Serbia Health Insurance Fund to provide its declaration and clarify whether the undertaken measures aimed at eliminating problems between the Republic of Serbia Health Insurance Fund Branch Office for R. District in K. and the Hospital for Internal Medicine V.B. have been eliminated and if they have not, to explain how they were planning to resolve these problems so as to provide the necessary conditions needed for the inception of operation of hemodialysis department in that hospital, and furthermore to clarify whether it was true that the Republic of Serbia Health Insurance Fund had not granted the request of the Hospital for Internal Medicine for additional special purpose funds that would enable the inception of operation of the hemodialysis department. In its declaration the Republic of Serbia Health Insurance Fund stated that, inter alia, the above mentioned Republic of Serbia Health Insurance Fund Branch Office for R. District had undertaken all the necessary measures within the scope of authority of the Republic of Serbia Health Insurance Fund which are in accordance with the effective legislation. Namely, in its declaration they stated that the Republic of Serbia Health Insurance Fund provides funds only for health services extended to persons with health insurance but also for equipment maintenance and operating costs resulting from extending health care services. In its declaration they further stated that, pursuant to the Law on Health Care Protection, the Republic of Serbia Health Insurance Funds does not procure equipment, but rather it provides funds for health services which the patients are entitled to under mandatory health coverage. Furthermore, they stated that the management of the health care institution was responsible for extending health care protection to all persons with health care coverage, as the managing director of the institution was responsible for the organization of the institution’s operation. With reference to the aforementioned, they also stated that a well-placed question would be to ask why the dialysis machines have not been operational since 2008, i.e. whether purification costs of the ancillary system represented unplanned expenditure resulting from non-operation of the dialysis machines. In addition, they stressed that the managing director of this health care institution has been signing the contract with the Republic of Serbia Health Insurance Fund since 2013 which stipulates the amount of funds needed for dialysis material, dialysis drugs (except epoetin) and for medications and drugs included in the C list according to the public tender procedure announced by the Republic of Serbia Health Insurance Fund and that the Republic of Serbia Health Insurance Fund, in keeping with the provisions of the Rulebook on Contracting, harmonizes contracted reimbursements each year with the costs of energy products, operating costs and other expenditure. Hence, by contracting reimbursement costs for dialysis materials and drugs (except epoetin) and C list medications, the Republic of Serbia Health Insurance Fund has provided conditions enabling the Hospital for Internal Medicine V.B. to extend dialysis services to persons with health care coverage. Furthermore, in their declaration they stated that the defined coverage of costs for dialysis materials and drugs has been adjusted throughout the following years in accordance with the Rulebook on contracting health care protection within mandatory health care coverage with health care service providers, i.e. that, in keeping with the Contract on extending and funding health care protection within mandatory health care coverage 01/05 No. 450-182/17 dated 20 January 2017, the funds intended for meeting the costs of dialysis materials and drugs (except epoetin) as well as C list drugs and medications, have been determined in line with the Republic of Serbia Health Insurance Funds tender conditions. However, in their declaration they also stressed that the Hospital for Internal Medicine V. B. in their 2017 Plan of Operation had included 3,634 hemodialysis procedures, which leads to a conclusion that all the conditions were met to extend dialysis services, and that their failure to do so was the result of the management’s decision. Namely, the analysis of the structure of staff members extending health services included in the mandatory health coverage showed that 9 medical doctors (4 specialist doctors, 2 doctors specialists of internal medicine with sub-specialization in cardiology, 2 doctors specialists of internal medicine with sub-specialization in nephrology and 1 doctor specialist in clinical biochemistry) are paid their salaries for extending health care services which are included in the mandatory health care coverage. They also stressed that not even one health care institution in Serbia which has introduced the new technology – hemodialysis, had any unplanned expenses resulting from starting the operation of hemodialysis machines nor did they have any problems with respect to contracting and ensuring necessary funds needed for providing hemodialysis services, which are included in mandatory health care insurance, to patients with health care coverage. In addition, they also stated that health care institutions which have introduced hemodialysis as a new technology, have, immediately after signing the annex to the contract and after being allocated the necessary funds by the Republic of Serbia Health Insurance Fund (dialysis materials and drugs (except epoetin) and C list drugs and medications in keeping with the Republic of Serbia Health Insurance Fund tender), started offering this service to their patients. In their declaration, the Republic of Serbia Health Insurance Fund stated that it acts upon requests for the introduction of this new technology and for defining the amount of funds for extending hemodialysis services, from each and every health care institution in an identical manner.

At the outset, the Commissioner for the Protection of Equality notes that the Republic of Serbia has ratified the United Nations Convention on the Rights of Persons with Disabilities[2], whose objective is to promote, protect and ensure full and equal enjoyment of all human rights and fundamental freedoms to all persons with disabilities and improve the respect of their innate dignity[3]. By ratifying this convention, Serbia has assumed the obligation to take measures aimed at providing persons with disabilities with the same range, quality and standard of free or affordable health care and programs as provided to other persons. According to the aforementioned Convention, discrimination on the grounds of disability implies making difference, exclusion or limitation based on disability, with an objective or resulting in degrading or annulling the recognition, enjoyment or exercise, equally with other persons, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other area. Namely, provisions of Article 25 stipulate that state parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability and that they shall take all appropriate measures to ensure access for persons with disabilities to health services. In addition, provisions of Article 30 stipulate that in order to ensure persons with disabilities with an opportunity to participate on an equal basis with others in recreational, leisure and sporting activities, state parties shall take appropriate measures so as to ensure that persons with disabilities have access to sporting, recreational and tourism services.

Furthermore, the Commissioner for the Protection of Equality notes that Article 21 of the Constitution of the Republic of Serbia^[4] prohibits discrimination on any grounds in particular on the grounds of race, gender, national affiliation, social origin, birth, religion, political or any other belief, financial status, culture, language, age and psychological or physical disability.

Prohibition of discrimination contained in the Constitution has been further elaborated in the Law on the Prohibition of Discrimination, which prescribes in Article 2, Paragraph 1, Item 1 that discrimination and discriminatory treatment shall be used to designate any unwarranted discrimination or unequal treatment, that is to say, omission (exclusion, limitation or preferential treatment) in relation to individuals or groups, as well as members of their families or persons close to them, be it overt or covert, on the grounds of race, skin color, ancestors, citizenship, national affiliation or ethnic origin, language, religious or political beliefs, gender, gender identity, sexual orientation, financial position, birth, genetic characteristics, health, disability, marital and family status, criminal record, age, appearance, membership in political, trade union and other organizations and other real or presumed personal characteristics. In addition, Article 26, Paragraph 1 of the Law on the Prohibition of Discrimination stipulates that discrimination shall be considered to occur in case of conduct contrary to the principle of observing equal rights and freedoms of disabled persons in political, economic, cultural and other aspects of public, professional, private and family life.

Provision of Article 13, Paragraph 1 of the Law on the Prevention of Discrimination of Persons with Disabilities[5] prohibits discrimination on the grounds of disability with respect to accessibility of services and access to venues in public use and public spaces, while Article 17, Paragraph 1 of this law defines discrimination of persons with disabilities in the area of health care services provision as a particularly severe form of discrimination.

Article 20 of the Law on Health Care Protection[6] stipulates the principle of fairness of health care protection, which is achieved, inter alia, by prohibiting discrimination on the grounds of race, gender, age, national affiliation, social origin, religion, political or other belief, financial status, culture, language, type of illness, psychological or physical disability, when extending health care services. Provision of Article 80 of this law defines obligations of health care institutions, stating that, inter alia, a health care institution has the obligation to monitor population’s health status in the area it specializes in and to take and propose measures aimed at improving the population’s health status; to monitor and implement preventive methods and actions, diagnostic procedures, treatments and rehabilitation based on evidence, in particular, to pursue defined professional and methodological doctrines and protocols; to organize and implement health care activities performed by nurses or medical technicians or midwives; to implement health care protection programs and measures aimed at preventing undesired complications and consequences when extending health care protection services; as well as to implement general safety measures while citizens stay in a health care institution and ensure continuous monitoring of these measures. Article 131 Paragraph 1 of the Law on Health Care Protection stipulates that the managing director organizes operation of the institution, performs managerial duties and represents and advocates for the institution, and is responsible for the legality of operation of the health care institution, while provisions of Article 243, Paragraphs 1 and 3 state that supervision of operations of health care institutions and private practices, for the purpose of this law, is performed as a monitoring of legality of operation of health care institutions and private practice and inspection monitoring. Monitoring defined in Paragraph 1 of this Article is performed by the Ministry of Health through health inspectors and inspectors in charge of drugs and other medical materials.

The Law on Health Care Insurance[7] stipulates that the Republic of Serbia Health Insurance Fund performs, inter alia, the following activities: planning and providing funds for implementing mandatory health care insurance; within available financial funds it plans and ensures conditions for an equal distribution of mandatory health care insurance at the territory of the Republic of Serbia and provides solidarity funds for leveling conditions necessary for the provision of mandatory health care insurance services on the territory of its branch offices; signs contracts with health care service providers in accordance with the present law and provides funds for implementing health care insurance services on the basis of such contracts; transfers to its branch offices funds needed for implementing mandatory health care insurance services; ensures legal, purposeful and cost-effective utilization of funds and is in charge of augmenting funds on economic basis; ensures direct, efficient, rational and legal exercise of rights resulting from health care insurance and organizes work and activities aimed at implementing health care insurance and performs control of the implementation of signed contracts between the branch offices and health care insurance service providers, namely it controls the implementation of rights resulting from health care insurance coverage. Provision of Article 239 of the Law on Health Care Insurance stipulates that the Ministry shall be in charge of supervising the implementation of this law.

The Law on Ministries[8] stipulates that the Ministry of Health shall be responsible for state administration activities pertaining to: the health care system; mandatory health care insurance system; other forms of health care insurance and contributions for health care insurance; detailed conditions for health care insurance entitlements; participation in the preparation and implementation of international agreements on mandatory social insurance; creating conditions for access to and implementation of projects within the scope of competence of this Ministry which are funded by European Union pre-accession funds, donations and other forms of development assistance; content of health care insurance, preservation and improvement of the health of citizens and monitoring of citizens’ health and health needs of the population; organization of health care protection; professional development and specialization of medical workers; health inspection; organization of monitoring of professional operation of the health care service; ensuring health care protection funded from public revenues; health care protection of foreign nationals; keeping health care records; conditions for harvesting and transplant of human organs and tissues; manufacturing and trade in drugs, medicines and assistive materials and inspection in those areas; manufacturing and trade in opiate drugs and precursors of illicit drugs; excavation and transportation of deceased persons within the country, transportation of deceased persons from abroad into the country and vice versa; sanitary inspection; health and sanitary supervision in the area of protecting the population against contagious and non-contagious diseases, health safety of food and other commonly used objects which are produced and traded; supply of the public with potable water and other areas as prescribed by the law; control of sanitary and hygienic condition of facilities under sanitary supervision and means of public transportation; sanitary control of persons who have legally been put under health monitoring regime, as well as control of facilities, machines and equipment used for activities under sanitary control; defining sanitary, hygienic and health conditions for facilities under sanitary control in the procedure of construction or reconstruction and regular control of such facilities; sanitary supervision performed at the state border, as well as other work and activities defined by the law.

Following the analysis of ascertained facts and relevant legislation, the Commissioner for the Protection of Equality indicated that in this case it would be safe to conclude that there are certain problems between the Hospital for Internal Medicine V.B. and the Republic of Serbia Health Insurance Fund due to which the hospital is still not offering dialysis services despite the fact that it is in possession of the necessary equipment and trained staff. Namely, as stated above, Republic of Serbia Health Insurance Fund claims that it has fulfilled all of its obligations within its scope of competence and that the management of the hospital is responsible for not providing hemodialysis services. On the other hand, Hospital for Internal Medicine V.B. stresses that necessary conditions have not been created yet for offering hemodialysis services, as without the necessary funds which should be provided by the Republic of Serbia Health Insurance Fund, it could not offer safe and high quality dialysis services, as it would pose a risk of infection and jeopardize patients’ lives.

From the standpoint of anti-discrimination legislation, the Commissioner for the Protection of Equality notes that persons with disabilities undergoing dialysis procedures are in a particularly difficult position, as they need to regularly undergo dialysis procedures in order to preserve their health and life. In that respect, the Commissioner for the Protection of Equality indicates that the Law on the Prohibition of Discrimination stipulates that discrimination of persons with disability exists when actions are taken contrary to the respect of the principle of  equal rights and freedoms of persons with disabilities in all aspects of professional, private and family life. In addition, the Law on the Prevention of Discrimination of Persons with Disabilities prohibits discrimination on the grounds of disability with respect to accessibility of services, and that any discrimination of persons with disabilities in the area of health care services provision is considered as a  particularly severe form od discrimination. In addition, Republic of Serbia, as a Signatory State to the Convention on the Rights of Persons with Disabilities has assumed the obligation to take all necessary measures so as to ensure that persons with disabilities have the same choice, quality and standard of free-of-charge or accessible health care protection and programs offered to other persons. According to this Convention, discrimination on the grounds of disability implies making any difference, exclusion or limitation on the grounds of disability, with an aim of or resulting in degrading or annulling the recognition, enjoyment or exercise, equally with others, all human rights and fundamental freedoms in political, economic, social, cultural, civil or any other area. Thus, the fact that all the necessary pre-conditions for extending dialysis services have been created at the Hospital for Internal Medicine V.B., yet this service is still not being offered to patients, gives reason for great concern. This has led to a situation in which persons with disabilities in need of dialysis services are unable to exercise their right to dialysis services at the Hospital for Internal Medicine V.B something one could not claim to be justifiable by insurmountable obstacles.

The Commissioner for the Protection of Equality indicates that due to the fact that persons with disabilities are unable to have hemodialysis services provided to them at this hospital, they are forced to travel several times a week to other distant health care centers which is an additional burden and further exacerbates their already frail health. This situation is another factor which results in work overload of other health care centers which offer hemodialysis services, both in terms of the number of patients and in terms of overload of the existing dialysis machines. It should also be kept in mind that V.B., as one of the largest and most famous spa and recuperation centers in Serbia has traditionally been a very attractive center of tourism where people came to rest and engage in recreational activities[9]. However, due to the fact that the hemodialysis center at the Hospital for Internal Medicine is not operational, persons with disabilities in need of dialysis services have been effectively prevented from staying at this center of tourism which is in stark contrast with the aforementioned legislation.

The Commissioner for the Protection of Equality notes that on the one hand there are funds allocated by the Republic of Serbia Health Insurance Fund and there is a health care institution in which preconditions for the operation of the hemodialysis department have been created, equipment procured and staff hired while on the other hand there are citizens who are in need of hemodialysis services and who are travelling to other health care centers at the expense of the Republic of Serbia Health Insurance Fund for the purpose of obtaining this service, which is an additional element which is detrimental to their health and life quality. The operation of the hemodialysis department would ensure adequate medical treatment of persons with disabilities who are in need of dialysis services, both those residing in Vrnjačka Banja and in the surrounding areas, but also those who would come to visit and stay in Vrnjačka Banja. This would provide persons with disabilities with access to health care services on equal footing with other persons, as well as to services offered within recreational, touristic, sports and leisure activities in keeping with the above mentioned regulations and the Convention on the Rights of Persons with Disabilities. In addition to this, the operation of the hemodialysis department would not only contribute considerably to the quality of life of persons with disabilities and improve their position but would also positively affect the development of spa and health tourism and the township itself where such services are provided.

In issuing this recommendation containing measures for achieving equality, the Commissioner for the Protection of Equality has particularly kept in mind the authority of the Ministry of Health which, inter alia, performs work and activities pertaining to state administration related to the system of health care protection, mandatory health care insurance system, organization of health care, health inspection, organization of monitoring of professional operation of health care service, in particular the fact that the Ministry of Health monitors the implementation of the Law on Health Care Insurance[10] and monitors the operation of health care institutions[11]. Hence, the Commissioner for the Protection of Equality is of the opinion that the Ministry of Health should, by implementing measures within its scope of competence, together with the Republic of Serbia Health Insurance Fund and Hospital for Internal Medicine V.B., resolve the problem which exists between the Republic of Serbia Health Insurance Fund and Hospital for Internal Medicine V.B. regarding the functioning of the hemodialysis department, so as to kick start the operation of this department and enable persons in need of dialysis services to exercise their right to equality and equal protection, in accordance with the provisions of the Law on the Prohibition of Discrimination, the Law on the Prevention of Discrimination of Persons with Disabilities and the Convention on Rights of Persons with Disabilities.

Bearing in mind all the circumstances, in particular the fact that the funds are not an issue, but rather that there is a misunderstanding with respect to responsibilities and authority, between the Republic of Serbia Health Insurance Fund and Hospital for Internal Medicine V.B., the Commissioner for the Protection of Equality, acting in keeping with Article 33, Item 9 of the Law on the Prohibition of Discrimination, recommends to the Ministry of Health, Republic of Serbia Health Insurance Fund and Hospital for Internal Medicine V. B. to take all necessary measures aimed at ensuring the respect of the principle of equality.

[1] Law on the Prohibition of Discrimination (“Official Gazette of the Republic of Serbia’’, No 22/09), Article 33. Paragraph 1, Items 7 and 9.

[2] Law on the Ratification of the Convention on the Rights of Persons with Disabilities (‘’Official Gazette of the Republic of Serbia – International Treaties“, No. 42/09).

[3] Article 1, Paragraph 1 of the Convention on the Rights of Persons with Disabilities.

[4] ”Official Gazette of the Republic of Serbia“, No. 98/06.

[5] ‘’Official Gazette of the Republic of Serbia“, No. 33/06 and 13/16.

[6] ‘’Official Gazette of the Republic of Serbia“, No. 107/05, 72/09 – st. law, 88/10, 99/10, 57/11, 119/12, 45/13 – st.law, 93/14, 96/15 and 106/15.

[7] ”Official Gazette of the Republic of Serbia”, No. 107/05, 109/05 – correction., 57/11, 110/12 – decision of the CC, 119/12, 99/14, 123/14, 126/14 – Decision of the CC, 106/15 и 10/16 – st. law.

[8] ”Official Gazette of the Republic of Serbia“, No. 44/14, 14/15, 54/15, 96/15 – st. law and 62/17, Article 15.

[9] http://www.vrnjackabanja.co.rs/srpski/sadrzaj/turizamglmeni

[10] Article 239 of the Law on Health Care Insurance

[11] Article 243 of the Law on Health Care Protection