Source: China Medical Insurance
Author: Lou Yu Professor of the School of Civil and Commercial Economic Law, China University of Political Science and Law, Director of the Institute of Social Law
The medical insurance administrative department's supervision and management of the medical security fund needs to cooperate with other departments in the division of labor and cooperate with each other, especially to establish communication and coordination with the public security organs, case transfer and other mechanisms, and do a good job of linking executions. For a long time, due to the lack of legal guarantees, the operation effect of this mechanism in our country is not satisfactory, mainly manifested in the fact that, on the one hand, the standards for the identification of illegal acts between administrative organs and public security organs are not uniform, and because of the latter's lack of professional knowledge, it is often difficult to judge the nature of the cases transferred by the former, and many cases can only be dismissed.
The Criminal Law of the People's Republic of China and its judicial interpretations stipulate the types of acts of defrauding social security funds and the corresponding criminal liability. The Social Insurance Law promulgated in 2010 stipulates the administrative liability and criminal liability for fraud and insurance fraud in the chapter "Legal Liability", but administrative liability only defines the subject of administrative responsibility, the type of illegal act and the punishment method, and basically has no provisions on the connection between administrative law enforcement and criminal justice. The Regulations on the Supervision and Administration of the Use of Medical Security Funds promulgated by the State Council in early 2021 describe in detail the types of fraudulent insurance fraud and corresponding penalties, setting basic standards for the enforcement of law enforcement by medical insurance administrative organs, especially the exercise of discretion, but they are still limited to the administrative level, and the provisions on the articulation of executions are very brief. At present, this work can only be carried out on the basis of the Provisions on the Transfer of Suspected Criminal Cases by Administrative Law Enforcement Organs (hereinafter referred to as the "Provisions"), which was issued by the State Council in 2001 and revised in 2020, which determines the basic working mechanism for administrative transfer to the judiciary, including the type of evidence data, the time limit for the public security organs to handle it, the method for filing cases, and the handling methods for relevant public officials, but in specific areas, special provisions are made only for illegal cases of intellectual property rights. Medical insurance fund supervision cases are highly professional, have a high degree of relevance to the management of medical affairs, have complex illegal subjects and types of illegal acts, and have higher requirements for early warning and monitoring, which determine that only the Provisions stipulate general principles and work procedures cannot meet the requirements of execution cooperation in the medical insurance field. In this sense, it is very necessary to formulate a special departmental cooperation regulation, and it is timely to introduce such a normative document in the context that China has achieved universal medical insurance and the medical insurance industry is gradually moving towards the process of standardization and rule of law.
Compared with the Provisions, the Notice of the State Medical Insurance Bureau and the Ministry of Public Security on Strengthening the Investigation and Handling of Cases of Fraudulent Acquisition of Medical Insurance Funds (hereinafter referred to as the Notice) has the following highlights:
First, the issuing authority is authoritative and targeted. This "Notice" is jointly issued by the medical insurance administrative department and the public security department at the central level, as a special regulation for the special field of medical insurance issued by the State Council, which not only achieves reasonable and clear in the relationship between the ranks, but also shows the authority and pertinence of the work of the local medical insurance and public security departments.
Second, the highest standards for the articulation of executions have been established. The "Provisions" adopt the expression methods of "suspected crime", "need to pursue criminal responsibility", and "must be transferred", and the "Notice" adopts more severe words such as "should be removed" and "should be collected", and through "administrative punishment shall not be used instead of criminal responsibility to pursue", administrative inaction is explicitly prohibited, adhering to high standards and strict requirements.
Third, the content of legal documents has been refined. On the basis of the transfer procedures established in the Provisions, the Notice clearly requires the contents of the two legal documents, the "Letter of Transfer of Suspected Criminal Cases" and the "Investigation Report on Suspected Criminal Cases of FraudulentLy Obtaining Medical Insurance Funds" in the form of attachment templates, which are more targeted for the transfer work of medical insurance administrative organs and ensure that there are no omissions.
Fourth, a two-sided coordination mechanism for executions has been established. The expenditure of medical insurance funds follows the principle of payment in kind and services, and has a high degree of correlation with medical technology, medical affairs management, and coordinated regional medical insurance policies, and it is difficult for public security organs to judge the nature and severity of complex cases of fraudulent medical insurance funds, so it is necessary to build a set of two-sided cooperation mechanism for executions based on professionalism, which is essentially different from the unilateral transfer of general criminal cases. The "Circular" requires the establishment of a joint meeting and a situation reporting system, requires medical insurance and public security organs to strengthen daily communication and exchanges, summarize and grasp the characteristics of case laws through analysis of typical cases of illegal crimes defrauding medical insurance funds, strengthen business training, and continuously improve the ability to investigate and handle cases and the level of law enforcement.
Fifth, the responsibilities of the central medical insurance and public security administrative departments have been clarified. In view of the investigation and handling of major and important cases, the "Circular" requires the Ministry of Public Security and the State Medical Security Bureau to implement "double listing" supervision, and local departments should implement the overall responsibility for the main responsible persons for the cases supervised, and set up special classes to handle them to ensure that they are completed on schedule. The Ministry of Public Security and the National Medical Insurance Bureau organize verification decisions, and those that are not completed within the time limit are to be notified and criticized, and the quality of case handling is ensured by means of internal accountability of administrative organs.
Sixth, the social supervision mechanism is emphasized. One of the highlights of the Regulations on the Supervision and Administration of the Use of Medical Security Funds is the establishment of a social supervision mechanism with media publicity, public participation, and industry self-discipline as the main implementation channels, and the Notice continues to continue this mechanism, punishing illegal and criminal acts and deterring criminals by strengthening policy publicity, encouraging supervision by the whole people, and increasing the exposure of cases, and clearly defining the Department of Fund Supervision of the State Medical Security Bureau and the Criminal Investigation Bureau of the Ministry of Public Security as the organizational guidance organs, so that the system can finally be implemented.
Seventh, it distinguishes between the people who cheat the medical insurance fund and the subjective psychology. The "Circular" requires that key groups such as behind-the-scenes organization manipulators adhere to strict punishment, and that first-time offenders and occasional offenders who have little harm to society and are not deeply involved in the case be treated leniently, and medical personnel and patients who admit guilt and accept punishment are given lenient treatment. The "one-size-fits-all" administrative punishment has been avoided, and while cracking down on the subjective malignant population, it has also implemented a moderate leniency treatment for insured persons and medical personnel, which has an important guiding effect on administrative law enforcement practice.
Of course, the "Notice" only takes the first step in the field of execution cooperation in the field of medical insurance fund supervision in China, although this is a substantive and pioneering first step, but just like newborn babies, there are definitely imperfect and imperfect defects. The main manifestation is that the transfer of cases of fraudulent medical insurance funds listed in Annex I is basically a retelling of articles 87 to 89 of the Social Insurance Law and articles 15, 16, 17, 19 and 20 of the Regulations on the Supervision and Administration of the Use of Medical Security Funds, without adding too much substantive content, which is precisely the key issues and difficult issues in the supervision and enforcement of medical insurance funds and judicial practice. For example, the situation of decomposing hospitalization is very complicated, there are medical technology factors, there are also hospital management factors, and may also be mixed with local medical insurance policies and agreement management factors, the legal nature and degree of its determination can not be generalized, if not in the higher-level normative documents to be clear, will substantially affect the scale of law enforcement and the efficiency of transferring cases. In addition, in addition to the subjective illegal acts of insured individuals, the supervision of medical assistance may also be limited by the understanding and grasp of the local law enforcement departments on the property income exemption policy, and if there can be a more detailed description of the situation in the Notice, it will be more conducive to the connection between administrative law enforcement and execution.
Overall, this "Notice" is worthy of affirmation. On the one hand, we cannot detach ourselves from the background of the implementation of the specific medical insurance system and the historical stage of fund supervision, and force the Notice to reach a high level; on the other hand, we must not be complacent and ignore this defect. My personal suggestion is that in the future, in combination with the joint meeting and the information reporting system, experts in medical technology, hospital management, law, finance and other fields can be recruited to jointly explore and study the constituent elements of the illegal and criminal acts of defrauding the medical insurance fund, form a unified identification scale, and report to the National Medical Security Bureau and the Ministry of Public Security, which will regularly issue typical cases and identification suggestions, gradually realize the same case and sentence, and finally achieve coordination and convergence between executions.
Attached: Provisions on the Transfer of Suspected Criminal Cases by Administrative Law Enforcement Organs (hereinafter referred to as the "Provisions") and "Notice of the State Medical Insurance Bureau and the Ministry of Public Security on Strengthening the Linkage of Investigation and Handling of Cases of FraudulentLy Obtaining Medical Insurance Funds" (hereinafter referred to as the "Notice")
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