The legislation of the Medical Security Law is a key and difficult task of "medical insurance under the rule of law" in the new era, which is related to the standardized operation of multi-level medical security. In 2021, the Medical Security Law was included in the legislative work plan of the Standing Committee of the National People's Congress; In June of the same year, the National Health Insurance Administration issued the Medical Security Law (Draft for Comments); In 2022, it will be included in the preliminary review project by the National People's Congress; In 2023, it will be included in the second category of the Legislative Plan of the Standing Committee of the 14th National People's Congress, that is, "draft laws that need to be worked on and submitted for consideration when conditions are ripe". To this end, it is an urgent task for the industry to step up the improvement of the draft law on the Medical Security Law. In the author's opinion, the style and chapter of the Medical Security Law should follow the operation law of multi-level medical security, and be based on basic medical insurance.
Legislative positioning is the primary issue
The legislative positioning is related to the distinction between the law and other departmental laws, and also determines the object of legislative adjustment and the framing of the style and chapter.
First of all, the Health Security Law should be an independent "subsystem" of the social security legal system. The Constitution grants citizens the right to social security, which is the legal source, legislative basis and logical starting point of the Medical Security Law. The social security laws of all countries have gradually developed into an intrinsically interrelated and systematic social security legal system. In the legal system of social security, many countries have enacted separate laws to adjust medical security, because medical security is different from other social security programs that maintain the basic living expenses of members of society, and the purpose of medical security is to cover medical expenses. Moreover, medical services are knowledge-intensive, with high technical thresholds, scientific experience, supply-side-led demand-side, and price elastic services, and medical services directly determine the cost or cost of medical security. To this end, the Medical Security Law needs to construct a state-regulated legal system for medical and pharmaceutical services, and gradually evolve into an independent "subsystem" in the social security legal system.
Secondly, the Medical Security Law is a unique field law that has evolved into a social security legal system in the integration of medical insurance and pharmaceutical legal systems. The insured person of medical insurance has not only the right to request the payment of medical security benefits, but also the right to request "guarantee of accessibility of medical resources" and "guarantee of the quality of medical services". At the same time, medical security under the special structure of the medical and pharmaceutical business needs to be coordinated between the two areas of the Medical Security Act and the Medical and Pharmaceutical Business Act. The medical security legal system in mainstream countries has gradually evolved into a long-term, growing, and ever-changing unique field legal system involving welfare policies, medical treatment, medicine, public health and other factors, and has expanded from the first generation of "disease security" system to the second generation of "health security" system.
Thirdly, the Medical Security Law should be positioned as the basic law in the current legal system of medical security in mainland China. In the past 30 years, the gradual reform of the mainland's medical security system has been carried out, and the legislative work has been preliminarily launched. The relevant legal norms for adjusting multi-level medical security are mainly scattered in the Social Insurance Law, the Military Insurance Law, the Interim Measures for Social Assistance, the Insurance Law, the Basic Medical Care and Health Promotion Law, the Law on the Protection of Persons with Disabilities, the Law on the Protection of the Rights and Interests of the Elderly, and the Law on the Prevention and Treatment of Infectious Diseases. At the same time, several departments that previously decentralised the management of medical security, as well as the National Healthcare Security Administration, which was established in 2018, have also formulated a series of relevant administrative regulations. Therefore, at the intersection of the historical changes and reality of the mainland's medical security legal system, it is necessary to clarify the positioning of the "Basic Law" and "Integrated Law" of the Medical Security Law to govern the multi-level medical security field. At the same time, the "Medical Security Law" also has the functional positioning of the "General Principles Law" that governs a series of technical, open and functional regulations.
The chapter of the Health Insurance Law must be based on basic medical insurance
As the "basic law" and "integration law" to adjust the multi-level medical security field, the main chapters of the "Medical Security Law" should be based on basic medical insurance.
First of all, the main framework of the Medical Security Law should be constructed with basic medical insurance as the core. The multi-level medical security system in most countries and regions takes the statutory basic medical insurance covering the whole people as the core pillar and assumes the main security function. Medical assistance is subject to statutory medical insurance, and the content of medical assistance in most countries and regions is based on the expansion of the statutory medical insurance framework system, and differentiated assistance is implemented according to the needs of different poor groups, and the comprehensive security function is undertaken. Commercial health insurance, on the other hand, takes advantage of the market initiative and provides a higher level of supplemental or alternative protection for services and medical expenses not covered by statutory health insurance. Mutual medical aid and charitable assistance give full play to the guarantee function of filling in the gaps and dynamically filling the gaps, and make useful supplements and improvements to the areas that are not covered by the government mechanism and the market mechanism of medical security or even fail. Therefore, as the basic law, the "Medical Security Law" should cover the whole people, undertake the main security function of the basic medical insurance system as the core and pillar of the law, on the basis of the stereotype and improve the basic medical insurance system, the overall planning of the multi-level medical security system, clarify the functional positioning of various supplementary medical security systems, with the "medical insurance financing and treatment payment" as the core, with multi-level medical insurance financing convergence regulation, treatment payment regulation, medical expense payment regulation, information regulation, incentive regulation, With supervision and regulation as the main line, we will build a multi-level medical security cohesion mechanism and normative system.
Secondly, the system and normative system of the Medical Security Law should be developed with the internal logic of the legal relationship of basic medical insurance. With the purpose of protecting the "right to national medical security", following the law of medical security operation, giving full play to the "logical middle" function of legal relations, and carrying out the design of the main normative system of the law with the legal relationship of basic medical insurance. The first is to focus on the socialized financing mechanism of basic medical insurance, and construct a triangular structure of financing and management legal relationship groups and normative systems between handling agencies, policyholders and insureds. The second is to focus on the basic medical insurance treatment payment mechanism, and build a triangular structure of legal relationship groups and normative systems for treatment payment and medical expense reimbursement between handling agencies, insureds and designated medical institutions. The third is to build a legal relationship group and normative system for medical expense payment and settlement between the handling agencies and designated medical institutions around the medical expense payment and settlement mechanism.
"Embedded" construction, management and supervision, legal system and multiple dispute resolution mechanisms
The management and supervision of medical security is based on the management system of the Constitution and administrative law, the socialized financing and payment mechanism of Zhonglian medical insurance, and the payment and settlement mechanism of medical expenses, which not only protects the rights and interests of national medical security, but also monitors the rational use of funds. How to construct a comprehensive and full-process legal system for fund supervision can learn from the relevant experience of Germany and mainland Taiwan, and "embed" the management and supervision of medical security in the above-mentioned legal relationship of basic medical insurance and various legal systems, which can be carried out from the following three levels.
First, on the legal system of government regulation and social regulation. In order to ensure that all citizens enjoy the right to basic medical security, the government bears the leading responsibility, and government supervision is in a leading and all-round legal position throughout the whole process of the medical security fund. The "Medical Security Law" should be in the chapter "General Provisions", inheriting the Constitution and administrative public law, and clarifying the legal system of government administration and social supervision.
Second, on the legal system of public management services. The agency is the main body of the implementation of the medical security system, the main body of public management services, and the administrative body authorized by law. The "Medical Security Law" should be aimed at implementing the right to national medical security, not only set up chapters, but also take the concept of management in service, and take procedural justice, fairness and openness as the means to "embed" the public management service of medical insurance into the structural legal relationship of "handling agencies, policyholders, insureds, and designated medical service institutions", and build a standardized and rigid legal system for public management services.
Third, on the diversity of medical insurance disputes and the dispute resolution mechanism. In the Medical Security Law, which takes the insured's right to medical security as the fundamental concept, the insured is no longer a passive recipient of state favors, but a specific right holder, so when the realization of rights is hindered or the rights are infringed, the corresponding rights relief mechanism must be required to protect them. Based on the structured, typical, and multi-faceted legal relationship of basic medical insurance, we can explore different types of disputes and resolution paths in public and private law, including labor disputes and dispute resolution mechanisms for labor-management insurance in the insurance link, administrative penalties and dispute resolution mechanisms for delayed payment of premiums, administrative dispute resolution mechanisms for medical insurance management and supervision, administrative entrustment disputes and dispute resolution mechanisms in the treatment payment link, and disputes and civil dispute resolution mechanisms between doctors and patients over the quality of medical services. （ZGYB-2024.03）
Original title: Clarifying the legal positioning and style chapter is the key to medical insurance legislation
Author | Shuyun Sun, School of Law, Shanxi University of Finance and Economics
Source | China Medical Insurance
Edit | Yang Zixuan, Liu Xinyu
Hot Article
• Shanxi reported that the hospital was suspected of using the medical insurance fund in violation of regulations: a case has been filed for investigation
• A new round of medical insurance flight inspection has been launched! It has been stationed in 6 medical institutions, and fraud and insurance fraud will be severely cracked down
• Is the ability to finance health insurance limit the development of hospitals? I'm afraid that's not the case!