30 May 2023
Ombudsman Diana Kovacheva has sent an opinion to Caretaker Minister of Health Dr. Asen Medzhidiev in relation to the Draft to Amend the Regulations on the Structure and Work Organisation of TEMC and NEMC published for public discussions; she points to a number of unresolved issues and insists on finding adequate solutions.
“In my capacity of the National Ombudsman and based on numerous complaints from citizens, I have repeatedly emphasised that the delay in medical expert opinions both by Territorial Expert Medical Commissions (TEMC), which is specially visible in certain parts of the country, and by the National Expert Medical Commission (NEMC) is a flagrant violation of the citizens’ rights as it hampers the possibilities for them to receive the support they need timely. Even though the amendments to the People with Disabilities Act and the Health Act found a certain, albeit partial, solution to the problems related to the delays in regular re-certifications, in the other cases, for example in initial certification, re-certification in the event of an aggravated situation and in the event of temporary unfitness for work and the appeal procedure, the issue remains unresolved. Unfortunately, this, to a large extent, holds true with respect to a specially vulnerable group, namely children with disabilities in view of the shortage of paediatrician specialists in TEMC panels,” Prof. Kovacheva states.
In her opinion, she emphasises that this draft is a positive step forward to resolve a large number of the problems, mainly to speed up the expert examinations and to overcome the subjective element in assessment, and it is also a foundation to continue the dialogue and the efforts to introduce ICF but she is adamant that such an overhaul poses many questions and issues which will need to be resolved.
First, the Ombudsman notes that the proposal for NEMC not to remand a decision to TEMC for a new review more than once will, without any doubt, result in speeding up the appeal procedures.
She also points out that is it necessary to set out a shorter period for TEMC to render a decision in the event of cancelation and remand of an expert opinion in view of the practice of Territorial Branches (TB) of the National Social Security Institution (NSSI) to terminate the payment of disability pensions due to the cancellation of a decision, which leaves the citizens with no income, often for long periods of time.
“I also think that it is possible to come to an ambiguous interpretation, not to the benefit of the citizens, of the meaning of “prolonged (more than 30 days) hospital or home treatment” because it is possible for citizens with grave disabilities preventing them from leaving their homes not to undergo treatment and also for less than 30 days to have elapsed but the prognosis could be of no improvement in their condition,” the Public Advocate adds.
She goes on to emphasise that it is not clear whether the need for assistance, outside the cases listed in Article 40 (2), will be determined only on the basis of documents and how an objective assessment will be made of the ability of people to take care of themselves on their own in meeting their daily needs.
Prof. Kovacheva is certain that the sending of an expert decision by the Regional Medical Expert Archive (RMEA) to NSSI TB only after it has checked that all parties have been notified and that the term for appeal under Article 63 (1) has expired is a prerequisite for a delay of the expert examination by the Medical Committees at NSSI TB as the 14-day term for appeal runs as of the receipt of the expert decisions and results in breached citizens’ rights.
“It should be taken into account that even if, until now, these committees had to get acquainted with one’s medical expert file after receiving it from the RMEA, the review of the medical documents evidencing one’s current health situation could also take place via providing access to the information in the electronic system of relevance to the expert examination,” the Ombudsman notes.
Prof. Diana Kovacheva points out that the provisions for medical expert examinations to be carried out in hospital treatment by TEMC and the obligatory inclusion of heads of clinics and wards in the panels could lead to a number of problems due to their commitments under agreements with the National Health Insurance Fund (NHIF) to perform activities under clinical pathways.
She notes that it is not clear what measures will be taken in the event of rejection or substantial delay in setting up the commissions.
In addition, she emphasises the lack of sufficient qualifications and experience of the doctors in the newly-formed commissions to assess the permanently reduced fitness for work/type and degree of disability which is yet another prerequisite for a deteriorating quality of expert examinations leading to an increase in the number of appeals by stakeholders and authorities.
Another problem the Ombudsman would like to see resolved is the functionality of an Information Data Base for all people who have attended TEMC/NEMC for the establishment of permanently reduced fitness for work/type and degree of disability (IDB), the electronic health files in a National Health Information System (NHIS) and the information they contain, including the procedure and manner of inputting (digitising) medical documents.
Kovacheva notes that the provisions for allocation of statement applications submitted in relation to certifications and re-certifications in a random electronic procedure entails risks of referral to a hospital which does not have specialists for the profile of a given illness.
“If the TEMC doctors have doubts as to the truthfulness of the content of the medical documents of relevance to an expert examination, they could assign additional tests and consultations which, however, the patients could undergo at the same medical institutions where they were issued. In such cases, in practice, there is no way to apply the provision of Article 35 (1) of the Regulations on the Structure and Work Organisation of the Bodies of Medical Expert Examination and of the Regional Medical Expert Archives (RSWOBMEERMEA) pursuant to which when the heads of the medical institutions with which TEMC are set up provide timely the overall clinical and hospital examination of the certified persons in view of the possible distance of the TEMC from the place of residence of the people, which is laid down precisely for such cases,” the Ombudsman goes on to note.
Prof. Kovacheva suggests that the provision of Article 32 (4) which provides that, in certain cases, documents or tests which have not been submitted so far are required could be amended to set out that TEMC shall render a decision at the next session after the submission of the documents.
She emphasises that it is also necessary to discuss the situation when a person does not agree to provide access to all health records in their electronic health file to the bodies of the medical expert examinations for the purposes of the procedure of certification/re-certification.
“In such cases, the expert examination is to be held solely on the basis of the medical documentation submitted in relation to the expert examination and the possible inclusion in the expert decision of any data from the patient’s electronic health file would be a violation of the will the patient has expressed and would breach the patient’s rights,” Diana Kovacheva is definitive.
In her opinion, she also raises the question about penalties in the event of non-compliance with the RSWOBMEERMEA provisions and insists on an in-depth discussion in view of the TEMC practice so far not to abide by the statutory provisions.