August 11, 2022

DPC won a case in favour of a medical facility on a request from an employee for additional remuneration for work in COVID-19 conditions

During the emergency epidemic situation, all medical facilities were directly affected economically by the measures against the epidemic, as because of the restrictions on some planned medical activities, the revenue from their activity was significantly reduced.

Therefore, in order to overcome these consequences, a “Methodology for defining the amounts, paid by the NHIF to contractors of medical care, dental care and diagnostic medical activities, for work in unfavourable conditions, due to an announced epidemic situation” was adopted, with a common protocol between the Supervisory Board of the Natinal Health Insurance Fund (NHIF) and the Board of Directors of the Bulgarian Medical Association (BMA).

The Methodology aimed to compensate the medical facilities directly affected by the pandemic, for the tackling of the economic crisis caused by COVID-19. Funds could also be secured through an additional transfer from the budget of the Ministry of Health. To that end, additional agreements to the National Framework Agreement (NFA) were signed between the contractors of medical help and the NHIF.

In short, the Methodology entitled the medical facilities to monthly payments from the NHIF, with the specific amount being the difference between 85% of the base value for the activity of 2020, 2021 respectively, and the amount of the reported activity for the respective month of 2020 or 2021.

The purpose of the support was to compensate the medical facilities precisely because of their reduced workload and in order to secure their monthly, usual expenses for remunerations, facility rent, utility bills for electricity, heating, water supply etc., expenses for medical software, expenses for medical supplies, the price and demand of which drastically increased in the period under review, etc. Without this support, some of them probably would not even be able to pay their employees’ basic remuneration.

Initially, the Methodology was directed only at the contractors of medical help which, within the meaning of the law, are “medical facilities or their affiliates”. Later, for the purpose of providing additional financial motivation for the employees dealing directly with the diagnosis and treatment of COVID-19 patients, exceptions were included, directed specifically at a limited group of medical and assisting personnel, dealing directly with the tracing and treatment of patients infected with the virus. This group included doctors and healthcare professionals from the primary medical care; personnel in the hospital care, the emergency departments, the imaging departments, the laboratories, the intensive care units etc., when they were required to directly perform the activities around the supervision, diagnosis, and treatment of patients, of a verified COVID-19 case, for the placement of vaccines, etc.

This legislative decision was entirely in favour of the medical workers on the front line, who were to be compensated by the NHIF for their work in high-risk conditions. Regarding all other healthcare professionals who have not been dealing directly with verified COVID-19 patients, no such payment was provided. The fairness of such legislative resolution is a separate matter, which can also be discussed quite thoroughly, in so much as, in the outburst of the pandemic and for a while after it, the risk was present for all healthcare professionals, regardless of whether they were on the front line or not, as the spread of the disease was incontrollable, and the contact with infected people was difficult to predict or limit entirely.

The circulation in the media of statements that all healthcare professionals will be compensated for their work during the emergency epidemic situation led to misunderstandings and a feeling of disadvantage in some doctors who, despite working during the pandemic, were not on the so called “front line”.

Particularly on the case filed against our trustor, the employee at the medical facility, an ENT specialist who had not treated patients with verified SARS-CoV-2, and who filed a request for additional remuneration, claimed that since in his employment contract it had been arranged that he receives a percentage of the revenue from the NHIF, for the medical activity performed by him, it follows that he was also entitled to a percentage of the payments, received by his employer (dental medical centre), on the basis of the Methodology. It should be emphasised here that our trustor is a medical facility for Specialized Outpatient Medical Care (SOMC), where neither has any laboratory activity, nor any activity around the treatment or other diagnosis of patients with verified SARS-CoV-2 been carried out.

Sylvina Beleva, senior associate, with the help of associate Yoanna Pantaleeva, convinced the court that despite that the employee had worked during the emergency epidemic situation, the latter was not entitled to any payments on the basis of the Methodology, as he does not have the capacity of a medical care contractor within the meaning of the law and does not fall within the limited group of medical and assistance personnel, dealing directly with the diagnosis, tracking and treatment of patients infected with the virus, for which such additional remuneration was provided. Respectively, the revenue received by the employer on the basis of the Methodology does not have the capacity of revenue generated as a direct result of the work of the employee himself (a percentage of which the latter is entitled to) and, in this respect, it is not to be included in his remuneration.

The decision is subject to appeal before a higher instance.

Sylvina Beleva
Senior Associate

Part of the DPC team for over 16 years, Sylvina is a highly skilled lawyer with versatile expertise. Her current practice is focused on litigation, commercial, contract, real estate and public procurement law, healthcare, and immigration.

Yoanna Pantaleeva
Associate

Yoanna has been a valiant, efficient and highly esteemed helper to DPC public procurement and dispute resolution teams since she joined DPC through the firm’s trainee selection programme in 2017.

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