«The recent sentence 6513 of the Lazio TAR which rejects the department for the nursing-led health professions satisfies us. It says what we have been saying for a long time: the patient is a "unique" and there can't be two lines to manage him, a medically guided clinic and a welfare one with the nurse in charge. It would create a separation in the treatment strategy.

Riccardo Cassi president of the Cimo hospital doctors union, applauds the decision of the Tar which annulled the decree of the commissioner ad Acta Nicola Zingaretti establishing the Department for the health professions headed by a professional nurse appointed by the director general for the command of welfare activities. The decree had been contested by both Anaao and Cimo with Omceo Rome, the Anaao appeal went to sentence, Cimo awaits the ruling on his (the probable appeal of the Region is also at stake). The Tar confirms that the organization of care work entrusted to an independent nursing management would create a confusion of roles and responsibilities: the patient could receive indications coming not from the doctor in charge of the operating unit but from the manager of the health profession.

Among other things, the legislative decree 502/92 places the responsibility for the organization of all health personnel in the hands of the medical directors of complex structures, and the Lazio decree does not respect the dictates. Thirdly, the new assignments of executive positions based on the 2008 sector contract must be given in compliance with those conferred on previously appointed executives. «The assistance component – summarizes Cassi – acts downstream of a process of diagnosis and therapeutic indication. Various health professions collaborate in the path (think of biologists and pharmacists) but we all know that our activity is aimed at treating a disease, that is, a clinical problem, and the clinician - the leader of this multi-professional path - is the doctor.

THEAmong other things, the Tar reiterates one of our most serious fears: the separation of the lines of activity is a harbinger of dysfunctions ». Cassi admits that in a disease "there is an acute phase where the clinical component weighs more and a chronic one where there is more of a care component in the interventions, but behind the diagnosis of chronicity there is always a clinical path, a doctor with 6 years of degree course and 5 of specialization».

The Tar also cites paragraph 566 in support of its thesis, stating that maintaining the competence of doctors on complex and specialized acts means reserving global responsibility for the treatment process to them. What does Cassi think? «The judge agrees with us here too, there are no simple acts. Illness is not answered with Bignamino, but this must be made clear to the government and above all to the regions which are ready to change hierarchies in the name of greater savings ».

Mauro Miserendino – Thursday, 21 May 2015 – Doctor33

Healthcare companies: the division between the clinical line and the healthcare line is illegitimate

AND the Decree of the Commissioner ad acta concerning the approval of the Policy Act for the adoption of the Corporate Autonomy Act of the Local Health Authorities of the Lazio Region is illegitimate in the parts concerning nursing, midwifery and health, technical, nursing care , midwifery and the health, technical, rehabilitation and prevention professions, where it provides for the separation of the clinical line, whose governance is entrusted to the Clinical Management Departments, from the Welfare one, whose governance is proper to the UU.OO. of the health professions.

This division, in the absence of rules that harmoniously link the concrete performance of the activities, can be productive of dysfunctions that can jeopardize the effectiveness of patient management. The hypothesized autonomy of the competencies is in contrast with the provisions of Legislative Decree no. 502 of 1992, which establishes that managers with the task of managing a complex structure are attributed, in addition to those deriving from specific professional competencies, management functions and organization of the structure, to be implemented also through directives to all the personnel working in the same, and the adoption of the relative decisions necessary for the correct performance of the service and to realize the appropriateness of the interventions with preventive, diagnostic, therapeutic and rehabilitative purposes.

Thursday, May 21, 2015 – Doctor33

TAR Lazio Rome Section III quater, Judgment of 05/06/2015, n. 6513

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

The Regional Administrative Court for Lazio

(Section Three Quater)

has given the present

JUDGMENT

on appeal n.14116 of 2014 proposed by AA, in the person of the legal representative pro-tempore, represented and defended by the lawyers GCS and ER at whose office in Rome, Via di Porta Pinciana n.6, she is electively domiciled;

against

– the Lazio Region, in the person of its pro-tempore legal representative, represented and defended by the lawyer GA and electively domiciled at the headquarters of the Regional Lawyer in Rome, Via Marcantonio Colonna n.27;

– the ad acta Commissioner for the achievement of the financial recovery objectives envisaged in the Recovery Plan from regional deficits for health expenditure, represented and defended by the State Attorney General at whose headquarters in Rome, Via dei Portoghesi, 12, is for domiciled law;

towards

Provincial Order of Surgeons and Dentists of Rome, not constituted in court;

for cancellation:

a) of the decree of the ad acta Commissioner n.U00259 dated 6.8.2014 concerning "Approval of the Policy Act for the adoption of the Corporate Autonomy Act of the Healthcare Companies of the Lazio Region" in the part in which it provides in point 5.6 (Nursing, midwifery and technical health professions of nursing, midwifery and technical health professions of rehabilitation and prevention) that:

– ” the corporate organization in its articulations must provide for the separation of the clinical line, whose governance is entrusted to the Clinical Management Departments, from the welfare line whose governance is proper to the UU.OO. of Health Professions, which for this purpose can be aggregated in the Department of Health Professions. This organization will be able to make use of an articulation that will range from a simple or complex structure up to the possibility of establishing, on the basis of the company's complexity, the Department of nursing, midwifery and technical health professions, rehabilitation and prevention”;

– "this Department may also be provided as an exception to the relationship indicated in the following point 5.9.5";

– “the Health Director in charge of the department is an operator belonging to the professions referred to in Law no. 251 of 2000 in possession of the professional requisites envisaged by current legislation and is chosen from among the Managers of the complex structures identified within the Department itself and appointed by the Director General, with the assignment of a term of two to three years, as well as provided by the previous point 5.2. The Manager of the simple or complex structures of the nursing, midwifery, rehabilitation, health techniques and prevention techniques professions is appointed through an insolvency procedure pursuant to art. 7 of Law no. 251 of 2000, referred to in the DPCM of 25 January 2008 which implements the Agreement reached in the State-Regions Conference on 15 November 2007, concerning the discipline for access to the single qualification of manager of the nursing, technical, rehabilitation health professions, of prevention and the midwifery profession, published in the Official Gazette February 16, 2008, n.48″;

b) of the art. 29, paragraph 4, of the CCNL 8.6.2002 – regulatory part for the four-year period 1998-2001 and economic part for the two-year period 1998-1999;

c) where necessary, the decree of the ad acta Commissioner n.U00247 of 25 July 2014 concerning "Adoption of the new edition of the 2013-2015 operational programs to safeguard the strategic objectives for the reduction of health deficits in the Lazio Region";

d) any other presupposed, connected and/or consequential act.

Given the appeal and its attachments;

Given the deeds of appearance in court of the intimate administrations;

Given the defense briefs;

Having seen all the documents of the case;

Speaker at the public hearing of 21 April 2015 was Dr. Giuseppe Sapone and having heard the defendants on behalf of the parties as specified in the report;

Conduct of the process – Reasons for the decision

With the proposed burden, the AA, the most representative trade union of surgical doctors, dentists, veterinarians and health managers who operate in a relationship of dependence or coordinated and continuous collaboration with NHS or private structures, challenged the Decree of the Commissioner ad acta n.U00259 of 6 August 2014, in the parts indicated in the epigraph, deducing the following grounds for complaint:

1) Violation of the art. 15, paragraph 6, of Legislative Decree no. 502 of 1992 and subsequent amendments; Violation of article 8, paragraph 7, of the CCNL 10.17.2008 SPTA area; Excess of power for illogicality, violation of the general principles of assistance;

2) Violation of article 6, paragraph 2, of Law no. 251 of 2000, of art. 29, paragraph 4 of the National Collective Labor Agreement of 8.6.2000; Excess of power due to unequal treatment.

The intimate administrations were formed contesting the validity of the alleged complaints and concluding for the rejection of the same.

At the public hearing of 04.21.2015 the appeal was decided.

The subject of this dispute is the Decree of the ad acta Commissioner, indicated in the epigraph, containing the Approval of the Policy Act for the adoption of the Corporate Autonomy Act of the Healthcare Companies of the Lazio Region, in the parts, also specified in the epigraph, relating to Nursing, midwifery and the health professions, technical assistance, nursing, midwifery and the health professions, technical assistance, rehabilitation and prevention.

Preliminarily, the provisions intervening to regulate the subject matter of this dispute must be recalled.

More specifically it must be highlighted that:

a) Law no. 251 of 2000 intervened to regulate the nursing, technical, rehabilitation, prevention and midwifery health professions, providing that:

a1) "The Ministry of Health, subject to the opinion of the Permanent Conference for relations between the State, the regions and the autonomous provinces of Trento and Bolzano, issues guidelines for:

a) the attribution in all healthcare companies of the direct responsibility and management of nursing care activities and related functions;

b ) the revision of work organization, encouraging models of personalized assistance (art.1, paragraph 3);

a2) “The Government, with a regulatory act issued pursuant to art. 18, paragraph 1, of Legislative Decree 30 December 1992, n. 502, as replaced by art. 19 of Legislative Decree 7 December 1993, n. 517, defines the competition discipline, reserved for personnel in possession of the specific diplomas issued at the end of the university courses referred to in art. 5, paragraph 1, of this law, for access to a new single qualification of manager of the health role, which can be accessed with requirements similar to those required for access to the management of the National Health Service pursuant to art. 26 of Legislative Decree February 3, 1993, n. 29 (article 6, paragraph 2);

a3) “In order to improve the assistance and for the qualification of the resources, the healthcare companies can set up the nursing and midwifery assistance service and the professional social service and can assign the position of manager of the same service. Until the date of completion of the university courses referred to in art. 5 of this law, the three-year, renewable assignment is regulated by fixed-term contracts, to be stipulated, within the numerical limit indicated by art. 15-septies, paragraph 2, of Legislative Decree 30 December 1992, n. 502, introduced by art. 13 of Legislative Decree 19 June 1999, n. 229, by the general manager with a member of the professions referred to in art. 1 of this law as well as with a member of the professional social service, through an appropriate selection procedure among candidates in possession of predetermined experience and professional qualification requirements. The assignments referred to in this article entail the obligation for the company to abolish an equal number of positions of health manager in the organic endowment defined in accordance with current legislation. For public administration employees, the provisions of paragraph 4 of the aforementioned art. 15-s. With a specific policy act of the sector Committee for the health sector, directives are issued to the Agency for the negotiation representation of public administrations (ARAN) for the definition, within the national collective agreement, of the management area of the health roles , administrative, technical and professional of the National Health Service, of the economic treatment of the executives appointed pursuant to this paragraph as well as of the procedures for conferring, revoking and verifying the assignment (Article 7, paragraph 1);

– “Healthcare companies can assign executive positions, with methods similar to those provided for in paragraph 1, for the health professions referred to in Law 26 February 1999, n. 42, and for the profession of social worker, in the regions in which regulations have been issued for the attribution of the management function relating to the activities of the specific professional area” (art.7, paragraph 2);

b) the State-Regions agreement was implemented with Prime Ministerial Decree of 25 January 2008;

c) in compliance with the Prime Ministerial Decree of 25 January 2008, the CCNL of 10.17.2008 in the SPTA area was stipulated which in article 8 (entry into force of the establishment of the single qualification of manager of the health, nursing, technical, rehabilitation, prevention and the midwifery profession) establishes that:

– “Companies provide for the establishment of posts for the new managerial figure on the basis of their organizational needs through compensatory changes to the overall company staffing, carried out in accordance with the regulations in force on the subject, without additional charges with respect to those defined by the Regions. The transformation of the staffing takes place in compliance with the trade union relations referred to in the CC.CC.NN.L. (paragraph 2);

– "For the purposes of the provisions of the previous paragraph, the Regions may adopt specific guidelines on the matter pursuant to Article 5 of this contract, also indicating, where necessary, the methods and limits of coverage of the related charges" (paragraph 3 );

– ” All the regulations envisaged apply from a regulatory and economic point of view to the newly established management” (paragraph 4);

– "The duties of the newly established managers and the regulation on a functional and organizational level of internal relations with the other professionals of the healthcare management, will be defined by the Company in compliance with the duties and responsibilities of the other managers already provided for by the national legislation in force, under a specific regulation…. The attributions of the newly established manager referred to in this article must allow for an adequate level of integration and collaboration with the other management functions, guaranteeing respect for the uniqueness of management responsibility for the internal professional and organizational aspects of the structures to which they belong. In particular, for this latter purpose, overlapping and duplication of responsibilities and attributions must be avoided which, on an organizational level, can hinder or impede the regular start-up and functioning of new services as well as optimal corporate organization" (paragraph 7);

d) on the basis of this regulation, the aforementioned Decree of the ad acta Commissioner was finally adopted, which, in the parts contested with this appeal (point 5.6), provides that:

– ” the corporate organization in its articulations must provide for the separation of the clinical line, whose governance is entrusted to the Clinical Management Departments, from the welfare line whose governance is proper to the UU.OO. of Health Professions, which for this purpose can be aggregated in the Department of Health Professions. This organization will be able to make use of an articulation that will range from a simple or complex structure up to the possibility of establishing, on the basis of the company's complexity, the Department of nursing, midwifery and technical health professions, rehabilitation and prevention”;

– "this Department may also be provided as an exception to the relationship indicated in the following point 5.9.5";

– “the Health Director in charge of the department is an operator belonging to the professions referred to in Law no. 251 of 2000 in possession of the professional requisites envisaged by current legislation and is chosen from among the Managers of the complex structures identified within the Department itself and appointed by the Director General, with the assignment of a term of two to three years, as well as provided by the previous point 5.2. The Manager of the simple or complex structures of the nursing, midwifery, rehabilitation, health techniques and prevention techniques professions is appointed through an insolvency procedure pursuant to art. 7 of Law no. 251 of 2000, referred to in the DPCM of 25 January 2008 which implements the Agreement reached in the State-Regions Conference on 15 November 2007, concerning the discipline for access to the single qualification of manager of the nursing, technical, rehabilitation health professions, of prevention and the obstetric profession, published in the Official Gazette February 16, 2008, n.48″.

With the first ground of complaint, the illegitimacy of the separation of the clinical line, whose governance is entrusted to the Clinical Management Departments, from the Welfare line, whose governance belongs to the UU.OO. of the Health Professions”, given that this clear separation will concretely make it impossible for the medical manager to interfere in any way in the so-called direct assistance line and managed by the manager of the UO of the health professions.

According to the recourse prospectus, the respective competences and responsibilities of the doctor, the nurse and the others belonging to the health professions, even if distinct, operate synergistically for the achievement of an efficient organization and cannot be separated in the organization of work, with the consequence that the organization of the nursing staff entrusted to the relative autonomous Management would generate a confusion of roles and responsibilities which would be to the detriment of the patient, given that "the patient, in fact, despite being under the responsibility of the doctor of the unit to which they belong, could not receive instructions from the latter but from the Director of Health Professions regardless of the doctor who treats him and for whom he is responsible".

Basically, the foreseen autonomy of the competences of the personnel belonging to the assistance activity, if not disciplined and concretely connected with the clinical activity, would jeopardize the effectiveness of the management of the patient.

The alleged objection is susceptible to favorable examination.

In this regard, the Board underlines that:

a) it cannot be seriously doubted that the disputed clear separation between clinical activity and welfare activity, in the absence of rules that harmoniously link the concrete performance of the aforementioned activities, is a harbinger of the dysfunctions denounced by the appellant association;

b) the contested autonomy is then in clear contrast with the provisions of article 15, paragraph 6, of Legislative Decree no. 502 of 1992, which establishes that in addition to those deriving from the specific professional skills, management and organization functions of the structure, to be implemented, within the operational and management guidelines of the department to which they belong, also through directives to all personnel working in the same, and the adoption of the relative decisions necessary for the correct performance of the service and to realize the appropriateness of the interventions with preventive, diagnostic, therapeutic and rehabilitative purposes, implemented in the structure entrusted to them. The manager is responsible for the effective and efficient management of assigned resources. The management results are subjected to annual verification through the evaluation team.

c) this interpretation is also confirmed by art. 8, paragraph 7, of the CCNL of 2008 in the SPTA area which establishes that "The duties of the newly established managers and the regulation on a functional and organizational level of internal relations with the other professionals of the healthcare management will be defined by the company in compliance with the duties and the skills of the other executives already provided for by current legislation”;

d) as further confirmation, finally, of the illegitimacy of the disputed clear separation between clinical activity and welfare activity adopted by the burdened DCA, the provisions of article 1, paragraph 566, of Law no. 190 of 2014, which establishes that "Without prejudice to the skills of graduates in medicine and surgery in the field of complex and specialized acts of prevention, diagnosis, treatment and therapy, with an agreement between the Government and the regions, after consultation with the scientific, professional and trade unions of the health profiles concerned, the roles, responsibilities, professional relationships and individual and team responsibilities on tasks, functions and objectives of the nursing, midwifery, rehabilitation and prevention health professions are defined, also through training courses complementary. The implementation of this paragraph must not result in new or greater burdens on the public finances."

In the light of these arguments, therefore, the objection in question must be accepted.

Also founded is another grievance with which the illegitimacy of the contested DCA was presented which in providing that the appointment of the manager of the simple or complex structures of the nursing, midwifery, rehabilitation, health techniques and prevention techniques professions must be carried out on the basis of a bankruptcy procedure pursuant to art. 7 of Law no. 251 of 2000, pursuant to the Prime Minister's Decree of 25 January 2008, illegitimately omits to require for this purpose the possession by the person to be appointed of professional managerial experience of not less than five years.

In this regard, the Panel underlines that the disputed provision is in clear contrast with the provisions of article 6, paragraph 2, of Law no. 251 of 2000 which establishes, in order to avoid a clear difference in treatment, that for access to the qualification in question, requirements similar to those required for access to the management of the National Health Service are necessary, among which the Five years of previous management experience.

Nor to invalidate the validity of this conclusion is conferred by the relief of the regional administration according to which, since that of manager of the health professions is a newly established qualification, it can only be included among the first-level managers who can be conferred the direction of a complex structure with an open-ended three-year assignment, pursuant to art. 7, paragraph 1, of the aforementioned Law no. 251 of 2000.

In this regard, it must be highlighted that:

a) the aforementioned provision establishes “In order to improve assistance and for the qualification of resources, healthcare companies can set up the nursing and midwifery assistance service and the professional social service and can assign the position of manager of the same service. Until the date of completion of the university courses referred to in art. 5 of this law, the three-year, renewable assignment is regulated by fixed-term contracts, to be stipulated, within the numerical limit indicated by art. 15-septies, paragraph 2, of Legislative Decree 30 December 1992, no. 502, introduced by art. 13 of Legislative Decree 19 June 1999, n. 229, by the general manager with a member of the professions referred to in art. 1 of this law as well as with a member of the professional social service, through an appropriate selection procedure among candidates in possession of predetermined experience and professional qualification requirements";

b) from the content of the aforementioned provision it is clear that the three-year fixed-term assignment is of an exceptional nature in that it is permitted only up to the date of completion of the university courses referred to in art. 5, and, therefore, certainly cannot assume any value in order to justify the conferral of a complex management assignment to a person without the prescribed five-year management experience.

That being said, the proposed appeal must be accepted.

The peculiarity and novelty of the issues dealt with justify the compensation of the court costs.

PQM extension

The Regional Administrative Court of Lazio, Section III quater, definitively ruling on appeal no. 14116 of 2014, as proposed in the epigraph, accepts it, and, for effects, cancels the burdened DCA in the contested parts.

Expenses compensated.

Orders that this decision be carried out by the administrative authority.

Thus decided in Rome in the council chamber on 21 April 2015 with the intervention of the magistrates:

Linda Sandulli, President

Giuseppe Sapone, Councilor, Draftsman

Pierina Biancofiore, Director