All relations between compulsory medical insurance subjects are formalized by agreements: - between the territorial fund of compulsory medical insurance (or its branch) and the insurer - on the financing of medical care within the framework of compulsory medical insurance (the standard form of this contract was approved by order of the Ministry of Health and Social Development of Russia dated September 9, 2011 No. 1030n);

- between the insurer and the medical institution - for the provision and payment of medical care under compulsory medical insurance.

These contracts are characterized by a number of specific features. First, the freedom of expression of the will of the parties in determining the terms of the contract is limited by law. The parties may not, at their own discretion, reduce or increase the list of services free of charge for the consumer (insured person), the rates for medical services, the requirements for the quality of medical care, etc.

In contrast to civil law insurance, the regulatory legal acts on CHI do not define the maximum liability of the insurer for individual risk, i.e. the cost of providing medical care to a specific insured person during the term of the CHI contract. In this regard, HMOs do not pay insurance coverage to insured persons (patients) in case of poor-quality medical care, but only assist them in compensating for harm caused to health during the provision of medical care.

The realization of a citizen's right to compulsory health insurance cannot depend on the fulfillment by the insured of his obligation to pay contributions. Therefore, the MHI agreement comes into force from the moment of its signing, and not from the moment of payment of the first insurance premium.

Secondly, MHI subjects cannot refuse each other to conclude MHI agreements. For an unreasonable refusal to conclude a CHI contract, an insurance medical organization may be deprived of a license by a court decision. The territorial fund or its branch does not have the right to refuse the HMO to conclude an agreement on the financing of medical care if it ensures the implementation of the territorial program of state guarantees in full on the basis of agreements concluded with medical institutions and pharmaceutical organizations.

Medical insurance organizations do not have the right to use the funds intended for the implementation of compulsory medical insurance programs for commercial activities, they are liable to the compulsory medical insurance funds for paying for medical care under compulsory medical insurance.

Agreement for the provision and payment of assistance. An insured event is an appeal by the insured person during the validity period of the contract to the medical organization specified in the contract for medical care under the compulsory medical insurance program.

The specified contract is concluded between the insurer (CMO) and the medical institution. It should contain a list of medical services provided for by the Program of State Guarantees, the procedure for settlements and quality control of medical care, a condition on the responsibility of the parties, etc. The standard form of the contract was approved by the Ministry of Health of Russia dated December 24, 2012 No. 1355n.

Settlements between HMOs and a medical institution for services rendered under the State Guarantee Program are made by paying invoices submitted by a medical institution.

For non-payment or late payment of medical care provided under the contract, the HMO at its own expense pays a penalty to the medical organization in the amount of one three hundredth of the refinancing rate of the Bank of Russia, effective on the day of the delay, from the untransferred amounts for each day of delay.

Each insured citizen receives medical insurance policy, which testifies to the conclusion of an MHI agreement in respect of him between the HMO and the medical institution included in the TFOMS register. The CHI policy is a document certifying the right of the insured person to free medical care throughout the Russian Federation in the amount provided for by the Basic CHI Program. In the Russian Federation, there are policies of a single sample.

In the constituent entities of the Russian Federation, where a universal electronic card is used for identification, the policy is a federal electronic supplement to it in accordance with the Federal Law of July 27, 2010 No. 210-FZ "On the organization of the provision of state and municipal services." Before the introduction of universal electronic cards in the subjects of the Russian Federation, the policy can be presented in the form of a paper form or in the form of a plastic card with an electronic carrier.

The electronic policy provides the possibility of placing two electronic applications: insurance and medical.

Electronic insurance application makes it possible to store information about at least ten cases of replacement by the insured person of the insurance medical organization. Electronic medical application ensures the storage of information about the insured person necessary for the provision of medical care to him. TFOMS makes a decision on issuing electronic policies to insured persons, taking into account the technical capability of the subject of the Russian Federation to ensure their circulation. An electronic policy will be issued to insured persons at their request.

For children under 14 years old, the policy is obtained by one of the parents or a representative upon presentation of a passport and birth certificate of the child.

When applying for medical care, the insured is obliged to present the policy. In the absence of a policy, it is necessary to indicate the medical insurance organization that issued the policy. The policy is valid throughout the territory of the Russian Federation, as well as in the territories of other states with which the Russian Federation has international agreements. Refugees and labor migrants receive temporary policies for the period of registration specified in the certificate issued by the migration service.

If the insured person received medical care outside the subject of the Russian Federation on the territory of which the policy was issued, then the medical institution presents an invoice for the services rendered to the territorial CHI fund, indicating the details of the patient's policy. Then this account is sent to the fund at the place of issue of the policy for reimbursement of expenses.

Medical institutions are responsible for the volume and quality of medical services provided and the refusal to provide assistance to the insured person.

The assessment of the quality of medical care provided is carried out by the CMO. The quality of medical services must comply with the medical standards for diagnosis and treatment for each form of the disease, accepted in medical practice. As noted above, in case of violation of the terms of the contract, the HMO has the right to partially or completely not reimburse the medical institution for the costs of providing medical services.

HMO can be held liable only if the harm to the health of the insured person is in direct causal connection with the organization's violation of the law or failure to comply with the MHI agreement (for example, when concluding a contract for the provision of medical services with a medical institution that does not have a license, unreasonable refusing to issue an insurance policy to a citizen, due to which he is forced to apply for paid medical services or postpone going to a doctor, if he refuses to protect the interests of the insured citizen).

If a medical institution refuses to provide medical care to a citizen or does not provide it in full due to lack of funds associated with the insurer's failure to fulfill the obligation to pay for medical care, then the insurer is held liable as having failed to fulfill the obligations assumed under the insurance contract. At the same time, it is necessary to take into account the specifics of the legal relations that develop in the CHI system. HMOs receive funds to pay for medical care from the territorial MHI funds. Therefore, the insurer's failure to fulfill the obligation to pay for medical services, caused by a lack of funds transferred by the territorial CHI fund, is not a basis for holding the company liable.

With a claim for compensation for harm to health, the insured must apply to the direct inflictor of harm, i.e. to a medical institution, on the basis of civil law norms. However, the Civil Code of the Russian Federation provides for compensation for harm only in cases where medical services are provided of inadequate quality. If a medical error that caused a significant deterioration in the patient's health was made without the fault of a medical organization, the patient is not entitled to any material compensation. Such a situation is possible, for example, when the patient's health deteriorates as a result of incorrect diagnosis and treatment of diseases with similar symptoms.

When substantiating claims, one should be guided by the Methodological Recommendations contained in the letter of the FFOMS dated May 5, 1998 No. 1993 / 36.1-i.

Let us give examples of judicial practice in cases of compensation for harm caused to the health of patients during the provision of medical care, which received the greatest public outcry.

• 1. In 2005, a resident of Voronezh, Brodilny Dom, received a blood transfusion from an HIV-infected donor. Based on the court decision, the plaintiff should receive the largest amount in Russian history for harm caused to health - 3.5 million rubles. The chief doctor of the maternity hospital was fired and disqualified in accordance with the Code of Administrative Offenses of the Russian Federation, i.e. deprived of the right to exercise organizational and administrative and administrative functions.
• 2. At the beginning of 2007, a two-month-old girl was taken to the Children's Infectious Diseases Hospital in Krasnodar with a diagnosis of whooping cough. After an unsuccessful insertion of the catheter, she developed a thrombosis of the artery of the right forearm, tissue death began, and the arm had to be amputated. An anesthesiologist and a nurse were brought to criminal responsibility for causing grievous bodily harm through negligence. The amount of compensation for damage exceeds 1 million rubles.
• 3. At the end of January 2007, due to a medical error, a patient died at the Zheleznodorozhny hospital in Khabarovsk. According to the court decision, 100 thousand rubles must be paid to relatives. compensation for non-pecuniary damage, and for the maintenance of a minor daughter - 6 thousand rubles each. monthly until she reaches the age of 18.

But, as a rule, the courts appoint significantly smaller amounts of compensation (on average, from 50 thousand to 100 thousand rubles). This is due to the fact that the corresponding costs are not provided for in the budget of medical institutions. To make the protection of patients' rights real, the medical community has proposed the need for liability insurance for medical workers. The draft Federal Law "On Compulsory Insurance of Patients in the Provision of Medical Assistance" is posted on the website of the Ministry of Health of Russia. In accordance with it, it is envisaged to introduce the obligation of medical organizations and individual entrepreneurs engaged in medical activities to insure at their own expense the life and health of patients when providing them with medical care. If the draft becomes law, then this obligation will become a reality from January 1, 2015.

The insurance contract will be concluded between the medical organization and the HMO for a period of at least a year. The insured event will be the death of the patient or the deterioration of his health, which led to disability. To pay insurance compensation, a special commission will have to establish that the insured event occurred as a result of a medical error in the provision of medical care. According to the bill, medical organizations that do not insure their patients will be prohibited from providing medical services.

The proposed system of life and health insurance for patients will allow the latter to receive an insurance (and in certain cases compensation) payment in case of deterioration in health, regardless of the fault of the medical organization and the quality of the services provided to it. It is assumed that the size of the insurance payment will be from 500 thousand rubles. up to 2 million rubles At the same time, the receipt by the patient of an insurance payment will not release the medical organization from civil, disciplinary and criminal liability for causing harm to his life and health.

• Russian newspaper. 2007. 6 Apr.

insurance serviceman russia foreign

The task

On January 1, 2006, medical insurance organization A entered into a compulsory medical insurance agreement with organization B, the employer of the insured. The contract contains the following conditions: names of the parties, validity period, amount and procedure for making insurance premiums, rights and obligations of the parties. The first installment under the contract was received only on February 7, 2006. Insurance medical organization A refused to pay for medical care received by employees of the organization in the period from January 1 to February 6.

Questions for the task:

Is it legal for Medical Insurance Company A to refuse to pay for medical care?

When does the OMS agreement start to operate?

Are all the essential conditions contained in the MHI agreement between the Medical Insurance Organization A and Organization B?

Are the insured employees of organization B a party to the contract?

Refusal of medical insurance organization A to pay for medical care is lawful.

According to Article 4 of the Law of the Russian Federation of June 28, 1991 N 1499-I "On Medical Insurance of Citizens in the RSFSR", a medical insurance contract is considered concluded from the moment the first insurance premium is paid, unless otherwise provided by the terms of the contract.

The health insurance contract must contain:

• - names of the parties;
• - duration of the contract;
• - number of insured persons;
• - the amount, terms and procedure for making insurance premiums in;
• - a list of medical services corresponding to programs of compulsory or voluntary medical insurance;
• - rights, obligations, responsibilities of the parties and other conditions that do not contradict the legislation of the Russian Federation.

Under the insurance contract, the parties are the insured, the insurer.

The insured is the subject of the insurance legal relationship, obliged to pay insurance premiums, otherwise referred to as the insurance premium. In property insurance, the policyholder (if the contract is concluded in his favor) must have an insurable interest (see below about it), this requirement does not apply to personal insurance. The law and (or) the contract may impose additional obligations on the insured.

Insurer - a person who has assumed the obligation to pay, upon the occurrence of an insured event, insurance compensation for property insurance or the sum insured - for personal insurance.

The insured person is a natural person, a person whose life and health is associated with an event that entails the obligation of the insurer to pay the sum insured.

In this case, the insured employees of organization B. are parties to the contract.

Today we have voluntary medical insurance - this is a great opportunity to receive high-quality medical care. Numerous problems of free clinics, endless queues, impolite service of employees, outdated equipment lead to the need to issue a voluntary medical insurance policy (VHI).

The VMI insurance program was introduced on October 1, 1992 and includes additional medical services that are not included in the standard compulsory medical insurance programs.

You can become the owner of a voluntary medical insurance policy by concluding an appropriate agreement with an insurance organization.

What is a DMS agreement?

The VHI contract is concluded so that policy holders can receive medical care at a higher level.

The VHI agreement is an important official document that is concluded between two parties:

• insurer (insurance organization);
• policyholders (individuals and organizations).

According to this document, the insurer undertakes, if necessary, to organize and pay for the provision of medical care to the insured under the insurance program chosen by him. The insured undertakes to pay the amount of money indicated in the contract for medical services.

Based on the program, the VHI agreement may include a different number of medical services.

The main difference between the VHI agreement and the MHI agreement is that the client is provided with a higher quality level of medical care.

Other differences:

• A VHI agreement is concluded for a specific, limited list of services, a mandatory medical insurance agreement implies a standard set of medical services.
• CHI is issued free of charge to all citizens of the Russian Federation, is a mandatory part of state insurance, and a VHI policy is bought on the personal initiative of citizens for money or is included in the social package by the employer.
• The compulsory medical insurance policy is limited to the operation of a free clinic, while VMI has an extended list of opportunities and allows you to receive guaranteed medical care in private clinics specified in the contract.
• Tariffs and conditions under the MHI policy are determined by the state, in VMI insurance all tariffs and programs are determined by insurance companies.
• The source of funds under the CHI policy is the state budget, and under the VHI agreement - contributions from employers.

The VHI agreement must necessarily spell out all the nuances of its implementation. The contract is concluded only in writing and contains a certain list of requirements, without which it will not be considered valid.

The medical insurance contract for VHI should include the following items:

• names of the parties;
• the number of insured persons;
• validity;
• terms, procedure and amount of insurance premiums;
• list of basic and additional services;
• rights and obligations of the parties;
• the responsibility of the parties.

Important! The VHI agreement is considered to have entered into force after the first insurance payment has been made.

Contract time

Terms are negotiated between two parties: a representative of the insurance company and an individual or employer. Usually the contract is concluded annually.

Attention! If the contract does not specify the terms, then it is recognized as invalid.

In addition, the so-called waiting period is prescribed in the contract. According to this paragraph, the insurer is liable in the event of insured events, but only after the end of this period.

The VHI agreement is considered valid from the moment the signatures of the parties appear on it, but another option is also applied - after the first payment for insurance medical services.

Varieties of VHI agreements

There are 2 types of voluntary medical insurance agreement:

• individual;
• collective.

Depending on the type, the corresponding application is filled out:

• for an employee of the company, if this is a collective agreement on voluntary medical insurance;
• on the insured or his family members, if this is an individual contract.

If the contract is concluded for the employees of the organization, then the head of the company, the employer acts as the insured, and the employees of the organization act as the insured persons.

Types of insured events

Any VHI contract must necessarily include a list of insured events. This document must also list all exceptions, that is, cases that this insurance does not cover. Insured events include a client’s request for help to a clinic included in the list included in the VHI program.

The agreement provides for the provision of various assistance, both separately and in a complex, ranging from dental, outpatient and ending with emergency and ambulance care. The list of services is usually included in the appendix to the contract. Events that insurance does not cover include the provision of medical assistance in the event of an injury by a client who is under the influence of drugs or alcohol.

Insurance premiums: size, procedure, terms

The conditions in the VHI agreement are prescribed clearly, unambiguously, without vague phrases and ornate interpretation, style, so that there is no ambiguous understanding.

Attention! If the payment for medical services under insurance was not completed on time, then the contract immediately loses its validity. In accordance with the VHI agreement, insurance premiums are paid in one payment or several, that is, in installments.

Sum insured

Insurance payments are entitled to be received by the person in whose favor the contract is concluded. In the event of an insured event, the insured client of the insurance company is obliged to provide medical assistance to employees of the clinics prescribed in the contract, and the medical institution will receive payment for the services provided to the patient in accordance with the tariffs indicated by the contract. According to the VHI agreement, the list of services may vary, in connection with which the insured may change the amount of the sum insured by entering additional items into it.

Parties to the VHI agreement: their rights, duties and responsibilities

A legal entity that has insured its employees has the right to:

• check the availability of services provided in medical institutions;
• check the information specified by the insured in the contract;
• refuse to pay for services not covered by the contract.

The insurance organization has the right:

• make claims against insurers;
• pay for medical services to insured persons only in those clinics that are indicated in the VHI insurance contract.

Obligations of the insurer:

• create conditions for the provision of medical services in accordance with the chosen program;
• issue policies to insured persons;
• not disclose personal data of persons;
• make payments on time, within the terms specified in the contract.

The insured is obliged:

• notify the insurer of situations in which it is impossible to provide the service;
• provide reliable information when concluding contracts about all factors, circumstances that may affect the assessment of insurance risk;
• timely pay for the services of the UK.

The procedure for concluding a VHI agreement

First of all, an individual or employer submits an application, which is drawn up for the insured himself, representatives of his family or for company employees in case of collective insurance. The application should indicate all the personal data that are required to select a program, determine its cost, namely:

• field of activity;
• marital status;
• health status (presence of injuries, chronic diseases, physical condition);
• age;
• residential address.

When signing a VHI agreement, which contains an extended list of services, the application should include additional information of the following nature:

• predisposition to diseases in parents;
• the age at which they died;
• whether the client has hereditary diseases;
• test results - blood, urine, etc.;
• extracts from the history of diseases.

Sometimes the SC requires additional examinations.

The conclusion of the collective agreement is made easier. There is no need to provide any additional papers or information here.

After considering the application, the SC has the right to:

• refuse insurance to the applicant, if there are objective reasons for that;
• take a risk without changing the terms of the contract, that is, leaving everything on standard terms;
• take risks by raising tariffs and prescribing special conditions in the VHI agreement.

The application specifies the period within which the contract will be considered valid. It could be:

• a period of time covering a trip abroad;
• a fixed period from 1 to 10 years;
• indefinite term.

Collective agreement

The collective agreement of VHI is concluded between organizations of any field of activity and an insurance company. At the same time, for each client, based on the wishes of the insured, an individual VHI program is developed. A huge plus of collective insurance is the fact that in this case it is possible to insure at cheaper rates than in the case of an individual contract.

Individual contract

It is less profitable to conclude an individual VHI contract than a collective one, since insurance premium payments will be much higher, and not the employer, but the insured person or members of his family will have to pay. The cost of individual VMI insurance will depend on the chosen option of the insurance program indicated in the contract, the age of the client, and the presence of health problems.

There are separate programs for insuring students, the elderly, and children. Regardless of what kind of agreement was concluded - individual or collective, the client will have a policy in his hands, according to which he will be able to seek help from the medical institutions specified in the agreement.

In conclusion, it should only be added that it is not at all necessary to work on the development of a VHI insurance contract, since there are standard contracts, samples of which can be found on the Internet.

Contract voluntary medical insurance (VHI)

5 (100%) 2 vote

"Legal and legal work in insurance", 2006, N 2

Compulsory health insurance, without exaggeration, is the most widespread type of insurance, while this area is regulated with significant shortcomings, and CHI contracts have not yet been the subject of serious research. At the same time, law enforcement practice, a large number of complaints, litigation insistently require all-round improvement of both legislation and legal work in this area of ​​insurance activity. This is especially important in view of the fact that amendments to the legislation on health insurance are currently being prepared and the idea of ​​adopting a separate law regulating compulsory health insurance is being widely discussed.

Compulsory health insurance (CMI) is the main form of social protection of the population in the field of health care. The main goal of the MHI is to guarantee that all citizens receive the necessary medical and drug assistance. The Federal Law of July 16, 1999 N 165-FZ "On the Fundamentals of Compulsory Social Insurance" defines compulsory medical insurance as a system of legal, economic and organizational measures created by the state aimed at compensating and / or minimizing the consequences of changes in the material and / or social situation of citizens due to the need for them to receive medical care and the onset of other social risks subject to compulsory social insurance. In this regard, a number of authors also classify compulsory health insurance as social insurance.<1>.

<1>Theory and practice of insurance: Textbook. M., 2003. S. 311; Avksentiev V.I., Tsyganov A.A., Sholpo L.N. Possible ways of development of legislation in the field of medical insurance // "Legal and legal work in insurance", 2005, N 4, p. 128.

The legal regulation of compulsory medical insurance is carried out by the Law of the Russian Federation of June 28, 1991 N 1499-1 "On health insurance of citizens in the Russian Federation" (hereinafter - the Law on health insurance). Article 4 of this legislative act establishes that any health insurance is carried out on the basis of a contract. Although compulsory medical insurance agreements are concluded in respect of almost all citizens of the Russian Federation, they have not yet been the subject of in-depth research by lawyers. Meanwhile, a significant number of disputes between the subjects of CHI and their nature clearly indicate that many participants in legal relations in the field of compulsory medical insurance have a rather poor understanding of the legal nature of these agreements and sometimes allow elementary violations of the fundamentals of contract law.

Before proceeding to the analysis of the legal nature of the MHI agreement, it should be noted that in accordance with the provisions of Art. 970 of the Civil Code of the Russian Federation, the rules provided for by Ch. 48 of the Code, dedicated to the regulation of the insurance contract, apply to health insurance relations insofar as the law on this type of insurance does not provide otherwise, that is, subsidiarily (additionally). Therefore, the Law on Health Insurance should be taken as the basis for research.

It should be emphasized that the compulsory health insurance contract can operate only under the condition of the simultaneous existence of a whole system of contracts that ensure the normal functioning of the compulsory medical insurance mechanism. In addition to the CHI contract itself, this system includes, first of all, contracts between medical insurance organizations (HIOs) and territorial CHI funds (TFOMS), on the basis of which insurers are financed in accordance with the number and categories of the insured. Insurers without fail conclude contracts with medical institutions for the provision of those medical services to insured persons. If the HMO has concluded an MHI agreement with the insured and with a medical institution - on the provision of medical services to insured persons, then the TFOMS is obliged to conclude an agreement with such an insurer on the financing of compulsory medical insurance. Finally, on the basis of compulsory medical insurance contracts, insurers issue a compulsory medical insurance policy to each insured person.<2>. Within the framework of this article, only the actual contract of compulsory medical insurance will be considered.

<2>In the literature, there is an opinion that such a policy is an independent compulsory medical insurance agreement with a specific citizen - see, for example, Fundamentals of insurance activity: Textbook / Responsible. ed. Fedorova T.A. M., 2001. S. 335. However, in our opinion, there are no grounds for such a statement, since, firstly, there are no essential conditions in the MHI policy itself, and secondly, and the Law says that that "every citizen in respect of whom a medical insurance contract has been concluded ... receives an insurance medical policy." In addition, clause 6.1 of the Model Rules for Compulsory Medical Insurance of Citizens, approved by Order of the Federal Compulsory Medical Insurance Fund dated October 3, 2003 N 3856 / 30-3 / and, expressly states that the compulsory medical insurance policy is "a document certifying the conclusion agreements on compulsory medical insurance of citizens ... ". Thus, this document is rather a confirmation of the fact that this citizen is insured in a particular HMO.

The compulsory medical insurance contract is an agreement between the insured and the insurance medical organization, according to which the insurer undertakes to organize and finance the provision of medical care to insured persons under compulsory medical insurance programs.

Subjects of a legal relationship based on the compulsory medical insurance agreement

The subjects of the contract of compulsory medical insurance are the insurer and the policyholder.

An insurer can only be a legal entity that provides health insurance on the basis of a special state permit (license) for the right to engage in health insurance (part 4, article 2 of the Health Insurance Law). In Art. 14 of this legislative act provides an additional interpretation of the concept of "insurance medical organization": it is a legal entity that is an independent economic entity with any form of ownership provided for by Russian law, has the authorized capital necessary for this activity and organizes its activities in accordance with the legislation of the Russian Federation.

It should be noted that the definition of a compulsory medical insurance insurer given in the Law on Health Insurance is not very correct, since it refers to an already existing legal entity that provides medical insurance, while it would be more correct to speak of an insurance medical organization created in accordance with the legislation of the Russian Federation for implementation of such insurance and licensed in accordance with the procedure established in our country. With a formal reading, it turns out that it is as if impossible to create new compulsory medical insurance insurers.

It is also not clearly stated in the Law on Health Insurance that only a Russian legal entity can be an OMI insurer, although in fact this is exactly the case. In this regard, it should be clearly defined that only legal entities registered in accordance with the legislation of Russia can be CHI insurers. It is known that by virtue of paragraph 3 of Art. 6 of the Law of the Russian Federation of November 27, 1992 N 4015-1 "On the organization of insurance business in the Russian Federation" (hereinafter - Law N 4015-1), even insurance organizations that are subsidiaries in relation to foreign investors or have the share of foreign investors in its authorized capital is more than 49%, not to mention foreign insurance organizations, which sooner or later will still be admitted to the Russian insurance market.

The insurer must have a special permit to carry out insurance activities. Such a permit is issued by the insurance supervisory authority (Article 16 of the Law on Health Insurance and Subclause 5, Clause 1, Article 32.9 of Law No. 4015-1).

Health insurance authorities and medical institutions cannot be founders of an insurance medical organization. True, the Law allows them to own shares of CMOs within 10% of their total number (part 4 of article 14 of the Health Insurance Law). An insurance medical organization must have an authorized capital of 60 million rubles. (paragraph 6, paragraph 3, article 25 and subparagraph 2, paragraph 2, article 4 of Law No. 4015-1). This amount of capital must be provided for medical insurance organizations that existed as of January 17, 2004 until July 1, 2007, and for newly created HMOs - already from the moment the corresponding version of Law N 4015-1 comes into force.

CHI activities should be carried out on a non-commercial basis.

The issues of the creation and functioning of medical insurance companies are additionally regulated by the Regulations on insurance medical organizations providing compulsory medical insurance of citizens, approved by the Decree of the Council of Ministers - the Government of the Russian Federation of October 11, 1993 N 1018 (hereinafter - Decree N 1018) "On measures to implement the Law of the Russian Federation" On Introducing Amendments and Additions to the Law of the RSFSR "On Medical Insurance of Citizens in the RSFSR" (hereinafter referred to as the Regulations on the CMO). This document provides that HMOs can simultaneously engage in compulsory and voluntary medical insurance, but do not have the right to carry out other insurance activities (clause 2). At the same time, financial resources for these types of insurance should be accounted for separately. HMOs cannot use the funds transferred to them for the implementation of MHI for commercial purposes.

It should be emphasized that in the light of the Constitution of the Russian Federation, adopted, however, later than the Regulations on the CMO, in December 1993, this regulation option is incorrect, since in accordance with paragraph 3 of Art. 55 of the Basic Law of the country, the restriction of civil rights is permissible only by a federal law, and not by a by-law. Therefore, in our opinion, the relevant provisions should be included in the text of the Health Insurance Law.

In a number of regions of the country, territorial CMI funds also act as insurers (as of the end of 2004, such a situation existed in 23 constituent entities of the Russian Federation). In some constituent entities of the Russian Federation, the functions of compulsory medical insurance insurers are assigned even to local health authorities (in total, this situation takes place in 21 federal subjects). Only HMOs carry out MHI in 47 constituent entities of the Russian Federation. At the same time, it should be taken into account that the share of medical insurance organizations accounts for about 80% of the total number of insured persons (that is, almost 139 million people).

It should be noted that in cases where the CHI system in a constituent entity of the Russian Federation is built in strict accordance with the Law on Health Insurance, TFOMS still perform certain functions of insurers - it is they who initially form funds from the insurance premiums of insurers, the funds of which are directed to finance medical care, provided on the basis of MHI policies. In this case, the payment of insurance premiums is carried out in connection with the direct prescription of the law, the Regulations on the procedure for paying insurance premiums to the Federal and territorial compulsory medical insurance funds, approved by the Decree of the Supreme Council of the Russian Federation of February 24, 1993, and the Instruction on the procedure for collecting and accounting for insurance premiums (payments) for compulsory health insurance, approved by Resolution N 1018, and the provisions of the contract in this regard are rather declarative.

Policyholders in the CHI system in accordance with Part 2 of Art. 2 of the Law on Health Insurance are the executive authorities of the constituent entities of the Russian Federation and local governments for the non-working population; organizations, individuals registered as individual entrepreneurs, private notaries, lawyers, individuals - employers - for the working population.

In practice, there were disputes about who should be the insurer for the non-working population. Thus, the administration of the city of Kholmsk and the Kholmsky district of the Sakhalin region believed that the MHI is the authority of the state and the payment of contributions should be carried out by it, and not by local governments. This issue, at the request of the Arbitration Court of the Sakhalin Region, was considered by the Constitutional Court of the Russian Federation. The highest body of constitutional justice in its Determination of April 8, 2003 N 131-O "At the request of the Arbitration Court of the Sakhalin Region to verify the constitutionality of the provisions of Article 17 of the Law on Health Insurance" indicated that "local governments are not exempt from the obligation to take part in ensuring protection of the health of the population of the municipality, including through the payment of appropriate insurance premiums to the compulsory medical insurance funds for the non-working population. In the absence of the funds necessary to fulfill this obligation, local governments can apply for financial support to a constituent entity of the Russian Federation or exercise the right to judicial protection guaranteed by Art. 133 of the Basic Law of the country.

The courts also had to consider disputes about the validity of compulsory medical insurance contracts in cases where there was a reorganization of the management bodies that were insurers. Here is an example of such a dispute. TFOMS filed a lawsuit against the CMO with a claim to invalidate the compulsory medical insurance agreement on the grounds that the insured, the administration of the Novoorsky district, was liquidated on the basis of an order from the regional administration. The courts refused to satisfy the claim, pointing out that the administration was reorganized into the Novoorsky district municipal formation, which is the successor of the administration. When reorganizing the insured, there are no grounds for invalidating the contract (Resolution of the Federal Antimonopoly Service of the Urals District of December 16, 2004 N F09-4161 / 04-GK).

In fairness, it should be noted that the literature reasonably indicated the need to provide in the legislation more clear criteria for the non-working population.

Some works contain a proposal to fix in the legislation the obligation of policyholders to take into account the wishes of the insured persons when choosing an insurer.<3>. Such a proposal cannot but arouse objections. Indeed, in small companies, management may well take into account such wishes, but how can this be practically implemented by local governments or large employers, especially when different preferences are expressed by insured persons?

<3>See, for example, Avksentiev V.I., Tsyganov A.A., Sholpo L.N. Decree. op. S. 129.

Deserve full support for proposals to expand the responsibility and, accordingly, the powers of HIOs to control the quality of medical services provided to insured persons under their policies.

The range of subjects of insurance legal relations is wider - this also includes insured persons, which are all citizens, stateless persons, and in certain cases, citizens of foreign states (Articles 7 and 8 of the Health Insurance Law).

General characteristics of the compulsory medical insurance agreement

The Compulsory Medical Insurance Agreement is one of the bilateral transactions. This is primarily due to the fact that its conclusion requires the coordination of the wills of both participants - the insurer and the insured: by virtue of par. 3 art. 9 of the Health Insurance Law, the insured has the right to freely choose an insurance company. For example, CMO applied to the arbitration court against the potential insured with a claim for compulsion to conclude an MHI agreement. The claim was based on the fact that after the expiration of the term previously in force between the parties to the dispute of the CHI agreement, the defendant refused to conclude a new agreement with the previous insurer, but concluded it with another CMO. The courts refused to satisfy the claims, since the plaintiff did not provide evidence of the conclusion of a new MHI agreement between the parties to the dispute, and the insured has the right to choose the insurer (Resolution of the Federal Antimonopoly Service of the East Siberian District of August 27, 2002 N A78-4289 / 01-C1- 23/168-Ф02-2446/02-С2).

Then the bilaterality or reciprocity of the insurance contract is due to the fact that on its basis rights and obligations arise for both parties to the transaction. The insured is obliged to pay insurance premiums, promptly inform the insurer of information about changes in the composition of the insured persons. At the same time, he has the right to demand payment for medical services provided by a medical institution to insured persons. The insurer has the right to demand the payment of insurance premiums to him (it should be noted that he can apply such a demand not to the insurers, but only to the TFOMS) and is obliged to pay for the medical services provided to the insured persons. As an example of this kind of litigation, the Decree of the Federal Antimonopoly Service of the Volga-Vyatka District of June 14, 2005 N A29-5543 / 2004-1e can be cited. The plot of the case is as follows: a medical institution and the MHIF of the Republic of Komi, acting as an insurer for compulsory medical insurance, entered into an agreement between themselves for the provision of medical and preventive care under compulsory medical insurance. In pursuance of this agreement, the medical institution provided free medical care to the population, but the insurer did not fully pay for these services. The medical institution applied to the arbitration court with a claim to recover the debt from the insurer. The courts granted the claim in full. The defendant appealed against the judicial acts in cassation. The Federal Arbitration Court of the Volga-Vyatka District, by its Resolution of June 14, 2005, left the complaint unsatisfied, and the decision and resolution of the lower courts remained unchanged, indicating that, since the Tariff Agreement for 2003 provided for the costs of compulsory medical insurance in a certain amount , and the insurer (FOMS of the Republic of Komi) paid a smaller amount, he is obliged to pay the difference. The fact that the Ministry of Health of the Republic of Komi did not approve tariffs for medical services in the appropriate manner was not recognized by the court as grounds for the Fund's failure to fulfill its contractual obligations.

TFOMS cannot unilaterally refuse to fulfill the contract for the financing of compulsory health insurance. Thus, between the Orenburg MHIF and the insurance medical organization, an appropriate agreement was concluded for a period from October 22 to December 31, 2002, which was prolonged for 2003 in accordance with clause 24 of this agreement. TFOMS stopped paying insurance premiums in the second half of 2003, believing that this contract has terminated. The insurer appealed to the arbitration court, by the decision of which the requirements were satisfied. The cassation instance left the judicial acts held in the case in force, indicating that the fund had no reason to unilaterally refuse to fulfill the obligations stipulated by the agreement (Resolution of the Federal Antimonopoly Service of the Urals District of June 1, 2005 in case N Ф09-1289 / 05-С4) .

The reciprocity of the transaction has another aspect related to the counter performance of obligations. By virtue of Art. 328 of the Civil Code of the Russian Federation, the fulfillment of an obligation by one party, which, in accordance with the contract, is due to the fulfillment of its obligations by the other party, is recognized as a counter. It must be borne in mind that, unlike most other civil law transactions, the rule of counter performance does not apply in a compulsory health insurance contract. In any case, the insurer cannot refuse to pay for the medical care provided to the insured persons only because the TFOMS did not transfer the next insurance premium to him. So, by virtue of par. 4 clause 2 of the Model Agreement between the territorial compulsory medical insurance fund and the medical insurance organization, which is an Appendix to the Model rules for compulsory medical insurance of citizens, approved by Order of the Federal Compulsory Medical Insurance Fund dated October 3, 2003 N 3856 / 30-3 / and (hereinafter - Standard contract of TFOMS with SMO), in some cases, the insurer must pay for medical care to insured persons in full from the available funds for compulsory medical insurance, even if the funds transferred by TFOMS are insufficient for this.

Here there is one legal problem of a fundamental nature - whether the norm of paragraph 3 of Art. 954 of the Civil Code of the Russian Federation, which establishes that if the insurance contract provides for the payment of an insurance premium in installments, and in the field of compulsory medical insurance, all contracts between the TFOMS and the CMO include a condition for paying the insurance premium to the insurer in installments (clause 2 of the Standard contract of the TFOMS with the CMO), then the contract the consequences of non-payment of regular insurance premiums on time may be envisaged. Considering that there is no corresponding position in standard contracts, CHI contracts cannot be terminated ahead of schedule if the next insurance premium is not paid.

An insurance transaction in the MHI system is mandatory for compensation. This means that there can be no free provision of insurance services. This, among other things, is evidenced by the presence of provisions on the amount, term and procedure for paying insurance premiums to an insurance medical organization and in the Law on Medical Insurance, and in all by-laws in force in this area, as well as in standard CHI agreements. If medical services are provided in accordance with the CHI program, then if the number of insured persons is proved, such expenses, of course, are payable by the TFOMS.

The MHI transaction is not aleatory, that is, risky, since in the field of social insurance, the presence of risk for insured persons and even policyholders is unacceptable. The current system of mandatory medical insurance practically excludes the risk for HMOs as well. So, if the TFOMS refused to pay the money to the insurer, he has the right to claim the debt in court. If the amount agreed in advance in the contract between the TFOMS and the HMO is not enough, the insurer has the right to demand a subvention, that is, an additional payment that ensures that the insurer can fully fulfill its obligations to medical institutions.

The law prescribes an exclusively written form for a compulsory health insurance contract. Violation of this requirement entails, by virtue of Part 2, Clause 1, Art. 940 of the Civil Code of the Russian Federation invalidity of the insurance transaction. The Government of the Russian Federation, in accordance with the provisions of Part 4 of Art. 4 of the Law on Health Insurance, approved by its Decree the standard forms of such contracts: the Model Compulsory Medical Insurance Contract for Working Citizens and the Model Medical Insurance Contract for Non-Working Citizens (hereinafter referred to as the Model MHI Agreements).

Sometimes individual subjects of CHI tried to put forward demands in general in the absence of an appropriate agreement. Thus, the CMO filed a lawsuit against another CMO for the recovery of the amount of unjust enrichment. The claim was motivated by the fact that TFOMS transfers money to the defendant under an invalid MHI agreement, while it was supposed to finance the plaintiff. The courts refused to satisfy the claim on the grounds that the plaintiff was not even able to provide written evidence, that is, a compulsory medical insurance agreement in writing, to substantiate his claims (Resolution of the Federal Antimonopoly Service of the Ural District of November 24, 2003 N F09-1577 / 03-GK) .

The compulsory medical insurance agreement is real, because according to Part 4 of Art. 4 of the Law on Health Insurance, it enters into force after the insured pays the first insurance premium, unless otherwise provided by the contract. Thus, the parties to the transaction can transform it into a so-called consensual contract, which takes effect at the time of conclusion, regardless of the payment of the insurance premium or its first installment. However, the Government of the Russian Federation actually changed the relevant provision of the law, providing in clause 11 of the Model CHI Agreements that they come into force from the moment of signing. Since the Model MLA agreements are binding on the parties, therefore, all MHI agreements concluded by them are, in fact, consensual rather than real. If the parties to the agreement themselves came to such a decision, this is their right to choose, but when the state establishes one rule with one hand, and immediately changes it with the other hand, then, you see, it is difficult to see any logic in this.

The contract under study has features characteristic of a public contract (Part 4, Article 15 of the Law on Health Insurance), since the CMO does not have the right to refuse the insured to conclude a compulsory insurance contract that complies with the current insurance conditions. The law (Article 426 of the Civil Code of the Russian Federation) recognizes as a public contract a contract concluded by a commercial organization and establishing its obligations to sell goods, perform work or provide services that such an organization, by the nature of its activities, must carry out in relation to everyone who applies to it. At the same time, a commercial organization has no right to give preference to one person over another. However, the MHI agreement, for formal legal reasons, cannot be called public, since it is concluded by an organization operating in this area exclusively on non-commercial terms. At the same time, some courts consider such contracts precisely as public ones, while unlawfully referring to the norm of paragraph 2 of Art. 927 of the Civil Code of the Russian Federation on the publicity of a personal insurance contract (Resolution of the Federal Antimonopoly Service of the North-Western District of August 23, 2000 in case N A42-1853 / 2000-14), which should not be applied in this case (see Article 970 of the Civil Code of the Russian Federation), since the relevant issue is regulated in the Health Insurance Law itself.

Essential terms of the MHI agreement

The subject of the compulsory medical insurance agreement, that is, what exactly is affected by the rules of the agreement<4>, are public relations that arise between the insurer, the insured and the insured persons regarding the payment by the insurer of medical care and the provision of medicines to citizens in need. Insurers are also entrusted with monitoring the quality and volume of medical services provided to insured persons by medical institutions, the list of which is agreed upon by the parties to the transaction in accordance with the territorial program of compulsory medical insurance.

<4>As you know, the subject of any civil law contract is its essential condition (Part 2, Clause 1, Article 432 of the Civil Code of the Russian Federation). On the concept of the subject of the contract and various concepts in this matter, see more Dedikov S.V. The subject of the property insurance agreement // "Legal and legal work in insurance", 2005, N 4, p. 40 - 48.

In the MHI Model Agreements, the article on the subject of the agreement consists of eight paragraphs. In addition to the actual description of the relations that are regulated by the compulsory medical insurance agreement, this article contains conditions on the number of insured persons, on the provision by the insurer to the insurer of the lists of the insured, medical policies of employees dismissed during the period of the contract and lists of newly hired employees, on the insurance period (newly hired employees are considered insured from the moment of employment), on the timing of the issuance of compulsory medical insurance policies to them. These provisions, of course, have nothing to do with the subject of the contract, but are either essential or ordinary terms of the transaction. In this regard, it is advisable to bring the legislative definition of the subject of the CHI agreement in line with the theory of civil law.

The Law on Health Insurance provides for a number of other essential conditions of the MHI agreement - this is the number of insured persons, the amount, terms and procedure for making insurance premiums, the list of medical services corresponding to the compulsory health insurance program, the responsibility of the parties (part 3 of article 4).

Meanwhile, in judicial practice, there are decisions when the courts do not qualify the discrepancy between the number of insured persons as the absence of an agreement on an essential condition, which should lead to the recognition of the contract as not concluded, but simply consider it as a basis for refusing to satisfy the claim for the collection of debts on insurance premiums. In particular, this is exactly what the courts did when considering case No. А78-7890/2004-С1-5/216-Ф02-1247/05-С2 (Resolution of the Federal Antimonopoly Service of the East Siberian District of April 4, 2005 in this case).

The compulsory medical insurance agreement is always urgent, in other words, the parties must set the duration of the agreement. By virtue of par. 3 hours 3 tbsp. 4 of the Health Insurance Law, the duration of such an agreement is an essential condition. True, it is not clear why the legislator here uses the word "term" in the plural, because the contract always has one validity period.

If the term of the contract is not agreed upon by the parties to the transaction, then it can be recognized as not concluded, since without the agreement of any essential condition, the contract is considered not concluded (clause 1 of article 432 of the Civil Code of the Russian Federation).

It is necessary to distinguish between such institutions as the term of the contract and the term of insurance. The term of the contract is understood as the period of time between the date of entry into force of the contract and the last day of its validity, which is specified in the contract or can be determined using a mechanism agreed by the parties. The term of insurance is the period of time during which the insured persons are entitled to apply for medical assistance, which the insurer is obliged to pay. In accordance with paragraph 2 of Art. 957 of the Civil Code of the Russian Federation, the beginning of the insurance period may differ from the moment the insurance contract enters into force, but the insurance period cannot exceed the moment the contract expires. Since the issue of the beginning of the insurance period is not resolved in the Law on Health Insurance, by virtue of Art. 970 of the Civil Code of the Russian Federation, the norm of paragraph 2 of Art. 957 Code. Thus, the parties to the MHI agreement may provide that medical care that was provided before the conclusion of this transaction is paid.

Attention should be paid to the fact that there is no definition of the concept of an insured event in the Law on Health Insurance and standard health insurance contracts. Although this seems to be a formal requirement, since there are territorial CHI programs, but since we are talking about insurance, then it must be observed. In passing, we note that since this legislative act simultaneously concerns voluntary medical insurance, its shortcomings automatically apply to the sphere of VHI, and there the lack of a definition of an insured event already causes serious practical difficulties, including in terms of what types of medical care can be provided. include in voluntary medical insurance policies. We believe that the very fact of a citizen applying for unscheduled medical care during the period of the contract should be recognized as an insured event for medical insurance. If we extend health insurance to all citizens' appeals to medical institutions, including the use of planned medical care, for example, regarding an operation that was planned before the conclusion of the contract, then we can generally get away from any risk component, and without risk, as you know, there is no insurance. Or we must say that medical insurance is a special type of social protection of citizens, but not insurance as such.

It is important to emphasize that here we already have a rather serious systemic problem. The fact is that from the text of Art. 1 of the ZoOSD, the following conclusion can be drawn: this legislative act applies to all types of insurance, except for relations on compulsory insurance of deposits of individuals in banks (clause 5, article 1 of Law N 4015-1). Thus, health insurance should also be subject to its norms. Meanwhile, by virtue of Part 2, Clause 1, Art. 9 of the ZoOSD, an event considered as an insured risk must have signs of probability and chance. In other words, if we apply this rule to health insurance, then we will get a kind of analogue of accident and illness insurance, but, as you know, these are still different types of insurance (see paragraphs 4 and 5, paragraph 1, article 32.9 of the Law N 4015-1). At the same time, even if the new version of the Law on Health Insurance introduces a special definition of an insured event, the problem will immediately arise - which of these legislative acts should be preferred? Of course, doctrinally, this issue can be resolved on the basis of one of the generally recognized rules of legal technique - the norms of a law adopted later have priority over the provisions of an earlier act. But where are the guarantees that this rule will be applied by all law enforcement agencies? To avoid difficulties, it would be necessary either to remove from Law N 4015-1 all the norms of civil law, including Art. 9, or introduce a general conflict of laws rule of the type of Art. 970 of the Civil Code of the Russian Federation, which would determine the priority of the norms of a particular legislative act.

Unfortunately, the provisions of the Health Insurance Law on the MHI agreement are far from perfect. First of all, in par. 2 hours 3 tbsp. 4 of this legislative act states that the contract must contain the names of the parties. It seems to us that there is no need to remind about this, since this is just an elementary rule, which is always observed anyway. It would be a different matter if it contained requirements for the form of reflection of the names of the parties - full official or short.

Secondly, the Law refers to the number of essential conditions, since it indicates them as necessary for contracts of this type (part 2, clause 1, article 432 of the Civil Code of the Russian Federation), as well as rights, obligations and other conditions that do not contradict the legislation of the Russian Federation. As for the rights and obligations, such a wording is generally not very correct, since the entire contract, in fact, regulates the rights and obligations of the parties. That is, it turns out that the Law recognizes all the conditions of such an agreement as essential. But then the meaning of singling out the essential conditions in the law is lost, and since they are nevertheless specially distinguished, then, therefore, all the conditions of the contract in the form of a general rule cannot be essential. The openness of the list of essential conditions cannot but cause objections. It seems that these provisions should be excluded from the analyzed legislative act.

Since the compulsory health insurance contract must comply with the terms of standard compulsory medical insurance contracts, the parties are limited in their right to insist on the inclusion of other conditions in the contract. Thus, by the decision of the Moscow City Court of June 25, 2001 in civil case N 3-275 / 2001, they were recognized as invalid and not giving rise to legal consequences from the moment the provisions of the Rules for Compulsory Medical Insurance of the Population of Moscow were issued, approved by Decree of the Government of Moscow of February 9, 1999 N 96, in the part that provides for the mandatory presence of a citizen of Moscow registration at the place of residence or at the place of stay as a necessary condition for obtaining an MHI policy, as well as the possibility of issuing such temporary policies.

In judicial practice, there are frequent disputes between the TFOMS and the CMO on the recognition of compulsory medical insurance agreements as invalid on the grounds that their conditions do not comply with the provisions of the territorial rules for compulsory medical insurance adopted after the conclusion of such agreements. Here is one such example. The Orenburg MHIF applied to the arbitration court with a claim against the CMO to invalidate the compulsory medical insurance agreement for non-working citizens dated January 3, 2001 due to the inconsistency of its terms with paragraphs 3.1 and 4.8 of the Rules for Compulsory Medical Insurance of the Orenburg Region dated January 12, 2001 N 60- R. By the decision of the first instance of the Arbitration Court of February 11, 2005, the claim was dismissed. TFOMS filed a cassation appeal. By its Decree of May 12, 2005, the court of cassation upheld the decision, and the complaint was dismissed, since the disputed contract was concluded before the adoption of the Rules for Compulsory Medical Insurance, and therefore, the non-compliance of the terms of the contract with these Rules cannot entail the nullity of the transaction (Decree Federal Antimonopoly Service of the Urals District of May 12, 2005 in case No. Ф09-1228 / 05-С5).

Early termination of MHI agreements

One of the legal problems in the field of CHI is the early termination of such an agreement. The fact is that, in accordance with clause 14 of the MHI Model Agreements, the relevant insurance contract may be terminated early at the request of the insured or insurer, while the parties must notify each other of their intention to terminate the contract at least 30 days before the expected date of termination of the contract, unless it provides otherwise. This provision corresponded to the norm of clause 3 of Art. 23 of the Law of the Russian Federation of November 27, 1992 N 4015-1 "On Insurance". However, this norm has lost its legal force since March 1, 1996, when part two of the Civil Code of the Russian Federation came into force, since clause 2 of Art. 958 of the Code, the federal legislator granted any policyholder the right to withdraw from the insurance contract at any time. Thus, paragraph 14 of the Model CHI Agreements is currently contrary to federal law, and therefore is not applicable. By virtue of the provisions of Art. 970 of the Civil Code of the Russian Federation in this case, the norm of paragraph 2 of Art. 958 of the Civil Code of the Russian Federation, that is, it is quite enough for the insured to simply notify the insurer in writing of the termination of the contract. Meanwhile, the courts are still guided by clause 14 of the MHI Model Agreements.

In general, it should be emphasized that there is still a lot of confusion on the issue of early termination of the MHI agreement. A striking confirmation of this thesis is the dispute between the SMO and the administration of the Angarsk municipality. A compulsory medical insurance agreement was concluded between them for 2002. By a letter dated October 1, 2002, the administration informed the CMO about the termination of the agreement. By a letter dated October 24 of the same year, the CMO suggested that the administration conclude an additional agreement to this agreement, stating clause 14 as follows: “This agreement may be terminated early at the request of one of the parties in the event of significant violations of the agreement by the other party. In this case, the intention early termination of the contract, the parties are obliged to notify each other at least 30 days before the expected date of termination of the contract with the obligatory signing by the parties of an agreement to terminate the contract. Since the parties did not agree on anything, the CMO filed a lawsuit to change the terms of the CHI agreement, and the fund filed a counterclaim to recognize the agreement as not concluded. The court of first instance granted the main claim, but denied the counterclaim. By the decision of the appellate instance, the decision was changed and the main claim was denied, since, according to the court, clause 14 of the Model CHI Agreement does not contain grounds for unilateral refusal to execute the agreement, and termination of the agreement is possible only by court decision. By the decision of the Federal Arbitration Court of the East Siberian District of October 30, 2003, the decision and the decision of the lower courts in this part were canceled, the main claim was dismissed for the reason that the contract had already been terminated at the time the plaintiff applied to the court. The rest of the judicial acts were left unchanged. In support of its conclusion, the court cites the rule contained in paragraph 14 of the Model MHI Agreement, and states that the insured notified the insurer of its intention to terminate the agreement 30 days before the date of the proposed early termination of the agreement, after this period the agreement is considered terminated (Resolution of the FAS East Siberian District in case N A19-19268 / 02-13-Ф02-3651 / 03-С2).

Since compulsory medical insurance contracts concern a significant number of citizens, it is, of course, advisable to provide for the need for the insured to warn the insurance medical organization about terminating the transaction in advance, but such a rule should be included in the text of the Law on Health Insurance itself.

Another legal problem is connected with the termination of the MHI agreement - the need to apply the provisions of paragraph 3 of Art. 430 of the Civil Code of the Russian Federation, which states that from the moment a third party expresses its intention to the debtor to exercise the right under the contract, the parties cannot terminate or change the contract they have concluded without the consent of the third party. Considering that under such contracts there are a significant number of insured people and almost every day one of them seeks medical help, it would be almost impossible to terminate such a deal. But attention should be paid to the fact that the rule of paragraph 2 of Art. 430 of the Civil Code of the Russian Federation is valid only in cases where otherwise is not provided by law, other legal acts or an agreement. Here, otherwise, it is directly provided for by law (clause 2, article 958 of the Civil Code of the Russian Federation). And most importantly, in our opinion, compulsory medical insurance contracts cannot be considered as contracts in favor of a third party, since the insured person cannot demand from the insurer payment for the medical services that he used. The compulsory medical insurance mechanism is designed in such a way that the relevant medical services must always be provided to the insured person, and only then the medical institution deals with the HMO regarding their payment.

It should be noted that clause 13 of the MHI Model Agreement contains a provision, which is not very correct from a legal point of view, on the termination of the agreement in the event that the court decides to recognize the agreement as invalid. But an invalid transaction does not give rise to legal consequences at all and is invalid from the moment it is made (clause 1 of article 167 of the Civil Code of the Russian Federation), therefore it cannot be terminated due to the absence of what needs to be terminated. The specified provision of the contract makes sense only if it follows from the content of the transaction that it can be terminated for the future, and the court, recognizing the transaction as invalid, terminates it for the future (clause 3 of article 167 of the Civil Code of the Russian Federation). In our opinion, compulsory medical insurance contracts should be declared invalid and terminated by the courts precisely according to this scheme, that is, for the future, since this decision always affects the interests of a large number of people who could apply for medical care up to this point, and medical organizations that could already provide such assistance, not knowing about the invalidity of the MHI agreement. However, this provision, in our opinion, should also be included in the Health Insurance Law, as it limits the rights of citizens to apply the consequences of invalid transactions.

D.M.Seluyanov

independent expert

The VHI agreement is concluded with the aim that employees of different companies can receive medical care at a higher level than the services provided in free clinics and hospitals.

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What is it

VHI agreement is an official document concluded between two parties - an insurance organization (insurer) and various companies (insured).

According to this agreement, the insurer is obliged to organize and sponsor the provision of medical care to the insured under the selected programs. The insured must pay a fixed amount of money for medical services under the contract.

The contract of voluntary medical insurance may include one or more services based on the selected program.

The difference between the MHI agreement and the VHI

• the VHI contract assumes that the patient is provided with a higher quality level of medical care;
• the VHI agreement differs from the compulsory medical insurance agreement in that it is concluded for a specific, limited list of services;
• CHI is issued free of charge to all citizens of the country, is a mandatory part of state insurance, and a VHI policy is bought for money on the personal initiative of citizens, or VHI is included in the social package from work;
• the compulsory health insurance policy is limited to a certain standard set of free medical services in a polyclinic, the voluntary medical insurance policy has expanded capabilities and allows you to receive additional services along with guaranteed ones;
• in CHI conditions are determined by the state, in VHI all tariffs, programs are appointed by insurance companies;
• in MHI, the sources of funds are the state budget, and in VHI, contributions from employers.

The VHI agreement must necessarily spell out all the subtleties and nuances of its execution.

It must be in writing and contain a certain list of requirements, without which it will be invalidated.

Contract time

All terms are negotiated by two persons - a representative of the insurance company and the head of the company. It usually takes place annually. If the contract does not specify the terms, then it is recognized as invalid.

The contract prescribes a special period, which is called waiting. According to it, the insurer must be liable in the event of an insured event, but after the end of such a period.

The contract begins to operate from the date of signing, but another option is also possible - entry into force after the first payment of insurance medical services.

Number and names of insured persons

VHI is of two types: collective and individual.

Depending on the type, before drawing up the contract, an application is filled out:

• for an employee of the company - if this is a collective VHI agreement;
• for the insured personally, for members of his family - an individual contract.
• When the contract is concluded for employees of the organization, then the employer, the head of the company acts as the insured, and the employees of the company act as insured persons.

Types of insured events

The contract must necessarily include a variety of insured events. This official document must also indicate all exceptions, those cases that are not covered by insurance.

Insured events include the patient's request for help to a clinic that is included in the list included in the voluntary insurance program.

The contract may involve the provision of various types of assistance, both separately and jointly: from dental, outpatient to emergency and ambulance. The list of services is included in the appendix to the contract.

Exceptions include the provision of medical care in case of injury in an inadequate state - alcohol or drugs.

Amount, terms and procedure for making insurance premiums

These conditions in the VHI agreement must be spelled out clearly, without vague phrases and incomprehensible, ornate interpretation, so that there are no misunderstandings.

For example, if payment for insurance services was made out of time, then the contract loses its force.

In accordance with the VHI agreement, insurance premiums can be paid at one time - at a time or for several times - by installment payment.

Sum insured

The person in whose favor the contract is concluded is entitled to receive insurance payments.

In the event of an insured event, the insured person must receive assistance from the doctors of those clinics prescribed in the contract, and the medical institution must receive payment for the services provided in accordance with the agreed tariffs.

According to the contract, the list of services may change, vary, and in this regard, the policyholder may change the amount of the sum insured by signing additional agreements with the insurer.

Rights, duties and responsibilities of the parties

A company that insures its employees has the right to:

• check the availability of services provided in medical institutions, their validity.
• check whether the information specified by the insured in the contract is correct;
• refuse to pay for services, if it is stipulated by the contract.

The insurance organization has its own rights - to impose requirements on its insurers to provide medical services to insured persons only in those clinics, hospitals that are prescribed in the VHI insurance contract.

Obligations of the insurer

• create the necessary conditions for the provision of medical services in accordance with the chosen program;
• issue policies to insured citizens;
• not disclose personal data of persons;
• pay for services in a timely manner - within the terms specified in the contract.

The policyholder is obliged

• if it is impossible to provide services, inform the insurer about it;
• provide full information when concluding contracts on all circumstances, factors that may, in one way or another, affect the assessment of insured risk;
• timely pay for the services of the insurance company.

Order of conclusion

To conclude a VHI contract, an application is submitted, which is drawn up directly for the insured, representatives of his family or for company employees in case of collective insurance.

The application must indicate all personal data that may be required to select a program, its cost.

These include:

• professional field of activity;
• marital status;
• state of health - the presence of chronic diseases, injuries, past illnesses, physical condition;
• age;
• place of residence.

When signing an agreement that contains increased guarantees, which are the highest paid, additional information of the following nature should be indicated in the application:

• At what age did the parents die?
• predisposition to disease;
• whether the patient has hereditary diseases;
• the results of the main tests - blood, urine, etc.;
• extracts from the history of diseases. Might need to go through
  additional examinations.

All this is required to be provided to the insurance company when concluding an individual agreement, but if a collective agreement is concluded, then everything will be much simpler.

And you don't need to provide any additional information or paperwork.

After receiving the application, the insurance company has the right to:

• refuse to insure a person if there are objective reasons for that;
• take the risk without changing the terms of the contract, i.e. on standard terms;
• take risks by raising tariffs and prescribing special conditions in the contract.

The application that must be filled out to create a VHI agreement specifies the period during which the document will be considered valid:

• a certain period of time - a trip abroad;
• fixed term - 1 year -10 years;
• indefinite term.

Who concludes

Such an agreement is concluded between an organization operating in any field and regardless of the number of employees working in it and an insurance company.

Employees of an organization that has decided to insure the health of their wards will use medical policies.

An insurance company under a VHI contract undertakes to provide medical care in accordance with the chosen program.

Collective agreement

A collective agreement is concluded between a company of any field of activity, any number of employees and an insurance company.

For each client, an individual VHI program is drawn up, based on the wishes of the insured.

A huge advantage of this type of insurance is that, thanks to its existence, it is possible to insure on preferential terms at cheaper rates than in the case of an individual agreement.

Individual

It is not as profitable to conclude an individual VHI agreement as a collective one, because payments on insurance premiums will be much higher, and you, your family members, will have to pay not the employer, but personally.

The cost of the VHI policy will depend on the insurance program you have chosen and specified in the contract, your age, and the presence of health problems.

Separately, there are special programs for insuring the elderly, students, children and others.

Regardless of what kind of contract was concluded: individual or collective, you will have a policy on hand, according to which you will be able to seek help from the medical institutions specified in the contract.