Administrative, Public health, Accreditation, Motivation, Selective procedure, TAR Napoli, section I, 08 May 2023 Judgment n. 2806
On the reasons for the denial of accreditation
Since the accreditation attributes to its holder a competitive function of added value compared to other private operators, the denial of the relevant application cannot be based only on the detected saturation of the requirement, given that this saturation may depend on completely temporary contingencies and cease shortly after the denial, allowing the acceptance of a similar request subsequently presented by another operator; a periodically renewed evaluation is therefore necessary and open to comparison, between those who are already accredited and those who aspire to be so (1).
Compliant: T.a.r. for Sicily, Catania, sec. III, n. 311/2023;
Different: there are no different precedents.
In the present case, the appellant asked for a declaration of the illegitimacy of the denial of accreditation in sectors from a3 to a6 by the public administration, since, given its concessionary nature, it should be issued on the basis of a procedure inspired by competition and to raising the level of healthcare services provided.
The college accepted this complaint with considerations that start from the examination of the articles. 8-bis, 8-ter and 8-quater of Legislative Decree no. 502 of 1992.
Following the reading of the regulatory data of the above-mentioned articles, there is no doubt that accreditation gives its holder a competitive position of added value compared to other private operators, defined by art. 8-quater of Legislative Decree no. 502 of 1992 as “quality of accredited entity”.
This being the case, the sine qua non for the issuing of accreditation is certainly the assessment of the existence of the need, but this must not lead to arbitrariness or unmotivated privileges on the part of those structures which by mere contingency have proposed an application at a time when where there was an unmet need for benefits.
And in fact, the rejection of the accreditation request is of a temporary nature, as it cannot be ruled out that, following the rejection, a lack of supply may be created which, detected by the Administration, allows accreditation to be granted to another structure.
This assumption is supported by the aforementioned opinion of the AGCM of 3 March 2022, given with regard to the Campania Region’s regulation on DGRC spending ceilings n.599/2021. According to the AGCM, regardless of the specific scope of the spending ceilings, the advantage granted to structures already operating on the market to the detriment of those which have just entered it or have not yet entered it is illegitimate, in a competitive logic which must also concern private provision in the healthcare sector.
Moreover, the Constitutional Court itself had foreshadowed the need to introduce competitive systems for the choice of accredited subjects, according to objective, non-discriminatory and efficiency criteria in compliance with the art. 8-quinquies of Legislative Decree no. 502 of 1992, as the practice followed up to now of automatic extension of contractual agreements with the same accredited entities is not compatible with the law, a source of evident inequality between operators and unjustified limitations on the patient’s choice of healthcare facility of trust, as an expression of the constitutionally guaranteed right to health.
Therefore, a dynamic vision and a periodically renewed evaluation open to comparison between those who are already accredited and those who aspire to be so, can therefore respond to the best and most efficient allocation of available resources, specifying that “the more the evaluation is periodic, i.e. dynamic , and the less advantageous positions are consolidated in individual operators, the more efficiency and savings will emerge for the benefit of regional health spending”.
Therefore, the board believes that the appellant’s complaints that the Campania region with the contested provision failed to carry out a complete investigation which would have required the evaluation of the existing offer of diagnostic services, also having regard to the potential of the structures existing ones to best satisfy the identified needs, introducing monitoring mechanisms that allow healthcare facilities that aspire to enter the “agreed” market to compete with each other and with those already operating there, in line with what is now established by the legislator.
This does not require that, when reissuing the power, the administration must necessarily issue the accreditation provision in favor of the appellant, but that the Region assisted by the ASL, implements the activities necessary to guarantee compliance with the principles of competition and impartiality, providing for forms of comparison between the offers of private operators, in line with the spirit of the recent legislative news reported above.
Source Administrative Justice
