China Medical Association was complained for its concerted action with its members in refusing to sign an agreement with National Health Insurance and in engaging to raise the medical service charges in violation of the Fair Trade Law

Chinese Taipei

Case:

China Medical Association was complained for its concerted action with its members in refusing to sign an agreement with National Health Insurance and in engaging to raise the medical service charges in violation of the Fair Trade Law

Key Words:

public law conduct, labor dispute

References:

Fair Trade Commission Decision September 13, 1995 (the 205th Commission Meeting); Letter of (84) Kung I Tzu 07576

Industry:

social organization (8215), government agencies (9111)

Relevant Laws:

Article 5(2) and Article 5(3) and Article 51(1) of the National Health Insurance Law

Summary:

1. This case originated from the members of China Medical Association boycott to sign an agreement with National Health Insurance Bureau with the intent of raising medical service charges. Thus, the Consumers' Foundation filed a complaint to the FTC alleging that such "concerted action" has prejudiced the rights and interests of consuming public.

2. Article 51(1) of the "National Health Insurance Law" states that "Payment standard of medical service charges and basic price of medicines shall be formulated jointly by the insurers and health insurance medical service institutions and approved by the competent authority." Articles 5(1) and 5(3) of the same law further state respectively that "For review of the disputes about the payment standard of charges and fees under the health insurance policy between the insured party, the insurance procuring agency and the health insurance medical service institution , a National Health Insurance Dispute Review Board shall be organized." and "for the case which the insured party and insurance procuring agency disagree to the review opinion(s) of a national health insurance dispute, an administrative appeal or administrative proceedings may be instituted." In addition, Article 2 of the "Regulations Governing Review of National Health Insurance Disputes" further provides that matters in connection with insurance medical service charges shall be one of the issues to be reviewed by the aforesaid Review Board. Based on this provision, the "matters in connection with insurance medical service charges" shall be regarded as a subject involving public law, and therefore, any dispute arising therefrom should be resolved by administrative remedies. Nevertheless, as the key issue of the present case involves the review of contracting act the medical service institution concerned and the insurer, it is therefore different from the issue involving assessment of payment standard of charges and fees as hereinabove described. Besides, since the refusal of China Medical Association to enter into an agreement as required could affect the trading order, the Fair Trade Law should be theoretically applicable to the present case. However, as the present dispute is similar to a labor dispute in nature and is not intended to restrict competition, it is therefore not regarded as a "concerted action" as defined in the Fair Trade Law.

3. Since the "payment standard of medical service charges and fees" shall first be formulated jointly by the insurer and the insurance medical service institution and must be approved subsequently by the competent authority, the competent authority not only has the power to approve the standard rates of charges and fees, but also has the power under public law to select and manage qualified medical service institutions. The action of approving the "payment standard of medical service charges and fees" constitutes a part of the functions of the competent authority in exercising the public authority rather than a private action of trade. Moreover, since national health insurance is a compulsory insurance in nature, management of the matters related to the system, including management of appointed hospitals, financial sources, and insurance premium sharing (by Government and insured persons), and the management or problems arising therefrom should be handled through procedures under public law.

4. In conclusion, the issue arising from the concerted action of the members of China Medical Association to refuse to sign an agreement with the National Health Insurance Bureau with the intent to raise the rates of medical services charges and fees is similar to a labor dispute in nature rather than a "concerted action" as defined in the Fair Trade Law, and therefore is not an issue to which the Fair Trade Law shall apply.

As to the dispute on the rates of medical service charges and fees, such issue, having implications with public law, should be handled and managed by the competent authority in charge of public health through appropriate procedures in accordance with the National Health Insurance Law.

Summarized by Chang, Hsiang-Chi
Supervised by Hu, Kuang-Yu Hu

＄: For information of translation, click here

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