5 DESCRIPTION OF THE FUNCTIONING OF THE SSF 30
5.2 PROCEDURE TO SUBMIT AN APPLICATION TO THE SSF FOR REIMBURSEMENT 36
5.2.5 Appeal procedure 50
If the patient disagrees with the decisions of the SSF, he can launch an appeal to the labour court (Art. 580, 2° Gerechtelijk Wetboek17 en art. 167, 1° van de Wet
betreffende de verplichte verzekering voor geneeskundige verzorging en uitkeringen, gecoördineerd op 14 juli 1994).1817
The content of the competence of the labour courts was for a long time under discussion. It was affirmed by jurisprudence and doctrine however that if the College of medical directors judges on the eligibility criteria, this is not a discretionary power.22
Discretionary power implies freedom of judgement (when a criterion is vague and has to be interpreted) and policy freedom (freedom to decide, even if a situation complies with the criteria). The fact that the College can only strictly apply the legal criteria implies that in case the labour courts have full judicial power (on the reasonability of decision-making and on the content of the decision). With regard to the amount that will be allocated however, the college has discretionary powers. Consequently labour courts solely have the competence to judge the reasonability of decision-making, not the content of the decision (= the amount). This implies that a judge can annul the decision of the College on the allocated amount but not judge on the amount itself. The numbers of registered cases that were introduced to the labour courts varies from 100 in 2004, 74 in 2005, 44 in 2006, 52 in 2007 to 23 in 2008. These numbers reflect the number of cases that were brought to court during those years. They can be related to decisions of the SSF from different years. In the SSF sample, the applications treated by the labour court amount to 144 decisions (1.75% of all applications and 2.56% of all accepted applications). Mostly decisions concerning diseases of the nervous or the circulatory system (see table 8); and implants and drugs are brought before the labour court (see table 9).
17 For an overview of judgments of the labour courts, J. Diependaele, “Het Bijzonder Solidariteitsfonds,
blijvende bron van controverses”19, J. Put, “Het Bijzonder Solidariteitsfonds: interpretatie en beleid”, noot
onder Arbeidshof Gent 3 maart 200020, W. Bourry, “Het bijzonder solidariteitsfonds: een deur die nooit
Table 8: Applications before labour court in function of ICD-9-CM diagnosis group
ICD-9-CM diagnosis group Percentage of
all labour court applications
Percentage of all applications
320-389
Diseases of the Nervous
System and Sense Organs 31,3% 24,8%
390-459 Diseases of the Circulatory System 16,7% 25,2%
140-239 Neoplasms 13,2% 8,6%
800-999 Injury and Poisoning 6,3% 3,2%
580-629 Diseases of the Genitourinary System 4,9% 4,9% 680-709
Diseases of the Skin and
Subcutaneous Tissue 4,9% 2,4% 710-739
Diseases of the
Musculoskeletal System and
Connective Tissue 4,9% 4,6%
740-759 Congenital Anomalies 4,2% 4,0%
290-319 Mental Disorders 3,5% 0,9%
520-579 Diseases of the Digestive System 3,5% 4,7%
460-519 Diseases of the Respiratory System 2,8% 1,5% 240-279
Endocrine, Nutritional and Metabolic Diseases, and
Immunity Disorders 1,4% 10,1%
780-799 Symptoms, Signs and III-defined Conditions 1,4% 1,8% 280-289 Diseases of the Blood and Blood-Forming Organs 0,7% 1,0%
Table 9: Applications before labour court in function of health care service
Health care service Percentage of
all labour court applications
Percentage of all applications
implants 27,1% 16,9%
drugs 25,7% 49,4%
instruments, devices, orthosis 16,0% 7,6%
innovations 15,3% 13,3%
health care abroad 9,0% 3,6%
ointments, drugs, bandages skin
diseases 2,8% 1,0%
fee 2,1% 0,8%
The judgements of the labour court are not systematically monitored by the SSF and do not serve as guidelines for decisions on individual cases (personal communication medical directors). This is not so surprising since there’s no continuity and uniformity in the interpretation of some of the eligibility criteria by the courts. The following examples illustrate the divergence of judgements.
• Expensive
There is no consensus between labor courts about the fact if the personal financial situation of the respective patient has to be taken into account. For instance, the labor court of Antwerp23 stated that given the social basis inherent to the SSF, the assessment
of the term “expensive” has to be related to the financial situation of the patient. The labor court of Gent24 on the other hand judged that the notion “expensive” has to be
set according to objective standards and in function of the treatment and the aim of treatment.
• Threatening the vital functions of the patient
There is a tendency towards a broader interpretation of this criterion in Jurisprudence. According to the strict interpretation of the Labor Court in 199925, the criterion has to
be understood as following: “necessary functions of the human body, such as conscience, respiration, the heart and blood circulation”.18 Broad interpretations refer
to a primordial interest for living or functioning27. In that scope psychosocial diseases
and quality of life can also be taken into account.28-30 In the preparatory documents of
the law of 2005 the Minister has explicated that a vital function is an essential function such as the sight, even if the disease the patient is suffering from is not life threatening.31
The labor Court of Antwerp supported this vision in its decision of 10 May 2005 stating that the requirement of the life threatening character of the disease adds a criterion that is not provided in law.32
• Steps from application to reimbursement
The consecutive steps from submitting a request for reimbursement till the final payment of the amount approved by the SSF are summarized the figure below:
18 other court rulings supporting the strict interpretation: Arbh. Gent 10 mei 2002, vijfde kamer, A.R. nr.
Figure 3: Consecutive steps of an SSF submission
Reimbursment applications related to Epidermolysis bullosa
After maximum 1 month (+ suspension delay in case of request for additional information)
Local sickness fund
Sickness Fund National level
NIHDI
Investigation by the ‘College of Medical directors’ +
Decision by the ‘College of Medical directors’ (SSF will notify the patient on the nature of the decision) OR
Investigation + decision by one member of College of Medical directors/ negative Decisions are contra signed by other member of the College
Sickness fund National Level
Local sickness fund
Receives the decision and communicates the decision and its motivation to the patient
Patient
(request for reimbursement)
Payment to the patient within maximum 15 working days after decision SSF/20 working
days after reception invoice for principle agreement
Possible appeal to the Labour court
Keypoints: description of the functioning of the SSF
• The SSF is operational since 1990. The actual regulatory framework is the
law of 27 April 2005.
• The SSF reimburses costs of medical treatments that are not covered by the
compulsory health care insurance system (or any other insurance) and that are related to rare indications, rare diseases, innovative treatment
techniques, chronically ill children and medical treatment abroad.
• To be eligible for reimbursement by the SSF, the medical treatment has to
be expensive, threatening the vital functions of the patient, have a proven scientific value and effectiveness and be prescribed by a specialized medical doctor. There may be no alternative that is reimbursed by the compulsory health care insurance system and the patient may not have other rights for reimbursement from other private or public insurance systems.
• In the SSF sample, we found that in particular for drugs and special diet,
applications are often reimbursed at 60%, 75% or 85%. The majority of the applications originates from a limited number of prescribers or hospitals. Applications are in 90% of the time treated within a
month following reception by the SSF. Treatments specified in eventually accepted applications are on average more expensive than rejected applications. Labour court appeals do not seem to be limited to specific diagnosis or treatments.
• The budget of the SSF varies substantially over the years. Expenses are often
determined by changes that occur in the reimbursement of medical costs in the compulsory health care insurance system. Reimbursement of
medication is by far the largest part of the SSF budget. It counts for more than 92% of all SSF expenses.
• Applications for reimbursement of medical costs by the SSF start from an
individual request introduced by the patient at the local sickness fund level that transfer them to the national sickness funds. From there the application passes to the SSF.
• Applications are examined from an administrative point of view (check if all
required documents are present) and a medical point of view (check if the application meets the medical criteria for reimbursement by the SSF).
• Decisions on SSF applications are taken by the College of medical directors.
For certain types of applications the decision can be delegated to one
member of the college or to the local sickness funds. Appeals are handled by the labour courts.