Hello. Attorney Lee Young-kyung of Cheongchul Law Firm is here.
One of the concerns of healthcare institutions and companies that run various forms of healthcare businesses targeting medical institutions and patients is whether the content of their business falls under the patient solicitation act stated in Article 27, Paragraph 3 of the Medical Law.
Since the wording of Article 27, Paragraph 3 of the Medical Law is abstract, it is necessary to examine individual specific issues along with the Supreme Court's interpretation of the statement and the interpretations by the Ministry of Health and Welfare.
[Question]
Does a discount event for non-reimbursable items correspond to patient solicitation?
[Answer]
Article 27, Paragraph 3 of the Medical Law prohibits acts of introducing, promoting, or soliciting patients to medical institutions or medical professionals for profit, as well as acts that instigate this (patient solicitation acts).
③ No one may introduce, promote, or solicit patients to medical institutions or medical professionals for profit by waiving or discounting the co-payments under the 「National Health Insurance Act」 or the 「Medical Care Assistance Act」, or by providing money or goods, or by offering transportation convenience to unspecified large numbers of people, nor may they instigate such acts. However, the following acts may be carried out: 1. The act of attracting patients upon obtaining prior approval from the local mayor or county head, based on individual economic situations, etc. 2. The act of attracting foreign patients who are not insured or dependents under Article 109 of the 「National Health Insurance Act」 (excluding foreign residents residing in the country as specified by the regulations of the Ministry of Health and Welfare). |
Looking at the phrase, it explicitly states actions such as waiving or discounting ‘co-payments’, providing money, or offering transportation convenience to unspecified large numbers of people, so there may be doubts about whether discounting or waiving medical fees for non-reimbursable items constitutes patient solicitation.
To conclude, [It can be applicable!] is the answer.
First, the Supreme Court has repeatedly stated that whether an act constitutes ‘patient solicitation’ should be judged based on whether it distorts the fair market order of the medical market, considering whether there is any provision of money or similar degrees of inducement, and whether the beneficiaries are reasonably limited.
The guidelines from the Ministry of Health and Welfare state, “Including non-reimbursable medical fees within the scope of co-payments as stated in Paragraph 3 of Article 27 is considered an excessive interpretation of penal regulations, as per the Supreme Court ruling (2007Do10542). Thus, medical institutions attracting patients through discounts on non-reimbursable medical costs is only permitted to a limited extent that does not disrupt market order in terms of subject, period, scope, and discount rate,” thus asserting a limited possibility.
The Supreme Court case 2007Do10542 involved [an advertisement for a summer youth discount event stating that if middle and high school students undergo acne medication scaling, they would receive a 50% discount], and it was judged that [the advertisement is limited in terms of period and subject treatment, and given that it targets economically disadvantaged youth, this act is not deemed to fundamentally disrupt the order of the medical market, thus it cannot be classified as patient solicitation]. The careful application of patient solicitation regulations concerning non-reimbursable medical fees has also been addressed by the Constitutional Court (Constitutional Court ruling on May 30, 2019, case 2017Hun-Ma1217).
Constitutional Court ruling on May 30, 2019, case 2017Hun-Ma1217 The acts of discounting or waiving non-reimbursable medical fees do not constitute ‘the act of discounting co-payments under the provisions of the National Health Insurance Act or the Medical Care Assistance Act.’ Interpreting that the medical fees, which the healthcare provider freely sets and which the patient is entirely responsible for, fall under ‘co-payments’ as defined by these regulations is considered an excessive interpretation of penal law and is contrary to the principle of legality in criminal law, thus not permissible. |
In contrast to this case, if there are no reasonable criteria, such as economic capacity, limiting the subjects, and if there is no indication regarding the selection of test subjects, it has been judged to constitute patient solicitation (Seoul Administrative Court ruling on December 18, 2008, case 2008Gu-Hap32829 and the interpretation by the Ministry of Health and Welfare). Moreover, there exists a Supreme Court decision after the ruling 2007Do10542 that states, ‘For an act to be classified as patient solicitation, it is not required that the medical services provided by healthcare institutions must necessarily be related to the National Health Insurance or Medical Care Assistance,’ (2019Do8460).
Ultimately, healthcare institutions and healthcare companies must recognize that even simply discounting or waiving non-reimbursable medical fees may constitute patient solicitation, and that for these discounts to not qualify as patient solicitation, the target and criteria must be clearly established. Additionally, precautions must be taken in individual advertising expressions to avoid being interpreted as excessive discounts on medical fees.
Cheongchul Law Firm provides consulting to various medical institutions, medical advertising platforms, and health examination reservation platforms, possessing expertise in the fields of medical law, medical device law, etc. Lawyers from large law firms and major corporations directly handle clients' cases.
If you are considering legal matters related to medical law, please feel free to contact us.
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