L'INSERIMENTO DEGLI OPERATORI PRIVATI NEL SERVIZIO PUBBLICO SANITARIO

This PhD thesis analyses the modalities through which the national legislator regulates the insertion of private providers within the health public service in Italy. The study proceeds from the Constitution that, while acknowledging the right to health, does not regulate the ways how the effectiveness of this right is guaranteed. Such “neutrality” about the organization of the service adds up to the central role that, even historically, private providers have taken on. The nodal point is the study in the light of the European Union Law: the health connotation of the services does not prevent from submitting them to the principles of free circulation and competition defined in the TEC and, more recently, in the TEU and TFEU. The Decree-Law n. 502/1992 marked the overtaking of the convention mechanism within the national health service defined by law n. 833/1978: the insertion of enterprises in the NHS takes place gradually, according to the so called “tree A system” (authorization, accreditation, and contractual agreements). The in force law, above all on the basis of the reform of the decree-law n. 229/1999, shows evident critical issues: the non-coordination with the new norm of the constitutional law n. 3/2001, the close succession of transitional regulations, the presence of various discretionary evaluations in the care of the Administration, the lack of a real competition, as well as an objectionable overlapping of functions in the care of the A.s.l. – Local Health Authority – that have to organize and provide the service. All these issues strongly sacrifice the competition between public and private operators: a competition that would be potentially beneficial for the costs rationalization in the health field.