In the recent years, Hungarian healthcare providers (hospitals, clinics) have been confronted with a significant human resource crisis.
Most of the providers are central or local public institutions, for which the applicable legal regulations – unlike the regulations applicable for the providers operating in the form of business organizations – cause significant difficulties when solving the human resources crisis.
In the case of healthcare providers, the framework regulation is the Act of LXXXIV of 2003 on the “specific questions of the provision of healthcare services”, defining who is considered a “healthcare employee” and who are “employees active in healthcare”.
The act defines those legal relationships where healthcare activities are allowed to be performed (free-lancer, single person healthcare undertaking, public service, governmental public service, state public service, service relationship, clerical person or a professional person providing religious ceremonies for an organization performing religious activities, a voluntary person or member of a single person company).
Thus, a healthcare employee is a person who has the adequate qualifications, or who participates in the activities of the person with the adequate qualifications, independently from the form of the legal relationship between the parties.
According to the regulations of Act XXXIII of 1992 on the “legal status of civil servants”, public institutions – which constitute the major part of the healthcare providers – must launch public tenders for open positions, except where such tenders were unsuccessful at least twice within 90 days, or when filling an open position is urgent for the continuous and safe provision of healthcare services, and there is no other method of work organization to overcome these conditions.
But what happens if, following the legal regulations, the healthcare provider launches a tender to fill its open positions, but it is confronted with the fact that the applicant suggests creating a different legal relationship other than employment as civil servant, or there is no applicant at all.
In this case, it has to follow the regulations of Act CXLIII of 2015 on the public procurements, because the healthcare provider is obliged to apply public procurement rules also in the case of buying labor services, with the exception of those employment relationships that are listed in the act as exceptions.
Thus, based on the regulations, public procurements must be launched in cases of healthcare services provision under the aegis of free employment, healthcare provider as a single undertaking, member of a partner undertaking, or member of a single undertaking, even if the subject of the labor contract is related to the provision of services by a specific person, and if the yearly value of the contract exceeds HUF 18 million, or the sum value of the same contracts exceeds HUF 18 mln.
In many cases, the challenge for the contractor is to judge what is to be considered as procurement.
When ordering services, it is a vital aspect to investigate what is the direct aim of that service.
Naturally, during the definition of the direct aim, it is not the name of the service that decides; for example, financial and technical design can be legally divided into parts, even though they are both designs.
Only those who have the enabling certificates for the provision of the services are allowed to provide healthcare activities, thus the focus on the same aim cannot be interpreted too widely: the request to involve doctors in the healing activities cannot be the basis for the cumulative calculation, but it is already necessary to analyze this within the same profession.
So, what does a healthcare provider do if it does not want to create a civil service relationship? The healthcare provider implements the public procurement according to the rules applicable for civil servants, and after it is unsuccessful – in case it cannot be solved with the given personal conditions (i.e. work re-organization) of the obligatory healthcare services provision, it signs a contractor agreement with the applicant without a public tender until it can execute a new, successful one.