An Analysis of Laws on Health Insurance in Bosnia and Herzegovina

Legal analysis:

“An Analysis of Laws on Health Insurance in Bosnia and Herzegovina (Entity, Brcko District and Cantonal where applicable) in Order to Identify Differences Between Them and the Existing EU Principles”

Written by: Nada Zukic, a Public Law Consultant, LLB and M.Sc. in Psychology

Part I - Introduction

The subject of health insurance in Bosnia and Herzegovina falls within the competence of the entities and Brcko District.

The Constitution of Bosnia and Herzegovina, Article II (1) provides that “BiH and both Entities shall ensure the highest level of internationally recognized human rights and fundamental freedoms.”

The same article of the Constitution of Bosnia and Herzegovina, sub-paragraph (2), provides, inter alia, that: “the rights and freedoms set forth in the European Convention for Protection of Human Rights and Fundamental Freedoms and its Protocol shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.”

Annex I to the Constitution of BiH has introduced an obligation for Bosnia and Herzegovina to apply in its territory some additional Human Rights Agreements such as the Covenant on Economic, Social and Cultural Rights (1966), the Universal Declaration on Human Rights (1948); the International Covenant on Civil and Political Rights (1966), and its corresponding additional Optional Protocols (1989); the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979), and the Convention on the Rights of the Child (1989).

Also, the Constitution of Bosnia and Herzegovina in Article I(4) provides that there shall be freedom of movement of persons, goods, services and capital throughout Bosnia and Herzegovina.

The Constitution of the Federation of Bosnia and Herzegovina provides that the health area falls within the ambit of shared responsibilities between the Federation of Bosnia and Herzegovina and the Cantons, whereas the Cantons have an exclusive responsibility for implementing social welfare policy and providing social welfare services.

Pursuant to the constitutional provisions, health insurance in the Federation of Bosnia and Herzegovina is regulated by the Law on Health Insurance of the Federation, which entered into force and became applicable in 1998, whereas the health insurance funds are established at the cantonal level (10 cantons and 10 cantonal funds have been established accordingly). In order to fulfill the condition from the Federation Constitution and the relevant laws in the domains of health care and health insurance, which guarantee that the entire population of the Federation of Bosnia and Herzegovina has equal rights to health insurance, and in order to surmount the difficulties caused by disparate and unequal inflows of revenues in the form of health insurance contributions of the cantonal funds (differences between richer and poorer health insurance funds in the Federation of Bosnia and Herzegovina) a Federation Solidarity Funs has been established.

Health insurance in the Republika Srpska is centralized and exists at the entity-wide level, whereas the Health Insurance Fund is comprised of 8 branch offices: Banja Luka Branch Office, Prijedor Branch Office, Doboj Branch Office, Bijeljina Branch Office, East Sarajevo Branch Office, Zvornik Branch Office, Trebinje Branch Office, and Srbinje Branch Office. Thus centralized system of health insurance in Republika Srpska is much more favorable for the insured persons compared with what is provided for the insured persons in the Federation of Bosnia and Herzegovina.

The Health Insurance Fund of Brcko District of Bosnia and Herzegovina covers the territory of Brcko District.

Such decentralized and heterogeneous health care and health insurance systems in Bosnia and Herzegovina present a major difficulty preventing equal access to health services and health insurance for all citizens of Bosnia and Herzegovina.

The health care services provided to the insured persons by the principles of jurisdiction and registration of insured persons in the particular cantons or entities, are non-transferrable between the two entities and among different cantons.

Persons covered by health insurance schemes in the different entities and cantons have different rights and different access to health care even in the event that they pay equal amounts of contributions.

The total revenues and expenditures associated with health insurance throughout Bosnia and Herzegovina are enormous and the sustainability of this health insurance system is extremely dubious. Health care is unavailable (even a basic health care package) to certain groups of population.

There was an attempt in Bosnia and Herzegovina to cover a majority of its population through the Health Insurance Funds financed from various sources, in order to fulfill the international obligations assumed by this country, but there remain a great number of citizens in Bosnia and Herzegovina who have remained uninsured.

The largest number of uninsured persons is recorded among the unemployed who are not registered as such. In the Federation of Bosnia and Herzegovina, unlike the Republika Srpska, the deadlines for registration with the offices responsible for the unemployed persons are very short and strict; therefore, there are countless numbers of citizens in the Federation without health insurance due to their failure to comply with the time limits for registration with the employment bureaus. Among the uninsured persons there are also employed individuals for whom no health contributions are being paid by their employers, including also those who became unemployed as a result of layoffs, or so-called persons on the employment waiting lists, as well as the disabled persons.

Within the rolls of the uninsured persons there are individuals who belong to Roma minority, as well as the children who are without health insurance due to the failure on the part of their parents to sign them up as beneficiaries of health insurance schemes, which is a result of their being uninformed of the rights to which their children are entitled within the health care system.

There is no coherent health insurance in Bosnia and Herzegovina since it is fragmented, fully decentralized, lacking any coordination and control exercised from a single spot, and without cooperation between the Health Insurance Funds and without operational transparency among the funds.

In order to alleviate the consequences of such a decentralized health insurance system in Bosnia and Herzegovina, and to provide for at least some minimum required activities of the State in this particular domain at the international level, the Law on Ministries and Other Bodies of Administration of BiH (“Official Gazette of BiH” nos. 5/03,26/04, 42/04, 45/06, 88/07, 88/07, 35/09, 59/09, and 103/09) provides that “the Ministry of Civil Affairs shall be responsible among others for carrying out tasks and discharging duties which are within the competence of BiH and relate to defining basic principles, coordinating activities and harmonizing plans of the Entity authorities and defining a strategy at the international level in the fields of: health and social care;” Even though this Law has made an attempt to introduce and grant some competences in the health care domain at the state level, the role of the State in this highly important segment of citizens’ lives is almost insignificant due to the self-containment and insularity of the entities and cantons enforced with regard to the health insurance matters.

Part II - Obligations of Bosnia and Herzegovina and implementation of international standards in the health care and health insurance areas.

Free movement of people, goods, services and capital is one of the foundations on which the internal market of the European Union rests. The purpose of the internal market will only be achieved with the complete elimination of all obstacles standing in the way of the said freedoms.

The European Convention for the Protection of Human Rights and Fundamental Freedoms (ratified by Bosnia and Herzegovina) guarantees, inter alia, prohibition of discrimination, which is applicable in all areas, and thus also in the area of health insurance. Accordingly, Article 14 of the Convention provides clearly that:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

In addition, Bosnia and Herzegovina ratified the European Social Charter in September 2008. The European Social Charter (hereinafter referred to as: the Charter) represents one of the basic documents which regulates the exercise of economic and social rights. By ratifying the Charter, and in particular its articles having direct effects on the exercise of the right to health care and health insurance, Bosnia and Herzegovina has undertaken to establish an effective social welfare system, as well as the rights stemming from the health insurance. Through this, the State of Bosnia and Herzegovina has made a commitment to establishing an accessible and efficient health care system and to ensuring the rights that arise out of the health insurance, to be incorporated into its legislation.

Article 11 Right to protection of health of the European Social Charter reads as follows:

“With a view to ensuring the effective exercise of the right to protection of heath, the Parties undertake, either directly or in cooperation with public or private organizations, to take appropriate measures designed inter alia:

1. To remove as far as possible the causes of ill-health;
2. To provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health
3. To prevent as far as possible epidemic, endemic and other diseases, as well as accidents.”

Under Article 12 of the Charter, each Party to the Charter undertakes to ensure the effective establishment of the right and the exercise of social security, which at a minimum is equal to the one that is required for ratification of the European Code of Social Security, that regulates the exercise of nine types of contingencies including also the rights to:

- Medical Care,

- Sickness Benefit

- Old-age Benefit

The Charter further prescribes the effective exercise of the rights and formulates that the right to social assistance must be: clearly defined by legislation, based upon objective criteria, is attainable, and must not be subject to any conditionality other than the need of a beneficiary for social assistance.

With a view to ensuring the successful exercise of the right to social and medical assistance, the Parties undertake: “to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition.”

The State has the obligation to develop a system/scheme of public social and medical assistance that will include: financial benefits or benefits of another kind, which includes a clear defining of the categories, conditions, procedures for granting assistance as well as a clear and functional method of ensuring the right to receive assistance and an established independent authority through which the individuals may request protection of their rights” (Article 13)

The Charter makes it binding upon the Parties to undertake “either directly or in co-operation with public and private organizations, to take all appropriate and necessary measures designed, inter alia, to enable elderly persons to lead lives in their familiar surroundings for as long as they wish and are able, by means of the health care and the services necessitated by their state.”

It would be necessary to mention that the countries which ratified the Convention on the Rights of the Child have the obligation to ensure through their legislation that children in the territory of the country enjoy the highest attainable standard of health and a secure access to medical treatment and medical rehabilitation institutions. (The Convention was adopted by the United Nations General Assembly, on 20 November 1989).

The Stabilization and Association Agreement (SAA) between the European Communities and their Member States, on the one hand, and Bosnia and Herzegovina, on the other hand, (which was signed by Bosnia and Herzegovina on 16 June 2008,) whose fulfillment is the requirement for accession of Bosnia and Herzegovina to the European Union membership, provides, inter alia, that “[R]ules shall be laid down for the coordination of social security systems for workers with nationality of Bosnia and Herzegovina, legally employed in the territory of a Member State, and for the members of their families legally resident there” (Article 49 of the SAA).

Under the same Agreement “[T]he Parties recognize the importance of the approximation of the existing legislation of Bosnia and Herzegovina to that of the Community and of its effective implementation. Bosnia and Herzegovina shall endeavor to ensure that its existing laws and future legislation will be gradually made compatible with the Community acquis. Bosnia and Herzegovina shall ensure that existing and future legislation will be properly implemented and enforced.” (Article 70)

What is more, this Agreement requires from Bosnia and Herzegovina that through mutual cooperation among the Parties it should “seek to support the adaptation of the social security system of Bosnia and Herzegovina to the new economic and social requirements.”

Although the EU requirements in regard to social security and health insurance are very clear, specific and declarative, we must emphasize that Bosnia and Herzegovina’s social security laws fail to meet the set requirements. The health care laws are extremely unilateral and focused only on the insurant – the country’s national, or more specifically, a citizen of an entity, and even a citizen of a canton.

Since its establishment in 1949, the Council of Europe has been actively involved in the creation and promotion of social security in Europe, and likewise in the European Union and in potential EU Member Countries. The social security system advocated by the Council of Europe is “to achieve a greater unity between its members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage and facilitating their economic and social progress”, the main role of which was to establish the basic and minimum attainable standards of social security in Europe.

The European Code of Social Security and its Protocol, as well as the Revised European Code of Social Security, set standards in social security matters and underline the fundamental principles, which are referred to as the European Social Security Model. This model should be a guide for Bosnia and Herzegovina as well, in so far as it is a beacon for all other countries willing to become EU Member States, in order for them to join the EU integration as soon as possible and in a most effective way.

The UN Resolution “Health-for-All Policy for the Twemty-First (XXI) Century”, representing a strategic global document, has had its influence in the European region and as such it has predetermined the frameworks for action for health in the region as a whole. In that regard it can serve as a basis and inspiration to shape and correct health policy objectives at the national and local levels.

The “Health-for-All Policy for the Twenty-First Century” of the European Division of the World Health Organization, has the following two main objectives:

- to preserve and promote health during the entire human life;

- to reduce the incidence of the leading diseases and injuries of the present days, and to alleviate ill-health and suffering caused by them.

What is more, this document has established the following principles on which the Strategy of “health-for-all policy for the twenty-first century” is based:

- health is a fundamental right of the human beings;

- in order to accomplish the objectives it would be necessary to demonstrate equity and solidarity within and between the countries and their residents;

- the accomplishment of the objectives requires participation in and accountability towards the permanent development of health for the individual and the groups alike, but also for the institutions and communities in their entirety.

Within the said document, strategies have been established that reflect the needs of the entire European region and key action steps are proposed where there is need for improvement. These will constitute the benchmark against which the progress can be measured toward improving and preserving health and reducing risk. The strategy was shaped into twenty-one objectives for the 21^st century of “Health for All” agenda for Europe.

The main goals are: solidarity for health in the European region, equity in health within the Member States; healthy start of life; health of young people; healthy aging; improving mental health; reducing communicable diseases; reducing noncommunicable diseases; reducing injuries from violence and accidents; promoting a healthy and safe physical environment; promoting healthier living; funding health services and allocating resources, etc.

Bosnia and Herzegovina is also a Party to the so-called “Zagreb Declaration”, which was arranged under the auspice of the Council of Europe and signed by the Ministers responsible for social security in the Western Balkans countries, at the Ministerial Conference on Social Security Co-ordination in the Western Balkans Region, held on 24 March 2006. By virtue of this document, parties have undertaken to maintain international coordination of the social security systems so as to facilitate the citizens’ access to health care and pension rights in countries of the region, where they reside and work, that are equivalent to those rights exercised in their countries of origin. The agreements stand for equal treatment of foreign nationals and its own citizens in the areas of social and pension insurance, recognizing the principle of permanent residence. All European Union states are free to create their own social programs and set the amounts of social benefits so long as they abide by the principles of equal opportunities and non-discrimination.

By signing Tirana Declaration at the Ministerial Conference on Social Security Coordination, held on 16 October 2007 in Tirana (Albania), together with other signatories, Bosnia and Herzegovina undertook to provide for more efficient settlement of their common requirements through coordinated efforts to strengthen institutional capacities and promote social policies, as part of its preparation for EU accession.

Bosnia and Herzegovina is a member of the United Nations and ipso facto a member of the World Health Organization.

Also, Bosnia and Herzegovina is a member of the Council of Europe. Bosnia and Herzegovina still does not have the status of an EU candidate Member State, but it is on its path towards the European Union, which imposes an obligation upon this country to implement extensive reforms that are necessary for embarking upon the accession process, and Bosnia and Herzegovina is indeed at the initial stage of implementation of these reforms. Accordingly, all documents and instructions concerning the health of citizens, health insurance, safety at the global and European levels, constitute the grounds and guidelines for approximation and harmonization of legislation during the EU accession process.

In that respect, one has to have in mind a wide scope of different areas and inter-related conditions influencing the preservation of health and the access to health care, which is directly linked to health insurance in the countries within the European Community. Health insurance is one of the main factors contributing to the achievement of the goals such as the improvement and preservation of health, prevention, and access to medical institutions.

It has to be noted that Bosnia and Herzegovina still encounters numerous problems in terms of harmonization and implementation of the signed documents, which may prove to be a serious obstacle in the process of joining the European Union.

Part III - BiH Activities on the development of national legislation

It should be noted that so far Bosnia and Herzegovina has undertaken specefic activities in the health domain at the State level and these are the basis for the document, “Resolution on the Health-for-All Policy for the Citizens of Bosnia and Herzegovina.” (The Resolution was adopted at the 17^th session of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, held on 29 April 2002).

Among other important elements that represent the strategies and encourage the activities at the state level are the following documents:

- the Medium Term Development Strategy – Poverty Reduction. Strategy Paper for the period 2004-2007, (PRSP)

- WHO Recommendations for “Health for All”

- Health-related recommendations made by the Council of Europe

- Conference on the Health Care Commitments in Dubrovnik –“Dubrovnik Declaration” aimed at promoting health in the SEE countries.

Part IV - Health Insurance Legislation of the Federation of Bosnia and Herzegovina

Constitutional framework of the Federation of Bosnia and Herzegovina

The Constitution of the Federation of Bosnia and Herzegovina, within its General Provisions, Chapter II.A, in Article 2, provides that the Federation will ensure the application of the highest level of internationally recognized rights and freedoms provided in the documents listed in the Annex to the Constitution. Article 2 of its Chapter III sets out the shared responsibilities between the Federation of Bosnia and Herzegovina (an entity) and the cantons, and thus defines that health and social welfare policies are a shared responsibility of both levels of government – (Federation and cantonal levels).

Article 3, of the Federation Constitution provides that this responsibility shall be exercised jointly or separately, or by the Cantons as coordinated by the Federation Government.

The Law on Health Insurance of the Federation of Bosnia and Herzegovina (“Official Gazette of the Federation of Bosnia and Herzegovina”, nos.30/97, 7/02 and 70/08).

Definition of health insurance is provided in Article 1 of The Law on Health Insurance (hereinafter referred to as: “the Law”), and it provides that “[H]ealth insurance, being a part of the citizens' social security, is a uniform system within which the citizens – by investing their resources upon the principles of reciprocity and solidarity, under an obligation within the cantons – ensure the realization of their rights to the health care and other forms of insurance in a manner specified by this law and other laws and regulations enacted pursuant to this law.”

This Article specifies that social security, including health insurance as a part of social security, is based on principles of solidarity and reciprocity, on the investment of resources and the principle of obligation. Accordingly, the lack of adherence to one of the said principles would have as its consequence the interruption of health insurance.

In the Federation of Bosnia and Herzegovina, or in the cantons, the resources designated for health insurance may be invested into compulsory, supplemental, and voluntary health insurance schemes.

An Insurance and Reinsurance Fund was established at the Federation level, with a view to exercising the rights arising out of the compulsory health insurance, which are of interest for all beneficiaries – i.e. the insured persons and all cantons, as well as with a view to implementing certain rights on the grounds of conventions.

The following persons are entitled to compulsory health insurance: employees and other persons who perform particular activities and act in a particular capacity, provided that this law covers them.

The right to the compulsory health insurance is also held by the family members of the insurant, in the way and under the terms and conditions prescribed by law:

Members of the insurant’s family are:

- Spouses (whether in marital or extramarital union), children (whether legitimate or illegitimate), parents (father, mother, step-father, step-mother, adoptive parents of the insurant) if supported by the insurant;

- Grandchildren, brothers, sisters, grandfather and grandmother if incapable of living and working independently, and provided that they do not have means to support themselves;

Under the compulsory health insurance, the insurants and members of their families are provided with the right to health care, financial compensations and assistance in compliance with this law.

The Law provides the option of exercising health insurance in one or more cantons, or in the Federation. This option for the insurant registered in one canton, enabling him or her to exercise the right in several cantons, has not yet been employed in practice.

The health insurance prescribed by law may in no way be altered, not even by a contract between the Health Insurance Fund and the insured party, nor may it be transferred to other persons, nor may it be inherited. The exception is the inheritance of financial benefits that are payable but remained unpaid due to the death of an insured person.

In order to secure the rights arising out of the health care, or to cover the scope of the rights that are not covered by the compulsory insurance, a cantonal legislature may introduce the supplemental health insurance.

The compulsory form of insurance does not mean or give a guarantee that all costs will be covered by the Health Fund and therefore the insured person participates in some cases in the bearing of such costs.

The Law of the Federation of Bosnia and Herzegovina provides that all insured persons covered by the compulsory health insurance scheme shall have equitable treatment.

The Law also makes it binding upon all cantons and the Federation Insurance and Reinsurance Fund to establish a uniform information system. It would monitor the realization and utilization of the rights arising out of the compulsory health insurance and reinsurance schemes, monitor the payments made and expenses incurred by compulsory contribution payers, as well as other resources personally and for each insured person. (Article 18).

It has to be noted that the implementation of the uniform information system in the Federation of Bosnia and Herzegovina has never been fully functional. The cantonal funds are the only holders of the rights to monitoring over the use of data/information that arise out of the compulsory health insurance scheme.

The following insurants are beneficiaries of the rights from the compulsory health insurance scheme are under the Federation Law: persons in employment with enterprises; institutions, associations and other forms of organizations, or individuals performing their activity independently by contributing with their personal labor and assets in the citizens' ownership; and individuals, who by contributing with their personal labor, perform their professional activity as appointed persons.

Among the insurants are also the persons employed with legal or physical persons having their head offices situated in the territory of the Federation of Bosnia and Herzegovina, who are deployed to work or undergo vocational training abroad, provided that they hold the citizenship of the Federation of Bosnia and Herzegovina; and holders of Federation citizenship, persons employed with foreign or international organizations and institutions, foreign consular and diplomatic missions with their representation offices situated in the territory of the Federation.

The above legislative provisions fail to make clear why the legislator defines the citizenship of the Federation of Bosnia and Herzegovina as a condition for acquisition of the status of an insured person. The citizens with the citizenship of the Republika Srpska and the Federation of Bosnia and Herzegovina hold the common citizenship of Bosnia and Herzegovina, and such provisions can be discriminatory against the citizens of the Republika Srpska. The fact of permanent residence does not obligate the citizen to possess the citizenship of the entity in which he or she has taken up permanent residence, and entity citizenship should not be an obstacle for acquisition of the status as insured person.

The insured persons can also be:

- persons with the place of permanent residence within the Federation territory, employed abroad as employees with a foreign employer, and who do not have the health insurance of a foreign insurance institution;

- persons who carry out mandatory practical work after completing their education, provided that they work full-time;

- persons who perform economic or non-economic activities in the Federation by personal labor;

- owners of private enterprises whose main offices are located within the Federation territory;

- beneficiaries of pension and disability schemes with the permanent residence in the territory of the Federation, who exercise these rights from the foreign holder of pension and disability insurance, unless otherwise determined by an international treaty;

- farmers who are in the farming business in the territory of the Federation as their sole or principal occupation;

- pension beneficiaries and beneficiaries of rights to professional rehabilitation and employment in compliance with the regulations on the pension and disability insurance of the Federation.

- Unemployed persons are registered with an Employment Bureau if:

- they have registered within 30 days upon the termination of the working relationship/employment, or upon the cessation of receiving the salary compensation they are entitled to by this law;

- they have registered within 30 days upon release from a penitentiary institution, medical or other specialized institution, where the person was subject to a security measure of compulsory psychiatric treatment in a medical institution, or a measure of mandatory treatment of alcoholics and drug addicts;

- they have registered within 30 days upon their return from a foreign country, provided that they were insured prior to their departure to the foreign country;

- they have registered within 90 days upon termination of the school year in which they have completed their regular education, or upon the day they passed an exam, provided that prior to it they lost the right to health care,

- children who have reached 15 years of age but have not completed their primary education, or children who have registered with the Employment Bureau upon their fifteenth birthday or upon the school year termination.

The Law on Amendments to the Law on Health Insurance, published in the “Official Gazette of the Federation of Bosnia and Herzegovina”, no. 70/08, has amended the provision of Article 19 and introduced the following legislative provision: “children who have reached 15 years of age, or senior juveniles of up to 18 years of age, who have not completed the primary education or have not become employed upon the completion of their primary education, provided that they registered themselves with the employment bureau.

While the amendments to the Federation Law appear to have attempted to make a correction of the basic law in order to bring it in line with the European standards, it can nevertheless be said that making this conditional to their registration with the employment bureau, in the case of children who have reached 15 years of age or up to 18 years of age where they have not completed their primary education, fails to achieve the desired purpose of protection of such minors. Namely, most children in such situations after turning 15 and up to 18 years of age remain uninsured due to the lack of knowledge or information on the part of their parents and children themselves.

Children of up to 15 or 18 years of age as a category of insurants are free from any obligation of paying their personal financial contribution as insured persons while using the health care services (medical costs participation fee).

Under the Law on Amendments to the Law on the Health Insurance, children are covered by insurance scheme from the time of their birth, as well as during their regular education in primary and secondary schools, or their study at higher education institutions and faculties, on the condition that they are BiH nationals with the permanent residence in the territory of the Federation, by being provided with an opportunity to exercise health insurance for no longer than until 26 years of age, on the condition that they have not been covered by medical insurance schemes as dependant members of the family of the principal insurant.

As for the categories children of up to 15 years of age, or minors of up to 18 years of age and the persons of 65 years of age or more, who are not covered by medical insurance on other grounds, payment of direct participation in the costs of health care is made by a competent cantonal administrative authority in charge of social and children welfare affairs.

Persons older than 65 years of age who are not covered by health insurance on any other ground in Bosnia and Herzegovina or abroad, but who have their permanent residence in the Federation of Bosnia and Herzegovina, may be insured on the ground of their age under the compulsory insurance scheme.

Returnees and displaced persons, as well as pensioners who receive pensions from the Republika Srpska Pension Fund or from abroad, are given an opportunity to obtain the benefits under the health care and health insurance schemes.

Persons who, according to relevant educational legislation, have lost the status of full-time pupils or students or terminated their regular education, shall keep the right to health care for the period of one year following the date of termination of their education, provided that they report themselves to the employment bureau within the period of 30 days.

Persons with the permanent residence in the territory of Federation, who have been recognized as person holding the status of a disabled veteran of war, peacetime or war-disabled civilian i.e. the status of a beneficiary of the family disability allowance, in compliance with the applicable regulations, members of the Federation Armed Forces, and members of the Federation Ministry of the Internal Affairs, members of the cantonal police, persons who have ceased to work because they are assigned by a legal person to take up vocational training or attend postgraduate studies, persons sent abroad within the exchange programs of educational, technical and cultural co-operation, as well as outstanding sportsmen/sportswomen, provided that they are not covered by insurance on other grounds.

It should be noted that foreign nationals and stateless persons are provided with health care under the same terms and conditions as the citizens of the Federation of Bosnia and Herzegovina, unless otherwise specified by an international treaty, which means that the provisions have been harmonized with the European Convention on Human Rights and Fundamental Freedoms.

However, this provision is not elaborated in detail and it lacks clarity. It neither deals with the details of which health insurance fund is responsible for registration of a foreign national, nor is the law quite clear in regard to who is responsible for payment of the health insurance costs.

Persons who have taken up permanent residence in the territory of the Federation, who are incapable of living and working independently and do not possess any means of self-support, have the compulsory health insurance within the range determined for the insurant's family members, in compliance with the regulations on social care, unless they are provided with health care on other grounds.

Persons who have taken up permanent residence within the territory of the Federation who actually are in possession of a means of self-support shall have the obligation to obtain the health care insurance coverage within the range determined for the insurant's family members, unless they are provided with health care on other grounds.

The persons from paragraph 1 of this Article shall realize their right to health care from the day the status of an insurant has been terminated, or at least 6 months retrospectively, provided of course that the compulsory health insurance contribution is paid.

Even though this Law has attempted to cover a wide circle of insured persons who have been granted an insurance opportunity, it is nevertheless still the case that the requirement of the European Social Charter has yet to be fully met since the Charter necessitates that anybody without the required resources should be entitled to social and medical assistance.

The Law however does not provide any arrangements and ways in which to cover some highly vulnerable categories of the population (e.g. Roma). Neither does it make any distinctions between genders.

It must be noted that the law provides that only the nationals of Bosnia and Herzegovina who have taken up permanent residence in the territory of the Federation are entitled to exercise the said rights to health insurance, whereas no opportunity is provided for the foreign nationals who receiving education and vocational training in Bosnia and Herzegovina to exercise their right to health insurance, nor does it provide for any conditions under which the right to health insurance could be exercised.

Compulsory health insurance, under the terms and conditions prescribed by law, is provided to the insurants in the following forms: health care, salary compensations; reimbursement for travel expenses related to health care; whereas the members of the insurant’s family are provided with: health care and reimbursement for travel expenses related to health care.

Article 32 of the Law refers to the health care coverage items, as it is provided that the Parliament of the Federation of Bosnia and Herzegovina shall determine the "health care package" for each year, upon the proposal by the Federation Government. It has to be pointed out that for the first time the Federation Parliament has adopted “the basic health care package” which entered into force on 1 April 2009. (“Official Gazette of the Federation”, no. 21/09), which is a great step forward compared with the previous period in which there was no definition of what the basic package of health care related rights would actually include.

The basic package is defined as a necessary level of medical services which is provided under equal terms and conditions to all insurants in the Federation of Bosnia and Herzegovina. Under the basic package, insurants are basically guaranteed the right to medications from the inventory list of essential medications which must be identical in all cantons, a required minimum of orthopedic aids as well as medical services ranging from primary care, specialist-consultative care to hospital care. It is the first time, since the war of 1992, that this regulation has precisely listed the services to which the beneficiaries of the compulsory health care insurance are entitled.

Under this package of health-related rights, the Ministry of Health has also defined a package of health-related rights for specific uninsured persons. They provide rights for children and youth of up to 18 years of age and full-time students of up to 26 years of age, which entitle them to enjoy rights identical to those enjoyed by insured persons.

The range of health care services provided by this Law includes: primary care, specialist-consultative care and hospital care.

The Law provides that the right to health care covered by the compulsory health care scheme should also include the provision of the health-related standards for the insured persons under equal terms and conditions in meeting their needs by the primary, specialist-consultative and hospital health care providers, including the appropriate medical rehabilitation. The range of the compulsory health insurance rights and other rights arising out of the compulsory health insurance (basic health insurance package) is determined by the Federation Parliament for each year at the proposal of the Federation Government. (see Article 35 of the Law and Article 7 of the Amendments to the Law on Health Insurance).

The Law provides for the possibility of rendering medical services to the insurants in the public medical care institutions and by the private medical service providers with which the cantonal institute has signed a service provision contract. However, it has to be noted that the practice of concluding those contracts with the private medical care institutions and clinics is extremely rare in all cantons, except for the fact that the making of such contracts have recently started with private pharmacies in some of the cantons.

The medical care institutions, with which the cantonal institute has not concluded the contract on the medical care service providing, are allowed to receive - from the Cantonal Institute Insurance Fund only - payments that would cover the costs of medical assistance rendered to the insurants in emergency cases, as well as other costs affiliated with the rendering of such assistance.

The insurants are entitled to receive salary compensations in the event that they are: temporarily disabled and cannot work due to an injury or a disease; or that they are hospitalized in a medical institution for the purpose of medical treatment or examinations; temporarily disabled and cannot work due to a particular medical treatment or examination, which cannot be performed beyond the insurant's working hours; isolated as carriers of a contagious disease or due to the contagion in their environment; appointed to escort a patient referred to the nearest place for the medical treatment or examination; appointed to attend to a sick spouse or a child under the conditions prescribed by this law.

The salary compensations are determined on the basis of the compensation base rate – i.e. the salary paid to the insurant for the month preceding the month in which the case has occurred on the basis of which the right to the compensation is acquired.

The salary compensation is set at the percentage of at least 80% out of the compensation base rate, provided that it may not be below the minimum salary of the month for which the compensation is calculated.

The salary compensation amounts to 100% of the compensation base rate in the following cases: in the course of the temporary disability caused by an injury at work/occupational disease; in the course of the temporary disability as a result of a disease and complications caused by pregnancy and delivery; and in the course of the temporary disability due to a transplantation of a living tissue and organ for the benefit of another person.

The insured persons are entitled to a compensation for the travel expenses related to the health care, under the terms and conditions prescribed by law.

Other compensations and allowances for the insured persons in the Federation of Bosnia and Herzegovina include the entitlement to be remunerated for funeral expenses (the amount, conditions and method of use of the funeral expense allowances shall be decided by a competent cantonal insurance authority).

All physical and legal persons are bound to submit to the cantonal insurance institute all information and data relating to the registration and deregistration of the insured person for the purpose of the realization of the rights and duties under the compulsory health insurance.

The cantonal insurance institutes make payment of the salary compensations, the cantonal insurance institutes ensure a two-instance decision-making in the procedure, once the procedure has been initiated by the insurant, whereas the procedure shall be subject to application of the Law on Administrative Procedure.

The Law provides the right to free choice of medical doctors and primary health care doctors.

The insurant is entitled to a free choice of the supplemental health insurance scheme, with the prior consent obtained from the contributor implementing the supplemental insurance scheme.

The cantonal legislature may make a decision to identify the types of health care, or the rights and privileges ensured under the supplemental health insurance scheme, the amount of contributions paid for the supplemental health insurance scheme, terms and conditions, as well as the method of application for the supplemental health insurance scheme. Separate Funds will be established for the purpose of implementation of the supplemental health insurance scheme and their operation will be separate from the operation of other funds.

Through the voluntary health insurance scheme, for themselves and their family members, insurants may provide additional rights to health care that are otherwise not provided under the compulsory health insurance. The voluntary health insurance funds are financed from the voluntary health insurance premiums paid by the citizens, enterprises or other legal persons.

Financing under the compulsory health insurance is made from: contributions paid on the basis of salaries disbursed to the workers that are employed; contributions on personal income of the persons performing an economic or non-economic activity by personal labor; contributions on pensions, disability pensions and other benefits from pension and disability insurance schemes; contributions paid for the unemployed persons; contributions paid on account of permanent financial assistance and persons accommodated in social care institutions; contributions from incomes in the independent show businesses; contributions on incomes from copyrights, patents and technical improvements; contributions paid on income from agriculture; contributions paid by self-contributing persons; compensations for health care of the family members of the insurants employed abroad and persons receiving pensions from abroad; cantonal and municipal budget; individual participation of the insured persons in covering the health care costs, donations, aid, interests, dividends, taxes, and other sources of income.

Further use of health care shall be suspended to a contributor who is found to have failed to pay the health insurance contribution, except in the event that he or she requires an emergency medical aid. The collection of the contribution is subject to limitation upon the expiry of five years.

This Law provides also for a compulsory health re-insurance that is organized and implemented within the Federation. The Federation Parliament shall take decisions in order to identify risks that are subject to compulsory reinsurance and conditions under which to recognize the occurrence of the cases that constitute the grounds for compensation, to determine the level of reinsurance premiums and the procedure for the realization of these compensations (risks are identified which occur as a result of natural disasters).

Part V - Cantonal health insurance funds

There are 10 cantonal health insurance funds in the Federation of Bosnia and Herzegovina, meaning that each canton has its own fund, which creates a problem of shared responsibilities between the Federation Fund and Cantonal funds. Accordingly, the insurants exercise their health care rights within their own canton or within the entity as appropriate. The insurant’s prospect to move from one canton to another is made difficult, which places the insurants into an unequal position during the enjoyment of the services arising out of the status of the insurants in one canton, and prevents free movement of the insured citizens from one canton to another for purposes of seeking health care services of higher quality, and it also makes difficult the rendering of medical services.

Inter-entity and inter-cantonal agreements have been made in order to rectify this situation.

Under an inter-cantonal agreement made among 10 cantons in the Federation, it was agreed that free movement of medical patients from one canton to another would be permitted, provided that the competent health insurance fund would be required to cover all costs of the medical services provided.

Irregular payment or default of payment, on the part of the canton in which the insurant resides, to the canton in which the services have been provided, (where such reimbursement is required to cover expenses associated with services provided,) often leads medical institutions to reject provision of services to insurants who come from a defaulting canton.

The cantonal health insurance funds have the following responsibilities: to implement the development policy and promote health care provided under the compulsory health insurance; to plan and raise funds for the compulsory health insurance; to perform the activities of contracting with the health institutions and private practitioners; to perform the jobs related to the realization of the insured persons' rights and protection of their interests; to determine the criteria, the method of utilization and the amount of the reimbursement for travel expenses related to health care; to determine the salary compensation level at the expense of the cantonal insurance funds; to participate in the preparation and implementation of international social security agreements insofar as they are related to the compulsory health insurance; to determine the amount of valorization of the base rate during sick-leaves; to perform the calculation of accounts payable and accounts receivable in regard to health care expenses; to perform activities related to the realization of the health care abroad, etc.

An analysis of the cantonal responsibilities may point to the conclusion that in the event that only one of these responsibilities becomes different in one canton compared to those in other cantons, such situation would cause inequitable treatment of the insured persons and may even lead to the occurrence of potential cases of human right violations.

Each cantonal institute is managed by a Governing Board made of: three members from among the health care insurants, two members from among employers, four members from among medical staff. The president of the Governing Board is appointed by the respective cantonal government.

Supplemental Health Insurance

In the event that the cantonal legislature introduces the Supplemental Health Insurance, it will pass a decision on the types of health care provisions, rights and benefits bestowed under the supplemental health insurance scheme. It will also address the level of contribution for the supplemental health insurance, conditions and method of applying for the supplemental health insurance, and the method of operation of the insurance. Separate funds will be established for the purpose of implementation of the supplemental health insurance scheme.

Voluntary Health Insurance

Through the voluntary health insurance scheme, for themselves and their family members the insurants may provide additional rights to health care that are otherwise not provided under the compulsory health insurance scheme. The conditions and method of exercising the rights under the voluntary health insurance are determined by the voluntary insurance agencies.

Part VI - Federation Solidarity Fund

In order to settle the difference in the financial operations between the cantonal insurance funds, and to provide the patients affiliated with the financially weaker cantonal health insurance institutes with the opportunity to use most complex and expensive forms of health care, a Solidarity Fund was established at the level of the Federation of Bosnia and Herzegovina. (The Law Amending the Law on Health Insurance, “Official Gazette of the Federation of Bosnia and Herzegovina”, no. 7/02).

In the circumstances of limited resources in society, there are also limited opportunities to release funds to be spent for health purposes, and therefore solidarity is introduced at the level of the Federation, as part of compulsory health insurance -- with a view to ensuring equal terms and conditions for realization of the health care for the insured persons from all cantons.

The Solidarity Fund is based upon the following principles:

- Federation-wide reciprocity and solidarity, which provide equitable treatment in the funding of rights that arise out of the health insurance in the Federation of Bosnia and Herzegovina,

- efficiency in the health sector, through the system of contracting and reasonable utilization of the health care capacities;

- equity in the exercise of rights for the insured persons in the territory of the Federation, which includes equity and proportionality in terms of equal access to the health care services.

Article 3 of the amendments reads as follows: “With a view to exercising the equal terms and conditions for implementation of the compulsory health insurance in all cantons, in regard to certain priority-driven vertical programs of health care of interest for the Federation and in regard to the provision of most complex priority-driven forms of health care from the specific specialist fields of activities, the Federation solidarity financial resources shall be ensured with the Health Insurance and Reinsurance Institute of the Federation of Bosnia and Herzegovina, which resources will ultimately be used to establish the Federation Solidarity Fund.”

The Solidarity Fund resources shall finance certain services of secondary and tertiary level of health care. To that end, the Solidarity Fund encompasses the most important and expensive services such dialysis, cardio-vascular surgeries, bonemarrow and organ transplantation surgeries, as well as some expensive medications such as cytostatics. The resources of the Federation Solidarity Fund are raised from the financial sources of contributions paid for the compulsory health insurance.

And finally, it must be noted that fines imposed for violations and failures to comply with the legislative provisions are extremely low, particularly in the event that the cantons fail to fulfill the obligations of harmonizing the cantonal laws with the Federation law. Therefore, they can hardly prove to be instrumental in achieving the desired outcome. For the sake of comparison, the fines for the failure to enforce provisions of the Law on Health Care in the Federation range from 250 KM to 2,000 KM, whereas in the Republika Srpska they range from 1,000 KM to 15,000 KM.

The Federation Law has been elaborated in greater detail with a number of citations and references from the Law for the purpose of easier and more descriptive comparison with other laws applicable in the territory of Bosnia and Herzegovina.

Part VII - The Law on Health Insurance of the Central Bosnia Canton (“Official Gazette of the Central Bosnia Canton”, nos. 13/00 i 13/02).

In spite of the fact that, under the Constitution of the Federation of Bosnia and Herzegovina, each canton was allowed to enact independently their own law governing health insurance matters, this opportunity was afforded only by the Central Bosnia Canton. The remaining cantons in the Federation are still implementing the Federation Law on Health Insurance, even though in regard to the health insurance matters each of them is independent and has its own Health Insurance Fund.

In the Central Bosnia Canton the health insurance is defined as part of the citizens' social security, and it is made of a unified system within which the citizens – by investing their resources on the basis of the principles of reciprocity and solidarity, under an obligation within the Central Bosnia Canton – ensure the realization of their rights to the health care and other forms of insurance in a manner prescribed by the Law of the Central Bosnia Canton governing the insurance matters. The resources within the Canton may also be invested on a voluntary basis.

The Cantonal Law and other laws in Bosnia and Herzegovina recognize the following forms of insurance: compulsory insurance, supplemental insurance and voluntary insurance.

The following persons are entitled to the compulsory health insurance: employees and other persons that perform particular activities or act in a particular capacity, provided that they are covered by the Cantonal Law.

The right to the compulsory health insurance is also held by the family members of the insurant, in the way and under the terms and conditions prescribed by law.

In addition to the persons referred to in the preceding paragraph, among the holders of the rights to the compulsory health insurance are also the family members of the insurant.

The compulsory health insurance is based upon the principles of reciprocity and solidarity and they ensure the right to the use of health care, the rights to the financial compensations and assistance within the Central Bosnia Canton.

Health plans and rights, that are otherwise not part of compulsory and supplemental health insurance schemes, may be exercised by the citizens through the voluntary health insurance schemes.

The rights arising out of the compulsory health insurance are exercised at the expense of the compulsory health insurance fund.

Resources required for the exercise of the rights arising out of the compulsory health insurance are provided through contributions that are used to establish the compulsory health insurance funds, within the cantonal health insurance institute.

The resources required for the exercise of the rights arising out of the supplemental health insurance are provided through additional contributions as provided by the Cantonal legislation.

For the purpose of exercising rights, and ensuring the resources for voluntary health insurance of the citizens, one or more institutes of voluntary health insurance can be established. Also, the Cantonal Health Insurance Institute has the obligation to organize uniform information systems and ensure the monitoring of: realization and utilization of the rights arising out of the compulsory health insurance and reinsurance schemes; payments made and expenses incurred by contributors; and other resources spent individually by each insurant within the Canton, whilst the Law fails to prescribe the mandatory access to the uniform information system within the Federation.

Like in the Federation Law, provisions of the Cantonal Law identify the list of insured persons. It is worth noting that the list of the insured persons is fully identical to the one prescribed by the Federation Law. The insurant’s family members are also insured, and according the Law of the Central Bosnia Canton they acquire the right to be covered by the compulsory insurance scheme:

- Spouses (whether in martial or extramarital union, in conformity with the regulations regulating marriage and family relationships); children (whether legitimate or illegitimate, adopted or step-children;) and other children without parents, provided that they do not exercise the same rights on the grounds of employment or performance of an economic or non-economic activity by personal labor, or an agricultural activity; if supported by the insurant, parents (father, mother, step-father, step-mother, adoptive parents of the insurant;) if supported by the insurant, grandchildren, brothers, sisters, grandfather and grandmother if incapable of living and working independently and if they do not have any means to support themselves and are therefore supported by the insurant;

- A spouse is covered by the health insurance also as the spouse of a deceased insurant, as a divorced spouse older than 45 years of age or a divorced spouse younger than 45 years of age, all under the terms and conditions identical to those provided under the Federation Law;

- The insurant’s children are covered by the health insurance until they reach 15 years of age or until they reach 26 years of age, provided that they attend full-time education. The same provision exists in the Federation Law;

- The residents of the Canton, employed in a foreign country with a foreign employer, whose family members are not insured with the foreign health insurance holder, but were insured prior to their departure to the foreign country, have the obligation to obtain the health insurance coverage for their family members.

The following persons are entitled to health care within the same range of rights as the principal insurants:

1. persons participating in the organized public works within the territory of the Canton;

2. persons in the mandatory service with the civil protection or engaged in the surveillance and early warning services; and

3. persons working as voluntary fire-fighters, in compliance with the fire protection regulations.

Secondary school students and regular students of higher education at colleges and faculties, who are citizens of the Federation of Bosnia and Herzegovina, whose place of residence is within the territory of the Canton, but who are not insured as the principal insurant's family members, are entitled to health care in the same range as the insurant's family members.

A distinctive feature, compared with other laws regulating the health insurance matters, lied in the fact that, under The Law of the Central Bosnia Canton, family members of the secondary school students and full-time higher education students – children and spouse, are entitled to health insurance and thus to health care too, provided that they are not covered by health insurance on other grounds.

Foreign nationals and stateless persons are provided with health care under the same terms and conditions as the citizens of the Federation of Bosnia and Herzegovina.

According to the Law on Health Insurance of the Canton, the rights under the compulsory health insurance are identical to those prescribed by the Federation Law.

Also, the Cantonal Law prescribes that Parliament of the Federation of Bosnia and Herzegovina shall determine the "health care package" for each year upon the proposal by the Federation Government, which package provides for equal treatment identical to the one for the insured persons in other cantons, provided that they accept this provision of the Federation Law regulating the competence for the adoption of the “health care package”.

The range of health care rights that is ensured in the Canton is identical to what is prescribed by the Federation Law.

Likewise, even in the Canton the insurant is entitled to: salary compensation; reimbursement for travel expenses for transportation to the nearest clinic or medical institution, while the right to travel expenses is also held by the person escorting the insured person, just as the insured person is entitled to be remunerated for funeral expenses.

The calculated salary and compensation are paid and calculated at the expense and to the charge of its own assets by: legal or physical persons for the first 42 days of sick-leave and for the time when the insurant resides abroad, whereas after 42 days of sick-leave they are paid to the charge of the Cantonal Health Insurance Institute.

The implementing regulations governing the method of exercising the rights to salary compensation are enacted by the Governing Board of the Cantonal Health Insurance Institute.

In all four laws on health insurance the insured persons have the obligation to compensate the insurance funds for the damage caused in the following cases:

- if he/she has received benefits on the basis of false or incorrect data, where he/ she knew or should have known that such data were incorrect;

- if he/ she has received the benefits from the cantonal insurance funds due to the failure to report an change/alteration that has caused a loss of income.

The cantonal, entity and Brcko District institutes have the obligation to require from the legal or physical person to compensate damages which occurs if the worker begins to work without prior health examination prescribed, and is later found incapable of performing particular jobs due to his/ her health condition.

The voluntary and the supplemental health insurance schemes are regulated by the Cantonal Law the same way they are regulated by the Federation Law on Health Insurance, just as the fines for violations of the legislative provisions are harmonized with the Federation Law. However, it is apparent that the Cantonal Law fails to provide the possibility of obtaining the health insurance coverage through the Cantonal Employment Institutes. Thus a great number of the unemployed persons in the Central Bosnia Canton have remained without health insurance.

Furthermore, the Cantonal Law does not seem to contain the possibility for the persons older than 65 to be able to acquire the status of the person covered by the health insurance automatically.

It may be safely assumed that, due to the small inflow of financial resources into the Unemployment Fund (sic. a small number of employed persons), and the Fund for socially vulnerable categories of population, the Central Bosnia Canton could not provide for the health insurance funding with certainty; so, hence the lack of legal regulation in that regard.

The Cantonal Law fails to prescribe the percentage of the lowest base rate and the method of its calculation in the event of a temporary incapacity for work, but the same is prescribed by bylaws, which creates legal uncertainty for the insured persons, since the base rate can be amended very easily and quickly by virtue of various decisions.

Also, it has to be underlined that a great part of the Cantonal Law is fully identical to the Federation Law, so this puts to question the usefulness of the adopted law.

Part VIII - Inter-Cantonal Agreement

Through an Inter-Cantonal Agreement, concluded between the cantonal health insurance institutes of the Federation of Bosnia and Herzegovina, an attempt was made to get out of the vicious circle in the Cantons and to ensure that services are provided beyond the territory of a single canton. However, this Inter-Cantonal Agreement has practically failed and is encountering great obstacles in implementation, one of which is a complete termination of its application. Namely, irregular reimbursements or payments for the provided services and discrepancies in prices across the cantons, have caused refusal of cooperation at the inter-cantonal level.

Part IX - The Law on Health Insurance of the Republika Srpska (“Official Gazette of the Republika Srpska”, nos. 18/99, 51/01, 70/01 and 17/08) and the comparison between the RS Law and the Federation Law

The Law on Health Insurance of the Republika Srpska is applicable throughout the territory of the Republika Srpska and the compulsory insurance covers all citizens of the Republika Srpska.

As a result of such legislative arrangement all citizen–insurants are treated under the same terms and conditions. They enjoy the same rights and obligations under the Law, which reduces considerably the possibility of unequal treatment of the insured persons. In comparison to the Federation Law, the Law on Health Insurance of the Republika Srpska is much clearer and easier for use and implementation.

The Law on Health Insurance of the Republika Srpska regulates the system of compulsory and supplemental health insurance, the rights arising out of the insurance, and the principles of private health insurance.

Unlike the persons covered by the compulsory insurance under the Law on Health Insurance of the Federation of Bosnia and Herzegovina, the persons covered by the compulsory insurance in the Republika Srpska include, inter alia, also: employed persons; persons engaged in independent commercial or professional activity as their main occupation; persons performing religious and clerical services; persons with a right to health insurance according to the Law on the Rights of War Veterans, Disabled War Veterans and the Families of Killed Soldiers; persons whose work is made redundant while receiving compensation in accordance with the regulations on labor relations; beneficiaries of pensions and financial compensations related to retraining or skills upgrading and employment; citizens of Republika Srpska receiving pension and disability benefits wholly or in part from foreign insurers while residing in the Republika Srpska, (unless otherwise required by an international agreement;) those in regular receipt of permanent financial assistance or those placed in a social welfare institution unless they are insured on other grounds, refugees, displaced persons and returnees, unless they insured on other grounds; foreign nationals receiving education in the Republika Srpska, unless otherwise regulated by an international agreement; and other persons for whom health insurance contributions have been paid.

As is apparent from the comprehensive categories of the insured persons, the Republika Srpska Law on Health Insurance provides a more extensive range of the citizens covered by the compulsory health insurance. It also provides foreign nationals with the possibility of health insurance so long as they receive education in the territory of the Republika Srpska.

Like in the Federation, in the Republika Srpska, the insurant’s spouse is also entitled to enjoy the rights under the health insurance for so long as he or she is married to an insurant.

A divorced spouse who has been granted the right to child support/alimony by virtue of a final judicial decision shall also be entitled to enjoy the rights derived from the health insurance, provided that at the time of the divorce a divorced spouse was older than 45 (women) or 55 (man), or if, regardless of her or his age, at the time of the divorce she or he was found to be incapable of working, in the sense of pension and disability regulations.

In the Federation of Bosnia and Herzegovina, a spouse is covered by health insurance as the household family member, if: 1) he/she is a spouse of a deceased insurant, who, after the spouse's death, has not acquired the right to family pension due to the fact that he/she has not reached a certain age, if, at the time of the spouse's death, he/she was older than 40 (women) or 55 (men). Unless otherwise provided by pension and disability insurance regulations, the spouse who is under 40/55 continues to exercise her/his right under the compulsory health insurance while she/he is registered with the Employment Bureau, if he/she registers with the Bureau within the period of 90 days following the spouse’s death; 2) if he/she is a divorced spouse, and has, by virtue of a judicial decision, acquired the right to support//alimony, provided that he/ she was older than 45 (women) or 60 (men) at the time of divorce. The spouse under 45/60 at the time of divorce, continues to exercise the right under the compulsory health insurance, if fully and permanently disabled, as provided by pension and disability insurance regulations; 3) he/she is a divorced spouse under 45 (women) or 60 (men), who has been given custody of the children, by virtue of a judicial decision - while she/he is registered with the Employment Bureau, or if she/he registers with the Bureau within the period of 90 days following the date of divorce, for so long as the children are entitled to alimony.

It is apparent from the above quoted entity laws that pursuant to the terms and conditions for acquisition of the health insurance rights by a widower/widow and by a divorced spouse in the Federation, the Federation Law seems to be much more restrictive than the one of the Republika Srpska.

The enjoyment of health care in the Republika Srpska is possible for the insured persons in the nearest medical institution in the territory of their permanent residence, whereas in the Federation an insured persons may choose the medical institution or a family physician in the territory of the canton in which the person has taken up permanent residence and where the person’s contributions are paid.

The Law on Health Insurance of the Republika Srpska provides the right to salary compensation in the course of temporary disability by insurants employed in the public and private companies and institutions.

The salary compensation for the first 30 days of temporary disability is provided by the employer out of the employer’s own resources, whereas after the expiration of 30 days and for no longer than 12 months, the compensation of net salary is provided by the Fund. Differences between the Law of the Republika Srpska and the Law of the Federation are apparent in this particular provision. The RS Law provision is more favorable for the employers but less favorable for the RS Health Insurance Fund.

In contrast, the Federation Law provides that for the first 42 days of temporary disability the salary compensation will be provided out of the employer’s own resources, and thereafter the Cantonal Fund will be the one to ensure the payment of the salary compensation, as provided under the decisions of the cantonal funds. Considering that there are 10 autonomous Cantonal Funds, in practice it frequently happens that different funds prescribe different amounts of salary compensations, and as a result, the insurants are put in an unequal position, which may lead to a potential violation of their fundamental human rights.

The basis for calculation of the salary compensation in the Republika Srpska in the course of temporary disability is the net salary which the employee would have received had he or she been at work. This may not exceed the net salary that serves as the basis for calculation and payment of the health insurance contributions. The salary compensation shall amount to at least 70% of the salary compensation basis, but it may not exceed 90% of the salary which the insurant would have received had he or she been at work. The Law of the Republika Srpska fails to provide for a possibility of salary compensation in the amount of 100% of the wage base, which the employee would have received had he or she been at work.

In the Federation of Bosnia and Herzegovina the salary compensation in the course of temporary disability is determined on the basis of the compensation base rate, which is made of the salary disbursed to the insurant for the month preceding the month when the case has occurred on the basis of which the right to the compensation is acquired.

If during the month, preceeding the month when the case has occurred, (on the basis of which the right to compensation is acquired,) the insurant had not received the salary, the compensation base rate will amount to the average salary at the cantonal level for the respective month. The salary compensation is set at the percentage of at least 80% of the compensation base rate, provided that it is not under the minimum salary amount applicable in the month for which the compensation is calculated.

An analysis of the above provisions demonstrates that the laws of the entities employ different methods in determining the wage calculation base rates, just as the very methods of calculating the base rates differ from each other.

The Republika Srpska Law provides that the insurant is entitled to salary compensation by reason of attending to a sick member of his or her immediate family who is younger than 15 years of age, which will by no means exceed the period of 15 days per calendar year; while in the case of a sick member of the immediate family, who is over 15 years of age, salary compensation will not exceed 7 days per calendar year.

The Republika Srpska Law is more flexible and more unemployed-friendly, because the very fact of the person’s registration as unemployed provides the unemployed person with the status as person covered by health insurance, without any additional terms and conditions attached to the reporting of the unemployed persons. The situation in the Federation is quite different since the law prescribes very strict and short deadlines for reporting and registration of the unemployed persons with the competent employment bureaus. The failure to comply with the application deadlines (which are otherwise very short 30 to 90 days, depending on what categories of the unemployed are involved in the particular case) results in a very frequent lack of possibility for them to exercise the health insurance rights.

The Fund of Compulsory Health Insurance in the Republika Srpska is managed by the Steering Board which is made of 9 members and appointed by the Republika Srpska Government, by open competition and on the basis of predetermined criteria.

The Steering Board is made of: five representatives of insurants, three representatives of medical staff from medical institutions and two representatives of employers.

Among the founders of the Health Insurance Fund are the entity, city, municipality and other physical and legal persons, whereas the plan of medical institutions networking is enacted by the Republika Srpska Government on the basis of the Health Care Development Strategy for the particular period. Unlike the Federation Law, the Republika Srpska Law recognizes the necessity of cooperation across sectors in the local community through the establishment of the so-called “Health Boards” with the members elected from among the citizens and other stake-holder organizations such as educational and social institutions, business companies, professional and charity organizations.

The Fund’s Director and the Minister are responsible for supervision of the professional work of medical staff and institutions in the Republika Srpska. The health inspection authority carries out the supervision over the implementation of laws, other regulations and general acts, as well as the oversight over the implementation of the measures prescribed in the health care domain.

The Republika Srpska Law provides deadlines and obligations of relevance for the Republika Srpska Government, the Minister and the Ministry of Health, following the entry into force of the laws, whereas in the Federation Law the deadlines and authorizations are assigned to the Ministers and the Ministries of Health.

In the Republika Srpska and in the Federation alike, there is no health insurance coverage scheme for the workers and employees who have an unabridged gap in their years of service (the so called laid-off workers who are on the waiting list) or for the workers who are still in employment but where their employers are not paying any health insurance contributions for them.

Persons not covered by the health insurance in the Federation are those whose employment has been terminated, and who have failed to report themselves with the Employment Bureau within the period of 30 days. This also includes the employees who have not received their dismissal notices within the period of 30 days, or those who have failed to close their employment record cards due to unpaid contributions.

The right to health care in the Federation is not made available to secondary school students and higher education students, if they completed their education, but failed to report themselves within the required period of time at the Employment Bureau. This is not the case in the Republika Srpska.

There is no health insurance coverage even for the self-employed workers in the so-called “gray economy” who are not paying contributions for themselves on a voluntary basis.

Roma and their children are not covered by the health insurance in both entities. Roma in the Republika Srpska can obtain health insurance once they have reported themselves at the Employment Bureau, whereas in the Federation there are restrictions in that regard, as is mentioned at an earlier point in this document.

Even though the Republika Srpska Law on Health Insurance is much more acceptable than the decentralized Law of the Federation, the RS Law should still be improved and ways should be found to secure health insurance coverage for the citizens who are not yet insured.

Part X - The Law on Health Insurance of the Brcko District of Bosnia and Herzegovina (“Official Gazette of the Brcko District of Bosnia and Herzegovina”, nos. 1/02, 7/02, 19/07, 2/08 and 34/08)

Under Article 1 of the Statute of the Brcko District, the Brcko District is a single administrative unit of local self-government existing under the sovereignty of Bosnia and Herzegovina.

The Constitution of Bosnia and Herzegovina and effective laws and decisions of the institutions of Bosnia and Herzegovina are directly applicable in the territory of the District, while the regulations of the District government authorities have to be in agreement with them.

Article 9 of the District’s Statute provide that health care and social welfare fall under the functions and responsibilities of the District.

According to the Law on Health Insurance of the Brcko District of Bosnia and Herzegovina, health insurance is a uniform system within which the citizens, by investing their resources on the basis of the principles of reciprocity and solidarity, ensure the realization of their rights to the health care and other rights deriving from the health insurance in a manner prescribed by the Law and other regulations enacted thereunder, provided that the required contributions are paid.

The health insurance contributions are paid according to the workplace criteria for the following persons:

- persons employed with legal or physical persons, persons elected or appointed to perform certain duties in the District authorities and institutions, provided that such persons receive salaries as a remuneration for their work;

- persons who perform businesses independently by personal labor in the private sector (self-employed) in the form of their occupation or professional activity;

- persons who carry out mandatory practical work after completing their education, provided that they work full-time

- farmers who are engaged in farming in the District as their sole or principal occupation, farmers who have given their farming land in lease and persons who taken the farming land on lease, unless they are insured on other grounds, police officials, firemen and deminers.

The health insurance contributions are paid according to the residence criteria for the following persons:

- persons having temporary place of residence and working in the District, employed with a foreign employer but who do not have the health insurance provided by a foreign country’s health insurance fund or another institution competent for the health insurance implementation;

- pensioners who live in the District;

- beneficiaries of the rights to professional rehabilitation and employment in accordance with the provisions of the Law on Pension and Disability Insurance;

- beneficiaries of ordinary and disability pensions with their place of residence within the territory of the District, who exercise that right from the foreign pension and disability insurance funds exclusively, unless otherwise determined by an international treaty;

- unemployed persons registered with the competent District employment authority;

- persons who have taken up permanent residence in the District, who have been recognized as persons holding the status of a disabled veteran of war, peacetime or war-disabled civilian or the status of a beneficiary of the family disability allowance, in compliance with the applicable regulations, unless insured on any other grounds;

- persons who receive social welfare benefits.

In the Brcko District Law, unlike the Federation Law and the Republika Srpska Laws, it is the first time that social security rights are also granted to the persons who lease their agricultural land, and to those who have taken the land on lease, which thereby extends the list of beneficiary/insurants.

The entity-level laws on health insurance provide health insurance right to farmers, who are engaged in farming as their sole or principal occupation, but no such right is recognized for those who lease their land. Moreover, Republika Srpska Law makes difficult even the process of proving a person’s status as a farmer. In the course of applying for health insurance such individuals are expected to produce certificates from cadastre records that extablish the name of the person engaged in farming activities. However, very often the case the cadastral records have not been updated, and no probate proceeding have been conducted, and as a result obtaining health insurance coverage for such persons becomes an onerous undertaking.

Within the District, funds for health insurance may also be contributed on a voluntary basis.

Like in the entities, the health insurance in the Brcko District includes: compulsory health insurance, supplemental health insurance and voluntary health insurance.

Unlike the entity-level laws, the Brcko District Law provides that compulsory health insurance and voluntary health insurance can also be based on the principles of reciprocity and solidarity of the Brcko District insurants with the insurants from Bosnia and Herzegovina’ entities: the Federation of Bosnia and Herzegovina and the Republika Srpska, as well as the reciprocity and solidarity of the Brcko District Health Insurance Fund with the counterpart Funds – Institutes in the entities as provided by the Brcko District Law and the agreements made thereunder.

This is an only health insurance law in Bosnia and Herzegovina that provides for a possibility of cooperation based on the principles of solidarity and reciprocity with the entity-level Funds.

Also, the Brcko District Law makes it binding upon the Health Insurance Fund to monitor realization and utilization of the rights arising out of the compulsory health insurance, and to monitor payments made and expenses incurred individually by contributors by using information systems that are compatible with the Federation of Bosnia and Herzegovina and the Republika Srpska. This positive cooperation with the Entitites is a reflection of need to send patents to the Entities, because of the Brcko District Fund own limitations -- their lack of capacity to perform complex and expensive surgeries and lack of many specializations.

Unlike the entity-level laws, the Brcko District Law considers a very narrow circle of family members as members of the insurant’s family who are beneficiaries of the compulsory health insurance, and who can be insured on the grounds of the household membership insurance scheme. These include the insurant’s spouse and children.

Children are entitled to exercise the rights arising out of the compulsory health insurance until the age of 15, whereas in the event that they attend schools, universities or other educational institutions on a full-time basis, they are entitled to exercise that right until the end of education, but not beyond 27 years of age. This provision extends the deadline by yet another year giving an additional opportunity for the insurant’s children to be covered by the compulsory insurance scheme compared with what is provided under the entity level legislation.

The insurant’s children who have terminated their full-time education as a result of an injury or sickness, shall be entitled to enjoy health insurance in the course of medical treatment of such sickness or injury, the same way such enjoyment is regulated in the entity-level legislation and the Central Bosnia Canton Law.

The rights arising out of the health insurance are: health care benefits, financial benefits and other rights specified by law.

The extent and type of services included in the basic service package are defined by the Health Insurance Fund and approved by the Brcko District Assembly after obtaining the prior opinion from the Department of Health, which differs from what is required in the entities.

The right to health care covered by the compulsory health insurance includes the provision of the health care standards to all insurants, under equal terms and conditions, in meeting their needs for primary, specialist-consultative and hospital health care, including the appropriate medical rehabilitation as continuation of hospital treatment.

Health care standards and norms provided by the compulsory health insurance shall be passed by the Health Insurance Fund upon obtaining the prior opinion from the Department of Health

A novelty which is otherwise not provided by other health insurance laws in Bosnia and Herzegovina is in the fact that the Brcko District Law prescribes what shall be determined by the contracts made between the Health Insurance Fund and medical institution:

These include type, scope and quality of services to be provided by a medical institution to the insurants, compensations paid by the Health Insurance Fund for rendering of contracted services, the method of calculation and payment for services and other mutual rights and obligations of parties.

The basic criteria and standards for regulating the issues shall be determined by the Health Insurance Fund, following the opinion of the Department of Health.

The basis, criteria and standards for executing the contract shall ensure a lawful and proper establishment of the contractual relationships between the Health Insurance Fund and health care providers – medical institutions, shall determine the elements to be included in such contracts, the method of determining the type, scope and quality of services provided, the method of compensation for the services provided, the method of control over the types and quality of the health services provided, and other relevant issues.

Terms and conditions from the contract executed between the Health Insurance Fund and the health service providers in its territory shall be valid in terms of the agreed compensations for the health services provided also for the Funds from other areas of Bosnia and Herzegovina, when their insurants use the health services in the territory of the District

The insured person in the Brcko District is also entitled to a salary compensation for temporary working incapability.

The salary in the case of temporary working incapability shall be paid by the employer for 42 days following the occurrence of the temporary incapability, and after the expiration of that period further payments shall be made by the Health Insurance Fund, but not longer than within 12 months from the moment the temporary incapability occurred.

In the Brcko District the salary compensation is calculated on the basis of the compensation base rate which is made of the average net salary disbursed to the insurant for the number of hours spent at work without salary bonuses in the course of the last three months preceding the month in which the case has occurred on the basis of which the right to the compensation is acquired

The salary compensation shall be set at 80 % of the compensation base rate, provided that it cannot be below the minimum salary of the month for which the compensation is calculated nor above the maximum determined by the Health Insurance Fund. This constitutes a third model of salary compensation calculation in the course of the temporary working incapability.

All physical and legal persons that have their own employees shall provide the Health Insurance Fund with all data related to the registration and deregistration of the insurant, no later than within eight days for the purpose of realization of rights and obligations under the health insurance and issuance of the corresponding documents.

Another difference between the Brcko District Law and the entity-level laws is in the fact that the persons, in regard of whom the physical and legal persons fail to submit the insurant’s application form, may request from the Health Insurance Fund to verify their status as insured persons and to force a responsible person to fulfill his/her obligations and pay the health insurance contribution. This is a legislative exception requiring that the obligation of forcing the employer to report an employed and ex lege insured person should rest not with the insurant but with the Health Insurance Fund. It requires from the Fund to force the health insurance contributor to do so by operation of law.

If the Health Insurance Fund fails to accept the application form submitted or verifies the status of the insurant on another ground, the Fund shall pass a written decision and deliver it to the applicant and the interested party.

In the event that the employer or a self-employed person has used the opportunity of special insurance or reinsurance with the Health Insurance Fund, intended for compensation of salaries with a separate/subsidiary account, the employer shall be reimbursed in the amount of 80% of the salary they paid for the period from the first to 42^nd day of absence.

Unlike the Federation Law, where reinsurance is used only for the cases of accidents and force majeure, in Brcko District, reinsurance may also be used by the employer in order to reimburse the amount of salary paid by the employer to an employee in the event of a temporary disability.

In the event that the legal or physical person pays special insurance or reinsurance for the case of salary compensation in the course of temporary disability, the Health Insurance Fund shall be obligated to reimburse the employer within 45 days from the day of receipt of the request.

Like their counterparts in the entities, the insurants in the Brcko District are also entitled to receive reimbursement for travel expenses in the cases of necessary transportation on their way to a medical institution, with the difference that the Brcko District Law identifies the means of transportation and the conditions of their use, while other laws fail to regulate such matters.

The salary compensation for a work-related injury or an occupational disease shall be calculated and paid by the legal or physical person with which the insurant is employed and so out of the employer’s own resources. The compensation shall be calculated and paid from the moment when the injury or the occupational disease has occurred and on, until the insurant resumes his or her working ability, or until the competent body determines the degree of the insurant's disability.

The rights to salary compensation shall be decided on the basis of findings and opinion of a selected medical doctor in primary health care or by a selected medical commission, without passing any formal decision, unless the insurant explicitly requests the issuance of such decision.

When a legal or natural person with which the insurant is employed fails to determine the amount of salary compensation in the manner, amount and within the period defined by this Law and by implementing regulations enacted thereunder, the insurant shall be entitled to file a complaint with the competent authority of the Health Insurance Fund. Until such time as the final decision has been reached, the Health Insurance Fund shall be obligated to arrange for the compensation payment, provided that the legal or natural person must recompense the paid compensation amount within 30 days following the day of receipt of the compensation for temporary disability.

In order to enable insurants to exercise their rights to supplemental health insurance, the District Assembly shall, at the proposal of the Health Insurance Fund and with the prior opinion obtained from the Department of Health, render the decision determining the following: type and scope of rights and benefits provided on the ground of the supplemental health insurance, the rates and amounts of contribution for the supplemental health insurance, conditions and method of applying for the supplemental health insurance, and the methods of monitoring the exercise of the rights derived from such insurance.

In order to exercise the health insurance rights, persons not covered by the compulsory insurance may make voluntary payment of the contributions as determined by the special decision of the District Assembly taken upon the proposal of the Health Insurance Fund.

The persons who have paid the voluntary health insurance shall have the rights equal to those derived from the compulsory health insurance.

Financing of the rights under the compulsory health insurance shall be provided from:

- contributions from the salaries of workers employed with legal persons and entrepreneurs;

- contributions of physical persons, owners – founders of legal persons and entrepreneurs;

- contributions for pensions, disability pensions and other benefits from pension and disability insurance;

- contributions for the unemployed persons registered with the competent employment service;

- contributions paid for the permanent financial assistance and for the persons accommodated in social welfare institutions;

- contributions from income generated in the self-sustaining show business, issuance of CD recordings, audio and video tapes, tickets for sport events and other public performances;

- contributions on incomes from copyrights, patents and technical improvements;

- contributions on income from agriculture, or other incomes realized by engaging in agriculture as well as contribution on agricultural land lease;

- compensations for health care of the family members of the insurants employed abroad and persons receiving pensions from abroad;

- funds from the Brcko District budget;

- individual participation of the insured persons in covering the health care costs;

- donations, aid, interests, dividends, fees, and other types of incomes.

A comparison of the sources for financing of the compulsory health insurance in the entities with those in the Brcko District, makes it apparent that the resources for financing of the Fund are essentially the same in the entities and in the Brcko District, but that there are also some minor differences, such as, for example, the financing from CDs, audio and video recordings, tickets for sport events and other public performances, which represents a feature specific for the District only.

The compulsory health insurance resources shall be provided in the Health Insurance Fund, in compliance with the intended purposes, and the Health Insurance Fund shall be obligated to undertake the measures required for providing additional resources in order to enable the exercise of the rights emerging from the compulsory health insurance scheme, provided that the available means are insufficient for the coverage of the expenses of such types of health insurance.

In order to provide for the additional resources to cover the expenses of the compulsory health insurance, the Health Insurance Fund may, with the consent of the District Assembly, combine one part of its resources with the District budget or with the resources of a legal person dealing with insurance and re-insurance.

The base rate method of calculation and payment of the contributions shall be determined by the District Assembly, upon the proposal of the Health Insurance Fund and following the opinion obtained from the Department of Health, which again is a feature specific for the Brcko District compared with other health insurance laws.

The rates for determining the level of contribution shall be determined by a decision of the District Assembly, upon the proposal of the Health Insurance Fund and following the opinion obtained from the Department of Health.

Upon the proposal of Health Insurance Fund, the District Assembly shall annually set the lowest and the highest amount on the basis of which the health insurance contributions shall be calculated, provided that the contributions shall not be calculated for the amounts below the lowest nor above the highest amount set by the Assembly.

In addition to the contributors that are identical those defined in the entity-level laws, the following persons shall also be obliged to calculate and pay the contributions for the compulsory health insurance in the District:

- persons employed abroad, for their family members who reside in the District area, unless they are insured on other grounds, which is regulated by social welfare agreements between the states;

- student and youth cooperatives, for persons hired to do occasional jobs in the event of an injury at work or an occupational disease;

- competent District Government Department – for secondary school pupils and higher education students who are not insured on other grounds, and for pupils/students performing an internship related to their education process;

- scholarship providers for foreign citizens and stateless persons receiving education or vocational training, unless prescribed by a scholarship agreement that they should pay the contributions by themselves;

The Law provides for exemption from the participation rule for persons with very low monthly income, pregnant women and persons older than 65 years.

Under its penalty provisions the Law on Health Insurance of Brcko District provides the fines in the amounts between 300 KM and 5,000 KM depending on the identity of violator and the type of violation: Also, the law makes a distinction as to whether the contributor is a legal or physical person.

Other sections of the Law on Health Insurance are identical with or similar to those of the entity-level laws.