Internal coordination of social security in Italy

Introduction

This contribution analyses the internal coordination of some social security schemes covered by EU regulations in the Italian legal framework. The aim of the article is to ascertain whether and, if so, how the selected schemes – health care, long-term social care and social assistance – within the scope of the EU Regulation no. 883/2004 ¹ are coordinated in the Italian federal or highly regionalised institutional architecture. In this regard, following a short description of the competences of the different public bodies (State, Regions and municipalities) in the above-mentioned fields according to the Italian Constitution and legislation, the article focuses on the funding mechanisms, the administrative organisation and the internal coordination of the institutions providing the specific scheme (i.e., the inter-regional mobility of patients and the related system of financial compensation).

In other words, the article focuses on the mechanisms, covered by Regulation no. 883/2004, not from an EU perspective or in order to verify the compatibility of the Italian legal framework with EU social security principles. Rather, it adopts a domestic approach concentrating only on the internal coordination of the devolved or decentralised schemes.

Some clarifications should be mentioned: in the field of social assistance, only schemes consisting of cash transfers will form part of the analysis. Thus, tax exemptions and unemployment benefits are beyond the scope of the current article.

The regionalisation of health care and social assistance: principles and sources

Following the constitutional reform enacted in 2001, ² the Italian system of social security has progressively been regionalised, ratione materiae, as the Regions have increased their institutional competences, especially in the area of health care and social assistance. Under the current version of Art. 117 of the Constitution, the State has exclusive legislative power only in the area of determination of the basic levels of benefits related to civil and social entitlements which must be guaranteed throughout the national territory.

The same Art. 117 indicates that the principle of concurring legislation in health care protection applies. This means that legislative powers are vested in the Regions, except for the determination of the fundamental principles laid down in State legislation. In other words, the Constitution does not establish a hierarchical relationship between State and regional law as in the past, since the criterion of competence is the guiding principle (Pitruzzella and Bin 2012). ³

On the contrary, social assistance is not included in the matters of concurring legislation and the same Art. 117 establishes that the Regions have legislative powers in all matters that are not expressly covered by State legislation. Although, at first sight, the social assistance system seems to be totally regionalised, scholars believe that social assistance forms part of concurrent legislation issues by following a systematic interpretation of the constitution (Bergo 2013). Pursuant to Art. 117, the State may exercise its legislative competence to ensure a minimum level of protection of social rights throughout the national territory; Regions (or even municipalities) can increase the money transfers against social exclusion on behalf of poor families or establish a complementary scheme or even extend the beneficiaries with their own resources (Alaimo 2017).

It is important to point out that such a distribution of competences among the State and the local entities in the socio-health field was anticipated by national legislation, which was approved during the 1990s, whose technicalities are still in force without any significant change over the past few years.

Regarding health care, according to legislation passed in the 1990s, Regions have general competence in their territories and may establish the conditions for the management, funding and control of hospitals and care centers. Moreover, they are entitled to divide their local health departments into sub-entities (Cinelli 2016).

In the field of social assistance, the basic rules established in 2000 by legislation anticipated the model contained in Art. 117 of the Constitution in compliance with two guiding principles: the devolution of functions to Regions and municipalities and the concerted planning among the different institutional levels of activities and resources to be invested through a network of territorial plans to be managed jointly by the different public stakeholders (D’Arcangelo 2006).

The rules on the adjudication of competence in health care: the coordinated regionalisation

In the field of health care, the constitution attributes the same importance to national and regional legislation. According to national rules, ⁴ every three years the State, through a decree of the President of the Council of Ministers, determines the minimum levels of assistance that must be provided in all the Italian Regions (Livelli essenziali di assistenza, hereinafter, LEA), which are contained in the national health plan, ⁵ after having consulted the competent parliamentary commissions and the Permanent Conference of State-Regions. ⁶

The LEA covers the three macro-domains of collective prevention and public health, local assistance and hospital assistance. Its updated version is contained in the Decree of the President of the Council of Ministers of January 2017, ⁷ which describes the essential services to be provided all over the national territory in quite a detailed manner. More precisely, collective prevention and public health cover the following: prevention and control of infectious diseases and vaccines; protection of health and safety in open spaces; health and safety in the working place; animal health; alimentary health; surveillance and prevention of chronic diseases, including screening programmes. Local assistance covers the fields of basic health assistance, pharmaceutical assistance, prosthesis, thermal care, socio-health assistance at residential, semi-residential, domiciliary and territorial levels and specialised outpatient assistance. Finally, hospital assistance relates to the following: first aid assistance; day surgery; day hospital; transfusions; the transplanting of cells, tissues and organs; rehabilitation and post-acute care.

In compliance with the basic standards set in the LEA, each Region adopts its local health plan, which must ensure the health care services, considered as fundamental at national level, in accordance with the specific needs of the territory and the financial resources available. Regions have a sufficient margin of freedom and can broaden the spectrum of services regarded as essential. For example, in the field of dental care, the national LEA only covers preventive procedures for minors and those over 65 and urgent treatment. However, in some Regions, like Friuli-Venezia Giulia and the Autonomous Province of Trento, regional health plans include minimum provision for restorative interventions and conservative dental care.

In practice, it may sometimes be difficult to predetermine the competence of State and Regions in the field of health care, due to the possibility that one entity may complain about the displacement of its institutional prerogatives by another. Since the new version of Art. 117 of the Constitution came into force, the State has challenged several regional laws on health care before the Constitutional Court complaining of an invasion of its own legislative competence.

The Constitutional Court has tended to follow a ‘centripetal’ approach, which has emphasised the competences of the State at the expense of regional prerogatives (Morana and Carpani 2012; Cilione 2013). For example, in the field of therapeutic practices, the Court declared the laws enacted by the Regions of Marche, Tuscany and Piedmont unconstitutional, suspending the application of certain treatments (electric shock therapy) and psychosurgical interventions (prefrontal and orbital lobotomy) on the grounds that they are of uncertain efficacy and are potentially harmful to the right to health care. According to the Court, the legislative intervention of the Regions must be encompassed within the matter of health protection and therefore, in conformity with Art. 117, the choice of therapies forms part of the fundamental principles, which are expressly a State prerogative. ⁸

If we shift from the institutional architecture to the patient, the place of residence is relevant, not only for the adjudication of competences, but for the subsequent allocation of costs among the public entities. The patient may have access to all the public hospitals and care centers located in the Region of residence. A partial exception, which restricts the territorial principle on a regional basis, applies to general practitioners and pediatricians who may only be selected among those who operate in the municipality of the patient’s residence ⁹ .

The criterion of territorial competence within a regional basis is partially reframed by general and ad hoc legislation, as sometimes patients may move voluntarily or involuntarily to another Region or they cannot enjoy the status of resident, and public powers must in any case ensure the effectiveness of the right to health care, which is fundamentally safeguarded in the Constitution (Art. 32). These are cases of prisoners, persons without fixed-residence, non-EU citizens without a regular residence permit and Italian citizens living abroad in non-EU countries.

First, there are special rules for persons in prison ¹⁰ who benefit from the same health assistance, as people who are not subjected to any restriction of freedom, even if the institution is located in a different Region from that of the prisoner’s residence. Every Regional Health Department where there is a penitentiary prepares a plan for health services for prisoners and those who are interned. Even for persons in detention, there is a regionalised system of health care services. Indeed, the State, as part of the LEA within the national health plan, determines what health services should be provided for the convicted, and these are detailed by the Regions in their local health plans after consulting with the National Department of Penitentiary Administration.

In terms of people without a fixed residence, in principle, they benefit from all forms of health care assistance, except for general practitioner and pediatric services as they lack residence, which is a prerequisite for granting these services. ¹¹ In practice, homeless people often ask some NGOs ¹² to be registered as resident in their head offices to bypass the legislative obstacles and to benefit from all the programmes in the public health system.

It should be noted that persons without fixed-residence are often non-EU citizens without a regular residency permit. According to the LEA, and to sectoral legislation on immigration law, they do not enjoy all medical treatments and services, but only those defined as urgent or essential, which are provided by public health institutions in the place where they reside, although they lack the legal status of resident. ¹³

With regard to Italians living in a non-EU country who do not enjoy the same level of assistance as their fellow-citizens living in Italy, the legal framework introduces several limitations to health care protection based on the criterion of residence. ¹⁴ If they transfer their residence to a country without a bilateral convention with Italy on social security matters, ¹⁵ they will automatically lose the right to health care, either in Italy or abroad.

In addition, Italians who have emigrated or beneficiaries of a pension scheme provided by an Italian social security institution may benefit for urgent medical treatment for a maximum period of 90 days per annum, if they temporarily return to Italy but only if they do not have a public or private insurance for the required treatment.

Funding, inter-regional mobility and territorial organisation of health care

The financing mechanisms for health care have changed as a result of the process of administrative and legislative regionalisation that began in the early 1990s (Frittelli and Conticelli 2018). Until 1997 health care schemes were financed by a specific national fund, through State contributions that were distributed among all the Regions in respect of all the expenditure incurred.

Since 1998, health care has mainly been financed from a regional tax on productive activities and from the regional supplementary tax on persons’ income. This choice of fiscal federalism anticipated the constitutional reform of 2001, as contained in Art. 119 of the Constitution, according to which Regions have revenue and expenditure autonomy and must be able to fully finance the public functions attributed to them (Saitto 2010).

The current rules on fiscal federalism, ¹⁶ implementing the reform, confirm the draft through legislation according to which health care is mainly funded from regional taxation. Regional taxes may be further distinguished into derived subsidies, established and regulated by State legislation and allocated to the budget of the Regions, and additional State tax payments, with a very limited possibility for the Region to determine the amount (Pitino 2012). Moreover, Regions may fund health care services by using direct contributions (tickets) ¹⁷ and by the proceeds of the intra-moenia (internal) activities of doctors working in public hospitals.

The criteria of financial autonomy and fiscal responsibility are not absolute because, according to Art. 119 of the Constitution, the Italian model of federalism is solidaristic, establishing that, ‘The State shall allocate supplementary resources…to reduce economic and social imbalances [and] to foster the exercise of the rights of the person.’ The LEA must always ensure, as they concretise the universal right to health care, the independence of the local context where health care is provided. Only if the Region with a lower fiscal capacity per inhabitant cannot cover the costs of the health care system with its own resources the State will intervene with some exceptional money transfers, contained in a specific national fund (Fondo perequativo), implemented by the same State; and also with extra-resources derived from VAT, which is a State subsidy.

Closely related to a federal health care model, is the inter-regional mobility of patients. In Italy, it is possible to move to a Region other than that one of residence to benefit from health care if we keep in mind that health care is a fundamental right of the individual with independence of geographical and social conditions (such as residence) and that the right to freely choose the doctor is a corollary of the principle of personal freedom.

The inter-regional mobility must be harmonised with other constitutional interests, such as the organisation of health care services within regional basis. Ordinary legislation is aware of this systematic approach, as it states that the freedom of choice of the doctor and the place of care must be adjusted with the objective limits of the organisation of health services. ¹⁸

At the same time, individuals may have access to health care services in other Regions in case of urgency, for alleged reasons and if they temporarily sojourn in a place different to the usual one. ¹⁹ In other words, inter-regional mobility is allowed not only in case of voluntary movement, but also for urgent need of medical treatment.

More specifically, rules on inter-regional mobility establish that the patient may freely choose the public hospital where he/she will be treated, not only among those ones encompassed in the territory of the Region, but also among all the public and private health care structures operating in other Italian Regions previously accredited by the Region of residence of the patient on the basis of criteria set at national level, and in the presence of a specific contractual agreement between the incoming and the outgoing Region. ²⁰

It should be noted that the inter-regional mobility is not an absolute principle, as it is limited only to health-care facilities (public and privately accredited) based in Regions that have concluded a specific agreement with the Region of residence of the patient. Nevertheless, certain courts have neglected the legal provisions in national legislation, which undoubtedly limits the mobility. According to them, the right to health care encompasses the freedom of choice of the care provider across the national territory, as the fiduciary doctor-patient relationship guides every medical treatment. ²¹

Inter-regional mobility is based on mechanisms of financial compensation of health care services provided to citizens in a Region other than the one of residence. The cost of the service is in principle charged to the patient’s Region of residence. In addition, only some health services are subject to financial compensation according to the Accordo interregionale sulla mobilità sanitaria, a contractual arrangement predisposed and approved by the State-Regions Conference every three years. Nowadays, medical treatments subject to financial compensation are as follows: day hospital and hospitalisation; the assignment of a general practitioner and pediatrician; specialist outpatient consultations; pharmaceutical services; thermal treatments; the direct supply of medicines; transport by ambulance and helicopter rescue. ²² The activities not listed or that require a previous authorisation must be directly charged to the patient. ²³

Finally, according to general rules, if during inter-regional mobility, the patient changes his/her residence from one Region to another, the pro rata temporis principle will apply: the costs will be re-distributed proportionally among the two Regions on the grounds of the respective time frames of residence of the subject.

According to national legislation, ²⁴ Regions are fully responsible for the organisation and the presence of health care providers in their respective territories: due to the principles set in Art. 117 of the Constitution, Regions are obliged to create the azienda unità sanitaria locale (henceforth AUSL), those public bodies that are entitled to supply health care services. AUSL, as confirmed by the jurisprudence of the Council of State, ²⁵ can be qualified as public administrations despite their formal status as public companies ²⁶ and their budgetary and financial autonomy. In fact, they provide an essential service on behalf of the titular of the public function, which is the Region (Castiello 2018).

At a territorial level, AUSL are organised in districts (distretti), which concretely provide primary assistance regarding health and social care services. The regionalisation thesis is strengthened by the national legal framework: State law only establishes that districts are a mandatory articulation of the AUSL, and that they must cover at least 60.000 persons. Apart from this, all the technicalities of their organisation are determined by regional law. If we consider the functions, districts concretise the LEA as defined at national level: they provide primary assistance, they coordinate general practitioners and pediatricians with hospitals and special outpatient services, and they are responsible for the long-term social care services and activities on behalf of elderly and disabled people.

In addition, according to national legislation, the other regional bodies providing health care services are the Department of Prevention and the hospitals. The former, sub-divided into services and operational units, performs the tasks of collective prevention and protection of health care. ²⁷ The latter depend on the AUSL (they are smaller operational units) and enjoy less financial autonomy.

Regions also exercise competences in respect of private health care. Indeed, they allow private health structures to operate in their territories using a system of public reimbursement. This prerogative is not absolute, as they can only stipulate agreements with private bodies that have been previously authorised at national level by the Ministry of Health Care.

Long-term social care: a partial exception to health care rules

The Italian Constitution does not intervene on the distribution of competences on long-term care (henceforth, LTC) funding mechanisms, considered as part of health care services by national legislation. Therefore, the principles for health care already analysed above, which are a specific prerogative for regional districts to ensuring the social relevance of health services, which include LTC, apply. In addition, LTC is qualified as an essential service in the latest version of the LEA of January 2017. More precisely, LTC treatments that are to be provided by the national health service are: socio-health assistance, domiciliary and non-domiciliary, for non-self-sufficient persons; residential socio-health assistance for terminally ill patients; residential and semi-residential socio-health assistance for persons with mental diseases; socio-health assistance for minors with neuropsychiatric disorders; and socio-health assistance for persons with pathological addictions. ²⁸ Nonetheless, it may occasionally happen that municipalities and regional health departments act jointly in this field due to the diagonal character of LTC intervention, which has a double component that is not only related to health care but also to social assistance (Faioli and Ghigiarelli 2018; Arlotti and Aguilar 2016).

For the adjudication of competences, residence within the Region is the guiding criterion, and the patient may resort to all LTC centres in his/her Region, both public centres and privately accredited ones. ²⁹

The main differences between LTC and health care regulation are the method of reimbursement and financial compensation. ³⁰ The patient must have previously been approved by the specific medical commission established by his/her territorial health department (AUSL) and only in extraordinary circumstances (i.e., if there are no beds available in the care homes of the Region of residence within a reasonable time frame). Otherwise, in the absence of administrative permission, the costs will be entirely charged to the patient.

Social assistance: legal framework, architecture and funding mechanisms

Since the end of the 1990s, social assistance has also changed in the direction of regionalisation. ³¹ Act 328/2000 is currently the main source and, as already noted for health care and LTC, it anticipated the model of federalism introduced by the constitutional reform of 2001 (Persiani 2014).

Act 328/1990 allows the State, Regions and municipalities to introduce legislative and administrative measures to tackle poverty and social exclusion within their respective fields of competence. Cash transfers to the most disadvantaged people and families are part of an integrated system of social services and interventions whose structure, at first glance, is horizontal and based on the natural distribution of prerogatives among the different public stakeholders (Cinelli and Nicolini 2001).

In other words, the model of social assistance is three-dimensional and emphasises, especially at a regional level, public intervention in terms of both the determination of social needs and the assignment of the service. The State will set guidelines for social policies in a specific National Plan every three years, determining the essential levels of assistance (LIVEAS) which will be concretely detailed at a regional level. In addition, according to Act 328/2000, Regions may sign specific agreements with municipalities to coordinate and integrate social-health assistance with flexicurity tools.

More specifically, Act 328/2000 lists the social assistance schemes that are part of the LIVEAS, or measures to oppose poverty and to support income, with particular attention to homeless people, economic provisions to encourage an autonomous life for persons who are unable to live independently, interventions on behalf of minors in a condition of economic hardship, measures to achieve a better work-life balance aimed at strengthening parental prerogatives, policies on behalf of disabled people, and socio-educational interventions to deal with drug and alcohol dependence. The same Act states that Regions must secure the following services as a corollary of the objectives mentioned above: domiciliary care; residential and semi-residential structures for socially frail people, the provision of first aid in situations of social and family emergencies, and residential or daily homeless shelters.

If national legislation is analysed in depth, it will be clear that the decentralised system of social assistance can be characterised by a lack of clarity in identifying the conditions and the interventions expected from the Regions in providing social services (especially for money transfers against social exclusion) (Faioli 2014). Thus, it is possible to envisage a social assistance strategy (including programming, organisation and management) which is left to each Region. Therefore, Act 328/2000 creates the risk of different territorial responses to poverty and material deprivation (Faioli 2014). There are two reasons for this. First, the vagueness of the language of the national “legislator” when identifying the social assistance schemes, consisting of cash transfers, that are to be provided by the Regions. Secondly, the criterion of residence in a specific Region or municipality that is required to receive the local benefit – this criterion is absolute, as local legislation does not consider periods when the person has lived and worked in another region when assessing whether or not he/she is qualified to receive the benefit.

Closely related to the regionalisation of the battle against social exclusion are the mechanisms for funding the relevant measures. They are fully implemented with resources from the single regional institution in compliance with the principle of fiscal autonomy set out in Art. 119 of the Constitution and in ordinary legislation. If the measures go beyond the national minimum standard, as in the case of REI (see below), the Region will have to draw on its own budget.

The local schemes of social assistance: the uncoordinated regionalisation

In relation to social assistance schemes that provide cash transfers, measures granted by the State should be distinguished from those provided by local entities (Regions and/or City Councils). In the first case, a voluntary or involuntary move to another Region does not affect the granting of the benefit if the economic situation of the beneficiary does not change.

The protection against social exclusion is paradigmatic. The most significant national measure, which consists of cash transfers, is represented by the Reddito di inclusione attiva (hereinafter REI), recently introduced by Legislative decree 147/2017, ³² a universal benefit for individuals and families in poverty conditions. The beneficiary will temporarily receive a minimum income from the State and will, in the meanwhile, follow a personalised programme of social inclusion.

Since January 2018, a request for REI must be presented to the town of residence, which will verify whether the applicant meets the legal conditions to benefit from the scheme. If verified, the measure will be granted by the National Institute for Social Security (INPS) after a double check on the satisfaction of the legal requirements.

The legal framework is different in relation to local social assistance schemes, whose prerequisites and mechanisms of funding are fixed at a decentralised level: several Regions and municipalities have introduced economic measures on behalf of families or individuals who live below the poverty line ³³ in recent years as a result of the financial crisis, even anticipating State intervention with the REI. ³⁴ In this connection, as the residence in the specific Region or city is essential for obtaining the subsidy, a change of residence will automatically result in the loss of entitlement to the local scheme. Finally, the person may apply again in the new Region or city of residence if he/she meets the conditions established by the local regulations.

The scenario is clearly quite complex and fragmented, and depends on the specific local legislation, and this article only analyses the most recent experiences to provide some qualitative results. By way of example, in Puglia a beneficiary would lose the local subsidy against poverty if he/she leaves the place of residence for more than 30 days for personal or family reasons. Moreover, according to the Regulations in the City Council of Marino, the beneficiary would lose the local basic income if he/she is no longer resident in the territory of the Municipality.

Even involuntary mobility may lead to the loss of benefit. In fact, it is granted only if the beneficiary undertakes to participate in courses and social work in the territory of the Region. In the event of conviction, prisoners will lose the benefit if they move to a penitentiary outside their Region of residence. According to national legislation, if they are found guilty after the criminal trial, their residence will be automatically transferred to the detention institution. ³⁵

In summary, a beneficiary cannot export the local social assistance scheme from one Region to another when changing residence, as an outcome of different factors. First, such subsidies against social exclusion are set by a single local entity on the basis of its legislative and administrative autonomy, and may be associated with different amounts and prerequisites. Secondly, as a corollary of fiscal autonomy, they are funded with the financial resources of a single local institution. In other words, such benefits are universal, but only within a targeted territorial area.

Such a fragmented system may give rise to inequalities in the battle against social exclusion, and the extent of protection will ultimately depend on the place of residence of the poor and deprived (Faioli 2014), with the added risk of ‘social assistance tourism.’ Local legislation has, in principle, tried to curb this trend by introducing qualified residence for a minimum period in the Region of the applicant (Gallo 2017). For example, according to regional legislation of Friuli-Venezia Giulia, Valle D’Aosta, Emilia Romagna and Sardinia applicants must prove continuous residence in a single Region for a minimum of 24 months in order to obtain the subsidy, while Puglia merely requires 12 months and the Autonomous Province of Trento 36 continuative months in the ten years preceding the submission of an application form. ³⁶

Conclusion

When examining the internal coordination in Italy of some regional and local social security schemes consisting of money transfers (health care, LTC and social assistance), it becomes clear that these fields have been shaped by the process of regionalisation of the distribution of competences and of funding mechanisms since the end of the 1990s, previously by national legislation and later by the constitutional reform of 2001. In summary, the basic rule is that the State determines the essential services to be provided throughout the territory, which are subsequently implemented by the Regions with their own resources.

The issue of internal coordination can be addressed from a dual perspective. The analysis of the legal framework has demonstrated that health care and LTC services are also provided in other regions than the one of residence of the patient, even if not in absolute terms. In addition, there are forms of monetary compensation in case of inter-regional mobility, which are detailed in specific agreements between the State and the Regions.

In social assistance, however, in recent years several Regions have created forms of minimum income that supplement the national measure against poverty (REI). In this field, the beneficiary cannot export the local measure when changing residence from one Region to another, making the territoriality principle absolute. The strict application of this criterion, combined with the cuts to welfare spending (as an outcome of the crisis), may seriously threaten the economic and social cohesion of the country. Thus, the law ends in a paradox: the more developed Regions, with higher spending capacity, are better placed to challenge social exclusion than the poorer ones, where the battle against poverty is more urgent and, therefore, much more needed.