The public health network of the Federal District, as in the rest of the Brazilian Unified Health System, suffers from inefficiencies related to the difficulty in hiring and managing professionals, as well as the implementation of supply and maintenance contracts. In Brasilia, a new management model was implemented in 2018 in its largest hospital. With the creation of the autonomous social service “Instituto Hospital de Base”, a health unit in operation since 1960, the possibility of providing agility to these contracts was opened, in addition to establishing a management based on goals and outcome indicators, with expressive efficiency gains. This article reports the steps for the implementation of this decentralized model of hospital management, the alternatives considered, the difficulties faced and some of the first results of this new model. One can already verify and affirm the success of the legal-administrative model of “Instituto Hospital de Base”, which can serve as a paradigm for other health units in the Federal District and in Brazil.
Unified Health System; Health management; Hospital administration; Decentralization
In the current underfunding scenario of the Brazilian Unified Health System (Sistema Único de Saúde - SUS) and bureaucratic obstacles arising from an outdated and anachronistic legislation, the State Health Secretariat of the Federal District (SHS-DF), as well as the public health management throughout Brazil and at all federative levels, has been facing many difficulties over time regarding the provision of health care services.
This difficulty is mainly based on the supply and management of resources, that is, on the supply of medical and hospital materials, on the provision of support services, including maintenance of medical and hospital equipment, and, finally, on the supply, motivation and management of people, a picture that is greatly aggravated by the economic-fiscal-budgetary situation that the country has experienced since 2015.
Given this scenario, the Federal District Government (GDF), in addition to the process of internal modernization of structures and the work process, has sought to study and institute alternative models for the implementation of health policies aiming to improve the supply and quality of health services provided to society.
Faced with this challenge, the SHS-DF sought a new legal-administrative model that was simultaneously close to the government while being, on the other hand, autonomous, efficient and flexible.
As a result of this process, the autonomous social service Instituto Hospital de Base of the Federal District (IHBDF) was created, aiming to grant administrative and budgetary autonomy to that hospital, within the scope of health care regionalization and decentralization process of the Federal District, through District Law n. 5,899, published in the Federal Register of the Federal District on July 4,201711. Distrito Federal. Lei nº 5.899, de 3 de julho de 2017. Autoriza o Poder Executivo a instituir o Instituto Hospital de Base do Distrito Federal - IHBDF e dá outras providências. Diário Oficial do Distrito Federal 2017; 04 jul..
The implementation of the IHBDF, with the administration of 100% public resources, 100% of health services provided by the Unified Health System (SUS), free of charge, without any private capital participation, aims to meet the demands of society and the deliberations of the Federal District Health Council (CSDF), at its 387thextraordinary meeting, held on 09/27/2016, which defended the need to extend the autonomy and flexibility of the HBDF, with the adoption of a “management model similar to that of Hospital Sarah Kubitschek.”
This article intends to present the alternative identified by the DF for its most relevant health facility, aiming to increasing the efficiency and quality of the health services provided, indicating the justifications and associated difficulties.
It is believed that the model adopted for the Hospital de Base of the Federal District can be an alternative for all public hospital facilities distributed throughout the national territory.
Information about Hospital de Base of the Federal District before the management model change
The history of the Base Hospital is intermingled with the history of Brasília itself, since its origin dates back to 1957, when the Health System of Brasília was planned for the new Capital, being inaugurated on September 12, 1960 .
In 1976, it assumed the responsibility for providing routine medical, surgical and obstetric care, as well as incorporating emergency activities, outpatient and preventive medicine services, concentrating all the specialties and high-precision equipment, facilitating, due to the concentration of specialists and respective means, the provision of high-standard assistance.
Hospital de Base serves the entire population of the DF, surrounding municipalities and states for high-complexity procedures. It annually receives undergraduate Medical and Nursing students and students from other courses in the health area, as well as graduated professionals seeking openings in Medical and Multiprofessional Residency Programs. It has an internship program, linking the SHS-DF with High/Technical School and College/University institutions, welcoming Medicine, Nursing, Nutrition, Physical Therapy, Dentistry and Psychology students into the facility.
The hospital-symbol of the city and its largest health unit needed managerial and administrative support tools, since the model and legislation to which it was submitted was inadequate to meet the demands and factual reality of the institution, with a high demand for resources and investments.
Statistics of Hospital de Base of the Federal District, in 2017.
Summarized list of characteristics comparing the different Legal-Administrative Models.
The HBDF, in spite of the difficulties regarding personnel, logistics and supply that it has gone through, carried out, during 2016, 286,761 outpatient consultations and 221,157 emergency ones, totaling 507,918, according to information from the Sub-secretariat for Integral Health Care of SHS-DF.
In addition to health care activities, the HBDF, in the area of education and research, in April 2016, had 608 filled positions in the medical or multidisciplinary residency area.
The HBDF revenues in the first four months of 2016 amounted to R$12,789,044.69, related to 7,536 hospital admission authorizations (AHIs), and R$10,275,020.43, in the first quarter of 2016, related to 739,702 Ambulatory Production Bulletins (BPAs) and 36,877 High-Complexity Procedure Authorizations (APACs). On the other hand, the average monthly costs of the first quarter of 2016 were R$ 48,687,852.62, of which 76.45%, i.e., R$ 37,219,606.87, were related to expenses with personnel.
On May 5, 2017, according to information presented at the Seminar to discuss Public Health in the Federal District, promoted by the Legislative Chamber of the Federal District, the following requirements were raised for the full operation of the HBDF:
Employees: 1,697 employees with a 20-hour work week schedule (schedule established by law for all public health employees in the Federal District);
Supplies: Medication and hospital materials;
Equipment: Acquisition of new equipment and maintenance of existing ones;
Adequacy and expansion of physical areas;
Aiming to allow the full operation of the already installed capacity in the HBDF and to meet the identified needs, the SHS-DF has envisioned the following strategies or priorities:
Agility in hiring and admission of personnel;
Rationalization of costs; and
Monitoring and control.
The next item will show the considered models aiming to meet the abovementioned needs and strategies.
Management model alternatives for the implementation of public health care policies
Given the wide-ranging and different types of difficulties, the SHS-DF started looking for legal-administrative models and arrangements capable of providing greater autonomy and flexibility to the HBDF, which would have a positive impact on results, quality and productivity.
The identified preliminary alternatives were:
Autonomous Body (de facto) - OA;
Special Autarchy - AE;
“State” Foundation - FE (private law foundations established by law, according to article 37, XIX, of the Federal Constitution (FC), thus classified by some authors);
“Social” Public Company - EPS (“Social” Public Companies are public companies that, in fact, do not aim at profit, usually operating in social areas, including health, thus classified by some authors);
Autonomous Social Service - SSA;
Social Organization - OS; and
Privatization - P.
On the one hand, it was observed that the models subject to public law (OA and AE) would not lead to sufficient debureaucratization and sufficient and necessary agility for health care activities. The FE and EPS models, under private law but with derogations from public law, would be better suited than the first two, but would not offer sufficient agility. On the other hand, the models that would reach the desired degree of flexibility and autonomy would be the last three, among those listed, and privatization was never considered, since it was against the policy of the Secretariat and the Government of Brasilia and the guidelines of the Health Council; whereas the OS model had suffered great resistance from union entities and district control authorities, although there has been a law approved since 2008 authorizing its accomplishment (District Law n. 4,081, 2008).The chosen option was the SSA model, which would meet the desired efficiency and agility requirements22. Cunha Júnior LAP. Taxonomia dos Órgãos e Entidades da Administração Pública Federal e de outras Entidades e Instrumentos de Implementação de Políticas Públicas. In: Castro ATB, Antero SA. Propostas de taxonomias para órgãos e entidades da Administração Pública Federal e outros entes de cooperação e colaboração. 2ª ed. Brasília: IABS; 2013. p. 9-186..
Briefly, the analysis can be seen in the comparative Chart 1.
The OS and SSA models are similar regarding their characteristics and rules of operation in relation to hiring and personnel, being different in the genesis and composition of the decision-making process, with the first being created by private individuals who undergo the qualification by the Government and in the second, the entity is created by the Government, which controls all the internal decision-making process of the institution, without any private capital participation.
The greatest difficulties faced by HBDF were related to the hiring of personnel and to the supply and services chain, as shown in the table above, and it is precisely in these topics that the OS and SSA models have autonomy and allow greater flexibility and consequent agility.
The performed analysis concluded that the most successful case in the criterion of autonomy and flexibility versus results, quality and productivity in the public model, with the security granted by a Law and the public law derogations, with structure and efficiency similar to the private one, is that of Law N. 8,246 of October 22, 1991, which authorized the Union to establish the autonomous social service “Association of Social Pioneers” (APS)77. Brasil. Supremo Tribunal Federal. Recurso Extraordinário nº 789874. Relator(a): Min. Teori Zavascki - Tribunal Pleno. Diário da Justiça da União 2014; 19 nov..
The autonomous social service model
As the autonomous social service, parastatal entities may be considered, in cooperation with the Government, having their own administration and patrimony, in the form of conventional private institutions (foundations, civil societies or associations) or characteristic of the performance of their statutory duties88. Brasil. Supremo Tribunal Federal. Ação Direta de Inconstitucionalidade nº 1.864-PR. Relator: Min. Maurício Corrêa, Relator p/ Acórdão: Min. Joaquim Barbosa - Tribunal Pleno. Diário da Justiça da União 2008; 2 maio.. The author adds that these entities, although made official by the State, are not part of the direct or indirect Administration, but work alongside the State, under their protection, cooperating in the sectors, activities and services attributed to them, as they are considered of specific interest to certain beneficiaries. Therefore, they receive subsidies directly through budgetary resources of the entity that created them88. Brasil. Supremo Tribunal Federal. Ação Direta de Inconstitucionalidade nº 1.864-PR. Relator: Min. Maurício Corrêa, Relator p/ Acórdão: Min. Joaquim Barbosa - Tribunal Pleno. Diário da Justiça da União 2008; 2 maio..
The aforementioned normative model did not seem to be impermeable, with new arrangements and the unfolding of its funding form and in its prerogatives, in the course of time. During this course, several legal questionings were transmitted until the Federal Supreme Court (STF) put an end to it, when judging the Extraordinary Appeal n. 789,87499. Brasil. Supremo Tribunal Federal. Ação Direta de Inconstitucionalidade nº 1.923-DF. Relator: Min. Ayres Britto, Relator p/ Acórdão: Min. Luiz Fux - Tribunal Pleno. Diário da Justiça da União 2015; 17 dez..
At the judgment, the Supreme Court ruled that autonomous social services are private legal entities and are not part of the Public Administration, although they collaborate with the latter in carrying out activities of significant social importance. Both the 1988 Constitution and the corresponding regulatory legislation ensure administrative autonomy to these entities, formally subjected only to the final control by the General Accounting Office regarding the use of the received resources. Precedent: ADI n.1864, Rel. Min. Joaquim Barbosa, DJe of 5/2/20081010. Brasil. Lei nº. 10.668, de 14 de maio de 2003. Autoriza o Poder Executivo a instituir o Serviço Social Autônomo Agência de Promoção de Exportações do Brasil - Apex-Brasil, altera os arts. 8º e 11 da Lei nº 8.029, de 12 de abril de 1990, e dá outras providências. Diário Oficial da União 2003; 15 maio..
Similarly, the abovementioned ADI Judgment n. 1864, already proclaimed that the Constitution, in article 37, XXI, establishes the obligation to obey the bidding procedures for the Direct and Indirect Public Administration of any of the Government Powers, the States, the DF and the Municipalities. The same rule does not exist for private entities that work in collaboration with the Public Administration.
Following the same precedent jurisprudence line, the STF, in its ADI judgment n.1923 made several considerations about the provision of non-exclusive Government social services by non-profit private sector entities. The resulting conceptualization, however, surpassed the normative limits questioned in the Direct Action of Unconstitutionality, being the leading case in the modulation of the relation between the third sector and government1111. Brasil. Lei nº. 11.080, de 30 de dezembro de 2004. Autoriza o Poder Executivo a instituir Serviço Social Autônomo denominado Agência Brasileira de Desenvolvimento Industrial - ABDI, e dá outras providências. Diário Oficial da União 2004; 31 dez..
Regarding the nature of the relation between third-sector entities hired by the Government, it was agreed to be a funding agreement, and the purpose of the funding is put into practice through the transfer of resources, assets and personnel from the Public Administration to private entities, after the establishment of a management contract, which will allow the Government to direct the private sector’s actions in line with the public interest, through the insertion of goals and results to be achieved, without this constituting any type of renunciation of constitutional operational duties.
The STF decisions are based on solid constitutional bases, of which, in relation to the “classic” autonomous social service model, we can mention arts. 149, caput; 150, VI, “c”; and 240, and art. 62, of the Transitional Constitutional Provisions Act, which explains how new SSAs should be created.
In addition to the abovementioned decisions, there is jurisprudence in the Superior Court of Justice and in the General Accounting Office, reaffirming and consolidating the characteristics and prerogatives of the model.
As for the legal nature of the parastatal entity, although there is no legal definition (picture-specific law), doctrinally, the autonomous social service has been appointed as a parastatal entity of cooperation with the Government, created under legal authorization and with legal personality of private law and non-profit.
Although classically this structure designates the entities that make up the so-called “System S”, the Public Administration, including in the federal scenario, started to use this type of organization in the management of its own activities, citing itself as an example, within the Government, the Brazilian Export Promotion Agency - APEX-Brasil (Law n. 10.668, of 2003); the Brazilian Agency for Industrial Development - ABDI (Law n. 11.080, of 2004); and the Association of Social Pioneers - APS, which maintains the SARAH Network (Law n. 8.246, of 1991)1212. Paraná. Lei nº 12.398, de 30 de dezembro de 1998. Cria o Sistema de Seguridade Funcional do Estado do Paraná, transforma o Instituto de Previdência e Assistência aos Servidores do Estado do Paraná - IPE em serviço social autônomo, denominado Paranaprevidência e adota outras providências. Diário Oficial do Estado do Paraná 1998; 30 dez.,1313. Paraná. Lei nº 11.498, de 30 de julho de 1996. Institui o Paranacidade, pessoa jurídica de direito privado e adota outras providências. Diário Oficial do Estado do Paraná 1996; 30 jul..
The initiative was accompanied by other entities of the Federation, with a more effusive highlight of the experience of the State of Paraná, where they instituted, in the form of an autonomous social service, the PARANAPREVIDÊNCIA (Law n. 12.398, of 1998), the PARANACIDADE (Law n. 11.498, of 1996), and the PARANAEDUCAÇÃO (Law n. 11.970, of 1997), among others, that received specific attention of the STF in the ADI judgment n. 18641414. Paraná. Lei nº 11.970, de 19 de dezembro de 1997. Institui o PARANAEDUCAÇÃO, pessoa jurídica de direito privado, sob a modalidade de serviço social autônomo, na forma que especifica. Diário Oficial Estado do Paraná 1997; 19 dez.
15. Brasil. Lei nº 13.303, de 30 de junho de 2016. Dispõe sobre o estatuto jurídico da empresa pública, da sociedade de economia mista e de suas subsidiárias, no âmbito da União, dos Estados, do Distrito Federal e dos Municípios. Diário Oficial da União 2016; 1 jul.-1616. Petrópolis. Lei nº 6.483, de 14 de novembro de 2007. Autoriza a criação do Serviço Social Autônomo Hospital Alcides Carneiro, e dá outras providências. Diário Oficial do Município de Petrópolis 2007; 15 nov..
After exhausting the legal considerations about the nature of the autonomous social service institution and its operational limits, it was considered relevant to draw inspiration from the normative model adopted by the PHC - Rede Sarah Hospitais de Reabilitação, with the implementation of contemporary legal innovations related to relations between the third sector and the Government and good corporate governance provided for under Federal Law n. 13303, dated of June 30, 2016, which deals with the legal status of the public company.
Among the SSAs, there are some in the Health area. In addition to the PHC, we can mention Hospital Alcides Carneiro, in Petrópolis, created in 2007, the Acre Health Social Service - PRÓ-SAÚDE, in the State of Acre, created in 2008, Instituto Curitiba de Saúde, in the Municipality of Curitiba, and Hospital Municipal Doctor Célio de Castro, in Belo Horizonte, created in 20141717. Acre. Estatuto do Serviço Social de Saúde do Acre. Diário Oficial do Estado do Acre 2009; 22 out.
18. Curitiba. Lei nº 9.626, de 08 de julho de 1999. Dispõe sobre o Sistema de Seguridade Social dos Servidores do Município de Curitiba, altera a denominação e modifica a estrutura e atribuições do Instituto de Previdência e Assistência dos Servidores do Município de Curitiba - IPMC, e dá outras providências. Diário Oficial do Município de Curitiba 1999; 27 jul.
19. Belo Horizonte. Lei nº 10.754, de 19 de setembro de 2014. Autoriza o Poder Executivo a instituir o Serviço Social Autônomo Hospital Metropolitano Doutor Célio de Castro e dá outras providências. [acessado 2019 Fev 19]. Disponível em: http://portal6.pbh.gov.br/dom/iniciaEdicao.do?method=DetalheArtigo&pk=1129133.
http://portal6.pbh.gov.br/dom/iniciaEdic... -2020. Brasil. Constituição, 1988. Constituição da República Federativa do Brasil. Brasília: Senado Federal; 1988..
The Hospital Instituto de Base model of the Federal District
The search for de-bureaucratic and structuring management solutions has long occupied and preoccupied the administrativist legal scholars of the country.
The creation of the IHBDF, in the form of an autonomous social service, apparently follows the same character developed by several Federated Entities in the structuring of their services, under the validation of the decisions by the Supreme Court, which acknowledged the legitimacy of state operation through this management model.
The text of District Law N. 5.899/2017 authorized the Executive Branch to establish the autonomous social service Instituto Hospital de Base do Distrito Federal - IHBDF, a non-profit private legal entity of collective interest and public interest, with public control, to provide qualified and free assistance to the population and to develop teaching and research activities in the field of health, in cooperation with the Government.
The proposal has foreseen that the IHBDF will follow the SUS principles, expressed in art. 198 of the Constitution and in art. 7 of Law N. 8,080 of 1990, as well as the strategic policies and guidelines of the SHS-DF2121. Brasil. Lei nº 8.080, de 19 de setembro de 1990. Dispõe sobre as condições para a promoção, proteção e recuperação da saúde, a organização e o funcionamento dos serviços correspondentes e dá outras providências. Diário Oficial da União 1990; 20 set.,2222. Distrito Federal. Decreto nº 38.332, de 13 de Julho de 2017. Dispõe sobre a criação do Instituto Hospital de Base do Distrito Federal SSA - IHBDF. Diário Oficial do Distrito Federal 2017; 14 jul..
The legal text focuses on changing the legal and administrative management model of the HBDF. The care lines performed by the hospital have not changed due to the change in this model. Public policies continued to be defined by the SHS-DF, and the hospital continued to be regulated by SHS-DF. What changes is the quality of management, the improvement of the working environment and, therefore, the ability to deliver services to the population more efficiently.
This is the materialization of the requested and intended strengthening for the HBDF, which, in its new legal framework, started to count on autonomy and flexibility for its demands and wishes of the society, through integral maintenance of the exclusive and free service to SUS users.
The model presupposes the transfer of resources through a management contract, which established the goals to be achieved and the respective deadlines for their achievement, as well as the clear prediction of the objective performance evaluation criteria to be used, through indicators of quality and productivity, meeting the epidemiological and nosological picture of the DF and respecting the characteristics and specificity of the IHBDF.
As for the control mechanisms, it was predicted that the management contract performance is to be supervised by the SHS-DF and monitored by the General Accounting Office (TCDF), which will verify, specifically, the legality, legitimacy, operationality and cost-effectiveness of the development of the respective activities and the consequent application of resources, without reducing or interfering with the supervision of the Public Ministry and other external control bodies.
The Institute’s own staff is paid based on a market survey, as expressly provided for by law, and under negotiation with their trade union representation.
Also in relation to personnel, the Law expressly predicted that the employees that were allocated to the HBDF could be assigned to the Institute, providing they were submitted to the same evaluation procedures and performance targets applied to the employees of the IHBDF under the CLT regime, with the guarantee of preservation of all rights arising from the statutory legal regime. The amount of their salaries is deducted from the funds transferred to the IHBDF. Moreover, they can hold management and advisory positions in the hospital, being paid by the Institute itself.
A great challenge of the new management is precisely the coexistence between allocated public servants and the new professionals hired through CLT. However, there have been successful experiences in other places regarding this coexistence, in several legal-administrative models, such as Hospital Infantil Menino Jesus, in São Paulo.
The governing bodies of the IHBDF are the Board of Directors (CA), consisting of nine members, and the Executive Board (DE), consisting of the Chief Executive Officer, Deputy Chief Executive Officer and up to three Executive Officers, elected for a term of three years by the Board of Directors.
It should be noted that the approved text protects the IHBDF from political-party influences and conflicting interests in the composition of its governing and ruling bodies by prohibiting politicians, people who have participated in election campaigns and union leaders, as well as their relatives until the third degree, from being appointed as directors or officers.
Among the CA members, there are councilors appointed by Fiocruz, the Health Council of the Federal District (CSDF), the Legislative Chamber, by civil society entities representing the SUS users of the Federal District and by the IHBDF workers themselves.
In this model, the Secretary of Health of the DF is a member and natural president of the CA, relying on the initiative of some propositions, ordinary and quality vote.
The IHBDF also has a Fiscal Council, an internal control and inspection body consisting of three members appointed by the Governor of the Federal District.
The activities carried out by the CA and the Fiscal Council are not remunerated and the remuneration of the members of the IHBDF DE is established by the CA, in amounts compatible with the prevailing levels in the labor market, for professionals with equivalent degrees of professional training and specialization .
Given its characteristics, the type of institution, the origin of the resources, the public purpose and the integral care to SUS users, the law provides for district tax exemption for the IHBDF, as well as indicates the obtaining of a Certificate of Beneficent Entities (CEBAS) and consequent tax exemptions.
The law made it certain that no certification or qualification of the HBDF would be lost. The medical and multiprofessional residencies continued to function, with the possibility of expansion, since the autonomy granted to the hospital facilitated the implementation of the budget aimed at teaching and research.
There was a projection, for the first year, to maintain the budget currently dedicated to the HBDF. The intention was to provide efficiency to the hospital management, allowing it to treat more people, with better quality treatment, with the same values spent today.
Law N. 5.899 / 2017 established that personnel selection and hiring processes, under the terms of their own regulation, should be carried out according to the following:
For admission of IHBDF personnel, the processes must be carried out in a public, objective and impersonal manner, following the principles of publicity, impersonality, morality, economics and efficiency;
For acquisitions, divestitures and contracting by the IHBDF, they must observe the principles of publicity, impersonality, morality, economics and efficiency, as well as the principle of objective judgment, the appraisal of the proposals made in accordance with the criteria established in the Notice, the equality of conditions between all suppliers and the guarantee of broad defense to discordants.
Among the model innovations, it is also worth mentioning the preview that the management contract may have a term of up to twenty years, and may be renewed or extended, according to public interest, and should be added to annually to renegotiate the target development resources, and performance indicators.
The Law has provided for the issuance of a Regulatory Decree, which complements the characteristics of the CA, Fiscal Council and the Board of Executive Officers, as well as the form of intermodal provision and transition, indispensable for the approval of the Statute and the installation of the Institute. This Decree was edited by the Governor and published in the Federal Register of the DF on July 7, 2017, receiving the number 38,332. Soon after that, the members of the Board of Directors were appointed2323. Brasil. Tribunal de Justiça do Distrito Federal e Territórios. Ação Direta de Inconstitucionalidade nº 20170020137585ADI. Relator: Romão C. Oliveira - Conselho Especial. Diário de Justiça Eletrônico 2017; 07 dez..
The Statute, approved by the Board of Directors on August 15, 2018 and registered in a notary’s office, establishes the birth of the IHBDF and provides for the adoption of internal governance norms, as well as the deliberative bodies’ competences and attributions of institutional actors.
Among the internal normative instruments, in addition to the management contract signed on 01/11/2018, the following documents, approved by the Board of Directors on December 1, 2017 are noteworthy: Internal Regulation, Purchasing and Hiring Regulations, and Regulation of the Selection Process for Admission of Personnel.
When creating the regulations, the following were used as paradigms or analogous designations: the PHC/Rede Sarah de Hospitais de Reabilitação, the Instituto de Responsabilidade Social Sírio Libanês (IRSSL), the Agência Paulista de Promoção de Investimento e Competitividade (Investe SP ), Serviço Social da Indústria (SESI),Serviço Nacional de Aprendizagem Industrial (SENAI), Hospital Municipal Doutor Célio de Castro, Fundação Faculdade de Medicina/SP, Empresa Brasileira de Serviços Hospitalares (EBSERH) and Agência Nacional de Águas (ANA).
In addition to these, recent norms and solutions for the public sector were studied, originated from the private sector, not yet incorporated into the norms of the above mentioned entities, especially the Bank of Prices and the Integrated Contracts, which were inspired, among others, by the norms of Government of the State of Minas Gerais and Law n. 13303 of 06/30/2016, which approved the legal status of state-owned enterprises.
To create the management contract, similar PHC contracts were studied: Hospital das Clínicas da Faculdade de Medicina da Universidade de São Paulo (HCFMUSP), Instituto do Câncer do Estado de São Paulo (ICESP); IRSSL (Hospital Municipal Infantil Menino Jesus e Hospital Geral do Grajaú), Instituto de Gestão em Saúde (IGES) /Hospital de Urgências de Goiânia (HUGO); and the Brazilian Red Cross - Rio Grande do Sul branch / Complexo Municipal Albert Schweitzer).
All the mentioned documents - the full text of District Law n. 5,899 / 2017, of Decree n. 38.332/2017, of the IHBDF Statute, of its Internal Regulations, of the Purchasing and Hiring Regulations and of the Selection Process for Admission of Personnel - are available for consultation on the Institute’s website at (www.institutohospitaldebase.com).
Difficulties faced and current situation
After the deliberation of the CSDF, the first draft of the bill was discussed with institutions such as the Brazilian Bar Association, the Regional Medical Council, the Public Ministry of the Federal District and Territories (MPDFT), the Attorney General’s Office and the General Controller’s Office of the Federal District and TCDF advisers, which facilitated the discussion of the subject in the following phases.
Since the beginning, the proposal to change the legal-administrative model of the largest public hospital in the DF found resistance, and the first was the approval of the specific law on which the creation of the IHBDF depended. During the legislative process, the major obstacles were imposed by public servant unions, which were quite strong, especially in the DF, as they were concerned about the loss of political power from the new personnel regime. The Secretary of Health visited the 24 district representatives individually to clarify doubts about the project. Several public hearings and seminars were held, until the bill was finally approved five months later, by a tight margin of votes in the CLDF. After that, the legal obstacles commenced. First, there was an attempt by an MPDFT district attorney to make it difficult for the employees to remain assigned to the IHBDF and according to the choice of the CA’s worker member.
Subsequently, after the IHBDF Statute was approved and registered in a notary’s office, the Physicians’ Union filed a suit to question the model, claiming that it was a privatization, and obtained a preliminary decision that halted the construction of the necessary documents for the hospital management to assume the IHBDF, which delayed the effectiveness of the proposal. The same decision also determined that the CA would transform the Institute into a public foundation, although there was no legal authorization to do so.
Law n. 5.899, of 2017, was also the subject of two direct actions of unconstitutionality before the Court of Justice of the Federal District and Territories (TJDFT), which was filed by two political parties opposed to the government and had the constitutionality of all its devices recognized by unanimity by the Special Court of the TJDFT, with the participation of 20 of the 21 judges. At the judgment, the TJDFT2424. Brasil. Tribunal Superior do Trabalho. Processo Suspensão de Segurança nº 1000186-54.2018.5.00.0000. Rel. Ministro Presidente Joao Batista Brito Pereira. Diário Eletrônico da Justiça do Trabalho 2018; 16 abr. thus decided:
The federal, state and municipal public administration have instituted autonomous social services as a way to organize the management of their own activities. The Federal Supreme Court has recognized the possibility of establishing Autonomous Social Services as a private legal entity created for the purpose of providing public services in cooperation with the Government, including the provision of qualified medical assistance (ADI 1.864/PR and RE 789874). The legal objective of the contested law is the provision of qualified and free medical care to the population and the development of teaching, research and management activities in the health field, in cooperation with the Government. The IHBDF is responsible for administering the movable and immovable assets that comprise the patrimony of the State Health Secretariat unit of the related denomination (article 4 of Law 5,899 / 2017). Hence, the contested law does not represent an affront to the priority objectives of the Federal District provided for in items I to IV, of art. 3 of the LODF, nor does it contradict the provisions of art. 16, item II, of the Organic Law of the Federal District, regarding the conservation of the public patrimony. The Autonomous Social Services are not part of the direct or indirect public administration, so that they are not subject to the regulations set forth in articles 19, items II and IX; 22, § 3; 26; 28; 60, item XIV, 80, 149, §§ 7 and 8, 151, item I, 157, §1, items I and II, 186, item I, 204, §2 and 214, all of the Organic Law of the Federal District. Unconstitutional materials were not found. It was demonstrated that the legal diploma does not suffer from the alleged formal or material defects, and the formulated claims are judged to be unfounded concerning the direct actions of unconstitutionality. DECISION: Dismiss the application. Unanimous. (Judgment n.1064790, 20170020137585ADI, Rapporteur: ROMÃO C. OLIVEIRA SPECIAL COUNCIL, Judgment Date: 11/21/2017, published on DJE: 12/07/2017, p. 67/68).”
The dismissal of the direct action of unconstitutionality has the effect of expressly declaring the constitutionality of the norm. Therefore, the actions that confronted the IHBDF ended up having the effect of giving it greater legal stability. The decision of the Special Council of the TJDFT has scope for all actions that discuss the validity of the norms and was used as the basis for the reform of the preliminary decision that overrun the internal processes of the IHBDF.
After approval of the statute and regulations of the Institute, another difficulty was the creation of the management contract, which could be questioned by the TCDF or in a legal action. Hospital de Base did not produce consistent information and it was necessary to establish a working group, which produced an extensive report to establish performance targets and indicators, based on the survey of figures from the three previous years.
Finally, after the inception of the management contract, another setback hindered the IHBDF activities: decisions of the first instance of the Labor Court of the Federal District, which suspended the selective processes for the hiring of personnel. Once again there was a delay in the agenda due to these decisions. However, the President of the Superior Labor Court suspended the effectiveness of these injunctions (Action TST N. 1000186-54.2018.5.00.0000), with binding effects on all similar actions, allowing the conclusion of several selective processes. Since then, more than 1,200 professionals have been hired by the IHBDF according to the CLT regime, replacing civil servants that were reassigned to other health units of the SHS-DF network25.
At present, the CA of IHBDF has already received three income statements from the Board of Executive Officers, and the results are significant.
The IHBDF reopened 107 beds that were blocked due to lack of personnel or infrastructure, and there are no more blocked beds in the hospital. There were six functioning operating rooms. Currently, after the purchase of equipment, investments in infrastructure and personnel management, there are twelve functioning operating rooms.
The daily number of surgeries increased from approximately 15 per working day in the month to over 40 in August 2018. The average occupancy of the emergency unit decreased from 195 to approximately 120 patients, above the capacity of 83 patients, but showing a quite significant decreased, due to the flow of surgeries and hospitalizations in the ward.
The number of oncology consultations increased from 10 to 180 per month, which allowed ending the waiting line for clinical oncology treatment of the Federal District. The IHBDF makes its purchases in 40 days on average, while the SHS takes an average of six to eight months with the bidding process, and the value of hiring expenses is similar, getting to be 10% lower on some items. Supply and maintenance problems were substantially reduced. Finally, the user satisfaction indicator increased from 31% to 65% in the emergency unit and from 31% to 72% in the outpatient clinic.
One should note that the physical structure is the same, the budget is the same as in 2015, and the IHBDF operates today with fewer workers than it did before the model changed. The difference lies in the rules governing its operation. Standards designed to provide health, which increase the agility without sacrificing transparency.
The Brazilian SUS is currently experiencing a difficult moment. The population’s aging, the change in the epidemiological profile, the increase in chronic-degenerative diseases, and economic recession - leading people to lose their jobs, corporate health plans or the ability to pay for private public health – result in the increased demand for public health care, while the health system is receiving fewer and fewer resources to cover its expenditures.
Providing universal, comprehensive and free health care is a complex process, and if mechanisms for the modernization of management tools are not developed, SUS is in serious danger.
District Law n. 5.899, of 2017,aimed to establish the autonomous social service Instituto Hospital de Base do Distrito Federal (IHBDF), in order to grant administrative and budgetary autonomy to the Hospital of the same name, within the scope of health care regionalization and decentralization in the Federal District.
This article reported on the main characteristics of the model implemented for the IHBDF, including its highlights, as well as the steps taken, and the difficulties found during this process.
The model has an autonomous and agile structure, but controlled by the Government, without private capital participation, although ruled by special selection and hiring rules, which allows the improvement of the quantity and quality of health care services offered to the population.
The process of installation and consolidation of the IHBDF is still ongoing, but the first figures are encouraging. We believe that once the model has been fully consolidated, it can be expanded to other DF units, as well as become the object of other studies and serve as a paradigm for other units of the federation.
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