Ombudsman Velislava Delcheva proposes removing the provision from the bill amending the Health Act that envisages an automated system determining which TELK and NELK decisions are high-risk and triggering their review. The bill is due to be considered at second reading.
According to Delcheva, the software assessment should not, by itself, lead to the withdrawal of rights, the suspension of payments or the annulment of decisions. Any subsequent review should be carried out individually by a competent medical-expertise body.
Unclear Criteria and the Risk of a Parallel Procedure
The ombudsman points out that the proposed amendments do not clearly define the criteria for determining high risk. Nor do they specify what personal and medical data the system will use, or how citizens will be able to challenge the results of the automated assessment.
When a high risk linked to a TELK decision is identified, the case will be reviewed by NELK. When the alert concerns actions by NELK, the review will be conducted by persons appointed by the Minister of Health. According to Delcheva, this could create a parallel control procedure that does not comply with the existing procedure for appealing expert decisions.
“The risk identified by the system should serve solely as an alert,” the ombudsman insists. She proposes that citizens be notified of the review, be allowed to submit explanations and evidence, and receive a reasoned decision that can be appealed.
Warning for People with Rare Diseases
Delcheva draws attention to the risk of discrimination against people with rare diseases and severe or multiple disabilities. If artificial intelligence or self-learning algorithms are used to detect deviations, unusual medical cases could be classified as suspicious. As a result, people with the most complex health conditions could be subjected to reviews more frequently.
Therefore, the ombudsman proposes that the system operate according to predefined, clear and verifiable rules and statistical methods approved by a human. The assessment should concern expert decisions and medical documentation, rather than citizens’ personal characteristics or behaviour. The type of disease and the address should not, in themselves, be risk indicators.
New Article in the Health Act Proposed
Instead of the proposed new Paragraph 9 of Article 108a, Delcheva proposes a separate Article 108b. It should set out the system’s objectives, the data used, the assessment criteria, human oversight and the rights of affected citizens.
Restrictions on access to the information, the recording of every use of it, an annual public report and an independent audit are proposed. Before the system is introduced, impact assessments concerning fundamental rights and personal-data protection should be carried out. The methodology should be developed following consultations with organisations representing people with disabilities.
Under the current law, medical-expertise bodies may, on their own initiative, annul, amend or review an incorrect decision within three months of its issuance. Delcheva insists that the new framework should not create uncertainty as to whether an automated alert can trigger a review after this period has expired.
NELK already carries out risk-based oversight and randomly reviews at least 3% of uncontested TELK decisions. According to the ombudsman, the new system should support this mechanism rather than create a separate review procedure.
Delcheva proposes that the Health Committee request an opinion from the Commission for Personal Data Protection before the second vote. In her words, the envisaged two-month period is insufficient for drawing up the rules, developing and testing the system, and carrying out the necessary assessments. Therefore, the new article should enter into force only after the methodology and impact assessments have been approved.