2020Guhap70052 Revocation of the determination to recover expenses for long-term care benefits

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June 10, 2021

June 24, 2021

1. The plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The Defendant’s decision to recover KRW 1,058,140,040 of the cost of long-term care benefits rendered to the Plaintiffs on May 28, 2020 is revoked.

1. Details of the disposition;

A. Status of the parties

1) The Plaintiffs are jointly establishing and operating ○○○○○○ Medical Center (hereinafter “instant medical center”), which is a medical care institution located in ○○○-dong, ○○○○-dong (hereinafter “instant medical care center”).

2) The Defendant is a non-profit special public corporation as an insurer of the national health insurance program and the long-term care insurance program for the aged.

(b) On-site investigations;

1) On February 18, 2020 to February 24, 2020, the Defendant and So-si jointly conducted an on-site investigation into the details of the instant long-term care benefit payment (hereinafter “instant investigation”).

2) As a result, it is confirmed that the Plaintiffs received expenses for long-term care benefits (hereinafter referred to as “benefit costs”) in violation of the relevant laws and regulations. The violation is largely divided into three parts, i.e., a claim for violation of the criteria for placement of human resources (unfair amount 1,025,915,090), ii a claim for violation of the criteria for addition of addition of human resources (unfair amount 32,102,360), iii a claim for the number of daily prices per day during the outer stay period (unfair amount 122,590 won).

(c) a decision of restitution;

On May 28, 2020, the Defendant notified the Plaintiffs of the decision on recovery of KRW 1,058,140,040 for 79 months in total, including April 28, 2013 (hereinafter “instant disposition”).

(d) Request for investigation;

피고는 원고 ■■■에 대하여 경기용인서부경찰서에 수사의뢰를 하였고, 이에 원고 ■■■는 사기죄 등으로 형사 입건되어 현재 수사 중에 있다.

[Reasons for Recognition] Uncontentious Facts, Gap evidence Nos. 34, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

원고들은 이 사건 요양원의 시설장 ▢▢▢, 간호사 ▣▣▣, 입소자들에 관한 인력배치 기준 위반 사실은 인정하지만, 그 외 종사자들에 관하여는 인력배치 기준을 위반한 채, 급여비용을 부당 청구하여 지급받은 적이 없다. 그런데도 피고는 원고들이 제출한 이 사건 요양원의 종사자들에 대한 물리치료일지, 근무일지 등의 자료를 믿을 수 없다는 이유로 이 사건 처분에 이르렀는바, 처분사유가 인정되지 않는 이 사건 처분은 위법하므로 취소되어야 한다.

B. Determination

1) Relevant legal principles

Article 43(1)4 of the Long-Term Care Insurance Act provides that “If a long-term care institution claims and receives facility benefits by fraud or other improper means under Article 37(1)4, the Defendant shall collect an amount equivalent to the long-term care benefit cost.” The foregoing provision states that “Where a long-term care institution claims facility benefits by fraud or other improper means, it does not require submission of false data or active concealment of facts for receiving facility benefits, and includes all acts of claiming and receiving facility benefits (see, e.g., Supreme Court Decision 2019Du52980, Jun. 25, 2020).”

2) Whether there exist grounds for the disposition

In full view of the above evidence and evidence as well as evidence Nos. 3 through 25, as well as some of the statements and videos Nos. 1 through 33, the following circumstances recognized by adding the whole purport of the pleadings are acknowledged: (a) the Plaintiffs’ claim for violation of the criteria for human resources assignment; (b) the Plaintiffs’ claim for violation of the criteria for additional placement of human resources; and (c) the daily number of claims during the period of outpatient stay.

A) Claim for violation of human resource placement standards

(1) A long-term care institution shall have facilities and human resources under Article 31 of the Long-Term Care Insurance Act and Article 23 of the Enforcement Rule of the same Act, and verify compliance with the criteria for placement of human resources under Articles 47 through 51 of the Notice on the Guidelines for the Provision of Long-Term Care Benefits and the Calculation of Expenses for Long-Term Care Benefits (hereinafter “Long-Term Care Notice”). If a person fails to meet the criteria for placement of human resources, he/she shall claim reduction of expenses for benefits pursuant to Articles 66 and 67 of the Long-Term Care Notice. Furthermore, a person working for a long-term care institution shall work for the pertinent institution as one type of occupation reported to the competent administrative agency, and, in principle, he/she shall not perform any other duties than reported ones, and shall work for one employee as an actual job reported at least

(2) However, as the result of the instant investigation, it was confirmed that employees, such as the head of the facility, nurse, physical clinic, caregiver, caregiver, sanitary clinic, etc. of the medical center of this case, such as the “violation of violation”, filed a false report on the working hours to the Defendant by leaving the Defendant in a false manner even though they did not work as occupational categories reported to the competent authorities, or did not work as the standard monthly working hours upon meeting the standard monthly working hours, and that they filed a false report on the entry and departure of visitors, such as filing a false report on the entry and departure of visitors, Article 31(1) of the Long-Term Care Insurance Act, Article 23(2)2 of the Enforcement Rule of the Act on Long-Term Care Insurance, Article 22(1) [Attachment 4] of the Enforcement Rule

(3) We examine specifically the violation of the criteria for the placement of employees.

① 물리치료사 ▤▤▤은 2013. 4. ~ 2019. 6. 이 사건 요양원에서 1일 5시간 정도 근무하였다(을 제3 ~ 9호증).

② 요양보호사 ▥▥▥은 2017. 8. 총 72시간(을 제10호증), 요양보호사 ▦▦▦은 2018. 5. 85시간 및 2018. 6. 72시간(을 제11, 12호증), 요양보호사 ▧▧▧은 2017. 8. 80시간(을 제13호증), 요양보호사 ▨▨▨는 2019. 5. 102시간(을 제14호증)씩 각 근무하였다.

③ 이 사건 요양원의 위생원으로 신고된 근로자들인 ▩▩▩, ◌◌◌, ◍◍◍는 [별지 2] '위반내용' 기재 각 해당 기간에 위생원으로서의 본연의 업무인 세탁업무를 수행하지 않은 것으로 확인되었다(을 제3, 15, 16호증).

④ 조리원으로 신고된 ◎◎◎은 2019. 8. ~ 2019. 10. 실제 조리원으로 근무하지 않았고, 조리원 ●●●는 신고한 근무시간과 달리 2017. 1. ~ 2017. 4. 매월 40시간, 2017. 5. ~ 2018. 11. 매월 36시간, 2018. 12. ~ 2019. 2. 매월 4시간씩 근무하였고, 2019. 11. ~ 2019. 12.에는 조리원으로 근무하지 않았으며, 조리원 ◆◆◆은 2019. 2. 실제 125시간만 근무한 것으로 확인되었다.

(5) The aforementioned forms of work constitute a reason for reduction of expenses incurred in providing benefits due to a violation of the standards for placement of employees pursuant to Article 66 of the same notification, on the ground that long-term care has failed to meet the monthly standard working hours per person (the working days excluding holidays and Saturdays in the relevant month x eight hours) for employees to add or reduce expenses incurred in providing benefits referred to in Article 49 of

(4) Article 47(1)1 of the Long-term Care Notice provides that “A person admitted to the instant medical care center for calculating the addition or reduction of the cost of benefits shall include a beneficiary and a person other than his/her grade.” The number of persons admitted to the instant medical care center shall be the basis for calculating the number of persons admitted to the instant medical care center. Therefore, whether a person who has failed to report a delay or failed to report a change in the number of persons admitted to the instant medical care center should be determined on the basis

원고들은 이 사건 소장에서 시설장 ▢▢▢, 간호사 ▣▣▣를 비롯하여 입소자들의 입소신고 지연 및 미신고 등에 대하여는 이를 인정하였다. 나아가 을 제20 ~ 25호증의 각 기재를 종합하더라도, 원고들이 이 사건 요양원을 운영하는 과정에서 [별지2] 위반 내용 '2. 지연신고 또는 미신고 입소자에 따른 인력배치 기준 위반'과 같이 입소자 지연신고 또는 미신고로 인하여 인력배치 기준을 위반한 사실이 인정된다.

(5) Ultimately, even though the Plaintiffs did not meet the criteria for human resource placement as above and claimed for reduction of expenses for benefits, they did not claim for reduction of expenses for each employee’s working hours to deny false care allowances. The Defendant calculated the rate of reduction of expenses for human resource placement in accordance with Article 66 of the Public Notice of Long-Term Care Act based on the foregoing illegal demand and supply, and notified the recovery of KRW 1,025,915,090 for expenses for benefits. This is justifiable in accordance with the relevant statutes.

B) Violation of the criteria for additional placement of human resources and violation of the standard number of stay stay;

(1) According to Article 43(1)4 of the Long-Term Care Insurance Act, Article 54(1) and (2), and Article 63 of the Long-Term Care Insurance Act, a long-term care institution that intends to receive an additional amount of expenses for benefits shall meet the criteria for placement of human resources under Article 48, and where the application of the reduction of expenses for benefits, such as violation of the criteria for placement of human resources, an additional amount of expenses for benefits for the pertinent month shall

As seen earlier, although the Plaintiffs could not receive additional charges based on the criteria for additional placement of human resources in violation of the criteria for additional placement of human resources, (attached Form 2) was claimed and paid additional charges based on the criteria for additional placement of human resources (e.g., performance improvement incentives, additional placement of nurses, additional placement of nursing assistants, and additional placement of nursing assistants, etc.) as stated in paragraph (4) of the “violation of a violation.” Accordingly, the Defendant applied the calculation of the amount of additional expenses, thereby making a decision to recover the amount equivalent to KRW 32,102,360 of the additional

(2) According to Articles 45(2) and 47(1)2 of the Long-term Care Notice, where a beneficiary is hospitalized in a medical institution or is staying for gambling with the permission of the head of the relevant facility, 50% of the expenses for outpatients shall be calculated as the expenses for outpatients, but may be calculated by up to 10 days per time (15 days per month). The period for calculating the expenses for outpatients’ outpatients care shall be indicated in the record of providing the relevant benefits. Furthermore, where the period for calculating the expenses for outpatients care exceeds the period for calculating the expenses for outpatients care, the number of admitted persons shall not be included in the number of admitted persons, and the daily number of admitted persons cannot be claimed for the period for which they are staying for outpatients. Nevertheless, the Plaintiffs violated the above criteria, and received the payment by filing a claim for reimbursement of total of KRW 122,590 on a daily average allowance even if they were staying for outpatients.

(3) The Defendant calculated the reduction rate of the standard for placement of human resources pursuant to Article 66 of the Public Notice of Long-Term Care Act based on the foregoing illegal receipt, and notified the recovery of each of the above allowances. This is justifiable in accordance with relevant statutes.

3) Sub-determination

The plaintiffs' above illegal receipt constitutes "the case where the plaintiffs claimed expenses for long-term care benefits by fraud or other improper means" under Article 43 (1) 4 of the Long-Term Care Insurance Act, and received them. The defendant's disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiffs' claims are without merit, and they are dismissed. It is so decided as per Disposition.