[Cons. St., sentt. nn. 4071, 4077, 4085/2012] Sulle rette RSA il Consiglio di Stato ribadisce: l’accesso dei non autosufficienti all’assistenza rientra nei livelli essenziali

Con le recenti sentenze nn. 4071, 4077 e 4085 del 10 luglio 2012, il Consiglio di Stato si è pronunciato nuovamente sulla questione della compartecipazione al pagamento delle rette per i ricoveri nelle Residenze Sanitarie Assistenziali (per approfondire il quadro normativo e giurisprudenziale in materia, sia consentito un rinvio ad A. Candido, Il costo della non autosufficienza. Profili di incostituzionalità della recente legge lombarda n. 2/2012 sulle rette per le Residenze Sanitarie Assistenziali, nel Forum di Quad. cost. 2012).

Nel primo caso (sent. n. 4071/2012), viene in rilievo un regolamento del Comune di Brescia che aveva imposto di calcolare la misura del contributo dovuto dai familiari del disabile al pagamento della retta di degenza anche sulla base dell’ISEE dei parenti non facenti parte del nucleo familiare anagrafico di provenienza del disabile medesimo (in quanto soggetti civilmente obbligati agli alimenti ex art. 433 cod. civ.).

La seconda decisione (sent. n. 4077/2012) ha invece ad oggetto una nota dirigenziale con cui il Comune di Chiari (BS) aveva rigettato la richiesta – avanzata dai familiari di un soggetto ultrasessantacinquenne non autosufficiente ricoverato in RSA – di rideterminazione della quota di compartecipazione su di loro gravante. Il Comune aveva respinto l’istanza, appellandosi alla non univoca interpretazione del D.lgs. n. 109 del 1998.

La terza pronuncia (sent. n. 4085/2012), infine, si incentra sul problema della sussistenza o meno dell’obbligo di compartecipazione dei familiari di un’anziana disabile al sostenimento delle spese per il suo definitivo ricovero in RSA. In quest’ultima circostanza, il Comune di Rodendo Saiano Brescia aveva rifiutato di integrare la retta di degenza, invocando le previsioni del piano socio assistenziale comunale.

In tutti e tre i casi, le argomentazioni fornite dai Giudici di Palazzo Spada risultano di analogo tenore e sono rivolte a confermare – e rafforzare – l’orientamento già espresso con le precedenti decisioni n. 1607 e 5185 del 2011 (commentate su questo blog, rispettivamente qui e qui). Esse  possono essere così di seguito sintetizzate:

a)    devono ritenersi illegittimi quei regolamenti (come accade per il Comune di Brescia) che non operino una distinzione tra la posizione dei soggetti disabili gravi o degli anziani non autosufficienti e quella degli altri utenti, posto che, nella prima ipotesi, l’art. 3, co. 2-ter del D.lgs. n. 109 del 1998 impone di far leva sulla condizione economica del solo interessato;

b)    nonostante l’art. 3, co. 2-ter demandi in parte la sua attuazione a un successivo decreto, esso contiene tuttavia un principio immediatamente applicabile, costituito – appunto – dalla evidenziazione della situazione economica dei soli assistiti, in tutti quei casi in cui (con riguardo alle prestazioni sociosanitarie, erogate a domicilio o in RSA, di tipo diurno o continuativo) vengano in rilievo persone con handicap permanente grave o soggetti di oltre sessantacinque anni non autosufficienti;

c)    le leggi regionali e i regolamenti comunali devono osservare tale principio, che rappresenta uno dei livelli essenziali delle prestazioni da garantire uniformemente su tutto il territorio nazionale, essendo volto a facilitare l’accesso ai servizi sociali per i soggetti più bisognosi di assistenza;

d)   la tesi dell’immediata applicabilità della norma in oggetto si fonda non soltanto sul quadro costituzionale e legislativo risultante dal diritto interno, ma anche su fonti internazionali, quali la Convenzione di New York del 2006 sui “diritti delle persone con disabilità” (ratificata con legge n. 18 del 2009), che impone agli Stati aderenti un dovere di solidarietà nei confronti dei disabili, sottolineando la necessità di valorizzare questi ultimi come soggetti autonomi e a prescindere dal contesto familiare in cui sono collocati, anche ove ciò comporti un aggravio di spese per gli enti pubblici.

Da ultimo, giova segnalare che, nel caso deciso con sent. n. 4085/2012, il Consiglio di Stato si è spinto sino al punto di affermare che, perché la normativa poc’anzi richiamata possa ritenersi applicabile, non è richiesta “la totale non autosufficienza del disabile o dell’anziano, tanto meno così soggettivamente valutata dall’ente erogatore, bensì la ricorrenza di “handicap permanente grave” o di “non autosufficienza fisica o psichica” nel soggetto ultra sessantacinquenne, accertate ai sensi dell’art. 4 della legge n. 104 del 1992”. Né, peraltro, assume rilevanza “la mancata concessione […] dell’indennità di accompagnamento in sede di riconoscimento dell’invalidità al 100%”.

Sulla base delle suesposte argomentazioni, condivisibilmente i Giudici di Palazzo Spada hanno riformato le sentenze di primo grado e hanno annullato gli atti impugnati (ivi compresi i relativi regolamenti) in quanto illegittimi, poiché contrastanti con l’esaminato principio – livello essenziale delle prestazioni – espresso dall’art. 3, co. 2-ter del D.lgs. n. 109 del 1998.

Alessandro Candido

Foto | Flickr.it

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290 risposte a [Cons. St., sentt. nn. 4071, 4077, 4085/2012] Sulle rette RSA il Consiglio di Stato ribadisce: l’accesso dei non autosufficienti all’assistenza rientra nei livelli essenziali

  1. Alessandro Candido ha detto:

    Si ringrazia l’Avv. Francesco Trebeschi per la gentile segnalazione delle sentenze del Consiglio di Stato nn. 4071, 4077 e 4085 del 2012.

  2. diego brambilla ha detto:

    trovandomi nella situazione in cui il mio comune di residenza mi ha testualmente detto che per il pagamento della retta in RSA di mia madre 72 anni invalida al 100% rispondono i famigliari obbligati per legge mio padre,io e i miei fratelli, come posso far valere i miei diritti? devo andare da un avvocato ?

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    Diritti Regionali ringrazia dell’attenzione, ma non può e non desidera dare pareri su casi singoli. E’ preferibile che domande di interesse personale dei lettori non siano rivolte al sito e agli autori dei singoli testi attraverso commenti ai testi stessi.

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