CIRCULAR N. 13/2010
SUBJECT: Changes to the rules governing permits for assistance to persons with disabilities
- computer database at the Department of Civil Service
- Law 4 November 2010, No 183, Art. 24.
Foreword.
the Official Journal on November 9, 2010, No 262, was published
Law 4 November 2010, No 183, entitled "Powers to the Government on the strenuous work of
reorganization of entities, leave, expectations and permits, shock absorbers social,
employment services, job incentives, apprenticeship, employment
women, and measures against undeclared work and provisions regarding working
public and labor disputes.. "The law will come into force November 24, 2010.
Article. 24 of the new law covers the "Changes to the rules governing permits
assistance to people with disabilities in situations of gravity." This provision partially
innovative system of permits for assistance to persons with disabilities contained in the law
February 5, 1992, n. 104 and Legislative Decree 26 March 2001, No. 151.
The rule also provides for the establishment and operation of a computerized database
for the collection and management of data relating to the use of permits for the purpose of monitoring and control
at the Presidency of the Council of Ministers - Department of Public Service.
is unchanged by the system of permits, transfer and protection of
home for disabled workers who enjoy the same facilities for the needs of their
person.
This circular was drawn up following an investigation of work
comparison with the Ministry of Labour and Social Affairs and other government
institutionally involved in the matter, with the aim of providing general guidelines for the sector consistent
the public and private work. La finalità della presente circolare
è quella di rendere degli orientamenti per l'interpretazione e l'applicazione della nuova
normativa, ferme restando le autonome determinazioni di ciascuna amministrazione
nell'esercizio del proprio potere organizzativo e gestionale. Rimane fermo quanto già
illustrato dal Dipartimento della funzione pubblica nella Circolare n. 8 del 2008, par. 2.2 e
2.3, a proposito dell'utilizzo frazionato dei permessi.
Prima di affrontare nel merito le questioni, si ritiene necessario compiere una
precisazione di tipo terminologico. Come noto, il dibattito circa la terminologia da
utilizzare per indicare le persone con disabilità è stato ampio ed è ancora vivace.
the spirit that animates the debate is to avoid words or definitions that may contain inherently
idea of \u200b\u200bnegative values, promoting instead the use of terms and concepts that allow
to highlight the value of diversity. A
international level, has spread the concept of "disabled person", which is used in
United Nations Convention of 13 December 2006 on the Rights of Persons with Disabilities
, ratified in Italy with law March 3, 2009, No 18. To date,
having to deal with the matter, the best solution would be to follow the choices made in
international, with the result that even when examining della disciplina contenuta nella
l. n. 104 del 1992, che è la legge italiana fondamentale in materia (Legge-quadro per
l'assistenza, l'integrazione sociale e i diritti delle persone handicappate), dovrebbe farsi
riferimento esclusivamente al concetto di persona con disabilità. Tuttavia, ragioni di
chiarezza inducono a seguire nello specifico una strada diversa che, nel rispetto del testo
legislativo, utilizza la diversa espressione di "persona in situazione di handicap". Benché
questa espressione possa ormai risultare inadeguata alla luce di quanto sopra detto, essa
è ancora presente nel testo della menzionata l. n. 104 e serve ad indicare con chiarezza
la situazione dei disabili nei for which the investigations were carried out in accordance with Article
. 4 of the same Act (Assessment of handicap). These findings, which may arise from
also a connotation of severity of disability when it fulfills the requirements of Article
. 3, paragraph 3 (or "if the handicap, single or multiple,
has reduced the autonomy of the individual, age-related, so that it requires intervention
relief permanent, continuous and comprehensive in the sphere of the individual or
report "of the person), are a prerequisite for the use of various facilities provided in the law itself
; the situation serious handicap certificate
in particular is a prerequisite for the use of the permits provided for in art. 33.
It should be noted, therefore, for greater accuracy and ease of exposition,
in this circular and any subsequent interpretive notes will be kept
reference to the term "person with disabilities" and "person in need of serious disability
" while in the awareness of the inadequacy of these expressions
the evolution of international norms and social custom. The following
then proceeds to explain the recent additions to art. LN 24 of 183, which basically consist in
restriction of persons entitled to benefit from the
allowed to assist people with disabilities severe
elimination of the requirements of co-existence and continuity and exclusivity of the assistance given by
worker in ridisciplina the right to transfer, in anticipation of the decline
in the case of the absence of requirements for the use of the facilities and the establishment
the database at the Department of Public Service.
2. Redefinition of workers entitled to receive permits in art. 33,
paragraph 3, of LN 104 of 1992 to assist people experiencing
serious handicap.
The main innovation of the law in matters of persons entitled to benefit from the
allowed to assist a person in severe disabilities. In this regard, the
paragraph 1, lit. a), art. Replaces the text of Article 24. 33, paragraph 3, of the
ln 104 and paragraph 2 of that article replaces paragraph 2 of art. 42 of Legislative Decree no.
151, 2001 and repealing subsection 3.
The new text of paragraph 3 of art. 33 cited states: "Provided that the person is not handicapped
admitted full-time, the employee, public or private
, assisting people with disabilities in situations of gravity, spouse, relative or
affinity within the second degree, or within the third degree if the parents or the spouse of the person with disability
of severe
have reached sixty-five years of age or are they also suffering from disabling diseases or are dead or missing
, is entitled to receive three days of monthly allowance paid by covered
notional contribution, even on an ongoing basis. The said right can not be recognized
to more than one employee to assist the same person with disability in situations of
gravity. For service to the same child with a handicap in
seriousness of the disability, the right is granted to both parents, including adoptive
that can benefit from it either. "
According to the rule, in general, the entitlement to the use of permits
to assist a person with special needs serious it is for the spouse and relatives and
related within the second degree. Compared to previous legislation, the new provision on the one hand
expressly mentioned among the workers holding the spouse of that privilege,
other place has the limitation of family and kin to the second degree.
Given the general rule, the law has however made an exception for cases in which parents
or the spouse of the person to attend are at least sixty-five years of age or
are also suffering from debilitating diseases. Under these assumptions, estimates
prohibitively expensive or impossible to support the work because of age but not more
young or the illness of the family, the law provides for the possibility of extending the legitimacy of the ownership
permits also to the relatives and kin to the third degree.
Therefore, the most important innovation compared to the previous regime is represented by
restriction to the category of relatives eligible for permits, because the new rule
dropped from third to second degree, unless the occurrence of exceptional situations of
'absence of disease or age of the person.
For convenience, it is recalled that the family relationship and the affinity
are defined by the Civil Code (art. 74 cc: "The relationship is il vincolo tra le persone che discendono da
uno stesso stipite"; art. 78 c.c.: "L'affinità è il vincolo tra un coniuge e i parenti dell'altro
coniuge"). In base alla legge, sono parenti di primo grado: genitori, figli; sono parenti di
secondo grado: nonni, fratelli, sorelle, nipoti (figli dei figli); sono parenti di terzo grado:
bisnonni, zii, nipoti (figli di fratelli e/o sorelle), pronipoti in linea retta. Sono affini di
primo grado: suocero/a, nuora, genero; sono affini di secondo grado: cognati; sono affini
di terzo grado: zii acquisiti, nipoti acquisiti.
La legge non ha definito la nozione di "patologie invalidanti". In mancanza di un'espressa
choice in the matter, after consulting the Ministry of Health, a useful point of reference for
the detection of these diseases is represented by art. 2, paragraph 1, lit. d) in the interministerial decree
- Ministry of Social Solidarity, Ministry of Labour and Social Security
, Ministry for Equal Opportunities 21 July 2000, No 278 (
Regulation laying down provisions for implementing Article 4 of Law March 8, 2000, n. 53,
on leave for special events and causes), which governs the circumstances in which
may be granted leave for serious reasons mentioned art. 4, paragraph 2, of ln
53, 2000. In particular, it deals with: "1) diseases acute or chronic conditions that determine
temporary or permanent reduction or loss of personal autonomy, including
chronic diseases of congenital, rheumatic, neoplastic, infectious, metabolic,
post-traumatic, neurological, neuromuscular, psychiatric, from addictions,
to the evolving nature or subject to periodic flare-ups, 2) acute or chronic
that require nursing care or frequent monitoring clinical chemistry and instrumental
, 3) acute or chronic diseases that require the active participation of
in family health care; " .
Under these circumstances, which of course should all be documented, the
law allows to widen the circle of family members entitled to receive permits
ex art. 33, paragraph 3, of LN 104 of 1992, estimating a priori that subjects suffering from diseases
concerned are unable to provide adequate assistance to the person in
severe disabilities. Therefore, if the spouse or parents of the person
with disabilities are suffering from serious diseases covered in this list,
assistance will also be paid by relatives or marriage within the third degree.
As mentioned, you can move from second to third degree of kinship even if
death or absence of a spouse or parent of the person with disabilities
serious. For the purposes of the provisions under consideration, it is considered appropriate due to the concept of
absence, in addition to the absence of natural and legal situations in the strict sense (
state of celibacy or natural child not acknowledged), legal situations which may be assimilated, which have
stable and reliable, such as divorce, legal separation and abandonment,
documentation resulting from the judicial or other public authority.
E 'should be stressed that the ability to switch from second to third degree of assistance
also occurs when one of the entities mentioned (spouse, parent
) is in the described situations (absence, death, disabling diseases) Inventory report for the legislation
The expression disjunctive ("
if the parents or the spouse of the person with a handicap of severe
have reached sixty-five years of age or are they too suffering from debilitating or
are dead or missing" ).
3. Identifying a single point of contact for assistance to the same person in
severe disabilities.
As anticipated, the art. 24 of the Law, innovation, discipline on the entitlement to benefit
permits, did not mention the requirements of continuity and exclusivity
assistance so that they are no longer explicitly covered by the provisions in
matter. The law, however, expressly provided that the right to use permits
"can not be recognized over an employee to assist the same
handicapped person in a situation of gravity.". With this requirement was therefore
partially re-typed and the concept of exclusivity of care, limiting it to
rule that permits may be granted to a single worker for assistance
the same person. Under the law, therefore, it detects a single point of contact for each
disabled, being the person who assumes "the role and responsibilities related
itself as a reference point for management general surgery,
ensuring coordination and overseeing the constant verification of compliance with
care needs. "(as the State Council, in Opinion No. 5078 of 2008).
Given that the issue has been received many questions ,
should be noted that the new rules do not expressly preclude the possibility for the same
employee to assist people with disabilities more severe, with the result that
that met all the conditions, the same worker can receive permits
also accumulate in to assist more people with disabilities.
With the entry into force of new regulations, we must now consider passed the No opinion 13 of 2008
of this Office (footnote 8474 of February 18, 2008), published on the website of the Department of Public
.
Similarly, the new rules do not expressly preclude a worker in
severe disabilities to assist another person to be in the same
condition and, therefore, the prerequisites of the law, the employee may receive permits for himself
and the family that assists disabled.
It 'clear that a more adequate protection against the disabled is feasible, at least in
abstract when they can count on the assistance of a person who is devoted to his care
exclusively; infatti, un'attività prestata nei confronti di più
famigliari può risultare non soddisfacente. E' evidente inoltre che la fruizione di permessi
in maniera cumulativa in capo allo stesso lavoratore crea notevole disagio all'attività
amministrativa per la possibilità di assenze frequenti e protratte del lavoratore stesso.
Questi aspetti dovrebbero essere ben valutati dal dipendente che intende chiedere la
fruizione dei permessi cumulativamente, limitando la domanda alle situazioni in cui da un
lato non vi sono altri famigliari in grado di prestare assistenza, dall'altro non è possibile
soddisfare le esigenze di assistenza nel limite dei tre giorni mensili. La sussistenza di tali
presupposti, that the employee's responsibility to declare when submitting the application
, can only be referred to the assessment and the sense of
sole responsibility of the person concerned, given its absolutely
on and the difficulty of ascertaining .
4. The position of parents who attend a child with disabilities
serious.
The new law has given importance to the specialty of the parental relationship. Special rules are in fact dictated
for parents who attend a child in a situation of serious handicap.
These rules are contained in the reworked text article. 33 of LN 104 of 1992 and
art. 42 of Legislative Decree no. 151, 2001.
assistance towards the disabled child has a more flexible regime and the rules
specific exception to the "regime of the single point of contact" which was shown in the previous paragraph
. In fact, in accordance with paragraph 3 of article again. 33,
assistance may be provided alternately by both parents (for assistance at the same
child with disabilities in situations of gravity, the right is granted to both parents,
including adopted children, who may benefit from either.). Therefore, subject to the limits
total of three days per month, the daily permits can be used by
working father or mother of the worker assistance to the same child.
also be noted that under the new regulations, permits
day can be enjoyed even by the parents of a child under three years in a situation of serious disability. On the one hand
, the novel has deleted from the text of the former provision (paragraph 3 of art.
of 33 ln 104 of 1992) the words "after completion of the third year of life
baby", on the other parents are still falling into the category of relatives
entitled under the first paragraph of the period under review, so it would not be justified
favorable treatment or less favorable to the parents of a child three years
than the rest of the relatives and the like. Ciò significa che, in un'ottica di ragionevolezza
costituzionalmente orientata, la portata dell'art. 33, comma 3, della legge prevale
rispetto alla previsione dell'art. 42, comma 2, del d.lgs. n. 151 del 2001 come novellato.
La possibilità per i genitori di minore di tre anni disabile di prendere i permessi ai sensi
dell'art. 33 si aggiunge alle altre prerogative previste nel d.lgs. n. 151 del 2001. Quindi,
resta fermo il diritto dei genitori del minore di tre anni in situazione di handicap grave di
fruire, in alternativa ai permessi giornalieri mensili, del prolungamento del congedo
parentale o dei riposi orari retribuiti di cui all'art. 42 del menzionato decreto.
È opportuno segnalare that since the special institutions meet the same purpose
care of their disabled child, their use must be understood and alternative
not cumulative throughout the month, so that in the month in which one parent has been granted one or more days
permit pursuant to art. 33, paragraph 3, both parents
not be eligible for the same child not even two hours of daily rest,
the extension of parental leave and leave in art. 42, paragraph 5, of
Legislative Decree no. 151 of 2001 and vice versa. In fact, art. 42, paragraph 4, of Legislative Decree no. 151, 2001, invoking Article
. 33, paragraph 4, of LN 104 of 1992 expresses the rule of
cumulation of rest is allowed with parental leave and ordinary leave for
child's illness, excluding a contrast between the cumulation of their institutions
"special", which are designed as alternatives (according to art. 42 para 1, of Legislative Decree no.
No. 151 mentioned, the two hours allowed per day can be enjoyed as an alternative to
extension of parental leave referred to in paragraph 1 of art.
33 of the Ordinance). Furthermore, paragraph 5 of art. 42 on leave compensated
expressly provides that during the period of leave both parents are not entitled to benefits under Article
. 33, paragraph 1, of Legislative Decree no. 151 (extension of parental leave
) neither of those referred to in paragraphs 2 (two hours allowed per day) and 3 of art. 33
of ln 104 (daily permits). At
facilities provided for parents by the new paragraph 3 of art. 33 is then added
the possible use of permits for the relatives and
under that provision, of course, always within the limit of three days and as an alternative to parents.
5. The objective conditions for the recognition of the permits:
a) the person with disabilities should not be hospitalized in serious
full time.
Partly as a result of the novel, the law has maintained the objective condition
consists in the fact that the disabled person is not admitted to service full-time. It
confirms the interpretation already given under the force of law
reaffirming previous hospitalization for a full-time means the admission for the entire 24 hours. It also clarifies that the shelter
relevant to the standard is what happens at the
hospitals or other public or private facilities that provide health care
. In line with guidelines for its application for the work that had already emerged
in the private sector, states that an exception to this assumption
the following circumstances:
interruption of the shelter needs of the disabled person to travel outside of the structure that houses
for visits or therapies;
full-time admission of a disabled policeman in coma and / or terminal situation;
full-time hospitalization of a child with special needs serious
which is documented by the health care needs of the facility by a parent
or a family member.
The recurrence of the exceptional circumstances referred to above will naturally result from
appropriate medical documentation that the administration is required to assess.
b) the elimination of the requirements of co-existence, continuity and exclusivity
assistance.
Article. 24, paragraph 2, lit. b) LN 183 of the acts on Article 20, paragraph 1, of ln
53, 2000, by deleting the words "And" to "no partner".
Following this intervention, the requirements of 'continuity' and 'exclusivity' of care are no longer
expressly mentioned as prerequisites for the use of permits
in argument by the beneficiaries. Also in the drafting of Article. 33, paragraph 3, of
LN 104 of 1992 is no longer the requirement of "cohabitation", which was necessary for the use of
allowed before the entry into force of Article. 20 of ln
53, 2000. Similarly, the law was repealed Art. 42, paragraph 3, of Legislative Decree no.
151 of 2001, which provided that permits the parents of child
more severe disabilities of age could be enjoyed on the condition that there was cohabitation or
that assistance was ongoing and exclusive.
6. The powers relating to the service location.
Article. 24, paragraph 1, lit. b) LN 183 of the novel's paragraph 5 of art. 33.
The new provision states: "The employee referred to in paragraph 3 shall be entitled to choose where
possible, the work location closer to the address of the person to attend
and can not be transferred without his consent to another location." . With the change was expected that suitably
approach that can be achieved through the transfer has been home to the
assisting the worker but rather to the
address of the person to attend. The novel has eliminated an inconsistency that was present in
text of the law previously in force. The transfer and protection of the workplace, therefore,
represent a tool for easier care of the disabled. E '
should be noted that the rule, addressing the need to protect the disabled,
grants the employee a right, which can be mitigated only in the presence of objective circumstances
impediments such as lack of budget allocated place
organic seat, and may not be subject to discretionary assessment or
opportunity administration.
7. Expense of the employee concerned to the use of the facilities.
The employee concerned has the obligation to submit a specific request for the enjoyment of
benefits provided for by law and to demonstrate that the conditions of
legitimation through the production of appropriate documentation.
In particular, the employee must submit the report of the Medical Committee
which shows the detection of severe disabilities and, where appropriate, the
medical certificate which shows the debilitating disease of Article. 33, paragraph 3, of ln
104 and the medical records referred to in paragraph 5 above, let. a).
addition, the person concerned are required to certify, through appropriate documentation that is through special
affidavits, made under Articles.
46 and 47 of DPR 445 of 2000 ("Consolidated laws and regulations on administrative records
"), whether the conditions justifying
use of the facilities. In this regard, please note that, as provided in Article
. 76 of DPR said "Anyone who makes false statements, false documents or forms
uses it (...) in the cases provided for in this single text is punishable under the Criminal Code
and special laws.."
Furthermore, in support of the application, the person concerned must submit a signed declaration
responsibility and awareness to the effect that:
assist the employee in respect of the disability for which they requested
facilities or the employee needs the facilities for the needs
related to the situation of disability, the
employee is aware that the facilities are a tool to assist
the disabled and, therefore, recognition of the facilities will mean the confirmation of
- moral and legal - to perform their work effectively
for assistance, the employee is
aware that the possibility of receiving benefits involves
a burden on the administration and a commitment to public spending that the state and the community
only support for the effective protection of the disabled;
the employee agrees to immediately notify any change in
of fact and law which achieves the loss of entitlement to benefits
.
following acceptance of the application by the administration, the employee shall promptly disclose
change or termination of the facts and law
involving the loss of entitlement benefits, and will update the documentation produced
support of the instance where this is necessary, even after
the administration's request.
Again, it is useful to recall the provisions of the said consolidated
that "The production of a document containing data no longer corresponds to the truth is equivalent to using false
act." (Article 76, paragraph 2, DPR 445 2000).
are repeated here as well, the rules contained in art. 55 c, paragraph 1,
Lett. a), whereas in the absence of justification from the service using a false medical certificate
provides for the imposition of the dismissal, and art. D
55, paragraphs 1 and 2, of Legislative Decree no. 165 of 2001, which, for the same assumptions, provide
imprisonment and a fine addition to the obligation of compensation of financial loss and damage to the image caused by
. Except in emergencies
demonstrated, for the use of permits, the person must inform the competent management
absence from service in advance, if possible
with reference to the timeframe of the month in order to allow better
organization of administrative activity.
8. Duties of the administration.
administration that receives the request for the enjoyment of the advantages of
employee concerned to ensure the adequacy and accuracy of the documentation submitted
, asking, where appropriate, integration. The measures of acceptance
should be periodically monitored in order to obtain
the documentation update and verify the relevance of the statements made in support
replacement instance. It draws particular attention to the
need to ask for the new medical report if the investigation of serious disability
reviewed.
The Administration shall verify the affidavits
according to usual procedures (Articles 71 and 72 of DPR 445 of 2000) through its
inspection services, established in accordance with art. 1, paragraph 62, the LN 662 of 1996, or
however, on the instructions issued by the office in charge of personnel management. The
verification should be carried out periodically, randomly. Where
the finding proves that there are no preconditions for the legitimate use of
permits, the administration will revoke the benefits due to the decline
.
Of course, if part or as a result of investigations reveal the details of
an employee liable to disciplinary action, the Administration shall
timely statement of objections to the conduct of its proceedings, and
if appropriate, the competent authorities have the type of offense. In addition to
reload the provisions of art. 76 of DPR 445 of 2000 on
false statements, training and use of false documents, here still remember the aforementioned
rules contained in art. 55 c, paragraph 1, lit. a) and Art. 55 d,
paragraphs 1 and 2, of Legislative Decree no. 165, 2001.
Please note that the initiation and outcome of the disciplinary proceedings should be communicated
Inspectorate for Public Service as required by the Directive of the Minister for
reforms and innovations in the government of the December 6, 2007, No 8.
The administration, in another form, will make the communication permits
enjoyed by its employees for inclusion in the database established at the Department
della funzione pubblica ai sensi dell'art. 24, commi da 4 a 6, della l. n. 183
del 2010.
In fase di prima applicazione, ogni amministrazione dovrà procedere a riesaminare i
provvedimenti di assenso già adottati al fine di verificare la sussistenza delle condizioni
previste dalla nuova legge. In caso di insussistenza dei requisiti, salvo tempestiva
integrazione della documentazione prodotta in passato da parte dell'interessato, l'atto di
assenso dovrà essere revocato e le agevolazioni non potranno essere più accordate per
effetto della decadenza. Naturalmente, il dipendente che si trovi nella condizione di poter
fruire dei permessi a diverso titolo in base alla nuova legge avrà l'onere to produce a new instance
accompanied by supporting documentation.
9. The finding was the investigation resulting in forfeiture of the loss
or not the conditions required for the legitimate enjoyment of rights.
Article. 24, paragraph 1, lit. c) introduces a new paragraph, 7 bis, body art. 33
of ln 104, 1992. The provision states that "Subject to verification of
conditions for the establishment of disciplinary responsibility, the employee referred to in paragraph 3
loses his rights under this Article, if the employer or the Social Security
it finds' absence or lack of the necessary conditions for the legitimate use of the same
rights.. "With the news was made clear that since the prerogatives
belong only to those who are entitled under the law, in the absence of the conditions
legal, there is less opportunity to use the facilities. A determination about the
'None of the requirements incumbent upon the employer, private or public administration, and
INPS for private sector work.
Beyond the literal data, which refers only to the employee referred to in paragraph 3 (ie
worker who receives permission to assist a person with disabilities
severe) and the rights of this article, it is clear that the rule expressed by the provision is of
larger, can not not cover all cases where the person entitled to the benefits
apparently is not actually in possession of
legal requirements for their legitimate use. In fact, decay, or the loss of
can continue to use permits, is
finding was the natural effect of the conditions for legitimizing the institution and, as such, it is expected
mentioned in the Law relating administrative documentation to
about the false affidavits (the art. 75
of DPR 445 of 2000 provides that "where the checks referred to in Article 71 does not reveal the truth of
content of the declaration, the declarant shall forfeit any benefits resulting
the measure adopted on the basis of false declarations. ").
So, for example, you may experience the part of the decline in worker
severe disabilities taking permits for their own needs or ends of the
parent who receives the two hours per day allowed under art. 42 of Legislative Decree no.
151, 2001.
For example, among situations that may lead to revocation can be mentioned:
the disappearance of the situation of serious disability as a result of the review visit, the
death of the person with disabilities severe, occurred
full-time shelter for the disabled, the fact that two employees get permission to attend the
same person in a situation of serious disability.
10. Database at the Presidency of the Council of Ministers - Department of Public
.
Article. 24, paragraphs 4-6, of LN 183 of 2010 provides for the establishment at the Department of Public
a database aimed at monitoring and control over the legitimate use of
permissions granted to public employees who qualify as
people with disabilities or to assist another person in a situation of serious disability
. The information will be collected in the database will be used anonymously
also for processing and publishing statistics.
Once you enter the data base, the government should make adequate disclosure of information relevant
electronically by March 31 of each year
.
Activation of the database and operational procedures to make
communications will be the next move of the Department.
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