- 學位論文
自費居家式長期照顧服務人力媒合平台管制法制之研究
A Study on the Legal Framework of the Matching Platform for Self-pay Home-based Long-term Care Service Personnel
摘要
隨著居家式長照的需求日益增多，以往由家庭自費向市場購買照顧服務，後政府開始投入公共資源積極建置法定居家式長照服務，並以《長期照顧服務法》就長照人員、長照機構與使用者權益保障等方面設有管理的規範。與此同時，原先的自費居家式長照市場仍蓬勃發展，除了典型的個人看護人力仲介外，有越來越多樣化的媒合機制連結照顧供需雙方，居家式長照人力媒合平台即為一例。 然而，自費市場上居家式長照人力媒合機制在現行法下並未納入長照體系加以管理，至多由勞動部門以就業服務機構法規管制人力仲介的經營，但在面對居家式長照人力媒合平台此一新興市場經營者時，衛生福利部一改先前對自費市場上非長照機構之媒合機制消極管理的態度，以平台違法為長照廣告為由罰之，後勞動部以平台未經設立許可為就業服務機構而裁罰。事實上，民眾與同業者對平台的擔憂在於平台責任，尤其是照顧服務品質的監管，目前衛福部與勞動部雖對平台作出的裁罰未具實效，甚至有更多業者以平台形式加入市場。 本文認為自費市場上各類居家式長照媒合機制皆是媒合陌生的照顧人力至長照需求者家中，提供與人身相關之照顧服務，在照顧服務品質及相關機構責任的管理上，應要等同視之。因此，本文從居家式長照人力媒合平台受罰的個案觀之，重新檢視自費居家式長照市場的現況，並借鏡居家式托育制度中之到宅托育服務，從個人看護者、自費服務項目與價格及仲介機構責任等方面，提出整體市場的管制方向，再從居家式長照人力媒合平台的運作與法律關係，予以定性，並討論平台模式之媒合機制之管制正當性及管制方向，試圖提出本文觀點及管制建議。
並列摘要
With the increasing demand for home-based long-term care, in the past, families used to self-pay and purchase caregiving services from the market. Later, the government began investing public resources actively to establish statutory home-based long-term care services and set regulations on long-term care personnel, institutions, and user rights protection under the 'Long-Term Care Services Act.' At the same time, the self-pay home-based long-term care market continues to thrive. In addition to the typical individual caregiver intermediaries, there are increasingly diverse matching mechanisms connecting caregivers and care recipients. The home-based long-term care personnel matching platforms are one such example. However, the home-based long-term care personnel matching mechanisms in the self-pay market are not currently regulated within the existing long-term care system. At most, the labor department oversees labor intermediaries' operations under the regulations of employment service agencies. However, when facing the emerging market operators of home-based long-term care personnel matching platforms, the Ministry of Health and Welfare has changed its previous passive approach to managing non-long-term care institution matching mechanisms in the self-pay market. They have started penalizing these platforms for violations related to long-term care advertisements. Subsequently, the labor department has also imposed penalties on platforms that operate as employment service agencies without proper licenses. In fact, both the public and industry insiders are concerned about platform accountability, particularly in terms of monitoring the quality of caregiving services. Currently, the penalties imposed by the Ministry of Health and Welfare and the labor department on these platforms have not yielded significant results, and there has been an increase in more businesses entering the market through platform-based models. This article argues that all types of home-based long-term care matching mechanisms in the self-pay market involve connecting unfamiliar caregivers to those in need of long-term care at their homes, providing personal caregiving services. In terms of managing the quality of caregiving services and related institutional responsibilities, these mechanisms should be treated equally. Therefore, based on the case of penalties imposed on home-based long-term care personnel matching platforms, this article reexamines the current situation of the self-pay home-based long-term care market. It draws inspiration from the home-based childcare system, particularly in-home childcare services, to propose an overall regulatory direction for the market. It considers individual caregivers, self-pay service options, pricing, and intermediary institutional responsibilities. The article also examines the operation and legal relationships of home-based long-term care personnel matching platforms, aiming to provide qualitative insights and discuss the legitimacy and regulatory direction of the platform-based matching mechanisms. The goal is to present the author's perspective and regulatory recommendations.