Digest of disputes with expert teams after the MSEC reform: how to protect the patient's right to participate in the examination and a reasoned decision

The reform of the MSEC system into the OPFO system aimed at transparency and compliance with international standards of functioning classification. From January 1, 2025, the powers of the old commissions ceased, and their functions were transferred to expert teams of the Center for Functional State Assessment of a Person, created on the basis of the State Institution "Ukrainian State Research Institute of Medical and Social Problems of Disability of the Ministry of Health of Ukraine".

Despite the digitalization of the process and new clear evaluation criteria, the practice of 2026 shows systemic violations: mass initiation of checks based solely on criminal case numbers, conducting examinations without patient participation, and ignoring objective medical data.

The MSEC reform did not eliminate court disputes — they only took on a new form. This article analyzes judicial practice regarding violations committed by expert teams during the assessment of a person’s daily functioning (OPFO) and outlines legal approaches to protecting the rights of persons with disabilities. The conclusions are based on the analysis of court decisions and current legislation. Each case has its own factual circumstances that may affect the legal assessment and method of protecting violated rights.

Right to participation and the Law on Administrative Procedure

Following the decisions of the National Security and Defense Council to combat corruption, mass checks of the validity of previously established disability statuses began. As current judicial practice shows, this process is often accompanied by ignoring the Law "On Administrative Procedure," conducting examinations without patient participation, and selective treatment of medical documents.

An important tool for citizens' protection has become the application by courts of the Law of Ukraine "On Administrative Procedure" No. 2073-IX to the activities of expert teams.

In cases No. 280/4627/25, No. 160/29786/25, and No. 560/20425/25, patients learned about the cancellation of disability post factum — after the termination of payments in the Pension Fund. The Assessment Center claimed that the examination was conducted remotely in response to law enforcement requests.

Courts emphasized that a participant in the proceedings has the right to know about its initiation and to be heard before adopting an act that negatively affects their rights. Failure to notify the person about the check is a significant violation of the principles of legality and transparency. Violation of the right to participation is not formal, as it deprives the person of the opportunity to provide additional documents and undergo an objective examination.

Case No. 280/4630/25. The State Institution "UkrDNDi MSPI Ministry of Health of Ukraine" filed a cassation appeal against the decision of the Zaporizhzhia District Administrative Court and the ruling of the appellate administrative court in a case filed by a person to recognize as unlawful and cancel the decision. The lower courts satisfied the claim, but the institute insisted on incomplete clarification of the case circumstances by the courts.

The panel of judges of the Supreme Court partially satisfied the institute’s cassation appeal, canceled the decisions of the courts of first and appellate instances, and sent the case for a new trial.

The Supreme Court noted that the lower courts limited themselves to merely formal statements of procedural flaws but did not examine the primary medical documents confirming or refuting the real health condition of the plaintiff.

According to Articles 242 and 353 of the Code of Administrative Procedure of Ukraine, a court decision must be lawful and reasoned, and failure to examine medical evidence on the merits in case of contradictions is grounds for canceling court decisions and sending the case for a new trial.

Letters from law enforcement agencies

Checks are often initiated based on letters from the Security Service of Ukraine (SBU) or the State Bureau of Investigations (DBR), which contain only lists of hundreds of names without specifying particular violations.

Cases No. 120/9870/25, No. 480/9924/25. The defendant’s reference only to the criminal case number or a general letter from the National Police Headquarters is not a procedural decision within the meaning of the Criminal Procedure Code of Ukraine. Paragraph 51 of Procedure No. 1338 requires the presence of a resolution from an investigator, prosecutor, or court ruling regarding a specific person. Without such an act, the Center has no legal grounds to initiate a check.

The Supreme Court noted that the court is obliged to independently request and examine these documents to verify the legality of initiating the procedure, not just state their absence.

When can the expert team cancel disability remotely?

The Supreme Court in case No. 360/660/25 clarified that during the martial law period, the Assessment Center acts as an administrative oversight body. If the discrepancy of the diagnosis with disability criteria is obvious directly from the available medical documentation (for example, the diagnosis does not provide for a group according to standards at all), the body has the right to cancel the decision remotely.

If additional medical evaluation or examination is required to establish compliance with the criteria, the body is obliged to initiate an in-person procedure with guarantees of the person’s participation. An obvious discrepancy is a defect that is revealed without additional research.

Ignoring objective data and VLK certificates

Case No. 380/6477/26. A general practitioner, when forming an electronic referral, ignored the current VLK certificate of a combatant with the diagnosis "congenital heart defect" and instead entered a milder disease code. The OPFO expert team denied disability based solely on this record.

The court recognized such a decision as unfounded since the expert team is obliged to examine not only records in the system but also paper originals of documents and additional examinations (ultrasound, bicycle ergometry) provided by the patient.

Return of the Pension Fund pension after disability cancellation

Cancellation of disability status does not automatically entail the obligation to return previously received pension payments. This conclusion follows from the materials of case No. 480/9924/25.

In this case, after the cancellation of the III disability group, the Pension Fund demanded the pensioner return 173,821.40 UAH, considering these payments excessively received.

At the same time, the court noted that to recover overpaid pension, the mere fact of disability cancellation is insufficient. A mandatory condition is the establishment of abuse on the part of the pensioner, in particular, submitting knowingly false information.

If the overpayment arose due to an error of the expert team, changes in evaluation approaches, or other circumstances beyond the person’s control, imposing the obligation to return funds on the pensioner is unlawful.

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