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A year after its publication, compliance with the Constitutional Court’s ruling on respect, protection and guarantee of the right to health is still uncertain
COMISION COLOMBIANA DE J URISTAS Organización no gubernamental con status consultivo ante la ONU Filial de la Comisión Andina de Juristas (Lima) y de la Comisión Internacional de Juristas (Ginebra).Bulletin No. 2: Series on economic, social, and cultural rightsA year after its publication, compliance with the Constitutional Court’s ruling on respect, protection and guarantee of the right to health is still uncertainOn July 31, 2008, the Constitutional Court issued the most ambitious rulingregarding respect, protection, and guarantee of the right to health in Colombia,ordering a reformulation of public policy on health. However, a year after thispronouncement, there has been no effective or full compliance by the nationalgovernment with this ruling; in particular, there has been no implementation of thattribunal’s orders to update, unify, and render in a timely manner the medicalservices included in the Compulsory Health Plan (POS, its acronym in Spanish). 1. The directives contained in Sentence T-760 of 2008In view of the high number of tutela actions filed for the protection of the right tohealth, the Constitutional Court decided two years ago to monitor the type ofcomplaints that the users present through this particular judicial mechanism.1 Thedecision to carry out such monitoring arose from the case of a man with kidneydisease, whose tutela action for the treatment he required was denied years ago.By the time the Court reviewed the tutela action and decided favorably on it, it wastoo late: the patient died waiting to be treated. “This led us to look globally at thetutela actions we get for health services and we found a persistent pattern,” pointedout the leading magistrate Manuel José Cepeda Espinosa as he recounted thethought process that led to Sentence T-760 of 2008.1 In this regard, and on the basis of a report by the Defensoría del Pueblo, the Court points out that56,4% of the tutela actions filed in the period 2003-2005 deal with requests for health services towhich the patients have a right, both legally and according to the norms, but which the responsiblehealth providers do not render. Constitutional Court, Sentence T-760 of 2008. 1 ___________________________________________________________________ Personería jurídica: resolución 1060, Agosto de 1988, Alcaldía Mayor de Bogotá Calle 72 No. 12- 65 Piso 7 Tel: (571) 3768200 - 3434710 Fax: (571) 3768230 E-mail: firstname.lastname@example.org Apartado Aéreo 58533 Bogotá, Colombia
Through this sentence the Court ruled on twenty-two tutela actions filed demandingrespect, protection, and guarantee of the right to health, identifying sevenadministrative barriers that result from state “flaws” in the regulation and oversightof the health system:“On the basis of the cases and the evidence gathered by this Court, do the flaws inregulation ascertained in the present sentence represent a violation of theconstitutional obligations of the competent authorities to respect, protect, andguarantee the right to health in order to ensure its full exercise? The answer to thisquestion is found to be positive and the necessary court directives are issued forovercoming the regulatory flaws detected. The orders are given within theframework of the system enshrined in the Constitution and developed through Law100 of 1993 and subsequent norms, as it would exceed the competence of thisCourt to order the design of a different system; such a decision is incumbent uponthe legislator. Orders will be issued to the legally competent bodies to adoptdecisions aimed at overcoming the regulatory flaws that have resulted in a lack ofprotection of the right to health, evidenced in the tutela actions that have becomemore and more frequent in the past several years, as will be analyzed later on.”In accordance with the above statement, the Court issued three types of ordersrelated to: (1) the service plan of the Compulsory Health Plan (POS), for both itscontributive and subsidized systems; (2) the flow of resources within the system;and (3) the complementary measures needed to guarantee an effective exercise ofthe right to health, such as the right to information and universal coverage of thehealth system by January 2010.2. Prospects of compliance with the Constitutional Court’s orders related tothe service plansBelow is a brief appraisal of the prospects of compliance with the first type oforders, relating to the service plans and concerning (1) the update of the POS; (2) 2
the unification of the POS; (3) the adoption of measures to prevent a denial or adelay in rendering medical services included in the POS.a) Update of the POSIn its Sentence T-760 of 2008, the Constitutional Court ordered the “adoption ofmeasures to eliminate the uncertainty regarding the content of the benefit plansand carry out a periodic update of such plans,” and the deadline to do so was setfor February 1, 2009.In this regard, the update of the service plans has not been carried out yet,although the national government had promised to do so by the end of July 2009after missing the initial deadline set by the Court. Up to now, it has become knownonly that “from the present 6,300 procedures contained in the present POS, atleast 100 would be omitted that are no longer used by health professionals, and1,000 would be included.” 2 However, only this past July 23 the Ministry of SocialProtection opened a consultation process that will continue through August 23 togather the opinions of the users of the health system regarding which medicalservices should be included in the update of the POS.Therefore, what has been done thus far is to define the “methodology” of theprocess of updating the POS, in order to then proceed to carry it out through aresolution that must be approved by the Regulatory Commission on Health, madeup of the Ministers of Finance and of Social Protection, and five members electedby the President of the Republic.3b) Unification of the POS2 “Minprotección señalará quién se va del régimen subsidiado”, (Ministry of Social Protection willdetermine who leaves the subsidized regime) El Tiempo daily on-line, July 25, 2009.3 , In accordance with Law 1122 of 2007, the new Regulatory Commission on Health (CRES inSpanish), made up strictly of government agencies, will take on the greater part of the functions thatthe National Council on Health Social Security used to perform, which is made up of representativesof territorial entities, employers, employees, the Social Security Institute, health-care professionalsand users of health services. In future, the Council will take on an advisory role. 3
At present, the provision of health services in Colombia is organized depending onthe capacity of persons to pay; the medical services to which the patients haveaccess depend on the type of affiliation. Type of Description Number of Affiliation to the users System 1. Special Those who have a differentiated service plan 2 million system according to the type of work they do, such as teachers or members of the state security forces. 2. Contributive Those who are formally employed and contribute 18.7 system to the health care system (contribution equivalent million to 12.5% of income or basic salary, 8.5% covered by the employer and 4% by the employee). 3. Subsidized Those who are at levels 1 and 2 of the System of 19 million system Identification of Potential Beneficiaries of Social Programs (SISBEN in Spanish) and have no financial capacity to contribute on their own to the contributive regime. 4. Partial Those assigned to Level 3 of SISBEN who benefit 1.1. million subsidies from a partial contribution by the State to receive care under the subsidized system (who have the right to a service plan below that offered to those who are “fully” part of the subsidized system). 5. “Linked” Lastly, those who are not part of any of the 3.7 million (“Vinculados”) previously described systems and who, when they face a situation that affects their health, turn to the network of public hospitals. Paradoxically, in the official reports and the literature on the health system, these persons are called “vinculados” (“linked”). 4
4Source: CCJ based on data from the Ministry for Social Protection TYPES OF AFFILIATION TO THE HEALTH-CARE SYSTEM Special systems Contributive system Subsidized system Partial subsidies Linked (“vinculados”) Source: CCJ based on data from the Ministry for Social ProtectionThus, the present health system, organized through Law 100 of 1993 according tothe financial capacity of the patients, is highly segmented, inequitable anddiscriminatory. Indeed, in Colombia there are five different medical care plans.According to this, nearly 5% of Colombia’s population has access to a package ofhealth services beyond what is foreseen in the contributive system (specialsystems), 42% has access to the contributive system, while 53.4% of the4 “Minprotección señalará quién se va del régimen subsidiado”, (Ministry of Social Protection willdetermine who leaves the subsidized regime) El Tiempo daily on-line, July 25, 2009. 5
population has access to a service plan inferior to the POS of the contributivesystem (subsidized system, partial subsidies, and “linked” population).This distinction among health-care systems is also present in the UPC (Unit ofPayment by Capitation), which is the amount that the General System of HealthSecurity grants the Health Service Providing Enterprises (EPS in Spanish) for eachaffiliate or beneficiary for organizing and guaranteeing the provision of the servicesincluded in the POS.5 This amount varies according to the system the user isaffiliated to and constitutes a financial contribution to different service plans. Atpresent, the amount of the UPC for the contributive system is Colombian Pesos$467.078, while in the subsidized system it is $267.678 pesos, “which is equivalentto a difference of 42.7 percent.” 6 Thus, the difference in the content of the serviceplans offered through the various systems is reflected in the institutional frameworkitself in the distribution of resources of the health-care system.Thus, the Constitutional Court ordered that the necessary measures be takentoward “the unification of benefit plans for the contributive and subsidizedsystems,” and called on the Health Regulatory Commission in particular to “adopt aprogram and a timetable for the gradual and sustainable unification of the benefitplans of the contributive system and of the subsidized system.”7 Through thisorder, the Court is simply demanding that a legal mandate be obeyed, since theunification had already been contemplated in Articles 157 and 162 of Law 100 of5 The UPC was established by the National Council on Health Social Security for annual periods, forage groups, genders, and geographic areas. According to Law 1122 of 2007, the UPC will beestablished by the Regulatory Commission on Health (CRES in Spanish).6 “Pos único después del 2014”, (Single Pos after 2014) El Tiempo on-line, July 21, 2009.7 Constitutional Court Sentence T-760, 2008, Paragraphs 16, 21 and 22 of the part regarding“resolves.” 6
1993 and should have been carried out before 2001.8From the moment the sentence was made public, the national government hascomplained about the costs that the unification of the POS entails: between 5 and7 billion pesos per year. Recently, the National Planning Department evenadmitted that it does not yet know where the resources “will come from” forexecuting this item of the Court’s ruling,9 which is a rather inconceivableannouncement if one considers that it has to do with complying with a legalmandate dating from 1993 and a Constitutional Court ruling issued a year ago.Up to now, the schemes developed by the government in order to comply withSentence T-760 of 2008 with regard to the unification of the service plans areworrying. Indeed, what is known until now is that the national government aims tocomply with the unification of the benefit plans between the contributive regimeand the subsidized regime by reducing the content of the first in order to even it outwith the second because of the limited resources: “Since the Constitutional Court has ruled that there must be equality between the subsidized and the contributive systems, the government has been thinking about a „small POS.‟ This, in order to make do with the8 Article 157 b) of Law 100 of 1993 states: “Beginning in 2000, all Colombians must be linked to theSystem through their contributive or subsidized regimes, in which there will be a gradual unificationof health-service plans so that all the inhabitants of the national territory will benefit from theCompulsory Health Plan (Plan Obligatorio de Salud) referred to in Article 162.” For its part, Article162 stipulates in this regard: “For the affiliates according to the norms of the subsidized regime, theNational Council on Health Social Security will design a program so that its beneficiaries cangradually achieve membership in the Compulsory Plan of the Contributive System before the year2001.9 “Calculations indicate that if the subsidized POS is put on the same level as the contributive POS,an additional 4,76 billion pesos will be required annually to closet he gap. That sum will be evengreater when universal coverage is achieved, which is foreseen for this year. The figures of theNational Planning Department (DNP in Spanish), which are being reviewed today, point out thatuniversal coverage of the population with a benefit package at least equal to that of POS implies afinancial effort of 7.4 billion pesos each year beginning in 2010 (…). The leveling off of the twoPOS, according to the presentation by the Director for Social Development of the DNP, JoséFernando Arias, at the pharmaceutical forum in Cartagena, will cost around five billion pesos, andthe sources for financing this effort are nowhere in sight.” “Pos único después del 2014” (One singlePOS after 2014). El Tiempo on-line, July 21, 2009. 7
money available. There might be some additional services for those who contribute to the system.” 10The formula that would offer a universal “small POS” would mean a backward stepin the right to health for the 18, 7 million persons who contribute to the system,whose medical services – to which they have a right – would be reduced.On the other hand, if the idea is to “level off” the POS so that it is “affordable,” butalso to offer some additional services to those who contribute, in the end it meansmaintaining the statu quo in the health insurance system, since the difference inhealth services would be maintained while at the same time giving the appearanceof complying with the Constitutional Court’s ruling.In this way, the government would be complying formally with the sentence, butthrough such measures it would be disregarding the true sense of the ruling, whichis to make progress toward the unification of the various systems (as the principleof progressiveness and Article 162 of Law 100 of 1993 demands), so that thebenefits plan of the subsidized system are increased and improved on the basis ofwhat is included in the contributive system. As Mauricio Santamaría, DeputyDirector of Fedesarrollo, has pointed out, unifying the POS “so that its costs do notexceed the present total cost” is a “deceitful” alternative as a response to theConstitutional Court’s ruling. 11Lastly, even more worrying than the government’s hesitations regarding the formand the resources to comply with the unification of the POS, is the fact that theexecutive is considering carrying it out beginning only after 2014 – six years afterthe publication of Sentence T-760 of 2008.1210 “No todas las enfermedades cabrán en el nuevo plan obligatorio de salud” (Not all diseases willbe covered by the new compulsory health-services plan), El Tiempo on-line, March 10 2009.11 Mauricio Santamaría, “El fallo de la Corte sobre salud ¿Cuánto y qué nos falta para cumplirlo?”(The Court ruling on health: How long and how much do we need to comply with it?) El Espectadoron line, November 9, 2008. 8
c) Measures to prevent denial or delay in health servicesPor último, la Corte ordenó también adoptar las medidas para evitar que serechace o se demore la prestación de los servicios médicos que sí se encuentranen el POS o que se requieren con necesidad, identificando a las EPS eInstituciones Prestadoras de Salud (IPS) que con mayor frecuencia incurren eneste tipo de conducta.Finally, the Court ordered also that measures be adopted to prevent that theprovision of medical services that are included in the POS or are required urgentlybe refused or delayed, identifying the EPS and Health Provider Institutions (IPS inSpanish) that most often carry out such types of conduct.On this point, a report by the Public Defender’s Office (Defensoría del Pueblo)pointed out the EPS continue to deny services to patients, which is the reason whythe number of tutela actions filed demanding the guarantee of the right to healthdid not diminish in 2008. According to that report, just during the last quarter of lastyear, the EPS (health service providers) of the subsidized and contributive systemsdenied patients 129,124 services, of which 118,785 (or 92 percent) were from EPSof the subsidized system. Likewise, the Defensoría’s report concluded that thenumber of tutela actions regarding health services did not decrease in 2008, as thetotal number of appeals for legal protection (recursos de amparo, in Spanish) was142.947, 33 percent higher than in 2007. 1312 In the case of girls and boys, the Constitutional Court ordered the unification of the benefit plansby October 1, 2009, which, according to an announcement by the government, would be achievedwithin the time period stipulated by the Court starting with the POS of the contributive regime. 9
For the above reasons, the Colombian Commission of Jurists urges the nationalgovernment, the Regulatory Commission on Health, and the National Council onSocial Security in Health, to effectively comply with the Constitutional Court’sSentence T-760 of 2008, not only regarding the court orders analyzed in thisdocument (related to the update, unification, and adequate provision of healthservices), but also with respect to the flow of resources within the health systemand the complementary measures that must be taken to ensure the effectiveenjoyment of the right to health (right to information and universal coverage).Besides constituting contempt of court according to internal legislation, Stateinobservance of Constitutional Court orders contained in Sentence T-760 of 2008,would imply a serious failure to execute international obligations for immediateimplementation by the Colombian state with regard to the right to health. Indeed,should the Court ruling not be complied with, the current state of affairs in mattersregarding health services would be maintained, with a system that, among otherdeficiencies, disregards the state’s obligation to guarantee the right to healthinsurance without any kind of discrimination, the right to provide essential levels ofthis guarantee, as well as the satisfaction of some of its components, such asaccessibility, acceptability, and quality of medical services.On the other hand, the CCJ calls upon the control organs, the Office in Colombia ofthe United Nations High Commissioner for Human Rights and civil societyorganizations to commit themselves to carry out permanent and detailedmonitoring of government compliance with the orders of the Constitutional Court,13 Although not all EPS sent in their reports on denial of services to the health authorities, asordered by the Constitutional Court in its Sentence T-760 of 2008: “Coomeva EPS, Salud Total andCompensar concentrate 48.2 percent of all denials of services to the users of the contributivesystem, followed by the new Nueva EPS, which refused 1,017 services during the last quarter oflast year. For their part, Comfamiliar Huila, Comfamiliar Cartagena and Comparta concentrate 53.4percent of all denials to the affiliates of the subsidized regime.” “EPS siguen negando servicios alos pacientes” (EPS continue to refuse health services to patients), El Tiempo on line, June 26,2009. 10
with the purpose of watching over the respect, protection, and guarantee of thehuman right to health.For further information, please contact: Felipe Galvis Castro, Researcher in economic, social,and cultural rights, DESC, CCJ (Tel. 571-376 8200, ext. 129),Bogotá, August 24 2009 11