2023-09-08 09:02:22
The civil collection lawsuits filed by the Dávila Recoleta and Dávila Vespucio clinics – part of Red Dávila, of the Empresas Banmédica group – against Fonasa and two health services last week, brought the open conflict between the private providers and the public sector due to the large unpaid debt for patient care due to the emergency law, and which mostly dates from the period 2019-2022.
After “exhausting all previous avenues”, Red Dávila – whose income comes 52% from public insurance – accused that the unpaid obligations “put its sustainability at risk”, and demanded that the cancellations for $ 11,874 million be made effective and $11.23 billion.
“Red Dávila has begun to collect at this time, before a collapse of the system, since otherwise very serious damage would occur.”
Furthermore, the legal strategy of the case – led by the Ortúzar, Vergara & Boetsch Abogados law firm – has as its final objective the fulfillment of the total obligations claimed by Red Dávila, which amount to $76 billion, of which $48,493 million correspond to the emblematic center. located in Recoleta.
This action “constitutes a palpable demonstration of the need to have to sue the State to comply with its obligations. In practice, it is forcing Fonasa, through the means established by law, to pay an absolutely justified and enforceable obligation,” stressed the partner of the study, Álvaro Ortúzar.
-However, the global amounts of that debt were questioned by the director of Fonasa, Camilo Cid, who asserted that “the figure is much smaller” and “closer” to the $11 billion of each claim.
-In the lawsuits filed now, the origin of the debt corresponds to the Dávila Recoleta and Vespucio clinics, in circumstances that Empresas Banmédica includes several clinics. It is surprising that Fonasa does not know who its creditors are. The rest of the lawsuits, if they are presented, will total $76 billion. There can be no confusion in that regard.
– The director of Fonasa argued that the fact that the demands total $23 billion shows that the total debt does not exceed that amount.
– Upon learning of the demands for about $23 billion, he recognizes the existence of that debt, but regarding the balance he tries to confuse. It should be remembered that in April he told the Senate Health Committee that the “enforceable” debt at the system-wide level was $4 billion. It is not the attitude expected from a State agency that has been satisfied in an efficient and timely manner by the clinics.
-Cid insisted that there is no clarity “regarding why they reached that figure.” What support do they have?
-What the director of Fonasa says is seriously inaccurate. All services are accompanied by a very rigorous certification system, from the moment a patient enters until their stabilization. So Fonasa receives a set of records that comply with the regulations and its director has the papers that he would only have to look at.
-Camilo Cid warned that items could have been included that should not have been considered, such as pending obligations still in process.
– The argument of the director of Fonasa shows the arbitrariness of a State service in terms of choosing what to pay and when. All the technical background of these services provided has been in Fonasa for a long time. It is a debt that originates in 2019 – some even in 2017 – and it is incomprehensible that he says that he does not have sufficient history until today.
-The director of Fonasa warned that judicialization could make the payment process more complex. How do you see it?
– It would truly be another inconceivable fact that, regarding the lawsuit, Fonasa finds an additional pretext to delay payment. If there is a specific and enforceable debt, the first thing one would expect from the debtor is a reaction to recognize it, as the director of Fonasa has already done, but immediately take measures to pay the obligation.
-At the time of reporting the lawsuit, Empresas Banmédica anticipated that it was evaluating more legal actions. when will they be realized?
-For the moment, what we have been instructed is to present these two demands. But it does not mean that these are all that the Dávila Network is going to demand, which will decide and communicate the other actions in a timely manner.
-Given that at a systemic level the bulk of the public debt with providers corresponds to health services ($200 billion), what is the specific responsibility of Fonasa in the debt that Red Dávila accuses?
– The legal action arises from non-compliance with specific laws that force Fonasa to pay a debt. All debt is the responsibility of Fonasa; Of that, legally, there is no doubt. In that aspect, the demand is simple: the obligation arises from the law, the debt is determined and is payable, and the Red Dávila clinics have met all the budgets established for it to be compulsorily paid by Fonasa.
-This despite the fact that between 2019 and 2022 Fonasa based private payment on health services?
-In the curative medical assistance – consultations, examinations, procedures, hospitalizations, treatments, etc. – that clinics must provide, the person who must pay what arises from that care is Fonasa. This is expressly established in the law, where it says in all its letters that Fonasa must pay medical care to health providers.
-Next year, Fonasa is going to resume complete management of the public system’s debt with private providers, as occurred before 2019, when the current exceptional situation began where each health service resolves these obligations separately. What consequence has it had? Had that scenario?
-I would say that it produced a disorder in the system in terms of confusing who the debtor is, which, I repeat, is only one: Fonasa. The delegation in the health services is an illegal delegation and that has caused the system to enter a very serious situation, because Fonasa hid behind the health services, and they in turn hid behind the fact that they do not have a budget, in circumstances that at the end of the day the total obligation has only one obligor, which is the State. So, between State institutions, pretexts cannot be used that it is one or the other, in circumstances that, on the other hand, clinics provide timely and efficient care to patients at risk of life.
-Fonasa says that its payment situation is better than that of health services.
-This shows the seriousness of the decisions that Fonasa intends to make regarding enforceable debt. It is as if she herself were saying: I am a good payer with respect to one part, but there is a bad payer with respect to another amount that I owe. It is an illegal and arbitrary decision.
-Although 50% of the debt is concentrated in 2022, there are obligations that date back to 2017. How much does the age of the debt weigh on the fundamentals of the demand?
-The debts were accumulating from 2019 to 2022 and we are already at an intolerable limit. Fonasa has abused its status as a debtor, requiring clinics to provide emergency and override services, while increasing the debt. When a debtor fulfills and accumulates unpaid obligations, there comes a time when the system begins to collapse. And Red Dávila has begun to collect at this time, before a system collapse, since otherwise very serious damage would occur. This is a warning to the State that this is no longer bearable.
-The Government indicates that an exit framework has been given for the general debt of health services with clinics, which considers the payment of 40% next March and the rest gradually until the end of the current administration . How do you evaluate this proposed solution?
-That is serious, because it is ignoring the reality that exists in Chile in terms of health benefits. The debt that the State has is 100% of the benefits provided, and it cannot be that the State intends to divide it. The debt exists, the benefits have been made and the debtor cannot personally and before himself say when and how much he is going to pay. That is not acceptable. And as far as Fonasa is concerned, up to now there has been no act on its part aimed at paying the debts accordingly, but rather at ignoring them or splitting them up.
The basis of the claims
As a member of the legal team that is carrying out the lawsuits against the Dávila Recoleta and Vespucio clinics, the partner of the Ortúzar, Vergara & Boetsch firm, Cristián Boetsch, delves into the arguments of this legal action and the information that supports it.
“The accounts are presented to the computer system that Fonasa has set up for this purpose and where all the history of the patients’ clinical accounts are uploaded. And regarding the two lawsuits that have been presented, those accounts are indeed presented and validated by Fonasa. Therefore, it is seriously inaccurate for him to say that he does not know the detail,” says Boetsch.
In this regard, regarding the Government’s proposal to begin paying the global debt of $200 billion with private providers starting next March, he adds that “the clinics, without recognizing the sufficiency or opportunity of that plan, “They still complied with sending again, for the umpteenth time, the supporting information of the amount of that debt and what benefits it refers to, in an extremely detailed manner, including the care folio number and RUT of the patients.”
For his part, the partner of the study Benjamín Morales responded to the doubts raised by the director of Fonasa regarding the amount of the debt, questioning the type of obligations considered – such as cases not yet billed – or the possibility that agreements are being included. other than the Emergency Law and the “rebase” (benefits granted post-stabilization of the patient).
“This supposed discrepancy of amounts is actually not such. The important thing here is that the $76 billion correspond to health benefits that have actually been executed for Fonasa beneficiaries in accordance with the Emergency Law and after their stabilization, as the case may be. Furthermore, while Fonasa unilaterally decides various collection states for these debts – and within the collection system it manages they may have different administrative states -, we consider that these are due from the moment the service is provided and the account has been presented. and, therefore, they will be charged equally,” explains the lawyer.
Based on the provisions of article 141 of DFL No. 1 of 2005 on the payment of care by emergency law, and article 138 of the same regulations on “overriding” (when the public system does not recover its patients from the private centers, and which explains an important part of the unpaid debts), Morales maintains that “these are not two different benefits or unrelated to each other; since once a person at risk of emergency is stabilized, in principle they would have to be referred to the public care network but the rescue rates are very low, around 13%, and they remain in the clinic. And those are benefits that Fonasa is responsible for paying. So, the distinction to say that this is up to the health service is a construct that is not well justified.”
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