The priorities in the benefit packages vs. the priorities of those who dole out the benefits

In my last post I promised I would provide details about the new piece of statutory legislation that was recently enacted by the Colombian Congress on the right to health, but first I should talk a little more about the prior jurisprudence that set the stage for it–especially since there’s so much of it. Every year, hundreds of thousands of right-to-health cases go before judges in Colombia, and some estimate that up to one out of every five Colombians has used the judicial system to gain access to health services.

By far, most of these cases are won by the plaintiff. And they should be.

Nearly 90% of the cases that involve procedures, and over 30% of the cases for medications, involve benefits that are actually already covered by the public benefit package (plan obligatorio de salud, or POS). And most of these aren’t over particularly expensive, complicated, or scarce benefits in the POS. The most frequently litigated medications are omeprazole (Prilosec) and oxygen. The most frequently litigated procedures aren’t even the procedures themselves, but specific parts of the procedures that aren’t explicitly listed in the bundle of benefits covered by the POS. For example, the POS covers colostomies, but the insurance companies systematically deny the colostomy bags. “We’ll open the hole in your flank, but it’ll be on you to figure out what to do with the excrement that’ll start oozing out. . .”

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A fundamental right to health? So they’re saying in Colombia…

Perhaps surprisingly to some, Colombia has come much further along the path towards universal coverage than many developed countries in the world, including the US. Most of this progress happened precipitously starting in the early 1990’s: while in 1993 fewer than 5% of people in the lowest income quintile had access to any health care that was not paid for entirely out-of-pocket, by 2011 over 85% were covered by a social security system that provides access to a basic package of health benefits. Although there are persisting problems in terms of the effectiveness of coverage, many of us would argue the progress has been real and frankly impressive. But none in Colombia would deny that there is still much room for improvement, and that the government has inexcusably failed to take advantage of numerous opportunities over the past two decades to make those improvements.

These failures led to a landmark decision on the part of the Constitutional Court in 2008, which through its jurisprudence in the T/760 decision of 2008 adjudged the right to health to be a fundamental constitutional right, thereby permitting that specific demands by citizens be submitted for constitutional judicial review through the tutela protection writ (the Colombian version of the amparo). The decision has been seen by many as a trail-blazing approach to protecting the fundamental rights of the most vulnerable individuals in Colombia from the effects of persistent negligence on the part of the Government.

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