Chilean Health Minister seeks clarification on Supreme Court ruling on private health insurers

It was after ten o’clock on Saturday night when the Chilean Minister of Health, Ximena Aguilera, opened the application of the newspaper Third, where the Sunday edition of that newspaper was in advance, and he was surprised. In a two-page interview, the deputy president of the constitutional chamber of the Supreme Court, magistrate Ángela Vivanco, delivered a new interpretation of the November 2022 ruling that obliges private health insurers – the isapres, as they are called known in Chile – to return excess charges to its affiliates. Although the political discussion for weeks was developed on the basis that the institutions should compensate the universe of those affected -the Government’s calculations pointed to some 1,400 million dollars in total-, Vivanco turned the table around by stating that “the surpluses that the isapres have to return are those who sued “.

The words of the minister of the Supreme Court unleashed a whirlwind, because –unexpectedly– they opened a way out for an industry in crisis that serves three million people of medium and high income and that, according to the companies themselves, was at risk of collapse after the ruling of the highest court.

After reading Vivanco’s statements, Minister Ximena Aguilera (Colbún, 58 years old) sent the interview to the chat she has with the ministers that make up task force which, since the ruling was known, has been working to provide a solution to the crisis and seek mechanisms so that the isapres can return the money owed. In that group, in addition to her, are the Minister of Finance, Mario Marcel; the Secretary General of the Government, Álvaro Elizalde; the Minister of Labor, Jeannette Jara and the Minister of Justice, Luis Cordero. This Monday, after numerous meetings, the Government decided to present, through the Health Superintendency, a clarification appeal for the Supreme Court to explain the repercussions of the sentence, who would be the beneficiaries and thus end the uncertainty caused by the words of Vivanco. In the afternoon, as if to further complicate a problem of the utmost importance for the Government, the judge qualified her statements: she clarified that “there is no change of criteria” and stressed that the correct interpretation of the ruling corresponds to the constitutional court of the Supreme Court and not to it, although it is made up of it.

It’s a busy Monday morning. The Minister of Health leaves a meeting with several of her advisers and receives EL PAÍS. In her office on the third floor of the ministry, in downtown Santiago, she tries to figure out the consequences of the earthquake of the weekend.

Ask. How do you take this new interpretation of the ruling?

Answer. Minister Vivanco in her interview adds new elements, such as, for example, that there would only be refunds for those who filed the appeals before the courts. And that makes it necessary to make a more formal precision and the ideal is that they clarify it as soon as possible.

P. Do the judge’s words complicate the Government’s short bill, which seeks the application of the Supreme Court ruling?

R. From the point of view of the bill, it does not affect us as much. The project raises the elements that are part of the sentence and the gradualness of its application, but neither in the message nor in the articles does it mention the amounts.

P. Why was the calculation of the 1,400 million dollars made by the Superintendency of Health not included in the project?

R. Because the isapres, for example, had a different interpretation, despite the fact that they have never made it public. They did it to me at the work table.

P. And what was that interpretation?

R. They had an approach that, in reality, the affected contracts were those that had moved loads between 2020 and now, not all the contracts. We evaluated that, but later, from the legal point of view, the lawyers here ruled it out because they said that, due to previous Supreme Court rulings, there was not much room for that reading and that, in any case, the isapres would have to submit an appeal for clarification to the Supreme Court.

P. And the isapres never asked the Supreme Court for clarification to confirm if their interpretation was correct…

R. Since the ruling appeared, I have asked the isapres several times –because they are the first to be affected– to file an appeal for clarification. The first to raise the alert were them and they gave amounts and then they withdrew. At the work tables with us, they gave enormous amounts, very similar to those of the Superintendency of Health in the first instance. Later, when they went into a deeper analysis, they made these other interpretations. I insisted several times that they make a request for clarification. Now it is clear that this clarification is important, after the words of Minister Vivanco, and that the Supreme Court specify those statements. Because the courts speak through their sentences, not interviews.

P. There are deputies who argue that, in view of what has happened, the short law is a useless effort.

R. It is not useless, because what we want is for there to be an application responsible for the sentence. And we are going to have to clarify what exactly it refers to. In any case, the prospective effect of the application of the table of factors must also be clarified if it is universal or not. And the idea of ​​the law is, precisely, to have a more homogeneous treatment.

P. Because?

R. If the application of the ruling is not universal, it will open the way again to judicialization. The bill allows, indeed, to give more certainty, so it would be more justified even if the ruling were only partial. The idea is that it be a more open discussion, where all sectors participate.

P. The ruling was at the end of November. Why didn’t the government clarify this point earlier? Minister Vivanco says that you never approached to clarify the underlying issues of the ruling.

R. She never mentions the ministry. The ruling mandates the Superintendency of Health to apply the ruling. The superintendency made a clarification appeal in January asking about the date and other issues and, in that appeal, the Court could have clarified who was affected by this ruling. For the lawyers, the truth is that the sentence was clear. And not only for those of the Superintendence, but for almost all lawyers. There is a group of senators who presented a bill, the former superintendents, Espacio Público [un centro de pensamiento progresista], among many others. And everyone understood that there was a clear universal interpretation.

P. Minister Vivanco said in March that the ruling was of general effect.

R. Of course, in that interview he spoke that it was of general effect, therefore, there were not many doubts about that. And, in addition, they were asked for an approach on the short bill, which they gave last week, and where they explained what their approach was and where there could also have been an opportunity for clarification. But well, now the Court will have to clarify it.

P. For some, it is a mistake that the Ministry of Health has not done the job of asking much more clearly. There are deputies who have even asked for his resignation. What do you think?

R. I am not the institution that has to calculate these issues, rather it is the Superintendency. But I think that everyone has the freedom to ask for what they believe. In any case, it must be understood that throughout the world that has been involved in this issue, there was a fairly consensual understanding that the ruling had a greater scope.

P. If the Supreme Court now clarifies that the ruling effectively only affects those who sued, does it know how many people there are?

R. Minister Vivanco spoke that last year over 600,000 people appealed, but they appealed for different reasons. And the search engine of the Judiciary allows us to know that they appealed about the isapre, but not about what aspect. And there are three different elements: one is the increase in plans, the other is the increase in the GES premium and the third is the factor table. So, knowing how many are by factors table [el objeto del fallo] for us it is not so easy.

P. Should that be requested within the clarification appeal to the Supreme Court?

R. Yes, there is no other source to find out how many people have appealed for this reason.

P. Behind this crisis lies the criticism that the Boric government is trying to push the end of the isapres. Is there something to that?

R. No, and I have said it many times. No reform can end private health insurance in this way, it has never been considered. Those are approaches from people who like to polarize. Our interest is to generate stability for the insured and we are interested in having a stable environment so that we can then present our proposal for health reform that is agreed upon by all sectors.