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The Constitutional Court made a very important decision when solving 30 guardianships in which the supply of health technologies was requested that initially seemed to be excluded from the Health Benefits Plan or that had been denied by the EPS, such as diapers, wet wipes, anti-bedsore creams, wheelchairs, nursing services and transportation.
In their tutelage, citizens affirmed that patients, as well as their relatives, are people who do not have many economic resources and, therefore, It is very expensive for them to buy these implements.
By studying these guardianships that were accumulated in the same process, with a presentation by justices Alberto Rojas Ríos and José Fernando Reyes Cuartas, the Constitutional Court decided how the supply of these elements should be guaranteed and in what cases. The decision was made unanimously in the Plenary Chamber, and had clarifications of vote from justices Alejandro Linares, Antonio José Lizarazo and Richard Ramírez, while Diana Fajardo and Jorge Enrique Ibáñez reserved the possibility of clarifying their vote later.
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The ruling is very important for two reasons: the first because it makes clear to the EPS what elements they must guarantee as they are understood as included in the Health Benefits Plan (PBS), which was previously called POS. The second, because it tells the judges how to act when they receive guardianships of this type.
First, as for diapers, anti-bedsore creams and wheelchairs The high court assured that they are not expressly excluded from the Health Benefits Plan, therefore, if something is not expressly excluded, it is understood as included in said list.
In other words, the Constitutional Court is making clear with this decision that diapers, anti-bedsore creams and wheelchairs, as they are not tacitly excluded, are part of the Health Benefits Plan, which implies that these elements and technologies must be guaranteed by the EPS to patients when the treating physician formulates them or requires them for the user.
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In the case of diapers, for example, the high court said that It cannot be understood that these elements are part of the category “cleaning supplies”, that they are excluded. And in the case of creams, the Court affirmed, it cannot be understood that these are part of the category “moisturizing lotions” or “body emulsions”, which are also excluded.
In other words, EPS cannot claim that these technologies are included in these categories in order to deny them.
With these sub-rules, the Constitutional Court also indicated to the judges how to act when they receive guardianships. So, first of all, if there is a medical prescription where it is determined that a patient must use diapers, bedsore creams or wheelchairs and these have not been guaranteed, These elements must be ordered directly by the judge through the guardianship.
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If there is no medical order, the judge may directly order the supply of these elements when it is evident that, according to the medical history or other evidence, the patient has an impairment that justifies its need.
In the case of diapers, for example, it would be conditions that prevent you from controlling your sphincters or that it is impossible for you to move.
In those situations, or in others that are relevant, the judge can order diapers, creams or wheelchairs conditioning it to the fact that the treating physician subsequently ratifies its need.
And when a notorious fact of serious affectation is not evident for the patient due to the lack of diapers, creams or wheelchairs, the judge may order that a diagnosis be made so that the doctor can determine if these supplies are required.
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A very important point is that the Constitutional Court said that, according to the Statutory Health Law of 2015, the patient cannot be required to have no financial resources to authorize diapers, creams or wheelchairs by way of guardianship.
In contrast, in the case of wet wipes, the Court stated that they are expressly excluded from the Health Benefits Plan. That is why, exceptionally, they can be ordered by way of guardianship, as long as four requirements are accredited.
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One of these requirements is that it must be shown that by not having these elements the rights to life or physical integrity of the patient are threatened or violated, either because their existence is put at risk or it causes a clear deterioration in their health condition that prevents him from developing his life in decent conditions.
Also, they can be ordered when there is no other drug or treatment in the Health Benefits Plan that can supplement its effectiveness, and when the patient does not have sufficient financial resources to cover the cost of these cloths, and do not have supplemental plans, prepaid medicine, or care programs that allow you to access them.
Transportation and technical nursing
Finally, the Court referred to inter-municipal transport services to access health, and from technical nursing service (different from the accompaniment).
These services, said the high court, are expressly included in the Health Benefits Plan.
In the case of transportation, in places where no additional premium is paid due to geographic dispersion, the Court determined that they are presumed to have the infrastructure and services available to serve all users.
In addition, for that inter-municipal transport a requirement of financial capacity cannot be imposed on the patient to authorize these services, and a medical prescription is not required, since “it is the EPS obligation” to provide it, from the moment it authorizes the service in a municipality other than the place where the patient lives.
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These rules, In any case, they do not apply for transport within the municipality or for transport in another municipality in the case of excluded technologies of the Benefits Plan.
Regarding technical nursing, the Court said that it is a modality for the provision of extra-hospital health services. When a doctor prescribes the service of this technical nursing, the judge can order it directly by way of guardianship. If there is no such medical order, the judge can order the diagnosis for the doctor to determine if the service is required.
JUSTICE DRAFTING
Twitter: @JusticiaET
