An insurance company is not a health care provider (EPS). While the former is aimed at providing coverage against some risks through an insurance contract, the latter is aimed at providing health care services, supplementing those provided by the State through its Social Security System. The differences between one system and the other are clear, not only because of their nature but also because of the activities, requirements, control bodies and regulatory framework involved.
These differences are precisely the reason why it has been necessary to regulate, through two different legal rules, the right to continuity of care when pre-existing conditions exist: on the one hand, Law N° 29561 “Law on continuity of care when pre-existing conditions exist under the Health Program of Health Care Providers” and, on the other hand, Law N° 28871 “Law on pre-existing conditions when a new health insurance is taken and/or a medical assistance contract is signed with the same insurance company with which the patient was insured in the immediately preceding period”.
Both laws call for the obligation to guarantee and provide continuity of care when dealing with pre-existing conditions , which means that neither insurance companies nor EPSs can treat diseases which had health coverage under a health insurance or health plan taken out before the filing of an application for a new insurance or health plan, as pre-existing conditions. This is the so-called right to continuity of care available to every individual insured with an insurance company or EPS so that said person may continue receiving health care in the event he/she suffers from any disease diagnosed but not cured during the term of a previous health plan or health insurance.
Accordingly, we can see that the right to continuity of care when pre-existing conditions exist is recognized by both health systems, that is, the insurance system and the EPS system. Both systems co-exist independently and allow that a patient insured with an insurance company shift to another insurance company, and that an EPS patient shift to another EPS without being denied treatment of previously diagnosed diseases. However, it is not possible to shift from one system to the other. A person insured with an insurance company
cannot shift to an EPS or vice versa, arguing that he/she is entitled to continuity of care. If we argued that this option is possible, then the existence of two different legal rules, one for each health system, would be meaningless.
After the laws on the right to continuity of care when pre-existing conditions exist were issued, Law Nº 29344 “Master Law for Universal Health Assurance”, was issued. Supplementing the previous laws, it made express reference to the conditions to be met in order for the right to continuity of care when pre-existing conditions exist to be enforced, making it possible to have the insurance premium set according to the economic impact of the pre-existing conditions. This legal rule applies to insurance companies and EPSs, called IAFAS (Health Assurance Fund Management Entities).
With the entry into force of Law N° 29946 “Law on Insurance Contracts” and Article 118 thereof, some entities interpreted that it supported the right to continuity of care when pre-existing conditions existed if a patient shifted from one health system to another one, making it possible to shift from the insurance system to the EPS system or vice versa, known as crossover of pre-existing conditions. However, some other entities like the Superintendency of Banking, Insurance and AFPs, complying with the principle of literality of legal rules, considered that this interpretation was the most appropriate one.
Article 118 provides that “Pre-existing diseases are covered by the insurance system and the EPS system, at least up to the limits set forth in the original or previous contract”. According to a literal interpretation of this article, we can see that it obliges both the insurance system and the EPS system to provide coverage against pre-existing diseases and that this obligation applies to each such insurance regime (insurance system and EPS system). Concerning this matter, it is worth highlighting SBS Resolution N° 3203-2013, issued by the Superintendency of Banking, Insurance and AFPs, which precisely provides as follows: “the continuity of care when pre-existing diseases exist under a health insurance system is not limited for no reason whatsoever to only one insurance company, but covers any company that is part of the Peruvian insurance system”.
Interpreting that Article 118 authorizes the possibility of integrating one health system into the other would be like interpreting it on an extensive basis and conveying a quite inaccurate message. However, based on our legal interpretation, we can see that Law N° 30562 has recently gone into effect. This “Law clarifies some supplementary aspects of the coverage given to the crossover of pre-existing conditions referred to in Article 118 of Law 29946, Law on Insurance Contracts”, which does nothing else but ratify the existence of a regime governing the crossover of preexisting conditions backed by the controversial Article 118.
We now have a legal rule which, far from clarifying or elaborating on the legal rules on the crossover of pre-existing conditions, puts an end to the discussion (the topic has been extensively discussed in several bills) and states that a legal rule which accepted the possibility of shifting from one health system to another one already exists, thereby putting an end to ongoing discussions and positions, but making the legal rules on pre-existing conditions meaningless, that is, Law Nº 28770 and Law N° 29561. We would like to stress our disagreement with the legal rule recently enacted whereby, we understand, lawmakers are trying to correct a mistake created by a rule as inaccurate as Article 118 of the Law on Insurance Contracts.