O. S. Pers. de la Construcción v. Estado Nacional – Ministerio de Salud

CSJ 44/2010(46-0) /CS1
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The plaintiff, the Health Insurance of the Construction Workers [Obra Social del Personal de la Construcción – OSPECON], filed suit against the National State, Ministry of Health and Social Action and Superintendent of Health Services to liquidate and transfer the corresponding funds from the Fondo Solidario de Distribución [Solidary Distribution Fund] created in law 23.661 to finance the three months after the termination of an employee without making contributions. The health insurance company argued that art 24 of Annex II of decree 576/93 [the reglulatory decree of Law 23.661] established that the beneficiaries that receive lower income than the average workers had the right to receive funds from the Solidary Distribution Fund to have equal access to health care as the average workers. Article 10.1 of the health insurances companies law 23.660 stipulated that construction workers should be provided with health coverage during three months after the termination of their labor contract even though they didn’t make contributions.

The National State understood that there was no legal norm in Law 23.660 (health insurances companies law) that stipulated that the State had an obligation to fund the health insurance company when a worker is unemployed during three months and makes no contributions. Also, the fund from Law 23.661 distributes resources automatically based on the contributions that workers make, so if there is no labor contract, then the worker can’t remain as a beneficiary because there is no contribution done.

The Federal First Instance Social Security Court dismissed the case. The plaintiff filed an appeal with the Federal Social Security Courts of Appeal which revoked the First Instance judgement and admitted the appeal. The National State filed an extraordinary appeal to the Supreme Court of Justice arguing that the previous judgement was arbitrary because there was no law that imposed a legal obligation on the National State to finance the three months after the termination of an employee, absent contributions.  According to the respondent, art 10.a from Law 26.660 imposes such a legal obligation on health insurance companies, not on the National State.

 

The Supreme Court of Justice found that the legal regime of health insurance companies established in laws 23.660 and 23.661 are based on the constitutional norm of art 14 bis: "The State shall grant the benefits of social security, which shall be of an integral nature and may not be waived. In particular the laws shall establish: compulsory social insurance, which shall be in charge of national or provincial entities with financial and economic autonomy, administered by the interested parties with State participation, with no overlapping of contributions." Therefore, the State has a constitutional obligation to provide health care which must be provided according to the solidarity principle. This principle found in law 23.661 establishes three levels of healthcare financing: first, the individual obligation to make contributions done by workers, second funds by the Solidarity Redistribution Fund created with contributions done by all health insurances companies and lastly by the State intervention through contributions from the National budget.

Health insurance companies have the obligation to provide healthcare for three months following termination of an employee, even if the employee does not make contributions, stipulated in art 10.1 law 23.660. Also, art 24 of law 23.661 established that the Solidarity Redistribution Fund [Fondo Solidario de Redistribución] is in charge of the automatic distribution of their resources among the health insurances companies with the purpose to subsidize those workers who receive a lower income than the average worker to equate their level of healthcare coverage to those average workers.

The Supreme Court found that the Court of Appeal correctly interpreted art 1o.1 law 23.660 and art 24 law 23.661 whereas the governing principle in healthcare is the solidarity principle, and the fund was created to provide financial assistance to health insurance companies to provide health coverage for people in need.  This means that if a worker didn't provide a contribution, then the Solidarity Redistribution Fund should be the one funding the Health Insurance Company. The fund was created to assist vulnerable and unemployed people, including construction workers who lack labor stability. There is no law stipulating that the health insurance company should be the one financing that obligation, but there is the solidarity principle that establishes that if a worker didn't make contributions then the Solidarity Redistribution Fund should be financing those three months of unemployment.

For those reasons, the extraordinary appeal was admitted and the previous judgement confirmed.

"[...] En lo que respecta al agravio relacionado con la innocada violación del principio de legalidad al declarar el derecho de la obra social a percibir del Fondo Solidario de Redistribución una suma de dinero por beneficiario no aportante comprindido en el art° 10, inc. a, de la ley 23.660, el a quo ha efectuado una razonable interpretación armónica de los arts. 10 de la ley 23.660 y 24 de la ley 23.661, de la voluntad del legislador al instaurar el sistema y de los principios que rigen la materia." Paragraph 15

"[...] Regarding the tort related to the violation of the legality principle by establishing the right of the health insurance company to receive an amount of money for not contributing beneficiary of article 10.a of law 23 600, the courts of appeal did a reasonable harmonic interpretation of articles 10 of law 23 600 and 24 of law 23661, of the will of the legislator when they established the system and the principle governing the subject." Paragraph 15

 

"Que habida cuenta de que en la actividad de las obras sociales ha de verse una proyección de los principios de la seguridad social, a la que el art° 14 bis de la Constitución Nacional confiere carácter integral, los conflictos originados por su funcionamiento deben apreciarse con un criterio que no desatienda sus fines propios." Paragraph 18

"In the activities of health insurances, the principles of social security should be projected, where article 14 bis of the National Constitution gives integral character, the conflicts that arise from their functioning should be appreciated with a criteria that doesn't neglect its own purposes" Paragraph 18

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