It was past ten o'clock on Saturday night when the Chilean Minister of Health, Ximena Aguilera, opened the application of the newspaper La Tercera, where the Sunday edition of that newspaper was advanced, and found the surprise. 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 known in Chile – to return excess charges to their members. Although the political discussion for weeks was developed on the basis that the institutions should compensate the universe of affected – the Government's calculations pointed to about 1,400 million dollars in total – Vivanco turned the board by stating that "the surpluses that the isapres have to return are those who sued."
The words of the minister of the Supreme unleashed a whirlwind, because – unexpectedly – they opened a way out of 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 the task force that, since the ruling was known, works to give a solution to the crisis and find 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 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 Superintendence of Health, an appeal for clarification so that the Supreme Court explains the repercussions of the sentence, who would be the beneficiaries and thus end the uncertainty caused by Vivanco's words. The judge, in the afternoon, as if to further complicate a problem of maximum relevance for the Government, qualified her statements: she clarified that "there is no change of criteria" and stressed that the correct interpretation of the ruling corresponds to give it to the constitutional chamber of the Supreme Court and not to her, although it composes it.
It's a busy Monday morning. The Minister of Health leaves a meeting with several of her advisers and receives EL PAÍS. In his office on the third floor of the ministry in downtown Santiago, he is trying to figure out the aftermath of the weekend earthquake.
Question. 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 returns for those who filed the appeals before the courts. And that makes it necessary to make a greater formal precision and the ideal is that they clarify it as soon as possible.
Q. Do the judge's words complicate the government's short bill, which seeks the application of the Supreme Court's ruling?
A. From the point of view of the bill, it does not affect us that 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 speak of the amounts.
Q. Why was the calculation of the 1,400 million dollars made by the Superintendence of Health not included in the project?
A. Because the isapres, for example, had a different interpretation, although they have never made it public. They did it for me at the work table.
Q. And what was that interpretation?
A. They had an approach that, in reality, the affected contracts were those that had moved loads between 2020 and now, not all contracts. We evaluated that, but then, from the legal point of view, the lawyers here ruled it out because they said that, due to the previous rulings of the Supreme Court, there was not much room for that reading and that, in any case, the isapres would have to present an appeal for clarification to the Supreme Court.
Q. And the isapres never asked the Supreme Court for clarification to confirm whether their interpretation was correct...
A. Since the ruling appeared, I have asked the isapres several times – because they are the first affected – to make an appeal for clarification. The first ones who raised the alert were them and gave amounts and then withdrew. In the work tables with us they gave amounts, enormous, very similar to those of the Superintendence of Health in the first instance. Then, when they went into a deeper analysis, they made these other interpretations. I insisted several times that they make an appeal for clarification. Now it is clear that this clarification is important, after the words of Minister Vivanco, and that the Supreme Court specifies those statements. Because courts speak through their sentences, not interviews.
Q. There are deputies who argue that, in view of what has happened, the short law is a futile effort.
A. It is not useless, because what we want is for there to be a responsible application of the judgment. And we're 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 whether it is universal or not. And the idea of the law is, precisely, to have a more homogeneous treatment.
Q. Why?
A. If the application of the ruling is not universal, it will open the way again to judicialization. The bill does indeed provide more certainty, so it would be more justified even if the ruling were only partial. The idea is that it is a more open discussion, where all sectors participate.
Q. The ruling was at the end of November. Why did the Government not clarify this point earlier? Minister Vivanco says that you never approached to clarify the underlying issues of the ruling.
A. She never mentions ministry. The ruling mandates the Superintendence of Health to apply the ruling. The Superintendence made a request for clarification in January where it asked 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 introduced a bill, the former superintendents, Espacio Público [a progressive think tank], among many others. And everyone understood that there was a clear universal interpretation.
Q. Minister Vivanco said in March that the ruling was of general effect.
A. Of course, in that interview he said that it was of general effect, therefore, there was not much doubt about that. And, in addition, they were asked for an approach on the short bill, which they gave last week, and where it was explained what the approach was and where there could also have been an opportunity for clarification. But hey, now the Court will have to clarify it.
Q. For some, it is a mistake that the Ministry of Health has not done the work of asking much more clearly. Some Members have even called for his resignation. What do you think?
A. I am not the institution that has to calculate these issues, but it is the Superintendence. But I think everyone has the freedom to ask for what they believe. However, it must be understood that throughout the world that has been involved in this issue, there was a fairly consensual understanding that the ruling was far-reaching.
Q. If the Supreme Court now clarifies that indeed the ruling only affects those who sued, is it known how many people there are?
A. Minister Vivanco said that last year they appealed over 600,000 people, but they appealed for different reasons. And the search engine of the Judicial Power allows us to know that they appealed on the isapre, but not on 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 table of factors. So, knowing how many are per factor table [the object of the failure] for us is not so easy.
Q. Should that be requested within the appeal for clarification to the Supreme Court?
A. Yes, there is no other source to know how many people have resorted to this cause.
Q. Behind this crisis lies the criticism that the Boric government is trying to push for an end to the isapres. Is there any of that?
A. No, and I've said that many times. No reform can end private health insurance in this way, it has never been proposed. Those are approaches of 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 propose our health reform proposal that is agreed among all sectors.