Ley 11 del 2001
Resumen
Esta ley crea la Oficina y el puesto del Procurador del Paciente Beneficiario de la Reforma de Salud en Puerto Rico. Su misión es hacer cumplir los derechos y responsabilidades de los pacientes beneficiarios de la Reforma de Salud, según lo establecido en la Ley Núm. 194 de 25 de agosto de 2000. La ley detalla las funciones, poderes y deberes del Procurador, incluyendo la supervisión de la accesibilidad y calidad de los servicios de salud, la tramitación de quejas, la realización de investigaciones y la imposición de multas administrativas. También se asignan fondos para los costos iniciales de la Oficina y se establece que, a partir de abril de 2005, la jurisdicción del Procurador se extenderá a todos los pacientes en Puerto Rico.
Contenido
(S. B. 78) (Conference) (No. 11) (Approved April 11, 2001)
AN ACT
To create the Office and position of the Advocate for Patients Beneficiaries of the Health Reform, entrusted with the mission to enforce the precepts contained in the "Bill of Rights and Responsibilities of the Patient" specifically related to patients beneficiaries of the Health Reform established by Act No. 194 of August 25, 2000; to establish its functions, powers and duties; and to appropriate funds to defray the initial costs of the organization and establishment of the Office.
STATEMENT OF MOTIVES
The Constitution of the Commonwealth of Puerto Rico has delegated on the Department of Health the important duty of watching over the health of our people. The role assigned to the Department by the intent of our Constitution vested on this agency the duties of supervising, regulating, and providing health services. However, the implementation of the Health Reform of the Government of the Commonwealth of Puerto Rico, which began in 1993, has changed the way in which the beneficiaries of said Reform may access and receive health services. Prior to the Reform, the Commonwealth was the health services provider for a vast majority of the people of Puerto Rico. At present, the Government has delegated this function on the private sector through Insuring Entities, which assume a contractual risk in exchange for the payment of a monthly premium per participating individual or families. Said Insurers, in turn, contract private health services providers through payments per person or "per capita."
However, there are many towns on our Island where 24-hour Emergency Medical Services are still unavailable. The Government, in changing its traditional role as health services provider, further decided to alienate or sell its health services facilities, adversely affecting the beneficiaries of the Health Reform. With the approval of Act 72 of September 7, 1993, the Government delegated on the Health Insurance Administration the responsibility of implementing, managing and negotiating a health insurance system for the beneficiaries of the Reform.
The financial agreement between the insurers contracted by the Health Reform and the primary medical services providers is based on a fixed monthly payment per capita regardless of the diversity, frequency, quantity, and quality of the services rendered. Through this agreement, the primary provider assumes the risk of the cost of the services rendered. This new structure of rendering health services has proven to be a learning process for each and every one of its components. On the one hand, the Department of Health has changed its role from that of being a service provider to that of being the overseer and guardian of the health of the people of Puerto Rico. On the other hand, Act 72 of September of 1993 created the Health Insurance Administration to handle the contracts with the Insurers and their relationship with providers and beneficiaries. Along those lines, we have the primary providers that had never before assumed the risk involved in the use of services and that for the first time could find themselves in the juncture of having to establish a balance between the welfare and health of patients and the compensation received to support their families. Lastly, patients who receive services need to be educated as to their duties and responsibilities to ensure that the resources are used in a wise and conscientious manner. Up to the present, the Department of Health, the Health Insurance Administration
and the Insurance Commissioner have exercised those functions that, upon the approval of this Act, shall be overseen and coordinated by the Advocate for the faithful compliance thereof.
The drastic and accelerated changes involved in rendering health services that have been brought about by the implementation of the Health Reform have caused much contention among patients, health services providers, insurers, and public-policy makers. Criticism made of the health care model under the Reform, service assessments, audits and public facility availability have highlighted the weak areas in the health care model in effect.
A constant complaint has to do with the fact that the supervisory system, divided among three government agencies, has neither had the success hoped for nor fulfilled the expectations of beneficiaries and service providers, and thus has failed to comply with its ministerial responsibility. It is evident that this matter requires special attention.
The experience gathered has proven that this new model calls for the creation of a driving force to coordinate, expedite, supervise and educate all the parties involved in the operation of the established structure. The purpose of this Act is to create the position of the Advocate for Patients Beneficiaries of the Health Reform. This official shall be responsible for watching over the rights of patients who receive the health services contracted by the Government of the Commonwealth of Puerto Rico, as set forth in Act No. 194 of August 25, 2000, better known as the "Bill of Rights and Responsibilities of the Patient." Said official shall have the powers needed to enforce these rights and shall establish the mechanisms for handling and settling the complaints filed. It is essential to establish a close relationship of cooperation and interaction among the Advocate created by
virtue of this Act, the Department of Health, and the Health Insurance Administration, so as to ensure the most effective handling of complaints under the Advocate's jurisdiction and the channeling of those that fall under the jurisdiction of other entities.
This Office shall initially begin by implementing the Bill of Rights of those patients beneficiaries of the Health Reform, leaving the responsibility for the rest of the population to the Department of Health. However, there is also the intention of assessing the performance of this Office to examine the possibility of extending its jurisdiction to the general population.
BE IT ENACED BY THE LEGISLATURE OF PUERTO RICO:
Section 1.-This Act shall be known as the "Office of the Advocate for Patients Beneficiaries of the Health Reform Organic Act."
Section 2.-Definitions:
(a) "Insurer": means any person or entity that assumes a contractual risk in consideration of or exchange for the payment of a premium, duly authorized by the Insurance Commissioner to do business as such in Puerto Rico.
(b) "Commissioner": refers to the Commissioner of Insurance of Puerto Rico.
(c) "Department": means the Department of Health of the Commonwealth of Puerto Rico.
(d) "Insuring Entity": refers to a health services organization authorized pursuant to Chapter XIX of the Insurance Code of Puerto Rico, or an insurer authorized to contract insurance as defined in Article 4.030 of said Code, as well as any nonprofit mutual aid or assistance partnership or association founded in Puerto Rico before April 11, 1899.
(e) "Health or Medical-Hospital Facilities": means those facilities identified and defined as such in Act No. 101 of June 26, 1965, as amended, known as the "Puerto Rico Facilities Act," or the provisions of any future legislation on said matter.
(f) "Patient": refers to any subscriber beneficiary of the Health Reform.
(g) "Premium": means the remuneration paid to an insurer for assuming a risk through an insurance contract.
(h) "Advocate": means the Advocate for Patients Beneficiaries of the Health Reform.
(i) "Provider": means any person or entity authorized by the laws of Puerto Rico to render or provide medical-hospital health care services in the Commonwealth of Puerto Rico.
(j) "Secretary": means the Secretary of the Department of Health of Puerto Rico.
Section 3.-The Office of the Advocate for Patients Beneficiaries of the Health Reform is hereby created, to be attached to the Office of the Governor of Puerto Rico, hereinafter the Office, with the responsibility of ensuring to the patients beneficiaries of the Health Reform compliance with the Bill of Rights and Responsibilities of the Patient established by Act No. 194 of August 25, 2000, and coordinating, handling, and solving the problems, needs, and claims of said insured patients, users and consumers of medical-hospital health services in Puerto Rico. In order to comply with these purposes, the Office shall oversee compliance with the following rights and obligations as set forth in Act No. 194 of August 25, 2000:
(a) The right to high quality health services.
(b) The right to obtain information and to its disclosure.
(c) The right to select plans and providers.
(d) The right to continued health care services.
(e) The right to have access to emergency services and facilities.
(f) The right to participate in treatment decision-making processes.
(g) The right to confidentiality of information and medical records.
(h) The right to be respected and receive equal treatment.
(i) The right to file complaints and grievances.
(j) The duties and responsibilities of patients beneficiaries of the Health Reform to the responsible use of health services. Section 4.-In order to comply with the provisions of this Act, the Office of the Advocate for Patients Beneficiaries of the Health Reform shall have the following duties and functions:
(a) Guarantee medical care accessibility.
(b) Serve as facilitator so that medical services be available to every patient beneficiary of the Health Reform in a more effective manner.
(c) Ensure that the medical services offered are of the highest quality and based on the needs of the patient, and guarantee that in rendering said services patients be treated with human dignity, fairness, and respect.
(d) Identify the most suitable means for responsibly and expeditiously handling the problems and complaints of the patients beneficiaries of the Health Reform, pursuant to the regulations provided in Section 10 of this Act. All these functions shall be interactive and must be carried out within a plan that guarantees the responsible use of the health services by patients as well as by all services providers and insurance companies.
Section 5.-The position of Advocate for Patients Beneficiaries of the Health Reform, hereinafter the Advocate, is hereby created, to be appointed by the Governor with the advice and consent of the Senate. The Governor shall fix the salary or compensation pursuant to the usual standards of the Government of the Commonwealth of Puerto Rico for positions of equal or similar nature. The Advocate shall hold office at the volition of the Governor, who shall establish the conditions and restrictions of the position in order to propitiate the recruitment and retention of the most suitable professional. The Advocate shall be licensed to practice the medical profession in Puerto Rico and be thoroughly experienced in matters of health, preferably with formal training in the field of Public Health. The Advocate shall also be a person of moral probity and be knowledgeable in matters germane to the health services received by the patients. The Advocate shall not render medical services to patients beneficiaries of the Health Reform covered by this Act, and shall hold office on a full-time basis.
The Advocate, as any physician by profession, shall keep his license effective and shall maintain his academic and professional knowledge to date by making time for pursuing continuing medical education courses, academic activities, and medical and clinical research unrelated to the functions and duties entrusted by this Act.
In addition to the responsibility of complying with the functions set forth in this Act, the Advocate is conferred the following powers and duties: (1) To keep the postulates of the Bill of Rights of the Patient current concerning the patients beneficiaries of the Health Reform, by submitting amendments in the form of bills to the Legislature in order to effectively fulfill their needs.
(2) To establish communications with medical groups, services providers, and insurers to improve and expedite access to health services. (3) To establish offices and appoint the necessary personnel, who shall maintain direct contact with the medical care centers throughout the Island, be informed of the problems, receive complaints filed by patients, and ensure the quality of and speedy access to services. (4) To advise and inform patients on the rights and responsibilities established in the Bill of Rights of the Patient and guarantee the commitment to the responsible use of health services and medical-hospital facilities. (5) To identify the personnel of the Department of Health and the Health Services Administration qualified to collaborate in complying with the tasks entrusted to the Office and to evaluate their functions in order to select those resources needed to comply with the purposes of this Act so that these resources be transferred to the Office through allocation, cession, transfer or assignment. (6) To be instrumental and collaborate in obtaining funds and other resources from other Commonwealth agencies, municipal governments and entities, the Federal Government, and the private sector for the design and implementation of projects and programs to be carried out by the Office herein created, by the nongovernmental health organizations, by the civilian population or by other government entities. (7) To request and obtain the cooperation and collaboration of the Department of Health, the Health Insurance Administration and
any other public or private entity that renders services to patients or of any other agency that has to do with the assessment of the quality of these services and the management of grievances and complaints from patients, be it through donation, cession or assignment of fiscal resources, personnel, reports, records, data, equipment or any other resource or property necessary for the purposes of this Act.
Section 6.-The Advocate shall be responsible for the organization and operation of the Office, for which the following powers and duties are conferred:
(a) Determine the internal organization of the Office and establish the systems needed for its proper functioning and operation, and engage in the administrative and managerial actions necessary to implement this Act, any other local or federal laws, and the regulations adopted by virtue thereof.
(b) Appoint the personnel needed to carry out the purposes of this Act. Said personnel, to be included in the Merit System, may avail itself of the benefits of the Public Employees Retirement System. For such purposes, it is hereby provided that the Office of the Advocate shall be covered by Act No. 5 of October 14, 1975, as amended, known as the "Puerto Rico Public Service Personnel Act." The Office may contract the technical and professional services deemed necessary to carry out the purposes of this Act, subject to the standards and regulations of the Department of the Treasury and obtain the transfer or cession of personnel employed by other government dependencies. The Government Procurement Act, administered by the General Services Administration (GSA),
the Central Accounting Act, administered by the Department of the Treasury, and the Office of Management and Budget Act shall also apply to the Office for the purpose of submitting the annual operating expenses budget.
(c) Delegate on any official he designates any of the functions, duties and responsibilities conferred to him by this Act or by any other law under his administration or jurisdiction, except the power to appoint or dismiss personnel. The approval of regulations may not be delegated.
(d) Acquire the materials, supplies, equipment and property necessary for the operation of the Office and for carrying out the purposes of this Act, subject to the applicable provisions.
(e) Prepare and administer the budget of the Office and the funds that by virtue of any local or federal laws or from any other source that are appropriated to the Office or which the latter is entrusted to administer. The Advocate shall establish an accounting system based on the provisions of law that regulate the accounting, administration and disbursement of public funds.
(f) Render, not later than January 31 of each year, to the Governor of the Commonwealth of Puerto Rico and to the Legislature, a complete and detailed report on the activities of the Office, its achievements, programs, affairs handled, complaints submitted and processed, funds allocated from different sources or administered by the Office during the year corresponding to said report, disbursements made and remainders, if any. Said report shall also be rendered before December 31 of the year in which general elections are held on the Island.
(g) Process the complaints submitted by patients, their parents or guardians regarding those private entities and public agencies that are providers and that render health services, as well as against insuring entities to which the premium corresponding to said patient has been paid. The Advocate shall refer those complaints involving physicians in the practice of their profession to the Medical Board of Examiners.
(h) Request reports on grievances and complaints from the insurers as well as from the Health Insurance Administration to identify possible trends which violate the rights of patients.
(i) Hold administrative hearings and onsite inspections in accordance with the Commonwealth of Puerto Rico Uniform Administrative Procedures Act. The hearings before the Advocate shall be public, but may be held in private when justified for reasons of public interest.
(j) Take oaths and statements personally or through his authorized representatives.
(k) Inspect the physical facilities of public agencies or private entities and insuring entities subject to the provisions of this Act and other laws under the administration and jurisdiction of the Office, pertinent to any investigation or complaint before the Advocate's consideration. The information obtained in the course of the investigation shall be subject to guarantees of confidentiality and constitutional safeguards without impairing the right to privacy of patients and providers, as well as taking into consideration the nature of the medical records and the importance that they be kept confidential and free from any disclosure whatsoever. The health
services providers shall not be under the obligation of furnishing documents or information that is privileged pursuant to the provisions of other laws of the Commonwealth of Puerto Rico. (1) Issue orders for witnesses to appear and offer testimony, require the presentation or reproduction of any papers, books, documents, records or other evidence pertaining to an investigation or complaint before his consideration. The information obtained in the course of an investigation shall be subject to the guarantees of confidentiality and constitutional safeguards without impairing the right to privacy of patients and providers, as well as taking into consideration the nature of the medical records and the importance that they be kept confidential and free from any disclosure whatsoever. The health services providers shall not be under the obligation of furnishing documents or information that is privileged pursuant to the provisions of other laws of the Commonwealth of Puerto Rico. In the case of a medical record, the patient who files the complaint shall procure the availability of said medical record.
(m) File any legal recourse or remedy for and in representation of the beneficiaries of the Commonwealth of Puerto Rico Health Reform whose benefits and protection are contemplated in federal and state laws, against any public agency or private entity and insuring entity to defend, protect and safeguard the interests, rights and prerogatives of these beneficiaries.
(n) Maintain continuous communications, cooperate and interact with the Department of Health, the Health Insurance Administration, the Insurance Commissioner, the Medical Services Administration,
and the Municipal Governments as needed, in order to ensure the proper handling of the complaints under their jurisdiction. In case the complainant is not a beneficiary of the Health Reform, the Advocate shall channel those complaints that fall under the jurisdiction of other entities and oversee their resolution in compliance with the provisions of the Bill of Rights and Responsibilities of the Patient, the Constitution of the Commonwealth of Puerto Rico and any other applicable laws.
(o) The duties and obligations of the insurers and the medical-hospital facilities and providers, as these terms are defined in this Act, as well as the rights of patients, whose noncompliance with or violation thereof, respectively, would be grounds for filing a complaint or conducting an investigation pursuant to the provisions of this Act, shall be expressly detailed in the Regulations the Advocate is directed to approve, pursuant to the provisions of Section 10 of this Act.
Section 7.-Every complaint filed pursuant to the provisions of this Act shall be handled as provided by regulations. The Advocate shall notify the complainant of his decision to investigate the facts alleged in a complaint not later than the fifteen (15) days following the date it has been filed. The Advocate shall also notify, within said term and when pertinent, his decision not to investigate the complaint in question, stating the reasons for so doing, and notify the complainant of his right to request reconsideration. In those cases in which the Advocate decides to investigate the complaint, he shall, on the same date in which the complainant is notified, inform said decision to the public agency or private entity against which the complaint is filed, as
the case may be, with a statement of the facts alleged in the complaint and citing the law that empowers him to conduct said investigation.
Section 8.-Notwithstanding the provisions of this Act, the Advocate shall not investigate those complaints when in his judgment, the following has been determined:
(a) The complaint refers to a matter outside the scope of his jurisdiction.
(b) The complaint is frivolous or has been filed in bad faith.
(c) The complainant voluntarily desists of pursuing the processing of the complaint filed.
(d) The complainant is unfit to file a complaint.
(e) The complaint is under investigation by another agency and, in the judgment of the Advocate, it would result in a duplication of efforts.
In those cases in which the complaint filed by the patient, his parents or guardian does not involve any controversy that can be adjudicated or that refers to a matter outside the scope of jurisdiction of the Office, the Advocate shall refer the same to the pertinent agency and shall oversee its resolution in compliance with the provisions of the Bill of Rights and Responsibilities of the Patient, the Constitution of the Commonwealth of Puerto Rico, and any other applicable laws.
The Advocate, on his own initiative, may conduct the investigations deemed pertinent, provided that in his judgment there are sufficient grounds for conducting an investigation pursuant to the provisions of this Act.
Section 9.-Any party adversely affected by a decision, determination, order or resolution of the Advocate, issued pursuant to the provisions of this Act and of any other law under his jurisdiction, may request reconsideration
and a judicial review, pursuant to the provisions of Act No. 170 of August 12, 1988, as amended, known as the "Commonwealth of Puerto Rico Uniform Administrative Procedures Act."
Section 10.-The Advocate is hereby directed to adopt the regulations necessary for the internal operation of the Office and for the implementation of the provisions of this Act. The procedures for filing, processing and investigating complaints shall be governed, whenever applicable and in matters not provided for in this Act, by the regulations to be adopted to such effects, pursuant to the provisions of Act No. 170 of August 12, 1988, as amended, known as the "Commonwealth of Puerto Rico Uniform Administrative Procedures Act."
Section 11.-The Advocate is hereby empowered to impose administrative fines for violations of the provisions of this Act, after notice and hearing, in accordance with and up to the sums provided in Act No. 170 of August 12, 1988, as amended, known as the "Commonwealth of Puerto Rico Uniform Administrative Procedures Act."
However, any person who willfully and maliciously prevents or hinders the exercise of the functions of the Advocate, or of the personnel of his Office, or who knowingly furnishes false information, shall be guilty of a misdemeanor and upon conviction shall be sanctioned with a fine not to exceed five thousand (5,000) dollars.
When the prevention or hindering action referred to in the preceding paragraph is carried out with intimidation, force or violence, said action shall constitute a felony and upon conviction thereof, the person shall be subject to the penalty of imprisonment for a fixed term of not more than five (5) years and not less than six (6) months and one day, or to the penalty of a fine
of not more than ten thousand (10,000) dollars and not less than five thousand (5,000) dollars, or both penalties at the discretion of the Court.
Section 12.-The Director of the Office of Management and Budget is hereby authorized to appropriate the sum of two hundred thousand (200,000) dollars, chargeable to the Budgetary Fund, to defray the initial costs of organizing and establishing the Office of the Advocate for Patients Beneficiaries of the Health Reform, during the fiscal year 2000-2001. The sum of two hundred thousand (200,000) dollars is hereby appropriated to the Office of the Advocate for Patients Beneficiaries of the Health Reform, pursuant to the provisions of this Act.
In subsequent years, the resources needed for the operation of the Office shall be consigned in the General Expenses Budget of the Commonwealth of Puerto Rico.
Section 13.-As of April 1, 2005, the jurisdiction of the Advocate shall be universally extended to cover all patients in Puerto Rico.
Section 14.-If any paragraph, section, or part of this Act is found to be unconstitutional by a court with competence and jurisdiction, the remainder of its provisions shall maintain full force and effect.
Section 15.-This Act shall take effect immediately after its approval.
Chapter 19, 2001
Rolando Quevedo-Motta, Esq., Director of the Office of Legislative Services of the Legislature of Puerto Rico, hereby certifies to the Secretary of State that he has duly compared the English and Spanish texts of Act No. 11 (S.B. 78) (Conference) of the $1^{ ext {st }}$ Session of the $14^{ ext {th }}$ Legislature of Puerto Rico, entitled:
AN ACT to create the Office and position of the Advocate for Patients Beneficiaries of the Health Reform, entrusted with the mission to enforce the precepts contained in the "Bill of Rights and Responsibilities of the Patient" specifically related to patients beneficiaries of the Health Reform established by Act No. 194 of August 25, 2000; to establish its functions, powers and duties; and to appropriate funds to defray the initial costs of the organization and establishment of the Office, and finds the same are complete, true and correct versions of each other.