The Liability Risk Administrators Health Cases Denial of Coverage in the City of Santiago , 2010-2012.
Thesis author of this blog, the professional lawyer Jorge Ricardo Jiménez María (George Richards).
Autonomous University of Santo Domingo (UASD) . Year 2013 

Glossary of Terms .

AFP: Pension Fund Administrators

ANDECLIP: National Association of Private Clinics and Hospitals

ARL: Labor Risk Administration

ARLSS: Occupational Risk Administrators Segura Health

ARS: Health Risk Administrators

ARS SIMAG: Medical Insurance Dr. Abel González

IDB: IDB

CNSS: National Council for Social Security

DIDA: Department of Information and Protection of Affiliates

IDSS: Dominican Institute of Social Security

OFAU: Service Office user SISALRIL

PBS: Basic Health Plan

PDSS: Health Services Plan

PSS: Health Service Providers

PUCMM: Pontificia Universidad Catolica Madre y Maestra

RC: Contributory Scheme

RCS: Subsidized Contributory Scheme

RS: Subsidized

SCJ: Supreme Court

SDSS: Dominican Social Security System

SENASA: National Health Insurance

SFS: Family Health Insurance

SISALRIL: Superintendent of Health and Labor Risks

SIPEN: Superintendent of Pensions

SVDS: Old Age, Disability and Survivors

TC: Constitutional Court

TSS: Treasury of the Social Security

UAPA: Open University for Adults

UASD: Autonomous University of Santo Domingo

Uneven: National Evangelical University

UTESA: Technological University of Santiago

2.1 The 1896 Act , as Predecessor of Law 87-01 .

In the Dominican Republic , the origins of a national health system back to the Era of Trujillo when the August 30, 1948 was created by the Law from 1896 to 1848 the Dominican House of Social Security, which in 1962 was renamed the Institute Dominican Social Security System ( IDSS) was intended to provide health care to workers employed in the country.

According Pellerano & Herrera , in its Information Bulletin No. 1, 2002, p. 1, called Relevant Aspects of Social Security Act :

" This law never properly we was a real social security system , because of which excluded a large segment of society , which had to go to the best private insurance also called medical plans igualas , we say that the best because only a very small segment of society had access to this type of insurance ; while the rest of the people left homeless by adequate social protection. "

Express these authors mentioned that the 1896 Act :

" Rested on a distribution system that is the contributions made ​​members became part of a pool . All the capital that formed the common fund was used to finance pensions , cover medical expenses of members, among others; All these procedures were carried out without considering the individual contribution of each member of the system; becoming increasingly deficient because, among other things did not encourage individual or Extra savings is one that went beyond the provisions of the law , in addition to the contributions made ​​economically active citizens , ie , employees who listed on the social Security not enough to cover health and pension benefits requiring elderly citizens . "

In the absence of medical care and adequate hospitals and public health centers health, and because there was no real social security system emerged private health insurance policies , also called retainers medical , which became the alternative ideal for ensuring health care users who could afford them , either independently or through the company you provide services .

IDSS deficiency caused the urgent need to reform the health system of the Dominican Republic , which has been brewing for the 80s but had not materialized . Even during the constitutional period 1990-1994 was thought that this longing was going to materialize when the January 10, 1991 , Congress passed a law amending the 1896 law IDSS and created a system of universal coverage where all people would be assured but Dr. Balaguer , the then President of the Republic , never enacted this law and its mandate ended on August 16, 1994 without significant progress, which is not achieved during his 1994-1996 term cut .

Dr. Balaguer replaces him as head of state Dr. Leonel Fernández Reyna (1996-2000) , during which the first term of the National Dialogue meetings are led , through which agreements were reached between the government , the private sector, the business community , the Church and the unions that included among its purposes the establishment of a modern social security system , universal and comprehensive , to eliminate existing discrimination and exclusions so far in the social security system of the Dominican Republic . Fernandez created a tripartite committee with the task of preparing a draft law on social security, chaired by Dr. Rafael Alburquerque, then Secretary of Labor.

As raised by Scotus Abreu , A. ( s / f ) in his monograph Dominican Social Security System , the idea of ​​creating a new social security system modern, universal and comprehensive :

"Generated opposition in various sectors , especially business , which led to high government officials , as Danilo Medina, Themistocles Montas and Rafael Camilo , the conviction would have to seek a consensus to reformulate , task entrusted Arismendi Diaz, who returned to the country after 7 years of consulting and advisory services in the field in Central America and Bolivia .

To pass the bill , senators sought consensus to the smallest details, with the various business sectors , labor and professional . At the end of the text was a summation of concessions, but instituted a universal regime , inclusive of the entire population , taking into account the public sector and the private and fully decentralized . He soon saw that sectoral interests and little government willingness to fund the system hindered its execution. "

2.2 Status of Social Security in the Dominican Republic at the start of 2001.

It should be emphasized that , at the beginning of 2001, only 7% of the Dominican population was affiliated in the IDSS , representing only 37 % of private workers in the country , and indicated that the state was not protected against empleomania health risks , other commercial public entities. The military and the police, and therefore, his relatives were also excluded. Were also checked out the wives and children of private employees who were insured .

According to the DIDA , in his book "Book " 10 years of Social Security from the point of view of users ' IDSS was no longer efficient institution that was originally to become an irrelevant institution as a result of opportunistic management of the politicians in power , government neglect , evasion and avoidance of employers and the lack of commitment of the labor sector , which led to that state agency to a precipitous decline , which could not be reversed and that could not ever overcome ; largely responsible for this debacle was the one who should have been his biggest supporter , labor whose representatives instead of fighting for the strengthening of the institution, require employers preferred hiring retainers and private health insurance , which further weakened IDSS and caused effects in the public sector , which followed the steps to the private sector and private medical igualas hired employees .

2.3 Approval, adoption and implementation of the Law 87-01

During the constitutional government of Hipólito Mejía (2000-2004) carried out major reforms of social impact , and among these we mention the law 42-01 , General Health Law, promulgated on March 8, 2001 , and Law 87 -01 creating the Dominican Social Security System .

42-01 The Act introduced new elements in health in our country among which are the right to receive health care in emergency even without insurance and establish that the advertising of products relating to snuff and Alcohol should be included detail that eating them is injurious to health . Likewise, the law in Article 98 provides that :

" Everyone has the right to health services of the highest quality , based on previously established standards and criteria and under regular supervision. Quality assurance services should be based on continuing qualification. The appropriate remuneration , encouragement and protection to workers in the health area ; as well as the provision of technical , appropriate policy and financial and human resources required to provide and maintain such standards. "

As for Law 87-01 , enacted on May 10, 2001 , this is considered one of the greatest social impact legislation has caused in our country being comparable only to the 16-92 Act of May 29, 1992 , which introduced important reforms for Dominican workers , instituting a new Labour Code which extended the benefits of the working class of our country, and the laws of the land reform undertaken by Dr. Joaquin Balaguer from 1962.

Of those laws , the Law 87-01 was the most significant , because its scope is universal , contrary to Law 16-92 and the agrarian reform law , whose scope is limited to the working class and the class peasant , respectively.

Note that , like any system newly formed system adopted the Dominican experience of other countries in which there is long a system of social security; Among the systems that inspired us , we can cite the Spanish , Colombian and Chilean . Therefore Dominican technicians who visited these countries between 2001 and 2004 under the auspices of the Inter-American Development Bank ( IDB) to receive training , gain knowledge and verify the experience of these countries in their respective systems to implement these details in ours.

To fulfill the mandate of the Law 87-01 regarding segregation of duties under Article 3 of the Act which provides that " the driving operations , financing , planning , recruitment and allocation of resources are unique to the State SDSS and institutional autonomy is exercised with respect to risk management activities and services , "the new Dominican Social Security , gave rise to various institutions.

These were:

The National Council for Social Security Fund (CNSS ), an autonomous public entity which is the highest organ of the system and replacing such qualities in the Dominican Social Security Institute (IDSS ); Treasury of Social Security, which is the entity responsible for the collection , distribution and payment of financial resources within the SDSS , and others, only system administration and collection of information ; Directorate of Information and Protection of Social Security Affiliates ( DIDA ) , which is a dependency of the CNSS , which is responsible for public work guidance, information and protection of users ; Superintendent of Pensions , autonomous public entity and rector on pensions within the SDSS ; the Superintendence of Health and Labor Risks , autonomous governing body in matters of public health and occupational risks within the SDSS ; the National Health Insurance ( SENASA) , and autonomous public entity administering health risks, which is referred to as the state S ; Fund Administrators (AFP ) , public , private or mixed , which are almost entirely related to banking and aimed at the management of pension fund members to SDSS ; the Health Services Providers (PSS ) , public , private or mixed , with or without profit , whether these clinics , hospitals, pharmacies , laboratories or clinics ; Public, private or mixed , profit and non -profit performing principal activity complementary roles of social security, such as insurance brokerage companies to mention a case.

Additionally , there were the Health Risk Administrators (ARS ) , which are responsible for covering the health risks to members of the SDSS and are an essential element of this research.

The year after the enactment of the laws of Health and Social Security , begins formally the new stage of social security in the Dominican Republic with the entry into force of the Family Health Insurance (SFS ) subsidized regime , costed entirely by the Dominican government that began with about 45 thousand people in the southern provinces of the country, specifically Barahona and Bahoruco. This occurred on September 1, 2002 .

As you can see , for the start of social security were considered people of the poorest region of the country, perhaps the government's interest Mejia demonstrate commitments to the poor and dispossessed .

On June 1, 2003 came into force the new pension system of the Dominican Republic , called Old Age, Disability and Survivorship ( HDSS ) which would replace the outdated pension system that hitherto managed the Dominican Institute of Insurance social (IDSS ) . With this new pension system , the country was a large jump in terms of ensuring old-age , disability, survivorship and old age unemployment .

Also, the March 1, 2004 came into force on Occupational Hazard Insurance ( SRL ) , regenteado for Health Risk Management Labour Segura ( ARLSS ) which endowed the country with a modern structure for the protection of workers from risks accidents at work and occupational diseases.

On leaving the government of Hipólito Mejía in August 2004 , the country had a new pension system, Safe at Work, and a hundred thousand Subsidised Health System.

However, the Family Health Insurance (SFS ) of the Contributory Scheme , which was to be funded by employees and their employers , and that should be the first to start the three SDSS insurance , that date had not started .

The August 16, 2004 to return to Dr. Leonel Fernández Reyna, and in the first two years of his new presidential term strenuous efforts are made to start the Family Health Insurance (SFS ) of the Contributory Scheme , but they do not thrive due to discrepancies between the sectors involved in the negotiations (business , government, unions , clinic owners and ARS) . The lack of agreement was due to each of the aforementioned groups had an interest and / or different views on how it should be operated such insurance.

Given the repeated absence of agreement, the government headed by Fernandez takes a firm decision to put pressure on other sectors involved ; then with the support of civil society and the mediation of the Catholic Church led by Monsignor Agripino Nunez Collado finally managed to reach an agreement for the implementation of the Family Health Insurance which was signed by all parties on December 19 2006 in the facilities of the Pontificia Universidad Catolica Madre y Maestra (PUCMM ) in the Dominican capital .

This agreement established the June 1, 2007 as the date for the entry into force of the SFS . Check the start date , uncertainty still reigned , which can be seen in the reports in the newspaper Listin Diario dated 01/05/2007 . We quote : " Dominican Republic begins today formally the Family Health Insurance (SFS ) of the tax regime in the midst of uncertainty , misinformation and contradictions between the sectors involved in the new system."

According to this story , some 2.4 million Dominicans , among workers and their immediate dependents, begin to make their financial contributions to the system from 15 May 2007 and 01 June of the same year would receive medical care .

"The start , but marks a milestone in the history of the Dominican Medicine, comes amid controversy over the scope and benefits of SFS . Doctors and clinics say they do not know how much will integrate seamlessly fees and rates , while the unions said that it will with cautious enthusiasm. "

For its part , the government believes that the FSS will be of great benefit to the country as services that will increase gradually.

As the Secretary of Labor , President of the National Council for Social Security Fund (CNSS ) , arises when the SDSS is Dr. Milton Ray Guevara , whereas when the Family Health Insurance (SFS ) of the tax scheme in 2007 , chairman of the CNSS was Mr. José Ramón Fadul ( Monchy ) .

Workers started up the contributory scheme providing the health system 2.7 percent of their gross salary and the employer 7.3 percent during the first year . For the second year (September 2008- August 2009) , the worker's contributions will increase to three percent (3% ) of their salary.

In May 2007 , the country tries to move away from an outdated system because 6 had begun decades ago

"A system of healing based health and social care , as well as a model of Social Insurance with protection for workers receiving minimum wage , leaving out coverage to higher-income element in the 1970s gave way the development of the current model of private insurance, which cover about 13 percent of the working population.

An estimated 6.5 percent of the population is covered by the Dominican Social Security Institute (IDSS ) and two percent for the Armed Forces. "

The referral system was born with many disagreements count of the various participating groups. Your denial does not imply a situation of civil liability and had not yet begun medical care and therefore not incurred in situations of contractual breaches. Among the protesters were physicians groups , which indicated through its president, Dr. Enriquillo Matos, the system would not participate " until we reach agreements regarding rates of professional fees ."

That is why , come the June 1, 2007 was not possible to start the Family Health Insurance RC because some sectors , despite having signed the agreement in December 2006 , laid back, which caused postponement by additional 90 days the effective date of the FSS, until finally the September 1, 2007 the same could be initiated.

The entry into force of the Family Health Insurance Contributory Scheme resulted in the correction of some distortions to 2007 in the Dominican health system; however, also gave rise to the emergence of a problem that significantly affects users of the services of ARS: the denial of health coverage , a problem that motivates us to do this research with the aim of discovering the causes of the massive number of cases of denial of coverage have occurred in recent years and as far as we are concerned specifically , in the city of Santiago in the period 2010-2012 , and identifying the way it has handled the civil procedure in these cases and how the law has spoken .

As could be seen , until 2001 , in the Dominican Republic there was no system of universal social protection and inclusive character.

For Dominicans civil courts was totally unaware of the fact that a citizen of such a challenge to demand their rights by denial of coverage under Social Security , and this liability was limited to only specific situations.

With the approval of the Law 87-01 dated April 5, 2001 and subsequent enactment on May 10, 2001 , by then President of the Republic , Hipolito Mejia Dominguez, a 180 degree change occurs this reality and the Dominican people get a great achievement : the Dominican Social Security System ( SDSS ) .

According to the provisions of Article 1 of Law 187-01 , it was born with the purpose of :

" Establish the Dominican Social Security System ( SDSS ) in the framework of the Constitution of the Dominican Republic , to regulate and develop the mutual rights and duties of the State and citizens with regard to funding for the protection of the population against risks of old age , disability, old age unemployment , sickness , maternity, childhood and occupational hazards.

The Dominican Social Security System ( SDSS ) is a system of public protection created by the legislator who came to pay part of the social debt accumulated by the Dominican State for decades , creating this system whose character " is universal , compulsory , supportive, plural and integral to grant constitutional rights to the people. "

When is said to be universal , we refer to the same " must protect all Dominicans and residents in the country without discrimination on grounds of health, sex, social status, political or economic ."

The universal nature of this system is recognized by the Dominican Supreme Court when a judgment dated 14/05/2008 No. 235-2006-00121 provided that :

"The Court finds that the rights claimed by workers dressed in their number four ordinal demand and fifth of his findings to the court of first instance and ratified in court, concerned the damages for inclusion in the social security, so in that aspect unfounded conclusions presented by the employer and , in that this worker was excluded from social security , having a lower salary than the sum of RD $ 4,008.00 ... also unfounded , given that on May 10, 2001, was enacted Law no. 87-01 , on the Dominican Social Security System , which amended Law no. 1896 , on Social Security, and that makes mandatory the protection of workers in social security , regardless of the limits set by the employer ; corresponding to the employer to prove that he had enrolled in Social Security to its working Yuberkis Díaz Estevez test was not provided , reasons to revoke the judgment in that respect and recognize the fault committed by the employer , a situation sanctioned by articles 720, 721 and 728 of the Labour Code , which gives rise to civil liability action , covered by Article 712 of the Code of Labor, so the Court considers that this concept is working for a creditor repair represented by compensation of Fifty Thousand Pesos Oro ( RD $ 50,000.00 ) for damage suffered by it as a result of such failure " ; (sic )

The Supreme Court of Justice (SCJ ) by judgment No. 471-2007-00217 dated 24/06/09 states that " Law no. 87-01 , which created the National Social Security System , declares the universality of the system , which means that everyone must be covered by Social Security , including working to the Dominican State , incurring a violation law, any employer who fails to comply with this obligation , this violation can cause damages to the affected workers , whose magnitude and the amount of compensation should be determined by the judges of the fund. "

And when ratified by judgment dated 19/08/2009 296-2005-00034 pondered :

"That has been established for the analysis and weighting of the documentary evidence provided to the process , that when the work accident in which he lost his right leg originating plaintiff worker , the employer does not happen or made ​​contributions contributed to the Treasury Social Security for the worker ; nor the worker was covered by insurance , occupational hazards such violations by the original defendant to the detriment of the plaintiff, constitute grave breaches of the obligations to the employer of the existence of the employment contract and justify the resignation exerted by the employee, in accordance with that statute , which must reason as to effect the contested confirm this aspect as " judgment ;

Also " that Article 203 of Act . 87-01 establishes employer liability for damages caused when the member for breach of the obligation to enroll occupational risk insurance or deliver contributions and contributions on time could not properly be granted the benefits it offers such insurance ; that by failing to demonstrate that the defendant complied with that obligation in favor of the claimant , his performance is the opinion of this Court a serious restriction of the rights provided in the worker by applicable laws assume liability against the employer originating applicant worker " ;

Is mandatory because every person regardless of whether public or private employee , provided it is paid , must be registered .

Is integral because it does not take into account the individual amount contributed by the person, which is demonstrated by a person with a minimum wage has the same rights and receive the same benefits as other with very high incomes ; is plural because the service is not monopolized and / or centralized in one institution but is offered by different entities and the user can choose the one that best meets your needs and / or the best fit for you . It is comprehensive because all users are guaranteed regardless sufficient protection.

The system "includes all public , private and mixed institutions that perform major or complementary activities of social security, physical and human resources as well as the rules and procedures that govern (Art. 1 Law 187-01 ) .

If the time since the National Independence until the entry into force of this system is counted , passed a space of 157 years of our nation had to wait to have an inclusive system of social protection guarantees .

It is significant that at birth this system a different regulatory body to be established IDSS as a way to ensure a new beginning that will generate adequate public confidence . The CNSS replaces IDSS decadent as the governing body of the system , which is weighted by Shanell Grullón in his thesis " Legal Analysis of Membership in the Dominican Social Security System " in which she states that:

" Law 87-01 introduced , among other things , a change of the governing body of social security in our country. Until the advent of the Act , the Dominican Social Security Institute (IDSS ) was the most competent authority in all matters relating to social security , understood health and retirement , maternity benefits , physical disabilities , among others.

Since 1948 , the year in which the Trujillo regime created by the 1896 Social Security Act , that body had been in control of matters relating to social security of Dominicans.

Since the enactment of the law 87-01 as of May 9, 2001 , the Dominican Social Security Institute (IDSS ) ceases to be the governing body of the social security , giving this function to the National Council for Social Security Fund (CNSS ), which is converted by said law in the new governing body of the social security and this body is responsible for ensuring the timely registration and affiliation of the members of the SDSS , and others who must guard that membership corresponds to the conditions laid down in the Law 87-01 and its complementary regulations. This change is sustained in Article 164 of the law , which says that the Dominican Social Security Institute (IDSS ) will ... "without the administrative, regulatory and financing , which will be the sole responsibility of the state through the National Council for Social Security Fund (CNSS ) "( Grullon , 2001).

With the implementation of this law was demonstrated that it had learned from past experiences and therefore the functions are divided between the entities of the system as a way to avoid a collective collapse as happened with the IDSS . This will guarantee that the system when one or two of the institutions that comprise it will not work fully collapse or could even continue to function normally .

Thus the collection of the money system was assigned to the TSS ; advocacy and guidance to users was in charge of the DIDA ; protection of pension funds by the AFP , while regulation of these are put in charge of the SIPEN ; ensuring health services users are allowed to hand PSS and ARS and regulation of all matters relating to health and occupational risk was brought under control SISALRIL .

2.4 SISALRIL .

2.4.1 Definition and Functions SISALRIL .

The Art Article 176 of Law 87-01 provides that the SISALRIL is:

" A state entity , autonomous legal entity with its own assets, which, in behalf of the Dominican State shall fully function to ensure strict compliance with this Act and related legislation , to protect the interests of members, to monitor the financial solvency of the National Health Insurance and Health Risk Administrators (ARS ) , monitor timely payment to those administering them and the PSS and help strengthen the national health system . It will be a provided with a technical and administrative staff highly qualified entity. Is empowered to contract , sue and be sued and you will be audited by the Comptroller General of the Republic and / or the Chamber of Accounts , only with regard to the review of your income and expenses "(Article 176, Law 187-01 ) .

2.5Las Health Risk Administrators (ARS ) .

2.5.1 Concept .

The health care in the Dominican Republic is in charge of the Health Risk Administrators (ARS ) which was created in light of the Act and Article 148 of the same defined as:

" Public, private or mixed entities , decentralized , with its own assets and legal status, authorized by the Superintendence of Health and Labor Risks to assume and manage risk in the provision of basic health plan to a certain number of beneficiaries.

" The ARS must complete the following tasks:

a) Assume the risk beneficiaries to ensure quality protection , timely and satisfactory ;

b ) to rationalize the cost of services achieving adequate levels of productivity and efficiency ;

c ) Coordinate Provider network of Health Services (PSS ) to maximize their operational capacity "(Article 148, Law 187-01 ) .

2.5.2 Classification of ARS.

24 Health Risk Administrators already identified , 7 are affiliated with the Dominican Association of Health Risk Managers ( ADARS ) nonprofit organization that brings together the leading private ARS the Dominican Republic . Currently the AUD ADARS have full membership of more than 1.5 million users, including members and dependents. Part of this association the ARS: Palic Health , Human, Universal , La Monumental, SIMAG , Booking and Yunén . As we begin 2012 , the ARS affiliated entity were 9, but in September of that year, the ARS Dominican Health and The Colonial Services were absorbed by melting the Universal ARS, being at present only seven (7 ) of them.

The ADARS begins to organize in August 2000 , nine (9 ) months prior to the enactment of Law No. 87-01 establishing the Dominican Social Security System ( SDSS ), but its execution occurs at the beginning of September 2001 , following the enactment of that legislation , protected by Decree No.1192 -01 and Law No. 520-20 governing nonprofit associations .

This association has been established by medical companies igualas today converted into ARS and ARS arising after the effective date of Law 87-01 ; the latter created by previous investors in the area of ​​general insurance, life and health ; all operating in the medical market under the System of prepaid medical insurance plans .

The Health Risk Administrators (ARS ) that are members of the Dominican Association of Health Risk Managers ( ADARS ) reported a satisfaction rate of 86% for services provided to its members , according to the study presented earlier this year, " evaluation of image and satisfaction with services managers health risks (ARS ) in the Dominican Republic ADARS affiliates ." The research, which was conducted by the prestigious Gallup research also revealed that 89.90 % of the affiliated providers recommend these to others , plus they know their rights and duties as insured. According ADARS : This high level of acceptance is due to the commitment of these comprising administering this association , to offer effective and innovative services to their members . They care about being on the cutting edge technology and advanced infrastructure platforms using the benefit of its members. "

The research aimed to study the perceptions held by members of the Contributory Scheme of Family Health Insurance (SFS ) in terms of coverage, quality of services and general conditions of the Health Service Providers associated ADARS .

2.5.3 Types of health plans offered by the ARS in the Dominican Republic .

Moreover, the ARS operating in the country mainly offer 3 types of health plans : Plan Voluntary Health Basic Health Plan and supplemental plans .

According to information provided by the Northern Regional DIDA , which are based in Santiago de los Caballeros, Health Volunteers " are those individual plans , group health , designed and administered by the ARS or family plans , in order to meet coverage health both at home and abroad , for individuals or families who are not contributing to the Social Security system .

Therefore, a voluntary plan is one that is directed to population conglomerate that currently has no payroll registration through the Treasury of the Social Security ( TSS) , and that others are not part of the Subsidized Regime or the Contributory Health Scheme " .

For his part, the Basic Health Plan (PBS ) " is the set of health care services to which all members are entitled to contributory schemes , Contribution - Subsidized and Unsubsidized . (Regulation FSS ) .

In this regard , Article 37 of Regulation FSS Supplement Plans "are those services to prepaid ARS to cover a range of activities , procedures or interventions that are not included in the PBS, or offered under different conditions or additional hospitality , comfort , technology or any other characteristic of attention. "

And paragraph of that article adds that " these plans are not required for access to health services as defined in this article alternative embodiments, in which the essential feature is the pre - funding through monthly payments to contracted ARS , covered by the member, or his employer, or both at once. "

The member will have the option of contributing to hire Complementary Health Plans that cover those services not covered by detailed above, however, the exercise of that power in any case involving a double quote , Basic Health Plan which is explicitly deleted by the article 141 of Law 87-01 which reads : since the enactment of this law, is eliminated by the double quote insurance. A member may only be registered and receive a single service Health Risk Management (ARS ) or the National Health Insurance ( NHI ) . As such, a single system of membership Dominican Social Security System ( SDSS ), which can only be granted by the National Council for Social Security Fund (CNSS ) and will have jurisdiction and valid throughout the national territory is established.

Article 38 of the Regulations states that :

" The Complementary Health Plans will be offered by the Administering Health Risk (ARS ) and the National Health Insurance ( SENASA ) through the network of Providers of Health Services (PSS ) affiliates" for which " require the authorization of the Superintendence of Health and Labor Risks must " establish technical and financial separation of this activity against the other activities of the entity."

This in order not to mix the basic plans with complementary plans.

Regarding funding , according to Article 40 of the statute: " Supplement Plans and Supplemental Services will be funded solely and entirely with resources of members , employers or both , other than those listed in Dominican Social Security System ( SDSS ) . "

Supplement Plans have legal basis in the Civil Code. And according to Article 1134 of the Civil Code "Conventions legally formed have the force of law for those who have made them ." (Art. 1134, Civil Code).

Family Health Insurance 2.6 .

2.6.1 Beneficiaries .

The Family Health Insurance (SFS ) is a system created by Law 87-01 in order to ensure the full protection of the physical and mental health of the member and his family , as well as to achieve universal coverage without any discrimination or exclusion by health condition , sex , age, race , social, territorial or employment status . His start was postponed 9 times . All this despite the advantages that plan would provide health care to the Dominican population , but the particular interests of different sectors involved had been more and nothing had served the many meetings held to cast walk the SFS .

Under Article 2 of the Regulation on the Family Health Insurance and the Basic Health Plan , approved by the National Social Security Council by Resolution No. 48-13 of October 10, 2002 :

"The benefits of Family Health Insurance are the set of activities, interventions , procedures , supplies and recognition that the Dominican Social Security System provides people with the aim to maintain or regain their health and prevent damage to their economic capacity derived from temporary incapacity due to illness , maternity . "

And according to the paragraph of that article :

" Beneficiaries Family Health Insurance are categorized into five different subsets are accessed depending on the form of participation in the system , this is as Beneficiary Contribution contributor , as Beneficiary Contribution Subsidized contributor as dependent or Family Recipient of the contributor , as Beneficiary Subsidized , member of the Dominican Social Security System , or temporary beneficiary of the traditional services of the National Health System , the latter until the affiliation of all mandatory in some form or planned schemes citizens materialize . "

You can also define the Family Health Insurance as:

" The set of activities, interventions , procedures , supplies , awards and benefits in cash and kind to the Dominican Social Security System provides people with the aim to maintain or regain their health and prevent damage to their economic capacity derived from temporary disability due to sickness and maternity . " (Regulation FSS ) .

2.7 Basic Health Plan ( PBS). Health Services Plan ( PDSS ) .

Currently , within the Dominican Social Security System ( SDSS ) , there are 24 Health Risk Administrators (ARS ) that offer services to users affiliated to Family Health Insurance (SFS ) in the form of Basic Health Plan ( PBS). According to Article 11 of Regulation FSS " the Basic Health Plan will provide comprehensive care to affiliate stages of education, information and health promotion and prevention , diagnosis , treatment and rehabilitation of disease population , including the provision of essential medicines for essential generic for subsidized and subsidized , for different levels of complexity " tax regime and tax regimes.

And Article 12 of that regulation provides:

"Implementation of the Basic Health Plan in its different phases and levels of complexity will develop gradually and progressively, ensuring the financial balance of the system and according to the conditions of the economy , which ensure consistency between the cost of the proposed activities with the availability of resources to ensure its implementation and future sustainability. "

The same regulation Article 23 provides that for the supply of basic health plan :

" Three ( 3) levels of complexity are established , defined according to the technology used in the activity, or procedure contained and described in the Catalog of Activities , Interventions and Procedures, in no time complexity levels are exclusive or restrictive provided that the minimum requirements for each specific service are met , which may be offered under confinement and outpatient modalities.

PARAGRAPH: The three levels are:

1. Primary care and first level of complexity ; Two . Second level or basic outpatient and hospital specialties ; Three . Third level or no basic outpatient and hospital specialties , and attention to diseases of high complexity and high cost. "

2.8 Current status of the SDSS .

According Nélsida Marmolejos , Director, DIDA , the Family Health Insurance " has increased the coverage of health protection , including the household , has improved the prevention and cure ; however, have increased the costs of pockets of the contributory regime. "

According to the DIDA , some ARS been delayed for more than the established by the Regulation on General Aspects of Affiliation Family Health Insurance Contributory Scheme term elDecreto No. 234-07 established by the Executive Branch membership of dependents. According to this regulation , the maximum waiting period which must have a holder for a dependent will be included is 15 days; however, in practice the wait can exceed 60 days and it is very common to hear that a judge questioned the representative of an ARS on the maximum waiting period is 30-45 days response and / or 45-60 days.

The SISALRIL is required by Law 87-01 mandated to monitor and supervise the ARS. According to SISALRIL they fully meet the requirement that the law has placed on their shoulders because:

" As a result of surveillance work conducted under evaluation criteria of quality in services , which are watched by levels 1 to 3 , one being the lowest and three highest value , the following is obtained results in terms of improvement in this attribute:

• Of the 20 Health Risk Administrators in the first assessment year had a rating below 65 % ( Level 1 ), 13 went to Level 2 with a score between 66 % and 93% .

• Of the four ARS classified as Level 2 in the first evaluation two are passed to Level 3 in the second evaluation , achieving a score above 94%.

The data reveal the important role played by SISALRIL in raising levels of quality of services to users by the supervised entities through periodic evaluations conducted during the year ... on control over compliance by ARS of Resolution 162-2009 , dated 27 January 2009 that created the new Chart of Accounts , were received and evaluated by the Technical Department of the institution, a total of 324 Monthly Financial Statements , for the period January-December 2011 '.

Although the Article 4 of the Law 87-01 provides that "The beneficiaries of the Dominican Social Security System ( SDSS ) have the right to be assisted by the Information and Advocacy (DIDA ) for all services necessary to establish its protection , "according to a survey of the population covered , only 50% of Dominicans know the DIDA . The other half of the population does not know what it is , which takes away the possibility of raising their grievances and complaints to the entity to defend him .

Manager of Planning and Development DIDA , Welcome Cuevas, while participating as an interviewee in the program Journal 4 , produced by the State Radio and Television Corporation ( CERTV ) as of 20/02/2013 , said that a large part financing of Family Health Insurance Contributory Scheme are assuming what the public or the members of the Dominican Social Security because of exclusions Catalog Features Health Services Plan ( PDSS ) .

Cuevas submitted a report by the DIDA which evidence the Health Services Plan is not consistent with the instructions of the doctors, because it excludes 325 types of drugs , 53 analysis , 340 surgical procedures 77 50 diagnostic and surgical materials .

"We found that members when they go to a health center and have to pay difference because insurance will not cover you , choose to go to public health centers and hidden which is affiliated to Social Security , even though Article 31 of law 87-01 provides that private employees must receive services through a network of private providers . "

He stated that the study of satisfaction and Expenditure pockets made ​​by DIDA revealed that 17 out of 100 members of the Contributory Scheme were attending public health clinics to receive medical attention, although the law states that Risk Managers health (ARS ) services must ensure private health centers should hire for those purposes .

Cuevas said that a large number of members go to the DIDA to check if its indications are contained in the PDSS as the institution finds that prescription are not covered , as required by the affiliate gives them a letter to request the drug coverage or surgical procedure in the Ministry of Public Health, the Provincial Government or the Office of the First Lady, so that they bear the cost of the procedure.

He added that given the limitation of the PDSS drug coverage as well as the high cost of the same in the private sector pharmacies affiliate is opting to buy drugs in Pharmacies or Drugstores Popular People PROMESE administered .

According Nélsida Marmolejos , Director, DIDA , the " study on health expenditure and satisfaction of participants in the contributory scheme " within the SDSS , made ​​by such entity in October 2010, showed that there is a high number of denials of coverage the ARS, which causes pocket spending is very high even when the user is assured. This study revealed an amazing fact : monthly Affiliates to Family Health Insurance (SFS ) of the Contributory Scheme , spend about 700 million pesos a month in payment of differences in health care , which reaches the sum calculated annually 8,400 million, and this amount is apart from us is deducted monthly to ensure our coverage. This figure does not include the affiliates that invest in high-cost diseases and dental care , which have limited coverage in the Health Services Plan .

It is noted that the lack of empowerment and knowledge of their rights causes many affiliates do not include the children as dependents for thinking that they will charge you extra for them ; that do not include their parents when they have more than 60 years to think that they are not accepted by their age; that women after one year of membership embaracen not know that birth is preferential coverage and can receive from the first day of membership; people pay in emergencies when these services are free ; that miss within 90 days to claim reimbursement if you have taken an undue amount in a PSS ; finally , we generated cash outlays that could be avoided if they know their rights.

Although health coverage are guaranteed by law, the reality is that there is a high number of denials of coverage procedures and medications listed in the Catalogue of the Superintendence of Health and Labor Risks ( SISALRIL ) at the time when members require medical care or medical services in the Health Service providers (PSS ) network of affiliated providers of these ARS. This is where the liability of the Health Risk Administrators arises because denying coverage to violate a contract has been concluded with its affiliate prior to the request for coverage.

The denial of health coverage results in the affiliate user undue expenditure incurred , in respect of deposits , medical fees, extraordinary expenses and other differences , either through direct agreements with the doctor or PSS . And this is where the liability of the ARS deepens : in passivity to defend its users from abuse to which they are subjected by physicians and PSS , when they have been victims of improper charges by the physician or the PSS , responsibility extends when there are delays in the authorization of coverage; dependent on membership , especially when they suffer a catastrophic illness or preexisting ; in rejecting dependents have more than 60 years ; in coverage denials if satisfied that the accident or situation that gives rise to the labor-related hospitalization is despite the existing ban in Resolution 175-09 of SISALRIL . As you can see , the severity of the problem is capitalized and the worst part is that significantly affects users of the National Health System.

87-01 Act contemplated that health services were offered to users through a Basic Health Plan , but in practice the Health Services Plan ( PDSS ) works. Entrepreneurs , to accept the entry into force of the RC SFS , it was demanded by the mode of PDSS . This plan would operate as a pilot scheme for two years , which was to cease in 2009 to make way for the Basic Health Plan , however still remains in force . According to System institutions , postponing the PDSS what is intended is to ensure the financial stability of the system as a way to avoid collapse.

The financial balance of the system is one of the guiding principles of the Law 87-01 and under Article 3 of this law is based on principles " correspondence between guaranteed benefits and the amount of funding to ensure the sustainability of the Dominican System of Social Security. "

Added to this is the main ARS are tied to the bench, and as discussed in the popular slang "banks do nothing to lose." Are the reasons why we can verify that the ARS Palic , Human and Universal had in combination gains the order of 865 million in 2012. The ARS Palic , belongs to BHD Group, the Human ARS is linked to the Financial Group Reservations and Universal Financial Group ARS is Popular. They were created to ensure health but apparently so if you are guaranteeing is profitability and profit.

The constitutional reform of 2010 has guaranteed access to social security and health, which would be equivalent to saying that you have access to the same constitutional status , reason further compromises ARS responsibility when they make coverage denials health users protected by law , to which they are violating a constitutional right.

Despite this , there is no precedent that someone has filed a complaint with the Constitutional Court ( TC ) requiring that it operate with the aim to compensate the affected by the violation of their constitutional rights , demonstrating that the lack of knowledge leads in some cases to people who could be triggered civilly against ARS before the ordinary courts , remain idly by not knowing the mechanisms for claiming reimbursement or compensation thereof by the violations of their rights.

The nine Administering Health Risk (ARS ) private with largest membership closed 2011 with RD $ 665.64 million profit , despite having had a deficit of NZ $ 308 million in the Basic Health Plan (PBS ) , losses managed to consolidate with other compensation plans complementary health and private individuals . In this publication a study by the prestigious polling firm Gallup, which reflects a 86 % 2.5 million members at Family Insurance are satisfied with the ARS is highlighted , which would mean , if we pass this data to figures 2.15 million Dominicans are happy with the services of the ARS and that compliance is 6 times greater than the disagreement , which would have to check.

According to a report in the newspaper Diario digital Dominicano , private ARS closed 2011 with a profit of RD $ 665.64 billion ( http://hatomayor.diariodom.com ) .

2.9 Financial position of £ 2009-2013 .

According to a newspaper report dated 09/01/2010 , published in the morning today , written by journalist Altagracia Ortiz , at the beginning 2010, the Risk Management IDSS Health , Health ARS Segura ( ARSSS ) is the one with the worse off. According to information provided to the press by the Superintendent of Health and Labor Risks ( Sisalril ), Fernando Caamano, the situation of the ARS was almost " dying " . " The solvency margin is RD $ 114 million, a figure that worries the authorities ." " All figures given in red and there has been no way to standardize their financial situation." INR self-management also recorded higher than RD $ 250 million loss, according to a cut made in November 2009.

The ARS Health Segura has a negative figure in red or RD $ 257 ​​million as of September 2009, according to data from the Sisalril .

Public ARS, the best financial situation has the National Health Insurance Health Service (SENASA ) . Risk Administrators of Public Health , SENASA has positive results with earnings of RD $ 35 million this year to November 2009 , while the ARSSS has RD $ 257 ​​million in losses. One of the problems facing this insurer is the masse members to move to another ARS, this despite the fact that members of the ARS do not have to make co - payments , ie payments dispute for services , and toppings are all 100%.

When starting 2010, the three self-managed ARS most problems are the National Insurance Masters ( Semma ) , ARS Health Plan , the Central Bank, and the Armed Forces of ARS (ARS armed forces ) . Of the many aspects of the Central Bank are unknown, it is an entity that is covered by the bank. That's because the privileges .

The SDSS teníaal start 2010 a total of 18 private ARS seven and two self-governing public .

Private 18 ARS , led by Universal , Palic , Constitution , APS, People and Colonial had a positive result of RD $ 218.7 million as of November 2009.

According SISALRIL , all ARS well as to the solvency margin , excluding ARS Renacer , once Igualas Medical Dr. Cruz Jiminián , with 4.4 million and £ Semma seven million.

2.9.1 Constitutional Guarantees .

Under Article 7 of the Dominican Constitution, the Dominican Republic is a " social and democratic state of law." According to Dr. Milagros Ortiz Bosch, Vice President of the Dominican Republic in the 2000-2004 constitutional term in a judgment issued through his radio program "Miracles from Z" Z101 's station , " a social and democratic state of law is one who seeks the highest level of welfare susciudadanos . " Even as a way to strengthen this constitutional mandate , the government of Dr. Leonel Fernandez declared 2012 as " Year of strengthening the Social and Democratic State " .

The first way is that the Law 87-01 provides that the compulsory contribution is through the TSS. Therefore, anyone who works formally plan should be voluntary as primary health plan , but as optional and secondary. The second reason that voluntary schemes are not the alternative solution is because they have certain restrictions and limitations that do not exist in the health insurance law. And here we specify certain : in any voluntary plan there an age limit , which can be 60 , 65 or 70 years. People with above- mentioned ages have to pay a higher premium for their insurance, which does not occur in the Basic Plan , where exclusion can quote without age limit , as it is a right enshrined in Article 4 of Law 87 -01 . Therefore, in the Basic Plan nobody can be excluded for having reached a certain age . In the voluntary plan itself .

Another negative point is the plan of voluntary exclusion and / or denial of coverage for pre-existence. Any illness, disease , condition, or its aftermath that the insured had before hiring the policy is excluded for purposes of coverage under the allegation that such condition, illness or disease existed before securing . In the Basic Plan , the ARS are prohibited from denying coverage for preexisting and do incur liability , making them liable to claim.

Voluntary health plan is also a problem of cost to the user when it comes to adding new people within the family , a reality that is totally different in the Basic Health Plan SDSS . While in the Basic Plan wife and minor children of the owner not have additional cost for the same , in the voluntary plan for each additional person who belongs there is a fee , which shows that the voluntary plan does not prioritize family .

Therefore we can come to the understanding that voluntary health plans can not be considered as an alternative solution to the problem , since the same coverages are lower and the chances of sue per denial of coverage are reduced , since the contracts to open such policies are contracts of adhesion in which the insured is subject to the terms of the ARS, other than the Basic Health Plan , where conditions are established by law and the rights of users are guaranteed by it.

According to Article 11 of the Regulations on the Management Agreements Between Risk Administrators Health , Manager of Labor and Lending Risk of Health Services , the ARS must contract with the Primary Care Centers (CAPS ) and Attention Units Primary ( UNAPS ) at least the following services for the first level of care : development services and health promotion ; prenatal care; rheumatic fever prevention ; comprehensive treatment children ; sexually transmitted infections ; family planning; malaria ; expanded immunization program; school health ; hypertension treatment ; cervical cancer prevention ; tuberculosis prevention and treatment ; prevention and treatment of insulin dependent Type I Diabetes and Diabetes prevention and treatment of type II non-insulin dependent , therefore it is false of all falsehood that primary care is a setback or attentions will be second rate.

According to Dr. Pedro Luis Castellanos , spokesman for Citizens Forum , where digital Citizen Perspective column suggests that in mid-2011 when the private clinics and hospitals are part of the paísQue ANDECLIP decided to make a unilateral increase of 14 % to the cost of the services provided to beneficiaries of the Family Health Insurance Contribution , " had the silence of the ARS and SISALRIL that contravention of a provision of the CNSS , Law and Regulation 87-01 Violations and Penalties Family Insurance health , unable to enforce contracts and regulations by providers , which let beneficiaries defenseless " was declared.

At that time " SENASA assumed the defense of its members and demanded the fulfillment of their contracts. To pressure SENASA , these clinics chose to suspend services to its members. "

In this situation, the Civic Forum , the trade union confederations , and an important group of social organizations , mobilized and reported that it was a conspiracy against the family health insurance that sought to discredit the SENASA actually to curb migration Affiliate other private state ARS to ARS, which attracted migrating your best portfolio of services, and the background pressure the CNSS to raise per capita , which subsequently achieved when the Board increased to $ 67.10 capita . Another object of the ANDECLIP and private ARS was lobbying Congress to raise prices .

These social organizations demanded the SISALRIL fulfill its duty to ensure compliance with contracts that protect beneficiaries and the implementing Regulation Violations and Sanctions for violators . The CNSS allegedly sanctioned the PSS that increased services unilaterally ; however, increased services never returned to their previous price.

The only ARS fulfilled its role of standing in defense of its members , was the GBP SENASA. The other made ​​no action to defend its users .

To the Citizens Forum

" Persists latent need of serious study on the true cost of care of the Basic Health Plan , the need to develop primary care services in private lucrative tax regime and regulatory measures of the costs and charges to patients. It's time to push forward the reform of private health services , from the perspective of the beneficiaries. "

"Many also raises another question : even when the system can tolerate SISALRIL default on its obligations ." Only in 2011, the NSSF had to ,

"Adopt Resolution to mend three serious wrongs where SISALRIL not assumed responsibility : The case of affiliated suffered an accident at work on the balcony of a school in Santiago , the case of the distribution of RD $ 10,000 million of ARL , and now with some attempt to unilaterally ignore PSS contracts that protect beneficiaries. "

" To operate such a complicated system as the Dominican Social Security System , with so many actors and interests involved , and at the same time with such strategic importance to the welfare and development of the country , it is essential to ensure that regulatory bodies meet their roles and responsibilities , and they can not be captured for the benefit of the particular interests of any of the actors involved in the system according to their interests for financial gain , to prevent the rights of citizenship may be subordinated to those interests . This is another issue that warrants national partnership effort , a new social pact. " (Castellanos , P.)

To the Citizens Forum , Law 87-01 requires an immediate change because:

"There is a growing perception that the bodies responsible for regulation and supervision would have shown more interest and diligence to ensure high profit margins for intermediaries to ensure the rights of beneficiaries to manipulation and denial of services by Administrators Health risks profit . Only state organs with adequate capacity and attitude , could lead to a proper balance between the interests of the public and private interests. It is essential that these bodies can not be captured by such private interests . This should be guaranteed in the review of 87-01 " (Castellanos , 2011) Act .

Given this reality, the Health Minister , Dr. Bautista Rojas Gomez, who at that juncture during a media pugilato Superintendent of Health and Labor Risks ( SISALRIL ), Fernando Caamano called him " employee of the ARS ." The way he has acted properly and SISALRIL Mr. Caamano when play its role in certain situations involving the protection of the interests and / or rights of users , da reason Rojas Gómez , for the warmth as this regulator acts , which often seems to act biased in favor of the ARS and PSS , and against users . Even Dr. Consuelo Despradel , repeatedly stated in Mr. Caamano problem is that he is "very human" a clear allusion to the same estáempeñado to defend the interests of the ARS.

And not only understands that Rojas SISALRIL is not playing its role . Also this view is shared by the current Deputy Minister of Health, Dr. Nelson Rodriguez Monegro , according to which , the "ARS have many holes to evade coverage to members ," while " weak regulatory institutions such as the Superintendency of Health and Occupational Risks ( SISALRIL ) is increasing ) .

As interpreted by the issues raised by Rodriguez Monegro , to discuss liability, ARS, we must first talk about weakness and / or complicity of the regulator .

For Rodriguez Monegro " in the current legislation and regulations there are many mechanisms for ARS evading responsibility and refuse service and that is what we must avoid ." He suggested that the CNSS create a negative list , as " a negative list allowing the insured to know what you have uncovered, much resolved. Currently, the social security system has a positive list that says what the member is entitled, but not tell you what is not right . "

Monegro recognizes that the major concern of the social security system has been the financial viability , while the denial of services and the hardships of the members persist and are increasing every day.

"The big problem of the social security system is still weak in supervision and regulation, said Rodriguez Monegro " (Ortiz Gómez , 2011).

2.10 The Civil Liability .

2.10.1 Concept .

Civil liability is the obligation on a person to repair the damage he has caused to another , either in nature or in a pecuniary way , usually by paying compensation for the damage caused.

To Díez- Picazo responsibility is " the subjection of a person who violates a duty of conduct imposed in the interests of another subject to the obligation to repair the damage ."

Although the respondent is usually the cause of the damage , you may charge is made to a person other than the tortfeasor , as, for example, when parents are made to answer for any damages caused by their children or vehicle owner for damages caused by the driver that runs on it.

Civil liability may be contractual or tort . When the rule of law infringed is a law (broadly ) speaking of tort, which in turn can be either tort or criminal (if the damage was due to an action a crime ) or quasi - delict willful or not (if the injury originated in an involuntary fault). When the rule of law is breached an obligation under a declaration of individual will (contract, unilateral offer , etc.) , contractual liability is incurred .

2.10.2 Contractual Liability .

The obligations are usually classified as methods and results , and this is of great importance in determining the contractual liability . The failure, which is one of the basic requirements for liability occurs, depends on the kind of obligation.

· When a rule or a contract forcing a person to a certain thing , it is an action or failure ( to do or not do something ) , this requirement is considered to result. Such is the case of a carrier who undertakes to carry goods to a particular destination in particular. Here the responsibility is almost automatic , because the victim must only prove that the result has not been reached , then the defendant can not escape this responsibility , except if it can prove that the damage comes from an outside agency, ie that due to a force majeure or fortuitous.

· Moreover, in cases where a standard or a contract to compel the debtor to act with prudence and diligence , the obligation is considered media . This is the case of the obligation of a physician regarding your patient, the physician has no obligation to heal , but to put their best efforts and knowledge to serve the patient , ie , to act in a prudent and diligent (although there are exceptions, as in some cases the physician assumes an obligation of result , as in voluntary cosmetic surgery ) . In these cases, the burden of proof is on the victim or plaintiff , who must prove that the agent was negligent or reckless in carrying out their duties.

For the obligation of means is more difficult to prove liability , given that failure depends not only failing to result ( in the above example , healing the patient) , but would have to prove that it could be possible to have achieved , if the obligor had acted correctly.

The responsibility may have originated in acts of another person, which must be answered : a parent is responsible for damages caused by their minor child ; an entrepreneur , of causing their employees.

· The fact cause harm behavior , including actions and omissions . Most of the time is a human behavior, although the law extends liability to acts of things ( animals and objects owned by the leader) . This behavior must be unlawful and may or may not be the illicit origin . Means that unlawful behavior that violates the principle alterum non laedere comprising a number of duties that require follow a behavior correction and prudence on third parties for the coexistence possible.

· Damage or illegitimate property, rights or person own aggression . The compensable or repairable damage must be true , ie, actually existing . Hypothetical or contingent damages are excluded. Besides the damage needs to be current but future damage may be included when they emerge later as rational certainty. Are considered including both property damage and moral damage. Proof of damage , its extent and scope corresponds to the injured .

· Causation and causal link between the conduct causing injury and damage . In the case where a plurality of causes concur causes of injury , will have to determine if they are all contributory causes ( theory of equivalence ) or if one of these causes is the only one that deserves that role to be the determinant of damage. Different criteria are used to qualify as determining the cause of this result : that the possible or likely cause which has caused the damage ( theory of adequate cause ) , the fact is the closest to the damage (theory of the cause next ) or the fact that is the most efficient or most decisive force damage ( theory of efficient cause ) .

· The method of allocating responsibility. In principle, the Civil Code required only a criterion based on the fault or negligence of the agent ( because opinion or theory ) , but now different criteria to accept the blame , as the intent or awareness that the behavior causes damage the creation of a risk or danger ( risk theory ) and assumptions automatic or ex lege liability ( strict or strict theory ) attribution.

2.10.3 Responsibilities Cluster .

When the breach of a contractual damages caused by such failure arise , there is a wealth of responsibilities , which is verified when coexist in the same cause and contractual obligations as a result of your breach contractual obligations . Such is the case of a breach of an obligation of a contract term , as may be the presentation of a musical group in an event ; breach of that contractual obligation entail serious consequences , which would verify damages and would give rise to a contractual obligation.

Objective 2.10.4 Liability .

                                                 

The main objective of the liability is seeking redress , which is to restore the balance that existed between the tortfeasor heritage and heritage of the victim before suffering the injury .

Liability has a preventive aspect, which leads citizens to exercise caution to avoid compromising their responsibility; and a punitive aspect of monetary penalty .

The preventive role actually be argued , given that an accountability system based on subjective factors not attribution favors prevention. Moreover, accountability systems that rely on their institutional form and actually caused damage prevention systems are residual or subsidiary nature .

Thus, some are advocating that the harsh terms of the objectives that accountability systems , based on a penalty hardly excusable , certainly favors prevention ( risk created ) .

Liability tries to ensure that victims compensation for private damages that have been caused , and tries to put things in the state they were in before the damage and restore the balance that has disappeared among the group members. For these reasons , the punishment of civil liability is, in principle , compensatory , not repressive.

2.10.5 Basis of Liability in the Dominican legislation .

The basis of liability in the Dominican legislation based on Articles 1382 and following of the Civil Code Dominicano. Articulated as such , it is responsible when it causes injury to another or when someone who is our responsibility it brings .

Under Chapter II , for the title " Of Crimes and Torts " of that legislation "Any act of man that causes damage to another obliges him by whose fault it happened to repair it " (Art. 1382 Civil Code).

But it extends not only to the person committing the fact per se but also when a third party is the one who committed the act . In that vein , Article 1383 of the Dominican Civil Code states that " Everyone is responsible for the damage it has caused, not only for his fact, but also by its negligence or recklessness ."

2.10.6 Cases in which an ARS Liability incurred .

In light of Article 1383 of the CC , an ARS is responsible to the user when a PSS within the contracted network of providers that ARS is the coverage that hinders the user . If the user's relationship with the ARS is direct, but the latter with the PSS is in the range of third party , the ARS responds civilly affected user when a clinic or health center refuses care , support, or when the same income copper deposits login or to register to an affiliate .

In cases where the denial , delay, suspension or impedance of coverage is due to inexperience or lack of ARS accredited representative in a given PSS .

In that case, the ARS as a corporate entity is also responsible for according to Article 1384 of the Civil Code Dominicano , "There is only one responsible for causing an injury done him , but which is caused by acts of persons who must respond , or things that are under your care. "

According to the Civil Code of the Dominican Republic in Title III " contracts or obligations " under " General Convention " , Chapter I covering the Art 1101 states that "the agreement is an agreement whereby one or more persons bind for one or several others, to give, do or not do something. " Therefore, between the ARS and the user quality to sue the same for denial of coverage , there must be a contract.

The ARS is required to ensure health services to a user who will have to pay a premium to guarantee coverage of the policy. If the user meets its obligation to pay and keep up with payments on the ARS, is is committed to ensuring health coverage to him and their dependents who are part of the policy. If not , then the ARS incurs contractual violations and the denial is therefore capable of being ventilated to the appropriate civil jurisdiction, to ensure compensation for the affected .

The contract between the ARS and the user, if it is a membership SFS is a bilateral contract, which is defined by Section 1102 of the CC as a contract where " the contracting parties undertake mutually respect one another" . There are mutual obligations to one another, and user protection is guaranteed by law ; if it were a voluntary supplementary plan or health then we are facing a contract of adhesion because we ourselves are performed outside of the law and the conditions are set unilaterally by the ARS.

As to who can hold an affiliation agreement with ARS, Article 1124 of the Civil Code ( Amended by Law 390 of December 14, 1940 , GO 5535 ) trace the guidelines in this regard and provides that " unable to they hire are: minors ; The interdicted persons , in cases specified by law; and , generally , all those to whom the law has prohibited certain contracts. " Thus , the persons named above can not make contracts with ARS.

And if the wording of the provisions of art. Article 1126 of the CC in that "Every contract involves things that one party agrees to give, or that one party undertakes to do or not to do " then we are facing a reality is that no ARS may deny health coverage to users who have rights in cases in which the procedure, medicine , middle diagnosis , hospitalization, surgery or other are contained in the catalog SISALRIL hedges catalog, which is outdated and not updated from 2007 by the unwillingness of the authorities of the CNSS , which have indexed the capital to AUD 3 times since then , and yet have not done a comprehensive reform catalog obsolete in 5 years , which allows ARS in his favor with the toppings affiliates . According to information provided by the DIDA , 65 % of requests for advice on hedging procedures / drugs received that institution in 2012 , the procedure and / or drug is not covered in the PDSS , which may imply that there is a pressing need Upgrading and adequacy of that catalog to the new times .

The ARS also incur liability when it denies coverage to a participant under the allegation that he does not know if the accident was working or not. This is because health is a constitutional right and access to it can not be challenged in any state of the facts. The ARS has the obligation to provide coverage without inquiring whether the accident or health conditions requiring the internment affiliate was working or not, because according to paragraph IV of Article 3 of Resolution 175-09 of SISALRIL if later determined that the coverage given by the ARS provides a situation related to employment , then simply occupational Risk Manager (ARL ) has the obligation to reimburse the ARS that the total amount spent for the user by concerned .

Also incurs liability ARS denying coverage to a user under the allegation that the physician income was caused by a quarrel , lawsuit or assault . According to information verified with the local office of Santiago de los Caballeros in the Directorate of Information and Protection of Contributors to Social Security ( DIDA ) , that office have come complaints in 2011 and 2012 in which there has been a denial of coverage for users under the allegation that the injuries suffered by them had occurred during a street fight or a quarrel. In cases like these , the ARS, whatever , are required to provide coverage for that user and no clinic may refuse to enter a user under the allegation that this was who caused the fight or who caused the confrontation. This is so because as we have said , health is a constitutional right that can not be denied to any citizen in any state affiliate of the facts.

According to paragraph II of Regulation FSS " The provision of vaccines ... and drugs for tuberculosis and leprosy remain the responsibility of the SESPAS which is responsible for ensuring the supply and provide the Dominican Social Security System , the cost ... the acquisition and application of vaccines and drug delivery to patients will be provided by the ARS which is affiliated . " therefore, the ARS incurs responsibility when a member suffering from the said disease not supplied to it timely vaccines and drugs to fight the disease.

According to Article 15 of Regulation FSS in its title " the responsibility of the Health Risk Administrators " have an obligation to these members is to "ensure protection to beneficiaries of quality, timely and satisfactory through rationalization of the cost of services of the Basic Health Plan , with appropriate levels of productivity and efficiency , in line with the objectives and goals of the National hedges Plan contained in the Basic Health Plan and the provisions established for the purpose of the SISALRIL " .

2.10.7 Cases in which an ARS does not incur civil liability .

ARS may be exempt from liability in cases of force majeure , as provided in Article 1148 of the CC Art that reads: " No damages come , when in consequence of force majeure or unforeseeable circumstances , the debtor was unable to give or to do what is required , or has made what was forbidden. " Therefore, in cases where the ARS can prove that there was force majeure shall not be liable .

The ARS shall be exempt from liability when the denial is for treatment for cosmetic purposes , luxury or embellishment, in accordance with the provisions of Article 17 of Regulation FSS . Such treatments are cosmetic surgery for beautification purposes ; nutritional treatments for cosmetic purposes ; infertility treatments ; treatments not recognized by the scientific medical associations worldwide or those of an experimental nature ; treatments or cures of rest or sleep ; corsets , girdles , wheelchairs , electronic or electromechanical prosthesis templates, orthopedic shoes and contact lenses .

They are also exempt from cover medications or substances which are not expressly authorized in the Drug and Therapeutics Manual ; drug treatments or experimental substances for any type of disease ; organ transplantation, renal transplantation except , of bone marrow and the cornea .

Nor should cover prosthetic treatments , orthodontics , endodontics , periodontics, operative surgery and in dental care; treatment of varicose veins for cosmetic purposes ; activities , procedures and curative interventions for traumatic chronic, degenerative , carcinomatosis, or of any kind in its terminal phase , or when there is no possibility for them recovery ; activities, procedures and interventions of education , training or instructional nature to be carried out during the rehabilitation process , other than those strictly necessary for the medical management of the disease and its sequelae.

Finally, they have no responsibility when covering antiretroviral drugs except in cases of prevention of MTCT mother newborn ; nor when refuse medical treatment abroad or outside the national territory; activities, interventions and procedures Unauthorized catalog Sisalril hedges .

Also, when the statements made by the providers of health services are not covered by the PDSS , which does not imply liability for ARS because they are not required to provide coverage of procedures and / or medications not covered in this catalog (Section 17 , subsection O of Regulation FSS ) . When an indication for authorization is submitted to the ARS with a given name of a procedure uncovered, ARS rejects the request for coverage, but if it is subsequently changed by the attending physician for homologous or similar process unjustified situations are also given rejection . Most users unknowingly , end up paying for procedures that are covered .

When negligence comes because the employer pay the TSS within prescribed in Article 16 of Law 87-01 , which will be governed by the provisions of section 145 of the Act . In this regard, Pellerano & Herrera, in his Newsletter 2002 No. 1 , p. 5, referred to relevant aspects of the Social Security Act :

" The wording of the provisions of this law , without prejudice to other penalties that corresponded , the employer will be liable for damages suffered by the member and their families arising from a breach ( i ) the obligation to enroll ; ( ii ) to notify the actual wages or ( iii ) changes in these ; ( iv ) entering contributions and contributions to the competent authority ; ( v ) may not be given medical benefits ; or ( vi) when the subsidy that they were entitled will see decreased in amount . Moreover, such liability shall personally to the company manager or director of the institution. "

2.11Procedimiento to file a lawsuit against an ARS.

The civil lawsuit against a per case of denial of coverage will be implemented by the Court of First Instance of the jurisdiction where the fact has occurred , as contemplated in ordinary civil proceedings . This is in case the amount of wrapping is greater than demand and charge 3,000 pesos to 20,000 pesos appeal in the Magistrates Court as provided in art. 1, paragraph 1 of the Code of Civil Procedure Dominicano .

The defendant shall constitute ARS attorney within the eighth franca according to the provisions of art. 75 of the Code of Civil Procedure.

In case of any complaint against an ARS will be a need to extend the deadlines as required by art. 73 civil proceedings when summoned resides outside the territory of the Republic , this because all the ARS are domiciled in the Dominican Republic .

If exceptions procedural or incompetence are filed the same shall be resolved in accordance with the articles of the law 834 of July 15, 1978.

In the event of a failure in the first degree either party may appeal the decision within 30 days in accordance with the provisions of Article 443 of the Civil Procedure Code ( as amended by Law 845 of July 15, 1978 ) .

Such an action must be brought before the Court of Appeal Judicial Department concerned. If the judgment in the first degree was favorable to the ARS and sentenced affiliate decides to appeal , but dies during the appeal , the terms for filing the appeal be suspended in consequence of his death if we set to benefit from what the art. 447 of the Code of Civil Procedure.

If the judgment in the first degree has affected a third party, that third party may bring an action for third party as prescribed in Article 474 of the Code of Civil Procedure. In the event that a party considers that the judge's ruling has been flawed that party may challenge the judge .

The parties could reach a settlement to avoid the continuity of the process. Might also benefit from the provisions of Article 402 of the code of civil procedure envisages withdrawal. In the latter case, things will return to the state they were in before the demand , however the party to desist will have to pay legal fees and court costs .

"Civil Responsibility and Social Security are legal concepts that can reach coexist on stage repair damage when protected contingency occurs as a result of the wrongful act of another. For the case in which contribute the compensation from the responsible repair mechanisms from Social Security, we can say that for each of these payments there is a fair degree , which entitles the victim to claim the payment of either 

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