PROYECTO DE LEY QUE MODIFICA EL INC. B) DEL ART. 8 DE SU SIMILAR 23.660 -OBRAS SOCIALES-, SOBRE EL DERECHO DE OPCIÓN PARA LOS JUBILADOS Y PENSIONADOS.

el sistema nacional del seguro de salud y, por lo tanto, tienen derecho a optar por mantener su obra social o afiliarse al sistema de salud público. Sin embargo, en la práctica, muchos jubilados y pensionados se ven obligados a afiliarse al sistema de salud público sin tener la opción de mantener su obra social. Esto se debe a que algunas obras sociales restringen el acceso a sus servicios o imponen requisitos adicionales para su utilización. Esta situación genera una gran preocupación y malestar entre los jubilados y pensionados, ya que ven limitado su derecho a elegir la cobertura de salud que consideren más adecuada para sus necesidades. Por lo tanto, esta iniciativa busca aclarar expresamente el derecho de opción de los jubilados y pensionados nacionales, garantizando que puedan mantener su obra social si así lo desean, sin restricciones ni imposiciones adicionales. Es fundamental proteger y respetar los derechos de los jubilados y pensionados, quienes han contribuido durante toda su vida laboral al sistema de seguridad social. Permitirles elegir libremente su cobertura de salud es una forma de reconocer y valorar su trayectoria y brindarles la tranquilidad y seguridad que merecen en esta etapa de sus vidas. Espero contar con el apoyo de mis pares para aprobar esta iniciativa y garantizar el derecho de opción de los jubilados y pensionados nacionales en materia de obra social. Muchas gracias. ``` "2024 - YEAR OF THE DEFENSE OF LIFE, FREEDOM, AND PROPERTY" quality of beneficiaries of social security, but unfortunately, starting from the issuance of regulatory decree 576/1993, social security and ANSES adopted a behavior that should have been the exception. Let's analyze. Article 20 of Decree 576/1993 determines that: "The entities responsible for liquidating pension benefits must transfer to the corresponding Insurance Agent, from the pension benefits, the resources belonging to the beneficiaries of sections b) and c) of Article 8, within fifteen (15) consecutive days after each expired month. When the affiliate chooses an Insurance Agent other than the National Institute of Social Services for Retirees and Pensioners, they must transfer, within the same period, the equivalent amount to the cost of the Special Medical Care Regime module for retirees, which is guaranteed to all passive beneficiaries, and which will be approved by the Ministry of Health and Social Action...." The reality of the situation shows us day by day that, when granting the retirement benefit, those who were previously affiliated with a social security organization are automatically transferred by ANSES to PAMI, without informing said beneficiaries that they can continue with their social security organization. Even when affiliates inquire with their social security organizations if they can remain affiliated, they often receive a false negative response, which leads those who have correctly informed themselves of the current regulations to initiate a protective action, resulting in a judicial waste and a pile of cases that should not exist. Judicial doctrine is unanimous in resolving the re-affiliation of beneficiaries to their original social security organizations, based on a precedent set by the Supreme Court of Justice of the Nation, which held that the creation of the INSSJyP did not imply a transfer. "2024 - YEAR OF THE DEFENSE OF LIFE, FREEDOM, AND PROPERTY" automatically transfer the liabilities to that organization, and that the transfer of the corresponding social welfare to the service provided in activity and the rights and duties derived from that relationship to PAMI, was optional for the affiliate (Fallos 324:1550, case "Albónico Guillermo Rodolfo and another v/Instituto Obra Social" of 8/5/01). Following this doctrine, the Honorable Federal Civil and Commercial Federal Chamber has repeatedly held that "... Consequently, it should be noted that, as decided on other occasions, with the simultaneous examination of laws 18,610, 18,980, and 19,032, with the creation of the INSSJP, there was no automatic transfer of beneficiaries from social welfare to the entity created by the last of the norms, but rather that such transfer was subject to the option voluntarily made by those interested in it, because otherwise, they would maintain their affiliation with those (CONF. C.S.J.N, A354XXXIV, "Albónico Guillermo Rodolfo and another v/Instituto Obra Social" of 8.5.2001; this Chamber, cases 16,173/95 of 13.6.95, 30,317/95 of 12.10.95, 31,031/95 of 27.6.96, 33,425/95 of 5.9.96, 42,050/95 of 6.3.97, 889/99 of 8-6-99, 4221/97 of 16.9.99, 5931/98 of 18.11.99, 2151/99 of 17.2.2000, 435/99 of 16.3.2000 and 436/99 of 13.4.2000, Chamber II, case 39,356/95 of 13.2.96 and Chamber III, case 4229/98 of 4.11.99 and its citations). It was also established that Law 23,660, especially in its article 8, and its regulatory decree 576/93, confirmed that the mere circumstance of obtaining retirement did not imply - without more - the transfer of the beneficiary to the INSSJyP, but that "2024 - YEAR OF THE DEFENSE OF LIFE, FREEDOM, AND PROPERTY" Regarding the grievance sustained in the impossibility of choosing the social work actioned due to not being registered in the provider registry created by decrees 292 and 492 - both from the year 1995 - the federal justice ruled that "the plaintiff's right to medical assistance benefits that correspond to them as affiliates lies in the original bond that unites them, and not in the option provided by said norms. Furthermore, the decrees mentioned by the appellant, besides encouraging the possibility for beneficiaries of the National Health Insurance System to choose who provides coverage, do not prevent those who enjoyed it from continuing under the same protection" (See, among others: Chamber I, case P.L.D c/OSOCNA Y OTROS s/AMPARO DE SALUD s/INCIDENTE DE APELACIÓN, case 891/2015). Thus, in this understanding, it was argued that "The described conduct, by which retirees are illegally and improperly denied the right to continue in their social works, manifestly and illegitimately affects their constitutional and supranational rights to health, life, and physical integrity, and implies an act of age discrimination within the terms of Article 5 of the Inter-American Convention on the Protection of the Rights of Older Persons (ratified by Law 27.360), and violates the right to health, life, and dignity in old age, protected by Articles 19 and 6 of said Convention." The aforementioned jurisprudence continues by stating: "It should be noted that the Preamble of said Convention safeguards the rights of older persons 'Recognizing that as individuals age, they should continue to enjoy a full, independent, and autonomous life, with health, security, integration, and active participation in the economic, social, cultural, and political spheres of their societies; Also recognizing the need to address issues of old age and aging from a human rights perspective that recognizes the valuable current and potential contributions of older persons to the common welfare, cultural identity, and diversity.'" "2024 - YEAR OF THE DEFENSE OF LIFE, FREEDOM, AND PROPERTY" from their communities, to human, social, and economic development, and to the eradication of poverty; Recalling the provisions of the United Nations Principles for Older Persons (1991); the Proclamation on Aging (1992); the Political Declaration and the International Madrid Plan of Action on Aging (2002), as well as regional instruments such as the Regional Implementation Strategy for Latin America and the Caribbean of the International Madrid Plan of Action on Aging (2003); the Brasilia Declaration (2007), the Plan of Action of the Pan American Health Organization on the health of older persons, including active and healthy aging (2009), the Declaration of Commitment of Port of Spain (2009), and the San Jose Charter on the rights of older persons in Latin America and the Caribbean (2012);..." On the other hand, we already know that the Supreme Court of Justice of the Nation has stated that life is the first right of the human person recognized and protected by the Fundamental Law (Rulings: 310:112; 312:1953, among others) and that, as the axis and center of the entire legal system, it is inviolable and constitutes a fundamental value with respect to which others always have an instrumental character (Rulings: 316:479; 324:3569). Likewise, the High Court has pointed out that the preservation of health is part of the right to life, so there is an unpostponable obligation of public authorities to guarantee it through the implementation of positive actions (see Articles 42 and 75, section 22 of the National Constitution and Rulings: 321:1684; 323:1339 and 3229, among others). In this sense, it has been understood that the right to health is closely related to the right to life and the principle of personal autonomy (EXP. No. 4452/1; Supreme Court of Justice, "in re" "Asociación Benghalensis et al. v. National State", 6/1/00, Rulings, 323:1339; of "2024 - YEAR OF THE DEFENSE OF LIFE, FREEDOM, AND PROPERTY" opinion of the Attorney General of the Nation, which was shared by the Court). In this way, both the right to life and the right to preservation and attention to health enjoy not only constitutional protection, but also the emerging protection of Conventions and other regional and international instruments on human rights, now with constitutional hierarchy since the 1994 reform of the National Constitution. Thus, in the National Constitution, the recognition and protection of the right to health arise particularly from articles 41, 42, 75 inc. 19 and 23; this is without prejudice to what is established in article 33 of the Constitution National, regarding implicit rights (Bidart Campos, Germán "Manual of the Reformed Constitution, Ed. Ediar, 1997, vol. II. Cited by the TSJ in "Tanus"). Furthermore, health as a value and fundamental human right, in addition to the aforementioned Convention, finds recognition and protection in various community and international instruments on human rights, namely: Universal Declaration of Human Rights (UN, 1948), arts. 3 and 8; International Covenant on Economic, Social and Cultural Rights, art. 12; American Convention on Human Rights, art. 4, among others of the eleven international human rights treaties or pacts protected by art. 75 inc. 22 CN. In this sense, the most authoritative doctrine has shown that "the norms of the Constitution are not rhetoric or phraseological declamation, but constitutional law with normative force" (Bidart Campos, "The Right to health and protection", L.L. 1997-B-227). It is also necessary to remember that the American Declaration of the Rights and Duties of Man determines that "every human being has the right to life, freedom, and integrity" (art. 1) and, likewise, "2024 - YEAR OF THE DEFENSE OF LIFE, FREEDOM, AND PROPERTY" that "every person has the right to have their health preserved..." (art.11). The Universal Declaration of Human Rights states that "every individual has the right to life" (art. 3) and that "every person has the right to an adequate standard of living that ensures their health and well-being, as well as that of their family" (art. 25). In the American Convention on Human Rights - San José Pact - it is established that "every person has the right to have their life respected" (art. 4). On the other hand, article 12 of the International Covenant on Economic, Social and Cultural Rights, in which the contracting States "recognize the right of every person to the enjoyment of the highest attainable standard of physical and mental health...", and guarantees "...(d) the creation of conditions that ensure medical assistance and medical services in case of illness". Based on all of the above, the CSJN understood that "... The provisions of the international treaties that have constitutional hierarchy (art. 75, inc. 22, of the Supreme Law) reaffirm the right to the preservation of health - included within the right to life - and highlight the unpostponable obligation of the public authority to guarantee that right through positive actions, without prejudice to the obligations that must be assumed by local jurisdictions, social security institutions or prepaid medicine entities" (Fallos 323: 3229, "Campodónico de Beviacqua, Ana Carina c/ Ministry of Health and Social Action. Health Programs Secretariat and Neoplastic Drugs Bank.", dated 24/10/2000). For all these reasons and in order to put an end to the violation of the right to health of our elderly, this initiative specifies the right of retirees and pensioners to choose to remain in their social security institutions, therefore I request my colleagues to support the approval of this Bill with their vote. "2024 - YEAR OF THE DEFENSE OF LIFE, FREEDOM, AND PROPERTY" Víctor Zimmermann - Edith E. Terenzi - Pablo D. Blanco - Mercedes G. Valenzuela.