In the last 3 years, the Superintendence of Health has ordered the start of liquidation processes of different EPS. According to the last statistical bulletin as of December 2020, 43 entities have been under special measures since 2020, of which 9 correspond to EPS and 14 IPS in forced administrative intervention to liquidate, the other entities are under special surveillance measures. In addition, a total of 260 private IPS have been voluntarily liquidated and 32 public IPS are in voluntary liquidation processes.

The causes for the initiation of these liquidation processes correspond to deficiencies in the provision of health services, noncompliance with solvency margins, debts with suppliers, and lack of attention to users, among others.

These liquidation processes affect the provision of health services, directly affecting user care and having a domino effect on providers, who are involved in large sums of money without having clarity as to the margin of recovery of these obligations.

The processes of forced administrative intervention of the EPS have special regulations. For those EPS of a public nature, Decree Law 254 of 200 and Law 1105 of 2006 apply. While for private EPS, the process is governed by Decree 663 of 1993, the Organic Statute of the Financial System and Decree 2555 of 2010. The purpose of this type of process is the prompt realization of the assets and the orderly and prompt payment of the external liabilities until the assets of the entity are exhausted, preserving equality among equal creditors, without prejudice to the privileges of exclusion and preference to certain types of credits.

Through Decree 2265 of 2017, the general operating conditions of ADRES, the Resources Administrator of the Social Security Health System, were established with the purpose of managing and protecting the proper use of the resources of the general health system and the compensation process was regulated, through which ADRES determines and recognizes the Capitation Payment Unit, the resources for the payment of incapacities and the resources to finance health promotion activities. The result of this compensation process is: (i) the amount in favor of the EPS, (ii) the amount in favor of ADRES by the EPS and (iii) the amount to be transferred by ADRES to the EPS in case of deficit, so these resources cannot be considered as the EPS's own and have the character of public resources.

The Constitutional Court, through different rulings: (i) Ruling C-1040 of 2003, (ii) Ruling C-549 of 2004 and (iii) Ruling C-262 of 2013, has specified the fiscal nature of these resources as they are intended solely to cover health insurance.

Now, by means of Article 12 of Law 1797 of 2016, special rules were established for the priority of credits in the compulsory liquidation processes: (a) Labor debts, (b) Debts recognized to Health Service Provider Institutions, (c) National and municipal tax debts, (d) Debts with pledge or mortgage guarantee and Unsecured debts This rule indicates that before applying the priority of credits, it is necessary that the liquidator covers the resources owed to ADRES, so it is a creditor with super privilege.

Thus, the regulation excludes from the liquidation estate the resources owed to ADRES, and the liquidator has the obligation to cover these amounts before attending to the liabilities according to the order of payment or priority.

In order to comply with the previous regulation, through Resolution 574 of 2017, obligations were established for the liquidators related to the restitution of these resources to ADRES, and the need to make the reserves of the financial resources before constituting the liquidation mass. For this, the liquidator has a maximum term of six months, in which he/she must identify the resources that belong to ADRES, verify all the transfer and compensation declarations, submit a draft schedule, among others.

Finally, in this avalanche of liquidation processes, it is necessary that both the liquidators and the creditors take into account the nature of the resources in favor of ADRES and the priority in the attention of these obligations. In order for the providers to find the appropriate way to recognize their obligations and to avoid a catastrophe for the provision of health services, where the most affected will be the users.