Resolution SBS No. 03223-2022: Amend Title VII of the Compendium of Regulatory Supervisory Norms of the SPP Regarding Benefits

Los Laureles Nº 214 - Lima 27 - Perú Telf. : (511)6309000 Lima, October 21, 2022 Resolution S.B.S.
No. 03223 -2022
The Superintendent of Banks, Insurance and Private Pension Fund Administrators

CONSIDERING:

That, by Supreme Decree No. 054-97-EF, the Single Text of Ordained Law (TUO) of the Law of the Private System of Administration of Pension Funds, hereinafter the SPP Law, was approved;

That, by Supreme Decree No. 004-98-EF, the Regulation of the aforementioned TUO of the SPP Law was approved;

That, additionally, in accordance with the Third Final and Transitory Provision of the Regulation of the Law, the Superintendence is empowered to issue the complementary operational norms necessary for the proper functioning of the Private System of Administration of Pension Funds (SPP);

That, as established in article 121°-A of the Regulation of the TUO of the SPP Law, the medical bodies of the SPP invalidity evaluation system are the COMAFP, the COMEC, and the CTM; likewise, articles 122°, 126°, and 129° respectively specify the number of members that constitute them, considering it necessary to establish the figure of alternate members to the titular members who compose these committees, in order to guarantee that they always have a quorum to hold their sessions and make agreements, since the medical members for various reasons, given the context of health emergency and similar situations, could be absent from the sessions;

That, by Resolution No. 232-98-EF/SAFP, Title VII of the Compendium of Regulatory Supervisory Norms of the Private System of Administration of Pension Funds, referred to Benefits (hereinafter Title VII), was approved;

That, in accordance with what is established in article 153° and article 212° of Title VII, the COMAFP is responsible for the hiring of representative doctors and consultants, must train them as part of its procedures, and guarantee that these have the knowledge and preparation to correctly carry out the medical evaluations in their charge; to this effect, it is required to establish guidelines for a training model that allows the representative doctors and consultants hired by the COMAFP to have standard knowledge regarding the technical-medical criteria linked to the SPP regulations, and to the general administrative regulations linked thereto;

That, article 219° of Title VII indicates the deadline to conclude the evaluation of invalidity qualification due to the affiliate's refusal to attend the evaluations ordered by the COMEC, after 90 business days have elapsed, counted from the notification of the third medical summons sent to the affiliate or beneficiary, a deadline that is required to be uniformized with the deadline of the COMAFP;

That, article 218° of Title VII establishes the deadline for the COMAFP to elevate the file to the COMEC, establishing that it is a deadline of 3 days, attaching the respective justifications; nevertheless, it is required to extend this deadline in order to reduce the incidence of return of appeal files that the COMAFP sends to the COMEC due to lack of observance of some requirements or lack of documents in the evaluation file;

That, the current regulation provides that the evaluation and invalidity qualification procedures, in first and second instance, must be carried out in person in the offices of the medical committees, with the presentation of a physical format and the notification of the opinions or other pronouncements issued by the evaluating medical committees (COMAFP and COMEC), so it is required to adapt the regulation to facilitate the use of technological tools for these notification processes, as well as in the evaluation and invalidity qualification processes corresponding, under remote means;

That, article 221° of Title VII states that, if an affiliate presents an appeal, by effect of positive administrative silence, said appeal becomes well-founded, potentially generating the recognition of pension rights that do not correspond within the framework of the evaluation and invalidity qualification, so, in order to maintain harmony with the predictability of the pronouncements of the Medical Committees, its repeal is considered pertinent;

That, in order to collect the opinions of the general public regarding the proposals for modification of the SPP regulations, the pre-publication of the draft resolution on the matter was ordered on the electronic portal of the Superintendence, under the authority of what is provided in Supreme Decree No. 001-2009-JUS and its modifications;

Having the approval of the Adjunct Superintendencies of Private Pension Fund Administrators, Market Conduct and Financial Inclusion, and Legal Advice; and,

In exercise of the powers conferred by numeral 9 of article 349° of the General Law of the Financial System and the Insurance System and Organic Law of the Superintendence of Banks and Insurance, Law No. 26702 and its modifications, and subsection d) of article 57° of the SPP Law, and viewing the exceptional conditions provided in article 14° of Supreme Decree No. 001-2009-JUS and its modifying norms;

RESOLVES:

Article First.- Modify Title VII of the Compendium of Regulatory Supervisory Norms of the SPP, referred to Benefits, approved by Resolution No. 232-98-EF/SAFP and its modifying norms, as follows:

• Modify the first paragraph of article 127°, with the following text:

“Article 127°. Composition of the CTM. The Technical Medical Commission (CTM) is composed of three (3) medical members, one of whom assumes the position of president, and another as secretary, and 3 alternate members may also be designated, all of them being representatives designated for the period determined in each call by resolution of the Superintendence and registered in the SPP registry, for their participation in the calls that, for the purposes of what is provided in article 128°, the Superintendence establishes. Alternate members during the period of their designation in the position can substitute titular members definitively, in case of vacancy, or temporarily, in case of absence or temporary impediment. (…)”

• Incorporate as the last paragraph in article 148°, the following text:

“Article 148°. Definition, composition and functions. (...)
For the development of their functions, the AFPs, jointly or through the Association that represents them, as well as the Superintendence, may designate a titular medical member and an alternate one, who performs functions in the absence of the former. Alternate members during the period of their designation in the position can substitute titular members definitively, in case of vacancy, or temporarily in case of absence or temporary impediment. The AFPs must designate titular doctors or alternate doctors who meet the profile of the position, for the performance of their functions, as well as ensure that said committee has the conditions for the exercise of its functions, in accordance with the General Administrative Procedure Law, Law No. 27444, the common norms of public law, and in accordance with articles 134° and 155° of this Title.”

• Suppress the fourth paragraph of article 150° and incorporate as the second paragraph the following text:

“Article 150°. Consultant Doctors. (...)
The registration of consultant doctors in the Registry of the Superintendence must be requested by them, directly or through the Medical Committees, in accordance with the conditions established by the Superintendence. (...)”

• Incorporate as the last paragraph in article 177°, the following text:

“Article 177°. Members of the COMEC. (...)
For the development of their functions, the Superintendence may designate a titular medical member and an alternate one, who performs functions in the absence of the former. Alternate members during the period of their designation in the position can substitute titular members definitively, in case of vacancy, or temporarily, in case of absence or temporary impediment. Titular doctors or alternate doctors must meet the profile of the position for the performance of their functions within the COMEC, in accordance with the General Administrative Procedure Law, Law No. 27444, the common norms of public law and in accordance with articles 134° and 177° of this Title.”

• Incorporate subsection f) in article 197°, according to the following text:

“Article 197°. Procedure for the evaluation of invalidity. (...)

f) The AFP must inform the affiliate or beneficiary of the conclusion of the procedure as a consequence of the provisions of article 219° of this Title, through the channels enabled for such effect.

• Modify the second paragraph and incorporate a last paragraph in article 200°, with the following text:

“Article 200°. Content of the Opinion. (...)
If the affiliate, the AFP or the insurance company are not satisfied with the opinion issued, they may appeal before the COMEC, within fifteen (15) business days of receiving the opinion, in accordance with what is provided in Subchapter III of this Chapter. (...)
The AFP must inform the affiliate or beneficiary of the deadline and the in-person and/or virtual means through which they can present the Appeal Request for the opinion issued by the COMAFP, as well as the deadlines and stages that apply in the evaluation of said request.
Additionally, the means through which the Appeal Request of any of the other interested parties will be communicated to them, if they present it, must be informed, in accordance with what is stated in article 216° of this Title.”

• Modify the denomination of the title of Subchapter II of Chapter IV of Subtitle II of Title VII according to the following text:

“Procedure for the celebration of agreements with entities providing services of consultant doctors, designation of consultant doctors and the Development of Capacities in the Invalidity Evaluation System (SEI)”

• Modify articles 209°, 210°, 211°, 212°, 213°, 214° and 215°, with the following texts:

“Article 209°. Procedure to follow to celebrate agreements with entities providing services of consultant doctors. The AFPs, jointly or through the Association that represents them, may celebrate agreements with clinics, medical centers or public or private hospitals, individually or associated, under the terms they freely agree.
For such purposes, the AFPs must verify compliance with specific conditions that guarantee, at least, minimum standards on the following aspects:
a) The inclusion of specialties that are the subject of the greatest requirement of examinations and/or additional evaluations. b) The coverage or scope in the provision of their services that is intended to be achieved at the national level. c) The quality and suitability of their facilities, laboratories and medical equipment. d) The professional quality and suitability of the doctors. e) The adequate quality, in terms of attention times and satisfaction, in the provision of services to affiliates and/or beneficiaries who require evaluations or examinations. f) The price levels in the performance of the examinations that ensure a competitive service and in accordance with the ordered quality standards. g) The adequate knowledge of information and communication technologies.”

“Article 210°. Procedure for registration. Once the agreement is celebrated, the AFPs or the association grouping them proceed to carry out the registration in the registry under the conditions established by the Superintendence. For the registration, they communicate the list of entities and of the medical professionals that integrate them and that provide the service of evaluation and/or examinations of consultant doctors. From the registration in the registry, the entity or medical professional assumes the express commitment to submit to the provisions of the SPP that apply to them. Once the registration is made, the AFPs must implement mechanisms that allow affiliates and/or beneficiaries to take knowledge of the entities registered before the Superintendence and of the medical professionals that integrate them. The designation of an entity or medical professional to provide the service of evaluation and/or medical examinations is in charge of the medical committees.”

“Article 211°. Conditions for the assignment of evaluations and additional examinations to consultant doctors. For the purposes that medical committees can assign evaluations or order additional examinations within the framework of an evaluation and invalidity qualification process, the AFPs must have carried out the corresponding registration of the entity providing services of consultant doctors or, in its defect, the medical professional must have carried out their registration in the registry of doctors of the SPP, in accordance with the conditions established by the Superintendence. The medical committees, under responsibility of incurring in what is established in subsection f) of articles 160° and 186° of this Title, must ensure that the evaluation of invalidity is carried out in optimal conditions, in terms of time and quality of service, taking into consideration the suitability and competence of the consultant doctor to carry out the evaluations. When due to reasons of the nature of the examinations, geographic location or other reason of a technical or medical character, there is some concentration in the demand for medical services in some entity or doctor in particular, such decision must be recorded and justified in the session minutes that they hold. Exceptionally, when there are reasons of lack of availability of doctors or other type, the medical committees may request from medical professionals not registered in the registry of the Superintendence, the performance of evaluations and/or additional examinations, such decision must be recorded in the session minutes that they hold. For such purposes, the medical committees must guarantee that the medical professional whose service has been requested has sufficient information to adequately perform the requested evaluation, as well as must observe the impediments indicated in article 212° of this Title. If deemed pertinent, the medical committees may inform the Association of AFPs about the particular medical professional whose services have been requested, in order to evaluate the pertinence of hiring them. The Superintendence carries out supervision actions regarding the performance of consultant doctors, being able to require from the AFPs or the guild that represents them a report with the results of the measurement and/or evaluation of said performance.

“Article 212°. Impediments for the hiring of entities providing services of consultant doctors. The AFPs are impeded from hiring with entities that maintain linkage, with the insurance companies that administer the risk of invalidity, survival and burial expenses of the AFP in which the affiliate and/or beneficiary is found, that offer life annuities within the scope of the SPP, according to the Special Norms on Linkage and Economic Group, approved by Resolution SBS No. 5780-2015 and its modifying norms. In those cases in which the medical professionals that integrate said entity maintain direct linkage by participating in the medical treatment of the requesting affiliate and/or beneficiary, or in those cases in which a doctor is requested to practice a medical evaluation and/or examination of an affiliate and/or beneficiary of the SPP, and the doctor were linked to an insurance company as indicated in the previous paragraph, said doctor must communicate their situation and abstain from issuing pronouncements.”

“Article 213°. Termination of the agreement with entities providing services of consultant doctors. The AFPs may terminate the agreement celebrated with an entity at any time, communicating it to the Superintendence after a deadline not greater than thirty (30) business days counted from the date on which this decision was taken.
Once the agreement is terminated or revoked, the AFPs may celebrate another agreement under the terms of call they freely agree.
Likewise, the Superintendence, based on the periodic evaluations it carries out regarding the quality and competitiveness of the service offered to affiliates and/or beneficiaries to the SPP, may request from the AFPs to periodically send, in a deadline not greater than thirty (30) business days, a report in which the performance and quality of service of an entity or of the medical professionals that integrate it are evaluated, and on that basis, the evaluation regarding whether the registration of said entity is left without effect. All changes that are made regarding the entities or the medical professionals that integrate them must be updated by the AFPs, in the mechanisms and means implemented to provide information to affiliates and/or beneficiaries to the SPP.”

“Article 214°. Report of agreements with entities providing services of consultant doctors. The Superintendence carries out supervision actions on the agreements celebrated by the AFPs or the guild that represents them, being able to require a report of the agreements celebrated, as well as the copies of said agreements.”

“Article 215°. Development of Capacities of Doctors in the SPP. Conditions for the granting of trainings and/or certifications in the regulation for the qualification of invalidity and in topics of a general character linked. The AFPs must comply with the conditions established in this article, to guarantee the correct training and performance of the medical professionals who participate in the invalidity qualification process of the affiliates. The AFPs, jointly or through the Association that represents them, must provide trainings and/or grant certifications regarding the use of the Manual for Evaluation and Qualification of the Degree of Invalidity and its modifying norms, as well as regarding other topics they consider pertinent, to the medical professionals registered according to the procedure indicated in article 210° of this Title, who have been considered for the performance of the evaluations or who have been hired individually. Likewise, the Superintendence in coordination with the Technical Medical Commission (CTM) may implement induction tools on general aspects of the SPP to new medical professionals who are hired by the AFPs. The AFPs must send to the Superintendence, within the first quarter of each year, the plan of trainings and/or certifications to be programmed in a calendar year, as well as the content and the conditions under which they are granted. Such trainings and/or certifications must be accredited with the corresponding receipt or certificate. For this purpose, they must comply with the following conditions:
a. Regarding the granting of trainings and/or certifications.- The AFPs may grant the trainings and/or certifications to the doctors of the SPP directly, or in its defect, celebrate an agreement with a third party. b. Regarding the celebration of agreements with third parties.- The AFPs may celebrate an agreement with a national or international institution or entity. Such institution or entity must be suitable and independent regarding the participants of the SEI. Prior to the celebration of the agreement, they must provide a copy of this to the Superintendence. In case the Superintendence makes any observation, the corresponding correction must be proceeded.
c. Particular conditions to choose the third party to grant trainings and/or certifications.- The AFPs must verify that the contracted institution or entity has competencies to be in charge of planning, organizing, implementing, developing and executing the training and/or certification program on the application of the regulation that is necessary to be observed in the Invalidity Evaluation System of the SPP, by the doctors of the SPP, under the conditions established by the Superintendence and what is established in this Title.
d. Regarding the conditions to design the training and/or certification program.- The AFPs must design the program to guarantee the specialization of the medical professional in the regulation of the Peruvian Invalidity Evaluation System, which comprises the use of the Manual for Evaluation and Qualification of Invalidity and its modifying norms, including complementary instructions and guidelines. Likewise, it must verify that the faculty chosen for the training of the medical professionals are specialists in the matter that corresponds. The performance of the teachers must be supervised by the AFPs and by the institution or entity contracted, in case an agreement is made with a third party for the development of the program. e. Regarding the conditions of the teaching modality, methodology and periodicity.- The AFPs or, in its defect, the institution or entity contracted, may consider in-person and/or virtual modalities for the granting of the trainings, or other modalities they consider pertinent for the fulfillment of the purposes of this Title. The periodicity of the training and/or certification program must be annual, being able to opt for shorter periods.

Los Laureles Nº 214 – Lima 27 – Perú Telf.: (511) 6309000 8/10 f. Regarding the evaluation and performance system.- The AFPs or, in their absence, the contracted institution or entity, must provide an evaluation method that is objective and evidences the performance of each participant. This result must be reported to the Superintendency during the quarter following the completion of each program. The Superintendency may request adjustments in the aspects of training and/or certification, when necessary.”

• Modify Article 216°, with the following text:
  “Article 216°.- Procedure to follow to appeal a ruling in the SPP. To file an appeal against the ruling issued by the COMAFP in a first instance, the interested party must send to the COMAFP, through the AFP or the Superintendency’s appeals webpage (https://www.sbs.gob.pe/app/apelaciones_invalidez/), a Disability Appeal Request, which as Annex No. 11 forms part of this Title, in which they state their decision to appeal, having a period that must not exceed fifteen (15) business days from being notified of the ruling, under oath. Upon receiving an appeal request, the AFP must inform the other interested parties within three (3) business days following the receipt of the appeal request, under oath. If deemed convenient, the interested party may attach the background information or documents that evidence new or additional probative elements regarding the affiliate’s medical condition. The appeal does not require authorization from a lawyer.”
• Modify the first paragraph and item a) of Article 218° according to the following text:
  Article 218°.- Procedure to be followed by the COMAFP and COMEC upon an appeal request. Upon receiving the appeal, the COMAFP forwards the appeal request to the COMEC within a period of ten (10) business days, accompanied by the following:
  a) The notification receipt to the other interested parties of the submitted appeal request; and, b) The background information that serves as support for the COMEC to resolve the appeal. These background items are:

1. Appeal request;
2. COMAFP ruling with the supporting annexes;
3. Report from the assigned physician, as well as from the representative physician, if applicable;
4. Report from the consulting physician, if applicable;
5. Previous rulings with the corresponding medical reports, if applicable;
6. Documents submitted by the affiliate and/or beneficiary that support their appeal, if applicable;
7. Request for evaluation and qualification of disability; and,
8. Other documentation that is presented or requested within the framework of the disability evaluation and qualification procedure.
   Likewise, the COMEC must adhere to the following procedure:

Los Laureles Nº 214 – Lima 27 – Perú Telf.: (511) 6309000 9/10 a) The President of the COMEC verifies whether the appeal was filed within the period provided for in Article 124° of the Regulation of the Single Text of the Law of the SPP and those contemplated in this Subchapter. (…)”

• Modify the last paragraph of Article 219°, with the following text:
  “Article 219°.- Deadline for evaluation. (…)
  Likewise, in the event that the affiliate or beneficiary is reluctant to attend the summons issued by the Medical Committee, the evaluation period is deemed concluded. This applies when ten (10) business days have elapsed from the date of receipt receipt of a third communication made by the committee to the affiliate or beneficiary, in the case where personal notification was made. In the case where notification is made by email, it may be deemed concluded when the COMEC receives the receipt response from the electronic address indicated by the affiliate or if it is generated automatically by a technological platform or computer system that guarantees that the notification has been carried out, in accordance with what is established in numeral 20.4 of Article 20 of the General Administrative Procedure Law, Law No. 27444. This provision also applies to notifications made by the COMAFP.”
• Modify Article 282°, with the following text:
  “Article 282°.- Process for requesting additional exams and evaluations for Terminal Illness or Cancer The procedure for requesting additional exams and evaluations for Disability and Terminal Illness, or Disability and Cancer, corresponds to that indicated in Article 199°, referring to the procedure for additional exams.”
  Second Article.- Incorporate the Fifty-First Final Transitory Provision into Title VII of the Compendium of Regulatory Supervision Norms of the Private System for the Administration of Pension Funds, approved by Resolution No. 232-98-EF/SAFP and its modifying norms, referred to Benefits, with the following text:
  “Fifty-First.- Use of electronic means for disability evaluation and qualification procedures The disability evaluation and qualification procedures under the responsibility of the COMAFP and COMEC may be carried out through physical or electronic means, partially or totally, which must be reported to the affiliates during the advisory and guidance process for carrying out the procedure and to the general public through the mass communication media used by the AFP.” Third Article.- Repeal Article 221° of Title VII of the Compendium of Regulatory Supervision Norms of the SPP, referred to Benefits, approved by Resolution No. 232-98-EF/SAFP and its modifying norms. Fourth Article.- This Resolution enters into force thirty (30) calendar days after publication in the Official Newspaper “El Peruano”, with the exception of the modification to Article 215° of Title VII of the Compendium of Regulatory Supervision Norms of the SPP, approved by Resolution No. 232-98-EF/SAFP, which enters into force one hundred eighty (180) calendar days. Register, communicate and publish. MARIA DEL SOCORRO HEYSEN ZEGARRA Superintendent of Banking, Insurance and AFPs ---