In an administrative decision that constitutes a new blow for the government of President Gustavo Petro, the Council of State suspended the decree with which it was intended to transfer millions of users to Nueva EPS, a health service provider entity that generates much uncertainty for being intervened by the same government.
In its decision, the highest court of administrative litigation emphasized the rights that citizens have to choose their health provider, as well as the high risks that the decree (0182 of February 25, 2026) represents for the care of users who were intended to be transferred without technical studies of this decision.
“The continuation of the effects of Decree 0182 of 2026 entails a risk of current and continuous affectation of the fundamental right to health, which configures the requirement of periculum in mora [danger in delay], hence the provisional suspension of the effects of the challenged act will be decreed and thus it will be ordered in the operative part of this ruling,” says one of the sections of the Council of State’s decision.
Council of State says Government decree violates the Constitution
But the high court goes further, and states that the presidential decree violates the Constitution and the rights of patients. “The normative model adopted does not satisfy the requirements of the principle of proportionality, insofar as the measures adopted entail a relevant affectation of the fundamental right to health, in particular free choice, and the principles of accessibility, availability, quality and continuity of the service, recognized in Article 49 of the Political Constitution and developed by Statutory Law 1751 of 2015.”
Another of the aspects on which the Council of State dwells, and which has also been pointed out by different sectors of Colombian society and experts, is the questioned administration of Nueva EPS since it was intervened by the State. Its financial indicators show that it would not have the economic capacity to support the burden represented by the new patients.
“The financial report of Nueva EPS, fiscal year 2024, demonstrates the legal insolvency of the entity, a negative adequate equity, noncompliance with minimum capital and deficit in technical reserves, all of which evidences the structural incapacity of the entity to back the obligations derived from health insurance,” warns the Council of State.
In the assessment it makes of Nueva EPS, the Council of State also reports several negative aspects of the state intervention such as “noncompliance with minimum capital, deficit in required technical reserves, increase in tutela actions and low compliance rate with rulings, delays in priority care for high-cost diseases and maternal-perinatal care and deterioration of indicators in the subsidized regime.”
To conclude, the Council of State states that “the measures established by Decree 0182 are not reasonable given the effects they imply for the provision of the health service, hence the purposes it pursues must be achieved by means that do not affect the constitutional principles analyzed here, which leads to the conclusion that the criterion of necessity is not satisfied in the case under study.”