A Lawsuit for a drug
A cancer patient is suing President Joko Widodo because the Healthcare and Social Security Agency (BPJS) has rejected the medicine needed. This is not the first case.
SINCE she was diagnosed with breast cancer in May, Juniarti is spending her days at home. The woman who only several months ago obtained her certificate as an advocate has decided not to continue her apprenticeship at a law office in Jakarta. "Now I get easily fatigued," she said with tears in her eyes.
When we visited her home in the Malaka Asri 1 housing complex, East Jakarta, on Wednesday last week, the 46-year-old woman looked frail. She was only capable of sitting on a chair in the living room. Now and again her husband, Edy Haryadi, helped her to get up from the seat. Because of his wife’s condition, Edy has decided to work from home as a writer. He was previously an online media journalist in Jakarta.
Juniarti only came to know she had cancer after examining a lump on the right side of her neck at Budhi Asih Public Hospital, East Jakarta. The doctor gave her a referral to Persahabatan General Hospital, also in East Jakarta. Lab test results released by the hospital in May showed Juniarti to be suffering from HER2 stage III breast cancer. She was told she had to undergo surgery.
After the surgery on June 24, the doctor instructed Juniarti to take three kinds of medicine. One was trastuzumab, a monoclonal antibody that functions to halt the division of HER2 cancer cells.
Juniarti covered her surgery expenses with her husband’s Healthcare and Social Security Agency (BPJS Kesehatan). Using the same card, Juniarti went to the local hospital dispensary to redeem trastuzumab. But she was rejected by the dispensary because trastuzumab is no longer covered by the BPJS. Persahabatan General Hospital spokesperson Zulfikar was reluctant to comment on the matter. "I don’t have the data yet," he said.
Juniarti desperately sought out trastuzumab because she obtained information from several patients about the efficacy of the drug for similar cancers. According to Juniarti, one of her friends suffering from breast cancer for 15 years is still surviving to this day because she regularly consumes trastuzumab. "This info boosted my hopes for longer life expectancy," she said.
Through Rusdianto Matulatuwa, her pro bono attorney, Juniarti filed summons to the BPJS in early July. At two meetings with the agency, according to Edy, the BPJS is persistent in crossing off trastuzumab. "We finally chose to file a lawsuit through the court," said Edy.
On Friday last week, through his lawyer, Edy submitted a civil lawsuit against the BPJS’s decision to eliminate trastuzumab. The main defendant is President Joko Widodo. "We are suing (President) Jokowi because he has shunned responsibility pursuant to Article 7 paragraph 2 of Law No. 24/2011 on the BPJS," noted Rusdianto. The article stipulates that the BPJS is responsible to the President.
Apart from Jokowi, Juniarti is also suing several other parties regarded as sharing the responsibility. These include Health Minister Nila Farid Moeloek, BPJS-Kesehatan CEO Fahmi Idris and Clinical Consideration Council chair Agus Purwadianto.
The object of the suit is BPJS Letter No. 2004/III.2/2018 concerning Coverage of Trastuzumab for BPJS Participants-2018 Indonesian Health Card Holders The letter dated February 14 was signed by BPJS Health Insurance Director Maya Amiarni Rusady. This letter has become the legal basis of the BPJS’s non-coverage of trastuzumab for National Health Insurance participants.
In the lawsuit, Juniarti is presenting the legal premise that elimination of trastuzumab is not within the authority of the BPJS. In Juniarti and her attorney’s view, the authority to cross off such drugs is not with the BPJS, but rather with the health minister. They are supporting the argument by attaching Health Minister Decree No. HK.01.07/Menkes/659/2017 on the National Formulary.
One of the provisions in the health minister decree states any addition to or removal from the list of medicines contained in the national formulary is to be determined by the health ministry. Trastuzumab is one of the drugs on the national formulary list.
Public health professor of the University of Indonesia, Hasbullah Thabrany, shares Juniarti’s view. According to the former team member for formulation of Law No. 20/2004 on the National Health Insurance System, the decision to eliminate medicines on the national formulary list is the authority of the health minister. "The BPJS wasn’t set up to make profit but to prioritize the principles of humane benefit and justice," he pointed out.
Two years ago, a resident of Muaro Sijunjung, West Sumatra, Zefnarawita, filed a similar suit to the Clinical Consideration Council. Zefnarawita is a breast cancer patient who submitted the clinical suit because the BPJS stopped her trastuzumab insurance coverage halfway in her medication. The suit was later rejected.
Vice President Jusuf Kalla has promised to summon BPJS top management related to the lawsuit. "I’m going to ask the BPJS-Kesehatan because it is they who regulate what is allowed or not," he said. Meanwhile Agus Purwadianto and Maya Amiarni Rusady suggested we contact the BPJS public relations section.
BPJS chief spokesperson Nopi Hidayat said the decision to eliminate trastuzumab from the list conforms to rules and regulations. "The Clinical Consideration Council is also compliant with the Health Minister Decree," he said on Friday last week.
At a hearing with the Health Commission of the House of Representatives end of last year, the BPJS proposed that financing of eight high-cost catastrophic diseases use a cost-sharing scheme. In the model, the BPJS and patients or their families apply a joint-financing scheme for these diseases. Catastrophic diseases include heart, kidney, cancer, stroke and leukemia.
The BPJS said at the hearing that funding of certain catastrophic ailments had been the main cause of its budget deficit. The agency so far remains entangled in a financial deficit.
During 2017, BPJS receivables from participant contributions reached Rp74.25 trillion. At the same time, the BPJS-Kesehatan had to pay up claims worth Rp84 trillion. The discrepancy of around Rp10 trillion has to be borne by the BPJS.
Nopi Hidayat made no denial of this. In his opinion, the health service coverage in the National Health Insurance is too extensive, and should be adjusted to participants’ needs and the financial capacity of the BPJS. "This is necessary for the sake of prudence," he added.
Juniarti realizes her legal attempt will probably take a long time. The judge, she said, could very well finally pass a verdict on her lawsuit after she herself has passed because of the cancer.
"I earnestly hope the judge will be willing to comply with the request, so that other breast cancer patients don’t have to go through the same thing," said the mother of one child with a sob.
Rusman Paraqbueq, Aditya Budiman