Learn how STJ’s tax role decision affects health plans

Posted on 13/06/2022 05:54 / updated 6/13/2022 05:55

(credit: Olga Kononenko / Unsplash)

The High Court of Justice (STJ) ruled that health plans should only be offered to users by the National Supplementary Health Agency (NSA), a process called a detailed list. In practice, most services will continue to receive agreements. However, there is a limitation of novelties and innovative solutions that can be detrimental to certain treatments, especially for people with unusual illnesses or disabilities.

Most court decisions on the matter were considered exemplary by the ANS list of more than 3,700 proceedings. This means that patients who did not have procedures on the list could go to court to expand their care.

Thus, procedures or medications that were similar to those already planned were added to the health plan account. With the new understanding of the STJ, the agreements only need to comply with the agency’s list, which already includes all the mandatory coverage. That is, what is outside, does not have to be paid by the operator.

According to Ana Luísa Araújo Machado, a specialist in civil law, “except in exceptional circumstances, operators will not be obliged to pay for medical treatment that is not included in this list if it is an equally effective, efficient, safe alternative and is already included.”

Machado explained that the rules allow for exceptions. “This is the case, for example, when the Federal Medical Council (CFM) suggests a specific procedure or in cases of cancer treatment using off-label medications, among others,” he said. Ana Luisa emphasizes that the taxation of the list does not mean that health plans can only offer what is provided in the list. “Operators are no longer required to provide unforeseen procedures on the list, but part of their liberality is to offer extended coverage or negotiate contract changes with policyholders,” he said.

The STJ’s decision, however, allows for exceptions. Court Minister Villas Bôas Cueva emphasized the possibility of granting exceptions: each consumer can request an extension of coverage through an additional plan contract if they want a specific treatment – of course, the monthly fees will be higher.

Therefore, Ana Luisa believes that although the decision of the STJ ministers is not entirely binding on the lower courts, the result is a significant milestone in the regulation of operators and health plans and, from today, tends to move. to reaffirm the understanding of the fiscal nature of the role.


Carlos Eduardo Gouvea, Vice President of the Brazilian Alliance of Innovative Healthcare Industries (ABIIS), stated that the specific tasks affected some sectors with very serious conditions. “For example, rare diseases, which have one case in 10,000, and are often ‘life-saving’ essential therapies for this disease and are not included in the ANS list.”

According to Gouvea, the situation ends up reducing access to new therapies and is limited to what was previously approved, even if it complicates legal issues. “We had a lot of medications that were already approved, even in court,” he said.

According to Carlos Gouvea, the main issue is that the list will restrict access to products, diagnostics, devices or medicines that are not officially approved, serving special people who will be affected. “What happens to a patient with a genetic mutation who, due to a diagnosis, will no longer respond to approved treatment? An exemplary list of this drug is for all those who need different therapies. More detailed than that is already available,” said ABIIS vice president.

Lawyer Nauê Bernardo Pinheiro, a specialist in constitutional law, said that the decision of the STJ raises some questions for reflection. “For example, isn’t it necessary for the regulatory agency to be quicker to update the minimum list of procedures?” He asked. “Furthermore, given this decision by the STJ and the successive increases in the values ​​of the health plan, will we not have an impact on public health? he pointed out.

understand the case

end of divergence

The STJ’s decision ended with the jurisprudential divergence that has persisted since 2019. That year, Minister Luis Felipe Salomão inaugurated the controversy by stating that it is just an exemplary role. The ANS has already taken into account the exact nature of the list since the last normative resolution was made in July last year. On the other hand, the jurisprudence of the majority understood the role as a mere model. In practice, the judgment should have a complete list of decisions to be made, providing and limiting the list of mandatory procedures, or exemplary, as a minimum reference for the services to be provided by health plans. With six votes against, Section 2 of the STJ has determined that the list is accurate, while maintaining the mandatory service for the cases provided for in the ANS list, but at its discretion, opening up the possibility of examining exceptions. The ANS list includes all the diseases listed in the World Health Organization (WHO) International Statistical Classification of Diseases and Related Health Problems (ICD).


What is the tax role?

Taxation means that this role eliminates certain types of treatment. That is, the plan is not required, in theory, to cover anything that is outside the list of procedures of the National Supplemental Health Agency (ANS). This list is basic and does not include various treatments, such as recently approved medications, some types of oral chemotherapy and radiotherapy, and operations with robotic techniques, including prostheses.

What procedures lose health plan coverage?

The new rules limit the number of sessions or other medical solutions for autism, rare diseases (one in 10,000 people) and other types of disabilities. Health plans may waive these treatments. In the old model, having a similar therapy, the health plan might allow you to pay or reimburse. Access to new products, diagnostics, devices, or medications that are not officially approved on the ANS list will no longer be covered by the plans.

Are there any exceptions?

According to the STJ, the list, while accurate, allows for a few exceptions, such as therapies specifically recommended by the Federal Medical Council (CFM), cancer treatments, HIV patients, or any genetic mutation that affects more people. continuity of treatment. It is also anticipated that if there are no alternative therapists or after the ANS list has been exhausted, the plan will include out-of-list treatment coverage, as indicated by the attending physician or dentist. These situations, which affect most people, will continue to be addressed in normal and normal situations.

How to prove the effectiveness of another treatment?

The paths still need to be better clarified. But this is usually done by a manufacturer or medical company when it comes to a new technology, treatment, or drug. They are submitted to the ANS with all the conditions and procedures specified by the agency. The acceptance period can be from six months to two years. The big problem is, for the most part, that there is no manufacturer in Brazil or that there is no commercial interest in treating diseases that are less frequent in the population and have a lower supply in the domestic market.

What can citizens do?

ANS has paved the way for citizens through the agency’s website by clicking on “Consumer Space” (accessible via email: https://www.gov.br/ans/pt-br/assuntos/consumidor). In this space, the citizen can consult the detailed coverage and report if the plan does not comply with the rule. A direct complaint can be made to the agency, which must notify the operators of the complaint and return it to the public. The person can also send the proposal to the operator with the ANS forecast. If no one is involved, the solution is to go to court. The patient or citizen must prove that his or her condition is included in the list of exceptions. The action is taken against the operator.

What points do you need to look at?

The situation itself and the need for care and whether or not it is on the list should be observed. It is also important to ask the operator about the actual ANS list, if you notice any disconnection from the current list, you should immediately file a complaint with the operator and the ANS. You can check the ANS list on the agency’s website under the “Consumer Space” and “What Your Plans Should Cover” tab.

Leave a Comment