Our Judiciary is unbelievable, when we believe that we will rescue legal certainty, our judges create more instability by changing old jurisprudential understandings, already pacified in national law.
On the 8th of this month, the Second Section of the STJ (High Court of Justice) ruled that the procedures and actions established by the ANS (National Health Agency) were generally complete and that the health care operators (agreements) were not obliged to comply. Unforeseen treatments on the ANS list. However, in order to live in a different reality, STJ ministers set parameters in exceptional circumstances to allow plans to pay for unforeseen procedures on the ANS list, stating: , and with certificates of approval from the technical bodies and institutions that regulate the sector ”.
Most ministers defended and achieved the following theses:
1) that the role of the ANS is specific (cannot be expanded);
2) that health plan operators do not have to pay for treatments not listed in the ANS;
3) It is possible for (citizens) to hire extended coverage outside the ANS role;
4) If there are no alternative therapists and the procedures provided for in the ANS have been exhausted, there may be exceptional treatment coverage. They set a number of limitations that are difficult to meet, making this unique opportunity almost impossible.
In order to justify and defend this situation outside the reality in which we live, most ministers stated that “the integrity of the role of the ANS is fundamental to the proper functioning of the complementary health system, ensuring protection, including for the beneficiaries – and those who may have them. they would be in danger if the plans had to be paid without separate court orders to cover proceedings outside the autarky list ”.
Now the ministers, with all due respect, are in the STJ to judge equally and not defend one part (health plans) to the detriment of another (citizens). The big health plan operators are accumulating profits every year and when they contracted agreements with citizens a few decades ago, it was not agreed that they would be linked to an ANS list. By the way, this has always been the understanding of justice, now with a “pencil stroke”, which has changed to defend health plans.
Such a procedure in the judgment is very curious, given that the historical understanding of the country’s courts over the decades has favored a broader interpretation and that the ANS list or list is considered a minimal or exemplary reference.
Dear “Illuminator,” the change you have made puts into practice the nature of the list that will allow healthcare providers to deny treatment to patients who are not on the ANS list. which are prescribed by doctors and have proven effective, as the “inconveniences” set out as an exception will not be met in time to care for the member.
Law 9656/03/06/1998 – Article 10 of the Health Plans Act states that all treatments for diseases covered by the ICD (International Classification of Diseases) of the WHO (World Health Organization) are mandatory coverage by operators.
We can say that “economic terrorism” is the only argument of the “enlighteners” who do not respect the positive laws of Brazil and the agents of advocating change. Over the decades, as we have said, the broad interpretation given has never posed a real threat to the profits of companies operating health plans, which, by the way, continue to grow with each balance sheet.
Did any minister in favor of such an understanding have the courage or time to think? In other words, if operators are highly profitable every year, why change if they continue to do so by justifying that they are at risk? They certainly haven’t had time to think, as they are always very busy.
It is important to note that the ANS recently allowed operators to correct the values of their plans by more than 15%.
At the very least, ministers should specify that this new understanding should be applied to new health plan contracts without reaching previous contracts. In fact, citizens are always the most vulnerable in this relationship, as they will not be able to be treated at the moment when they need the most treatment.
By the way, the minister, when the citizen hires a health plan, is because he wants to have something or something more, a differential, a plus, at the moment of the need for care, if only what the public network offers. , we will all use the public health system (massage), saving money from monthly plan fees so that payments can be made when needed, with or without a plan, as the coverage will be the same. public network.
Finally, God save us, because those who should demand the fulfillment of the law are doing judicial activism that is completely contrary to the positive legislation and the interests of the citizens.
Toninho Menezes He is a master of public law, a lawyer and a university professor.