The decision of the STJ (High Court of Justice) on Wednesday (8) could have an impact All users of Brazilian health plans. Ministers understood that the list of mandatory coverage procedures specified by the ANS (National Supplemental Health Agency) does not allow companies to pay anything outside of that list.
The decision, which could be overturned on appeal, was passed with six votes in favor of the so-called detailed list and three others in favor of the exemplary list.
What is the role of the ANS?
The so-called List of Health Procedures and Facts is a list of more than 3,000 items, including consultations, treatments, surgeries and examinations, according to the ANS, “which cannot be denied by operators, penalized for suspending the sale of plans or fined.” The ANS periodically updates this list to include new coverage.
Model X Model Role
According to the agency, which regulates the operator, “the specific nature of the list gives the ANS the power to impose mandatory coverage to be provided by health plans, without consumers having to bear the costs of additional coverage.”
“Assuming that the list is merely exemplary means that, to a limited extent, assigning each Brazilian judge the power to decide to include unforeseen coverage in the contract or in the list of minimum coverage, which would lead to an increase. to properly measure the risks that would be effectively covered, ”he added.
However, judicialization already exists. What the STJ may say in favor of the ANS listing tax decision, according to experts, is that consumers will have fewer and fewer opportunities to take action against health plans that deny medical procedures.
“Currently, the Judiciary examines cases on a case-by-case basis, even if it is not on the treatment or medication list. If it is not experimental, if it has a medical justification, the Judiciary now understands that it needs to be covered. “Even if the patient were to seek justice, it would be understandable, and the beneficiary could not be helped by the judiciary,” he said. Vilhena Silva Advogados office.
José Luiz de Oliveira Jr. The lawyer, a partner in O&S Advogados, says that the outcome of the verdict in both cases does not turn into a summary, which must be followed, which creates jurisprudence (the basis for future court decisions in other instances).
“It will be just a decision that the judge can use as a basis for his or her understanding,” he warned, noting that a ruling in favor of a specific role would create “much more legal uncertainty”.
Both lawyers stressed that the judges are free to follow their case on a case-by-case basis.
In the largest state, for example, a summary of the TJSP (State Court of Justice of São Paulo) – number 102 – goes against the understanding advocated by the STJ, which states:
“If there is a medical indication, the refusal to cover the cost of treatment is abusive because of its experimental nature or because it is not on the list of ANS procedures.”
“Judges of the State Court of Justice of São Paulo are bound by the summary of the court, which is under the STJ,” Oliveira Jr.
Therefore, anyone who goes to court against a health plan in São Paulo has the opportunity to reach a decision in favor of the remaining one, as long as there is no appeal to the STJ.
In 2020, the Fourth Class of the High Court of Justice, which is in favor of the exact list, also dropped the TJSP summary 102 in a ruling in favor of a health plan user seeking a prescribed physiotherapy treatment. by the doctor.
Rafael Robba advocates not covering experimental treatments, as specified in current legislation.
“The Health Plans Act itself already offers the option of excluding coverage from health plans. Therefore, the treatments are considered experimental, treatments that are not registered in Anvisa. [Agência Nacional de Vigilância Sanitária]treatments with a purely aesthetic purpose … When the Judiciary examines them, it sees that there are medical recommendations for the user to receive such treatment, as long as it is not included in these exclusions from the law ”.
Consumers in the health plan see the Judiciary as the last hope for companies after some denials, often in cases of coverage that need to be decided urgently.
The fact that the STJ requires a strict interpretation of the list of procedures means that, in the opinion of specialists, many processes do not have positive results for patients, which would lead to a lack of support.
Even as these actions are being processed today, there is already irreparable harm to people, says Oliveira Jr.
“I had a lawsuit where the time of the discussion of an order resulted in the death of my client. I won the penalty, and when he came out, the client died. It was a treatment with a drug called Palbociclib, against cancer.” and the hospital completely refused him, the doctor made it clear that his treatment was urgent and would be irreversible if not applied. [com urgência]. The drug was expensive, costing R $ 18,000 at the time. He didn’t use it for about two months and died. “
Robba stresses that the ANS must have the resources to resolve the issues between the beneficiaries and the health plan operators who want to avoid prosecuting the allegations.
analysis of Two Special Embargo Appeals for Divergence in Part Five of the STJ began on September 16, 2021the rapporteur of the cases, Minister Luis Felipe Salomão, voted in favor of completing the list because he understands that it is fundamental to the proper functioning of the complementary health system.
However, the magistrate stressed that it is possible that there are exceptions to the taxation of the list and that the judicial authorization must follow technical criteria, in addition to proving the necessity and appropriateness of the requested procedure.
The exceptions mentioned by Salomão are the therapies recommended by the CFM (Federal Medical Council) and medicines related to the treatment of cancer and over-the-counter prescriptions (for use other than those set out in the package leaflet).
The session was adjourned with the opinion of Minister Nancy Andrighi, who voted on February 23, opening a divergence. He is in favor of an exemplary role.
“The list of health procedures and events is an important guarantee for the consumer to guarantee the right to health as an important guidance tool on what health plan operators must offer, but it cannot replace the precise limitation of care coverage. excluding the right to benefit from all possible proceedings or events, ”the magistrate said in his vote.
Nancy focused on the vulnerability of clients in the health plan in the face of the barriers imposed when they request a procedure.
The second request for a hearing, Minister Villas Bôas Cueva, led to the suspension of the trial, which has resumed this Wednesday.
What do health plans say?
In a statement, Abramg (Brazilian Association of Health Plans) advocated for the STJ to strengthen the fiscal role of the ANS. Read an excerpt from the statement:
The list of mandatory coverage defined and updated by the ANS is the purpose of health plans, which should limit the treatments and procedures on the list. This framework is used to calculate the price of the plan, which is the case in every country in the world where a health agency operates.
Formulating the price of an unlimited product, which includes all available procedures, medications, and treatments, could make access to a health plan unfeasible and jeopardize the follow-up of supplementary health care in Brazil.
The concept of having an exemplary list is completely contradictory. The current list of procedures contains more than 3,000 items that have passed the Health Technology Assessment (HTA), are highly recommended by the World Health Organization (WHO) and are recognized by the international community. This process is essential in healthcare systems.
There is no unlimited coverage of any treatment or procedure in any country in the world. Important countries in the health sector, such as Canada and the United Kingdom, also develop and regularly update mandatory coverage lists, as is done monthly in Brazil through Cosaúde / ANS, with broad social representation, including medicine, government and consumer protection. agencies, health care providers, among others.
Although the decision of the High Court of Justice (TSJ) on the nature of the list is not binding, it will be important jurisprudence to clarify that there is a mandatory minimum list of plans coverage, which tends to reduce litigation in the judiciary. .