The High Court of Justice will resume its ruling on Wednesday (8), which directly affects nearly 50 million users of the country’s health plans. The Second Section of the Court, made up of 10 ministers, will determine whether the list of proceedings of the National Supplementary Health Agency (NSA) is “fiscal” or “exemplary”.
If the decision is final, jurisprudence will be established so that the plans are required to cover only the treatments listed on the ANS. In this case, customers who feel harmed will find it more difficult for Justice to force health care providers to pay for other paperwork.
Published every two years, the ANS list currently contains about 3,000 treatments and medications, each plan to cover in the health care of its clients. It often happens that patients are guided by doctors to perform therapies outside of that list that they consider more effective or more modern.
Plans refuse to pay and the person has to go to court to force them to pay for treatment. In general, judges and courts are forced to pay for the plan because they consider the list to be exemplary — that is, it shows the minimum coverage to be provided. If there is an effective and safe treatment for a disease, they believe the operator should pay for it. The plan, however, states that the list is complete, meaning that it cannot force ANS to pay what is off the list, although they may offer additional treatments if the customer pays a more expensive monthly fee.
The controversy escalated in 2019 when the Fourth Class of the STJ, a smaller collegiate of five ministers, accepted the operators ’argument to define the list as accurate, which would preclude plans to cover anything beyond the ANS list. The decision, however, clashes with the understanding of the Third Jury of the STJ, which considers the role to be exemplary, a reference base that does not exhaust the plans to be paid.
The impasse over the health plans took the case to the highest college of the STJ
Because of the impasse, discussions began in the Second Section of the STJ, which brings together ministers from two groups with differing understandings on health plans. The trial began in September 2021, when Minister Luis Felipe Salomão, an advocate of a specific role in the Fourth Class, reaffirmed that position. The mission is said to benefit clients because it provides safe and effective treatments and also ensures the financial sustainability of health plans. “Submission to the role of the ANS, in all its evidence, does not privilege any aspect of the contractual relationship, as it is a solution devised and established by the legislature itself to harmonize the contractual relationship,” he said in his vote.
Salomão says that if the list is considered exemplary, the list will, in practice, always be flexible and unlimited, which will put pressure on the ANS to achieve uniform increases in monthly fees for all customers, who will have to pay more. to offset the costs incurred by some of them, which require special treatment not listed by the National Agency for Complementary Health. The minister concluded that this would be detrimental to the poorest, as they would not be able to afford a basic plan.
He believes that if there is no increase for everyone, an operator could go bankrupt, the market will be more concentrated, which would not help reduce prices either. Salomão added that in countries such as England, Italy, Japan and the United States, the role is crucial. He defended the power of the Brazilian ANS to define the list of medical treatments – the agency believes that it has the technical power to regularly provide scientific assistance and the feasibility of procedures.
Also in September, STJ Minister Nancy Andrighi, who is leading the counter-current, in favor of the exemplary role, suspended the Second Section ruling with a request for a view. In February, he took a vote against Solomon’s stance in college. He argued that the list could not be reconciled with individual situations in which the doctor prescribes the most appropriate treatment for the person, even if the ANS takes into account the new technologies that may take time to be included in the list. The right to health, in this case, must prevail, according to Nancy Andrighi.
He added that the Health Plans Act, which is a higher standard than ANS resolutions, already establishes that operators must treat all diseases listed in the International Classification of Diseases (ICD). The law also lists non-mandatory types of coverage procedures, such as experimental and aesthetic treatments.
“It is not the responsibility of the ANS to impose other exceptions to the mandatory coverage of the reference plan, in addition to those expressly provided for in Article 10 of Law 9,656 / 1998, and it does not apply either. reducing the breadth of coverage by disregarding the procedures or events required to fully treat the diseases covered by the ICD, except for the limits imposed by law on contracted segmentation, ”he said.
He even mentioned the latest research that shows that operators have high profits and no risk of failure. He also said that it does not make sense to ask the customer to know in advance the thousands of procedures listed in the ANS, which he believes are explained in technical language. Consumers should not be aware in advance of new treatments that do not appear on the list that will require a more complete plan.
Following Andrighi’s vote, Luís Felipe Salomão clarified that his vote allowed for exceptions. That is, it would still be possible for the Court to force plans to cover out-of-list treatments, especially for cancer cases, or other serious cases. In the case under study, for example, a patient with schizophrenia and depression was given the right to be treated with Transcranial Magnetic Stimulation (TMS), prescribed by a psychiatrist and not listed by the ANS, but already approved by the Federal Medical Council. (CFM).
However, patient family associations and consumer protection organizations fear a decision in favor of a tax role. They indicate the risks of long and expensive treatments, such as for children with autism or people with disabilities. Since last year, these groups have been promoting protests in Brazil to maintain their exemplary role.
What is the focus of the trial in STJ
In the Second Section of the STJ, which is made up of 10 judges and where the trial is taking place, four judges have already voted, in another trial of the Third Jury, in favor of the exemplary list, after the vote of Nancy Andrighi. If they hold this understanding in the second section, it is likely that the thesis will prevail, as the president of the college, Antonio Carlos Ferreira, generally does not vote. Thus, there would already be a five-vote majority of the nine judges.
But some ministers may change their attitude or adapt to the solution proposed by Solomon. In any case, the decision will not have binding effect in all cases – the courts and tribunals are not obliged to comply. However, the jurisprudence that will serve as a guideline will be signed.
It is likely, however, that the case will be referred to the Federal Supreme Court (STF) in the future because it includes basic constitutional guarantees, such as rights to life and health.