The Superior Court of Justice (STJ) judges on Wednesday whether the list of procedures listed by the National Health Agency (ANS) is exemplary, that is, a minimum list of coverage that must be offered by operators to their users, or if it is exhaustive, which means that you cannot claim any treatment that is not listed by the regulatory agency.
The priority understanding of the Judiciary in the last decade is that the list is exemplary. This view allowed health plan clients to go to court when they had been denied by the operator access to treatment prescribed by their doctors.
They ended up in court, and later included in the list, from the right to breast reconstruction, after cancer, and outpatient chemotherapy treatments, to the guarantee of bariatric surgery.
“In practice, if there is a change of understanding, there will be coverage restriction, so it is important that consumers stay alert and mobilize. It is important to remember how many procedures were included in the list after legal disputes”, emphasizes lawyer Ana Carolina Navarrete, coordinator of the Health Program of the Brazilian Institute of Consumer Defense (Idec).
According to her, with the change of understanding, it will be much more difficult for consumers to obtain authorization in court for procedures or treatments not listed on the list.
“For at least a decade, this has been the majority understanding of the courts, and the market continued to grow normally. The sector arrives in 2021 more stable than ever after a decade of growth. In other words, the arguments of risks for sustainability pointed out by some segment and opinions are not empirically supported by data from the regulatory agency.”
Idec, together with the Public Defender’s Office and the Consumer Defense Commission of the Federal OAB, published a technical note explaining the impact of any change that restricts the coverage of health plan users.
“I understand that it is not up to the ANS or the operators to determine exclusively what should or should not be covered because the definition of a treatment is a technical decision of the physician, who is the health authority responsible for the patient and must be based on scientific evidence” , said Marié Miranda, president of the Special Commission on Consumer Rights of the Federal Council of the OAB.
According to her, despite recent changes in the process of including new treatments on the list, the deadline for updating the list is still long (between six and 18 months), “a delay that, for patients, can be decisive.”