The Superior Court of Justice (STJ) authorized the application of readjustment of collective health plans by age group. The decision will have an impact especially on the elderly and those who are about to turn 60. There are about 7.4 million beneficiaries aged 59 or over, according to the National Supplementary Health Agency (ANS).
Until this Wednesday’s trial (the 23rd) there were seven repetitive appeals discussing the issue. At least 1,016 cases involving this discussion of readjustment by age group in collective plans were at a standstill awaiting the decision in several states of the country.
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Some dispute rates of increase in monthly fees that reach 131%.
The adjustment by age groups in the monthly fees of collective health plans is discussed in court because the National Supplementary Health Agency (ANS) only imposes value ceilings for individual plans. In practice, the ministers understood that the rules valid for individual contracts could be applied to collective ones.
The conditions are: that there is contractual provision; that follows the rules of government regulatory bodies; and not be done with random calculation or application of “unreasonable” percentages.
For experts, however, as the judgment did not set a percentage increase or more objective criteria to establish what would be considered a reasonable or maximum percentage of adjustment, the judicialization must continue.
— It was a long-awaited decision. The magistrates set the same parameters used for the adjustments by age group of individual and family plans. Health plans must respect the following criteria: the readjustment must have a contractual provision; the plans need to observe and respect the rules of regulatory bodies; and they cannot apply unreasonable or random percentages that, without a suitable actuarial basis, excessively burden the consumer or discriminate against the elderly — explains Caio Henrique Fernandes, a lawyer specializing in the right to health at the Vilhena Silva office.
For Marcos Novais, executive superintendent of the Brazilian Association of Health Plans (Abramge), the adjustment by age group is a relevant factor for maintaining the economic balance of the health plan contract:
— It was an important decision and one that guarantees predictability and security for the operator and for the consumer — he says.
The National Federation of Supplementary Health (FenaSaúde), an entity that brings together 15 health plan operators responsible for 40% of the country’s beneficiaries, considers the STJ’s decision to recognize the validity of the readjustment clause for change of age group to be correct. collective agreement”.
For FenaSaúde, the decision guarantees the legal security and sustainability of the sector.
The entity also adds that the adjustment criteria by age group exist since the regulation of health plans in the country, and the adjustment in 10 age groups was standardized almost 20 years ago. FenaSaúde points out that in this model “younger people pay a little more than would be indicated to cover the costs of their age group in order to subsidize the costs of higher age groups”, but the measure avoids the imbalance of portfolios.
Calculation and abusiveness of the readjustment
The second thesis discussed in the judgment concerns the criteria for defining whether the adjustment is ‘unreasonable.’ According to rules defined by the ANS in Normative Resolution 63/2003, for individual plans, the last age adjustment must be applied at 59 years of age and cannot be greater than six times the value of the first range (from zero to 18 years).
Furthermore, it establishes that the variation of the last three bands (from 49 to 59 years old) cannot be greater than the accumulated variation between the first and seventh bands.
There was doubt, however, as to how the “accumulated variation” would be calculated, and several lawsuits mainly discuss the alleged abusiveness of the percentage.
According to the rapporteur of the cases in the STJ, Minister Paulo de Tarso Sanseverino, the average readjustment for collective plans is 48.72%. As for the last band, 42%.
“In most cases, the index far exceeded the market average”, he said at the beginning of the trial, in November last year. In one of the cases analyzed, the ministers considered a 40% increase for the last adjustment legal.
burden of proof
The judgment would also serve to define whose responsibility or burden would be to prove that the actuarial basis used by the health plan to calculate the readjustment is unsuitable: whether the consumer who is the author of the action or the company itself.
Minister Paulo de Tarso Sanseverino proposed the thesis according to which this burden would fall to health plan operators, as they have access to their own documentation and have greater technical capacity to produce evidence, but he was defeated, and the majority of ministers decided that the best was a case-by-case definition:
— It was predictable that the STJ would apply the same understanding as the individual ones, but what we think has been better decided is the issue of the burden of proof, which was disaffected by a majority. We understand that the STJ would have helped a lot if it had solidified a clear understanding of the burden of proof — on the calculation of the readjustment percentage — to be on the operators and not the consumer — evaluates Ana Carolina Navarrete, lawyer and coordinator of the Health Program at the Institute for the Defense of the Consumer (Idec).