The decision of the Second Section of the Superior Court of Justice (STJ), this Wednesday, 8, which restricted the procedures offered by health insurance in the country, it also established four requirements to guarantee the legal certainty of this rule and dissipate tensions between operators and patients, with the possibility of exceptions to the exhaustive list.
Six of the nine ministers on the collegiate voted in favor of establishing the taxing list, which exempts companies from covering medical requests from patients that are not included in the list of the National Supplementary Health Agency (ANS).
The requirements are:
- The role of ANS is, as a rule, exhaustive;
- The health plan or insurance operator is not obliged to pay for a request for treatment not included in the list, if there is an effective, efficient and safe procedure capable of guaranteeing the cure of the patient and it is already incorporated in the list;
- It is possible to contract extended coverage, or to negotiate a contractual amendment to a procedure that is not included in the list;
- If there is no therapeutic substitute or the procedures in the list are exhausted, the treatment indicated by the assistant doctor or dentist may be covered exceptionally, provided that: the incorporation of the procedure to the list has not been rejected by the ANS; there is proof of the effectiveness of the treatment in the light of evidence-based medicine; there are recommendations from nationally and internationally renowned technical bodies, such as Conitec and Natjus; whenever possible, the magistrate’s inter-institutional dialogue with experts in the health area is carried out, without shifting the competence of the judgment of the case to the federal justice.
“The tax role allows predictability essential for the elaboration of actuarial calculations that support the monthly fees paid by the beneficiaries, able to maintain sustainable health plans in the medium and long term”, argued Minister Villas Bôas Cueva, the first to vote this Wednesday afternoon.
The exaggerated rise in prices and contributions will cause barriers to contractual maintenance, transferring the collective of public health users to put even more pressure on the SUS”, he added.
Cueva’s proposals were incorporated into Salomão’s vote, which was fully followed by ministers Raul Araújo, Maria Isabel Gallotti, Marco Buzzi and Marco Belizze. THE Divergence it was also opened in the first trial session, in February, by the minister Nancy Andrighi, who made a complement to her vote in this Wednesday’s session.
She argued that “the exemplary nature of the list of health procedures and events does not lead to mandatory coverage of any and all prescribed treatments”. Only ministers Moura Ribeiro and Sanseverino accompanied her.
“I emphasize that, in my understanding, the question related to the nature of the list of procedures and health events of the ANS should not be analyzed from the perspective of the treatment prescribed for this or that disease, otherwise we will allow the commitment of more injusticessuch as those who suffered until recently the beneficiaries of autistic spectrum disorder, who had their coverage denied by the operators, on the grounds of lack of forecast in that list”, said Minister Nancy Andrighi.
It therefore sounds incoherent to speak of the taxation of a list that is periodically changed to include and exclude health technology”
Minister of the STJ
What is the difference between a tax and an exemplary role?
The exhaustiveness of the list means that only those procedures included in the ANS list have the obligation to be made available by the health insurance. On the other hand, an example list indicates that companies that provide private health care services must cover procedures indicated by a doctor, even if not included in this list.
In this case, coverage that goes beyond the list must have a technical basis, especially with regard to procedures offered by the SUS.
The vote took place under protests in front of the headquarters of the STJ. Activists and artists such as Marcos Mion, Dira Paes, Bruno Gagliasso, Titi Muller, Paulo Vieira and Juliette mobilized the hashtag “Rol Taxativo Mata” on social media, which became the 11th most commented topic this Wednesday afternoon on Twitter.
The protests, however, had no effect within the Court.
The specific case analyzed by the STJ dealt with a special appeal filed by the family of a patient with paranoid schizophrenia against the company Unimed, which denied access to a brain procedure not foreseen in the ANS list for the plan he had contracted. When voting, Justice Marco Buzzi argued that the discussion of the case by the Judiciary was necessary because, once again, the Executive and Legislative Powers omitted their primary responsibility.
In a note, Unimed stated that “the comprehensiveness of the list ensures the quality and safety of care, since procedures and medicines to be included in the coverage must undergo the assessment of health technologies (HTA)”.
Target of the dispute, the ANS says that the list of procedures is defined by law, which gives the association the prerogative “to establish the mandatory coverage to be offered by the health plans, without prejudice to the additional coverage contracted by the consumers themselves, with the payment of the corresponding consideration”
“Without the clarity of what must necessarily be covered, that is, what is in the contract or in the list defined by the ANS, it is impossible to estimate the risks that will be covered and, therefore, define the price of the products”, he explained.
ANS’ arguments were used by health plan operators. The companies pointed out the need for the STJ to guarantee legal certainty and predictability of prices, preventing them from being surprised by demands not provided for in the contract. At the other end, consumers defended the exemplary list as a way of ensuring that treatments will not be interrupted due to lack of coverage.
With the agency Estadão Conteúdo.