The limitation of treatments by health plans

Our Judiciary is incredible, because when we think we are going to rescue legal certainty, our judges create more instabilities, modifying existing long-standing jurisprudential understandings, already pacified in the national legislation.

On the 8th, the Second Section of the STJ (Superior Court of Justice) considered that, as a rule, the procedures and events established by the ANS (National Health Agency) were exhaustive, and health operators (agreements) were not obliged to cover treatments not provided for in the ANS list. However, to play nice, since they live in another reality, the ministers of the STJ set some parameters so that, in exceptional situations, the plans pay for procedures not provided for in the ANS list, thus pronouncing: “such as, for example, the therapies with medical recommendation, without a therapeutic substitute in the ANS list, and that have proof of technical bodies and approval of institutions that regulate the sector”.

Most ministers defended and scored the following theses:
1) That the role of ANS is exhaustive (cannot be expanded);
2) That health plan operators are not required to pay for treatments not listed in the ANS;
3) It is possible to contract (by the citizen) extended coverage outside the ANS role;
4) That if there is no therapeutic substitute and the procedures provided for by the ANS have been exhausted, there may be, exceptionally, coverage of the treatment. They place several constraints, which are difficult to comply with, making this exceptional possibility almost impossible.

In order to justify and defend such a situation outside the reality in which we live, most ministers stated that “the exhaustiveness of the ANS role is fundamental for the proper functioning of the supplementary health system, guaranteeing protection, including for the beneficiaries – who could be jeopardized if the plans had to indiscriminately pay court orders to cover procedures outside the autarchy’s list”.

Now ministers, with all our respect, you are there in the STJ to judge with equality and not defend one part (health plans) to the detriment of another (citizens). The large health plan operators accumulate profits annually and when they contracted agreements with citizens decades ago, it was not agreed that they would be linked to an ANS list. By the way, this has always been the understanding of justice, which now, with a “pencil stroke”, has changed to defend health plans.

Such a procedure in the judgment is very strange, since the historical understanding of the country’s Courts, for decades, is predominantly in favor of a broader interpretation and consider the list or list of the ANS as a minimum or exemplary reference.

Dear “illuminators”, the change brought about by you puts, in practice, the change in the character of the list that will give health plan operators the right to deny patients treatments that are not yet on the ANS list, even if they have been prescribed by doctors and have proven effectiveness, as the “impediments” placed as exceptional will not be fulfilled in time to provide care to the member.

Law No. 9656/03/06/1998 – Health Plans Law, states in its article 10 that all treatments for diseases included in the ICD (International Classification of Diseases) of the WHO (World Health Organization) are mandatory coverage by the operators.

The, we can say, “economic terrorism” is the only argument of the “illuminators” who do not respect the positive laws in Brazil and the operators to defend the changes. The broad interpretation that has been given, as we have said, for decades, has never meant a real threat to the profits of companies operating health plans, which, by the way, continue with increasing profits with each balance sheet.

Did any minister in favor of such an understanding have the courage or take the time to think about it? In other words, if operators the way they are have high profitability every year, why change justifying that they are in danger if they continue like this? They certainly haven’t had time to think about it, as they’re always so busy.

It is important to note that operators were recently authorized by the ANS to correct the values ​​of their plans by more than 15%.

At the very least, the ministers should determine that this new understanding should start to apply to new health plan contracts, not reaching the previous contracts. The truth is that citizens are always the most vulnerable side in this relationship, as they will not be able to count on treatment at the moment of greatest need.

By the way, ministers, when the citizen hires a health plan, it is because they want to have something more, a differential, a plus, at the time of need for care, because if it is only to have what the public network offers, we will everyone to use the public health system (overcrowding), saving the money from the monthly fees of the plans so that when necessary we can make the payments, since with a plan or without a plan, the coverage will be the same as the public network.

Finally, God keep us, because those who should demand compliance with the laws are practicing judicial activism totally contrary to the positive legislation and the interests of citizens.

Toninho Menezes He is a master of public law, a lawyer and a university professor.

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