Minister Roberto Barroso, of the Federal Supreme Court (STF), ordered a public hearing to be held on September 26 and 27 to discuss the role of the ANS (National Supplementary Health Agency), the list of procedures covered by health plans. The decision was rendered today (1st) and obtained by the UOL with exclusivity.
The list was considered exhaustive by the STJ (Superior Court of Justice) last month, a more restrictive understanding that exempts medical insurance from following procedures that are not provided for in the list of therapies approved by the agency.
The decision was criticized by associations of mothers of autistic children and people with disabilities. The groups fear losing access to treatments previously obtained through the courts.
In the Supreme Court, there are five actions that deal with different points of the ANS role, including whether the list of procedures should be exemplary (wider) or exhaustive (more restrictive).
In a decision, Barroso says that it is necessary to hold a public hearing, since the discussion “extrapolates the limits of the strictly legal and requires interdisciplinary knowledge”, in addition to the need to “give a voice to civil society and economic agents”.
There is, on the one hand, a legitimate concern with the economic-financial balance of health plan contracts, demanding a prior definition of their coverage. Disregarding this aspect has the potential to make the offer of health plans unfeasible, which ultimately compromises consumer rights and constitutional health protection. On the other hand, the just concern of health plan users is expressed with the existing omissions in the list and the consequent lack of coverage of all the procedures necessary for the treatment of covered diseases – in particular, rare diseases”
Roberto Barroso, Minister of the Federal Supreme Court
The public hearing should hear members of the ANS responsible for preparing the list, representatives of the Executive and Legislative branches, associations of users of health plans, especially those affected by rare diseases, class entities of health operators, medical institutions and “people with expertise in the matter”.
Ministers of the STF, in addition to the Attorney General of the Republic, Augusto Aras, and the Attorney General of the Union, Bruno Bianco, were also invited to participate.
“With this, I intend to establish an effective dialogue, open to the various points of view that the matter raises and that makes it possible to obtain subsidies for the resolution of the constitutional controversy”, said Barroso.
In June, the 2nd Section of the STJ (Superior Court of Justice) decided that the list of treatments covered by health plans, the so-called ANS (National Supplementary Health Agency) list, must be exhaustive.
The understanding is considered more restrictive, and exempts medical plans from following procedures that are not provided for in the list of therapies approved by the agency.
The STJ decision opens exceptions, such as the possibility for the patient to incorporate the treatment through an amendment to the contract (see further below), but it is considered a victory for health plans.
In summary, the understanding signed by the STJ establishes that:
- The role of the ANS is, as a rule, exhaustive;
- The operator is not obliged to bear a procedure that is not on the ANS list if there is a similar option on the list;
- Patients can apply for a procedure to be included through an addendum or expanded coverage plan;
- In cases where there is no therapeutic substitute or the ANS list is exhausted, there may be, exceptionally, the inclusion of a procedure provided that it has not been rejected by the ANS, if there is proof of its effectiveness, recommendation from national and international technical bodies and dialogue between the Judiciary and specialists, including members of the committee responsible for the role.
In the decision, the court revised the understanding that, until then, allowed the inclusion of treatments that were not on the ANS list from individual lawsuits against services denied by operators.