Companies spent almost R$15 billion on lawsuits in the last 4 years; in 2023 alone, it was R$5.5 billion, according to a survey by Abramge
The number of lawsuits filed against health plan operators reached 234,111 in 2023. This is 60% higher than the total number of lawsuits in 2020, the beginning of the historical series of the survey carried out by CNJ (National Council of Justice).
At the time, there were 145,695 lawsuits. Compared to 2022, the increase was 33% – there are more than 238,000 new lawsuits from one year to the next.
In most of the country, the number of lawsuits against health plans in State Courts of Justice exceeds the number of lawsuits filed against the SUS (Unified Health System). São Paulo, Bahia, Rio de Janeiro and Minas Gerais account for the majority of cases and present the greatest discrepancies. Here is the comparison in the 4 states in 2023.
- TJSP (São Paulo Court of Justice) – 79,749 new cases against health plans, compared to 355 against the SUS;
- TJBA (Court of Justice of Bahia) – 33,283 new cases against health plans, compared to 494 against the SUS;
- TJRJ (Court of Justice of Rio de Janeiro) – 23,613 new cases against health plans, compared to 3,878 against the SUS;
- TJMG (Court of Justice of Minas Gerais) – 14,098 new cases against health plans, compared to 3,156 against the SUS.
The data is from the most recent update of the dashboard Statistics of the Judiciaryon Friday (5.Jul.2024). The tool gathers information from DataJud (National Database of the Judiciary).
In 2023, operators’ spending on judicialization was R$5.5 billion. From 2020 to last year, the total grew by around 100%. The figures are from the Open Data Portal of ANS (National Supplementary Health Agency) raised by Abramge (Brazilian Association of Health Plans).
Since the survey began in 2016, companies have already spent R$22.2 billion on these processes by 2023. The cost reached R$17 billion in the last 5 years alone.
See previous numbers:
- 2016 – R$ 1.3 billion;
- 2017 – R$ 1.8 billion;
- 2018 – R$ 2 billion;
- 2019 – R$ 2.4 billion.
WHAT INDUSTRY REPRESENTATIVES SAY
A FenaHealth (National Federation of Supplementary Health) told the Poder360 that the growth in legal demands is “a concern in both the public and supplementary health sectors”. The organization, which represents 10 groups of operators, links the increase in shares to “instability of rules” It is “radical and unexpected changes in industry laws” carried out in 2022.
That year, 2 laws were passed:
- 14.454/22 – determines the elimination of limitations on medical and dental procedures offered by health plans. In this way, treatments, therapies and medications were included in the mandatory coverage by operators, even if not established in the ANS list.
- 14.307/22 – prioritizes oral cancer treatment in health plan coverage. The text also determines the inclusion of medications and procedures recommended by Conitec (National Commission for the Incorporation of Technologies) of the SUS and ensured the continuity of the treatment or use of the medication under analysis, even if the final decision is unfavorable for the plan.
To the Poder360FenaSaúde said that judicialization is “the most ineffective and unfair way to allocate scarce health resources”. He also stated that the increased search for justice “causes unequal access and compromises the predictability of healthcare expenditure”.
For Abramge, “the The beneficiary himself is the one most impacted by undue judicializations, since the system operates on a collective model”.
“When there is misuse or undue judicialization, there is an unforeseen increase in costs, which makes the use of the system more expensive for all beneficiaries. For this reason, judicialization is already one of the main factors impacting health inflation and, consequently, the price of health plans paid by families and contracting companies.“, he said.
The expansion of services of NAT-Jus (Judiciary Technical Support Centers) is considered by Abramge as a way to enable judges to request support in health matters. The system is made up of centers composed of teams of health professionals to provide technical advice to the judiciary in this type of action.
According to CNJ advisor Daiane Nogueira de Lira, the institution intends to map these processes in detail. The expectation is that a policy to expand NAT-Jus will be implemented this year. The expansion is indicated by Resolution No. 530, approved in 2023, under the presidency of Luís Roberto Barroso, also president of the STF (Federal Court of Justice).
The minister stated on June 10, during an interview on the program Wheel of Lifefrom the TV Culturawho is studying ways to equalize judicialization in the health sector while heading the council.
ANS reported that it also monitors the sector and has “constant concern about the quality of careThe agency cited among its actions the definition of maximum deadlines for service and proposals for improving communication between operators. It also said that taking legal action “is a constitutional right of any citizen and that it understands and respects this”.
ACTIONS SEEK REGULATION
The Supreme Federal Court is awaiting the resumption of an extraordinary appeal with general repercussions, that is, one that will establish a thesis for similar cases, to address the issue. According to the Court, there are approximately 4,000 cases in the country awaiting a decision. The trial began in 2020.
RE (extraordinary appeal) 630.852/RS analyzes the applicability of the Senior Citizen Statute (Law 10.741/03) to health insurance contracts signed before its validity. The case concerns the clause that authorizes the increase in the monthly payment amount based on the age of the contracting beneficiary – the adjustment above 59 years of age.
When judged by the STJ, the validity of the health plan contractual clause that determines the increase in the monthly fee according to the user’s age group was discussed.
The thesis was fixed: “The adjustment of the monthly fee for an individual or family health plan based on the change in the beneficiary’s age range is valid as long as (i) there is a contractual provision, (ii) the rules issued by the regulatory government bodies are observed and (iii) unreasonable or random percentages are not applied which, specifically and without a suitable actuarial basis, excessively burden the consumer or discriminate against the elderly”.
Law 14,454/22, also called the ANS List Law, is also being questioned in Court. The action is being processed as ADI (direct action of unconstitutionality) number 7,265 and was filed with a request for a preliminary injunction by United (National Union of Self-Management Institutions in Health) in November 2022.
Another issue awaiting judgment is the analysis of access to information by health plans. The plenary of the STF will directly judge the merits of the action, without examining the requested preliminary injunction.
In the action – ADPF (allegation of non-compliance with a fundamental precept) number 1175 –, the PDT (Democratic Labor Party) questions the STJ’s understanding regarding the permission for health plans to obtain information about people’s genetic heritage before signing contracts. The rapporteur, Minister Dias Toffoli, also requested information from the STJ and the ANS. He emphasized that the measure is necessary because of the relevance of the issue under debate. Here is the full (PDF – 135 KB).
The president of the STF and CNJ, spoke through his advisory team about the Justice initiatives in the case: “We have developed actions to understand the litigation in some areas and to confront it. We have already made significant progress in terms of tax enforcement, with decisions by the STF, a resolution by the CNJ and agreements with states and municipalities. We will close hundreds of thousands of cases and increase revenue. Regarding litigation against the government, we have a working group that brings together federal lawyers, state and municipal prosecutors, which is finishing mapping the main areas of conflict in order to think of solutions. In the next semester, we will seek to address labor litigation and also litigation involving the health sector.”.
Congress
Congress is also trying to curb cancellations of health insurance contracts. An agreement made by the Speaker of the Chamber of Deputies, Arthur Lira (PP-AL), aimed to suspend unilateral cancellations by health insurance companies.
The Senate held a public hearing in early June in the Social Affairs Committee to demand explanations from the government and operators regarding the cancellation of health plans.
The commission heard representatives from ANS, Idec (Consumer Law Institute), FenaSaúde and Abramge.
#Judicialization #health #plans #grows