A new view request postponed, once again, the decision of the Superior Court of Justice (STJ) on the breadth of coverage of health plans. The court decides whether operators must pay for treatments that are not included in the mandatory coverage list prepared by the National Health Agency (ANS). There is no set deadline for the topic to return to the agenda.
The topic has caused apprehension in patient groups, especially those that include mothers and fathers with children with rare diseases. One of the fears is that a decision by the STJ in favor of health plans will interrupt treatments already in progress. This Wednesday (23), there was a demonstration in front of the court’s headquarters, in Brasília.
After being interrupted in September by a request for a review, the analysis was resumed today by the Second Section of the STJ, composed of ten ministers and specializing in private law. One of the attributions of the collegiate is to consolidate the jurisprudence on recurring issues that have received different treatments from the Justice.
On Wednesday, however, a request for a collective view once again interrupted the trial. Only Minister Nancy Andrighi voted today in the sense that the ANS list does not exhaust the treatments and procedures that health plan operators may be required to cover.
She differed from the rapporteur of the case, Minister Luís Felipe Salomão, who in September had voted in the sense that operators are obliged to cover only what is on the ANS list, except in exceptional cases justified by technical-scientific opinions.
Controversy
The ANS list of mandatory procedures and treatments was created in 1998 to establish a minimum coverage that could not be denied by health plans. The list has been updated since then to incorporate new technologies and advances.
Since then, however, it has become common for health plan users to seek in court the right of operators to pay for procedures or treatments that are not yet included in the ANS list.
However, a decision taken in 2019 by the Fourth Panel of the STJ, composed of five ministers, changed the scenario. In a specific case, most ministers considered that the health plans would not be obliged to pay for a procedure not provided for in the ANS list. This decision provoked controversy within the court itself, which is why the matter went to the Second Section to settle the matter.
In technical terms, the ministers discussed whether the list of procedures and events of the ANS is exhaustive, with plans being required to cover only what is provided for in the list, or an example, in which the list does not exhaust the coverage obligations of the operators.
The resolution of the issue could have great repercussion throughout the Brazilian Justice, given the high degree of judicialization of health in the country. A study by the National Council of Justice (CNJ) shows that, in São Paulo alone, there were around 112,000 lawsuits against health plans in 2017. There are approximately 48 million health plan users in Brazil.
Wishes
In September, the rapporteur, Luís Felipe Salomão, voted in the sense that the role of ANS is exhaustive. With this, health plan operators should not be required to cover treatments and procedures not provided for in the list. For the minister, only in specific cases and fully justified by clinical and technical-scientific opinions could there be exceptions.
Salomão understood that it is necessary to provide legal certainty and ensure that the agency’s list is, in fact, effective. “The role does not exist by chance, it is not there for anything, it is there to guide, to serve as legal security, to have a lighthouse”, he said this Wednesday.
The minister argued that there would be an imbalance in health plan contracts if some users were granted the right to coverage in court that others do not have. This would affect the economic balance of the complementary health system and increase costs for all users, said the rapporteur.
“The blanket is short,” said Salomão. “So we have to think about this position of balance, this position that seeks here the solution that best meets all interests”, he added. In September, he had said the issue should be handled “without sentimentality”. On Wednesday, he even called the decision on the topic “stormy”.
Opening a divergence, Minister Nancy Andrighi voted in the sense that the role of the ANS continues to be considered by the Justice as being of an exemplary nature, not exhausting the possibilities of treatment. She denied any “sentimentality” in her decision, and said she was guided by technical and legal criteria.
Nancy Andrighi denied that considering the role of ANS as exhaustive makes health plans cheaper and more accessible, stating that reality does not demonstrate such an effect. The minister also argued that, if the exemplary nature guarantees that the cases brought to justice are all properly analyzed, and that changing this would result in restricting access to treatments.
“The recognition by this court of a taxing nature of the [da ANS] would represent jurisprudential guidance for ordinary instances that discourages a detailed and individualized analysis for the entire jurisdiction as a patient in search of a cure” said the minister.
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