Government stops paying INSS expertise and court proceedings are stalled

A legal problem is causing INSS (National Social Security Institute) policyholders who sought justice to obtain disability benefits, such as sick pay or disability retirement, to continue unanswered to their requests. The reason is the lack of payment for legal medical expertise, which causes cases to be suspended across the country.

According to Law 13,876, of 2019, the payment of judicial medical expertise in disability benefit processes in which the INSS is a party should be made by the Executive Branch for up to two years, that is, until 2021. The term expired in September and, since then, there has been no payment to doctors for expert examinations to be carried out.

The secretary of the National Treasury, Paulo Valle, stated that, if there is a demand for the payment of expertise, the government will analyze and adjust. “Within the budget schedule, there is an additional credit space for Social Security expenses in general. I don’t know if this issue of expertise is necessarily included. But there is a forecast for an increase in the payment of benefits, an increase in the payment of BPC [Benefício de Prestação Continuada]. I’m not sure if this skill part is included, but it sure is a tunable theme. For 2021, if there is a demand from the sectorial body, we will analyze and adjust,” he said.

Wanted, the Social Security and Labor Secretariat and the Ministry of Economy did not respond until the publication of this report.

Expertise is required to determine the insured’s incapacity for work, whether temporary or permanent. In the case of social security sickness benefit and disability retirement, the examination is carried out by the Federal Court. In cases where the benefit is considered accidental, that is, arising from an accident or illness at work, the action takes place in the State Court. Since September 23, no funds have been released in any of the judicial spheres.

According to Adriane Bramante, president of the IBDP (Brazilian Institute of Social Security Law), as there is no budget, the judges are suspending their expertise, waiting for a solution to the case. “The Federal Court does not have money to pay, as it has not been defined where this money will come from. The experts are at a standstill, awaiting a decision”, she says.

Attorney Lais dos Santos, from Patricia Santos Advocacia, says that there are cases in which the experts are taking the exams, even though they are not expected to receive them, with the certainty that they will have payment as soon as the situation is resolved. “As there is this loophole in the law, justice is going down two paths, or the processes are being suspended, or there are cases in which the expertise continues to be made even without a real deadline for receipt.”

The president of Ieprev (Brazilian Institute of Social Security Law), Roberto de Carvalho Santos, says that there are still cases of policyholders who, when they can, pay for their own expertise, but this is rare, since the majority who seek justice are out of work and without income and the exam costs between R$300 and R$370.

For him, experts who assume the expertise without knowing when they will receive it are “doing a noble act”, because there is no guarantee of payment in the future. “It is a very complex situation, because today there is no legal provision for who will pay for these exams.”

Even in situations where the insured pays for the expertise, according to him, at the end of the process, the worker may not receive from the INSS what was spent, since there is no legal provision for this, only in cases where the insured is beneficiary of free justice. “We don’t know if, in the end, the judge will sentence the INSS to pay. As there is this federal law that says that the Executive is not responsible, the collection becomes ineffective.”

Attorney Rômulo Saraiva says that, regardless of the legal lock, in recent years, the government has lacked financial strength to transfer expertise at the end of the year, which would be linked to the increase in legal demands for disability benefits.

Project that provides for payment is stopped

According to Adriane Bramante, the situation would have been easily resolved if the project 3,914, from 2020, had already been approved in Congress. The proposal was voted on in the Chamber of Deputies and reached the Senate in early September this year, but, as there were several changes by the deputies, who included the so-called tortoises, the senator designated to be rapporteur for the measure, Luis Carlos Heinze ( PP-RS), left the report.

Without a reporter, the project does not advance. “The rapporteur returned the rapporteurship because he is unable to approve the text that came from the Chamber and the government does not want to negotiate”, says senator Paulo Paim (PT-RS), who held a public hearing to debate the issue on September 13th .

According to him, the thematic debates involved entities defending policyholders and experts, as well as government representatives, but the Executive does not want to negotiate. “PL 3914 cannot be approved. The text that reached the Senate is absurd. They want the poorest workers to pay for medical expertise”, says the senator.

On October 20, the STF (Supreme Federal Court) decided, in the judgment of the ADI (Direct Action of Unconstitutionality) 5,766, that workers entitled to free justice should not bear the payment of procedural costs. For the IBDP, the Supreme Court’s decision makes it clear that the insured should not have expenses such as expertise.

In a technical note on bill 3,914, the institute states that “it does not believe that it is reasonable or proportional to establish specific criteria for conducting medical examinations in legal proceedings in which the INSS is a party”, but that it supports the approval of the project that resolves the situation.

In a statement, the CJF (Council of Federal Justice) confirms that the deadline for the Executive to continue making payments ended on September 23, 2021. According to the body, which is responsible for receiving government funds and transferring them to the TRFs (Federal Regional Courts), experts scheduled until September 23, whose expenditure commitment occurs by December 31, 2021 will be paid, according to the “monthly financial schedules of the federal regional courts”.