Senate approves bill that forces the Union to pay INSS expertise in advance

The Senate approved this Wednesday (30) the bill that obliges the Union to pay in advance the expenses with expert fees in legal proceedings in actions in which the INSS (National Social Security Institute) is a party.

The bill is an attempt to solve the problem of the paralysis of legal proceedings involving the INSS, held since September last year due to lack of payment for the expertise.

The proposal also determines that citizens who lose the action are obliged to bear the costs of these investigations – except in cases of judicial gratuity, with people without financial conditions. The obligation of restitution in judicial proceedings by the losers, however, is already foreseen as a general rule in the Code of Civil Procedure.

The proposal was symbolically approved by the senators. As it concluded its process in the National Congress, it goes to the sanction of President Jair Bolsonaro (PL).

The issue of medical expertise became a problem as of September last year, when legal proceedings were paralyzed due to lack of payment for these analyses. Insured persons were unable to schedule expert examinations and therefore had no response to their claims to obtain disability benefits, such as disability retirement and sick pay.

The lack of payment is a consequence of the expiry of legislation passed in 2019, designed to provide financial assistance to the courts. Since the establishment of the expenditure ceiling, the courts have faced difficulties in paying for expertise in cases involving the INSS.

In 2019, the National Congress approved legislation that required the Union to bear these expenses. However, the law would have a provisional character and expired in September of last year, interrupting the payments for expert examinations.

The new proposal, authored by Senator Sérgio Petecão (PSD-AC), provided for the extension until the end of 2024 of the payment by the Union to the respective courts of expert fees in actions in which the INSS is a party. The text was approved by the senators in February this year.

The proposal underwent several changes during its processing in the Chamber of Deputies. The parliamentarians of that House added provisions that deal with expert fees and requirements to initiate proceedings and precautionary measures in actions involving disability benefits.

According to the text, the losing party must pay the judicial medical examination carried out in a lawsuit that has the INSS as a party and that discusses the granting of assistance benefits to the disabled person or social security aid for work incapacity – such as sick pay and retirement for invalidity.

The rule does not apply to those who are entitled to judicial gratuity. It will be up to the respective judge to determine whether or not a particular citizen will be able to afford the expenses.

Experts point out that the obligation of the defeated party to bear the costs is already provided for in general legislation – the Code of Civil Procedure. However, the rule is seldom applied because most citizens who file a lawsuit against the INSS invoke free justice.

With the new legislation, the Executive will be responsible for anticipating the payment of all expertise requested by the justice in cases involving the INSS. Only citizens defeated in the processes and with financial conditions will need to bear the expenses, but at the end of the process.

Another amendment promoted by the Chamber provides that payments made by the Union will not only be in force until the end of 2024, but will become permanent.

The rapporteur of the proposal in the Senate, Nelsinho Trad (PSD-MS), maintained most of the amendments promoted by the Chamber of Deputies.

An amendment promoted by the senator is to eliminate a restriction imposed by the deputies, so that this Union funding would only be for medical expertise. With the change, the Union must bear all types of expertise.

Nelsinho Trad says that funding by citizens should only reach citizens with good financial conditions.

“We are dealing with citizens in a situation of financial vulnerability and in extremely fragile physical condition. We are referring to citizens who, for example, are unable to perform any work due to an accident at work and who are ‘counting coins’ to obtain buy bread. We are referring to citizens who, despite all this situation, are fighting for their right to obtain a social security or assistance benefit that was unfairly denied to them by the INSS”, says the senator in his report.

“In view of this, it is necessary to ensure that this citizen has the right to fully exercise his right to judicially seek his rights. If it is necessary to carry out a non-medical examination, this must be made possible by the Government. , of people in poverty who claim the famous assistance benefit of a minimum wage provided for in the Organic Law of Social Assistance: the BPC (Benefício de Prestação Continuada)”, he adds.

The bill also amends the law on Social Security benefit plans and includes a provision on legal disputes and precautionary measures related to work accidents.

According to the article inserted in the law, when the action is based on an act of federal medical expertise, the initial petition must contain, in addition to the mandatory requirements, a clear description of the disease and the limitations it imposes, in addition to the indication of the activity for which the author claims to be incapacitated.

It should also include possible inconsistencies in the contested medical-expert assessment and a statement on the existence of a previous lawsuit, with clarification of the reasons why the author questions the previous decision.

The project establishes the documents that must support the initial petition, such as proof of denial or non-extension of the benefit, document on the occurrence of the work accident pointed out as the cause of the incapacity and medical certificate referring to the disease alleged as the cause of the incapacity.

The project also changes the rule on contributions to Social Security for those who made contributions until July 1994, in an attempt to avoid a practice that increased the value of the benefit — known as the “miracle of the single contribution”.