INSS changes rules to release benefits; check the changes

With the objective of trying to reduce the stock of social security benefits awaiting an answer, today at 1.6 million, the INSS (National Institute of Social Security) gathered, in a normative instruction, rules of social security legislation to guide the work of civil servants. that grant and review pensions, pensions and Social Security assistance.

Published in the Federal Official Gazette on March 29 this year, IN 128 has more than 200 pages with rules and clarifications on the rights of policyholders and the institute’s internal processes. There were changes in the rules for granting benefits, according to new understandings and changes that have taken place over the years. There are also ten supporting ordinances.

According to the INSS, the new documentation updates criteria for administering, recognizing, maintaining and reviewing the rights of INSS beneficiaries and covers ten topics: registration, benefits, maintenance of benefits, social security administrative process, benefit accumulation, international agreement, appeal, review, social security compensation and professional rehabilitation.

There is, in the document, according to the institute, the gathering of hundreds of scattered acts that were revoked by federal decree 10.139/2019. In practice, the new rule replaces IN 77, of 2015, and also incorporates the changes of the 2019 Social Security reform, brought about by constitutional amendment 103, of 2019.

For social security lawyers, in addition to the difficulties in understanding and adapting to so many rules in such a short time, the new normative instruction brings positive and negative points, which may even increase the insured’s search for the Judiciary to recognize rights.

Another criticism that is made is the lack of access by the population to the IN Portal, where there are summaries that make it easier to understand the changes. “This violates the principle of publicity, since all acts of the administration must be public and transparent, making no sense to limit access to these instruments, which protect collective and/or individual rights”, says Adriane Bramante, president of the IBDP (Instituto Brazilian Social Security Law).

Among the positive points pointed out by the institute are the reinforcement of the validity of the Cnis (National Register of Social Information) as evidence for the insured, the reopening of tasks and information that was previously only in memos with restricted access only to INSS servers are now in the main text and can be consulted by those outside the INSS

For lawyer Priscila Arraes Reino, from the Arraes & Centeno Advocacia office, one of the negative points of the INS is the increased difficulty for the insured person to request retirement or retirement alone. According to her, if the worker forgets to send documents, the request will be filed. “Let’s say that the insured applies for retirement without attaching the necessary documentation; [esse pedido] will be filed without trial,” he says.

For her, this goes against the rights of beneficiaries and the role of Social Security. “The INSS’s first obligation is to inform the insured of his rights and instruct him so that he can achieve the rights he has and not make life difficult for the insured.”

Form that guarantees special retirement has changed

According to Adriane, the form called PPP (Professional Social Security Profile) was updated. There were changes in the aesthetic part, in addition to the exclusion and inclusion of items. “The existence of biological monitoring was excluded, which were camps 17 and 18,” he says.

Adriane explains that the INSS no longer required this information because there is a resolution from the CFM (Federal Council of Medicine) linked to the medical confidentiality of information on biological manipulation. Another change is that the occupational safety engineer and the occupational physician no longer need to inform the NIT (Worker Identification Number), but must register the CPF.

For Rômulo Saraiva, a social security lawyer and columnist for Sheet, the new fields to be filled in in the PPP regarding the effectiveness, validity and use of PPE (Personal Protective Equipment) are worrisome. The reason is that many companies do not carry out the necessary monitoring of insalubrity and dangerousness and may end up writing down incorrect information.

“This can result in filling in untrue information, just with the purpose of delivering the document to the employee. This untrue information tends to not match reality. It ends up creating an embarrassment to recognize the special time”, he says.

INSS changes proof of stable union

In the case of stable unions, for lawyers, there was a breakthrough. Since 2019, the INSS requires documentation proving the union from the last 24 months before the request. In addition, the insured who becomes a widower should take, at least, two recent documents to the institute to have the right recognized.

With IN, for the IBDP, there was an advance. “There is permission that if there is only one document, which is quite common, the second proof can already be given through administrative justification”, says a note from the institute.

“You don’t need two documentary evidence. One is enough to do the administrative justification procedure for proof of stable union”, explains Adriane. The administrative justification is the request to bring witnesses to the institute in order to obtain the granting of the benefit.

Lawyer Priscila highlights a novelty: the union between indigenous people will be recognized in cases where the insured has more than one partner, as long as it is proven by Funai (Fundação Nacional do Índio).

Extension of the grace period for individual contributors

The insured person who pays the INSS as an individual contributor will be granted an extension in the so-called insured capacity if he proves that he did not pay the social security contributions because he was unemployed, that is, because he was unable to carry out his autonomous activity.

According to the IBDP, in addition to the 12 months of grace period to which he is already entitled, a new count will be granted, of another 12 months, according to the rules of Social Security. The grace period is the number of months in which the worker continues to be entitled to social security coverage even without paying the INSS.

This time ranges from six months to three years of maintenance of the insured’s quality, which guarantees the right to INSS benefits, depending on the type of employment relationship and how long the insured person has paid contributions uninterruptedly.

Limitation of time counting for sickness benefit in retirement

The limitation of sickness benefit in retirement is linked to the special benefit, as explained by Adriane. “If the person performed a special activity, the period of leave will not be counted after decree 10.410, of 2020, which was internalized by IN 128”, she says.

The new rule removes the possibility of counting as special the time of leave of the worker who worked in an activity harmful to health and spent a period receiving the sickness benefit. As a result, professionals from areas that offer risk who had leave may not be able to obtain special retirement.

According to Rômulo Saraiva, the measure goes against what the STJ (Superior Court of Justice) has already decided in Theme 998 as a repetitive appeal, which is valid for all actions of the type in Justice. In the Judiciary, even the worker can count as special even the period of leave of those who received common sickness benefit.

Action of the heirs to improve the benefit of those who died is limited

Normative instruction 128 prohibits heirs from exercising certain rights of the insured person who died, such as giving up the benefit to ask for a more advantageous one, since the exchange of retirement is a measure that was barred by the STF (Supreme Federal Court), reaffirmation of the DER (Application Entry Date) and complementation of contributions or option for more advantageous benefit.

“The heirs will not have management over the possibility of reaffirming the DER or making any modification to the request that was in progress at the INSS, which could allow a more advantageous benefit. The understanding is that the benefit was not yet granted”, says Adriane.

The reaffirmation of the DER is the possibility of changing the day of the benefit request to a more advantageous date for the insured, allowing him to have access to a better retirement.