STJ exempts health plans from covering procedures outside the ANS list

The STJ (Superior Court of Justice) decided this Wednesday (8) to exempt health plan operators from paying, with the possibility of exceptions, procedures not included in the coverage list established by the ANS (National Supplementary Health Agency).

The court also understood that the operator is not obliged to pay for a procedure if there is a similar option on the ANS list. In the absence of a therapeutic substitute, coverage of the treatment indicated by the responsible health professional may occur, on an exceptional basis.

The decision, which affects millions of plan users, is favorable to companies operating in the sector and changes a prevailing understanding for more than two decades in the Judiciary, based on individual demands brought to different instances against denial of service.

Started in September last year and interrupted twice since then, the trial was resumed on Wednesday by the second section of the court. There were six votes to three in favor of the thesis defended by the health plans.

The Federal Supreme Court (STF) must also rule on the matter, in an action filed in March by the Brazilian Association for the Protection of Consumers of Plans and Health System, which defends the exemplary role. Minister Luís Roberto Barroso is the rapporteur.

The ANS list establishes the assistance coverage to be guaranteed by private plans. It is called the Role of Health Procedures and Events. The first version was published in 1998 and, since then, it has been updated to incorporate new health technologies.

The superior court evaluated whether the document should be exemplary or exhaustive. By exhaustive, it is understood that it is restricted, without interpretative margin. In the exemplary modality, it works as a minimum reference and other obligations can be added to meet the needs of patients.

Decision of a collegiate of the same STJ had already defined that the list has an exemplary character. However, in 2019, an understanding to the contrary was established, now motivating a broader debate.

An entity that brings together 13 business groups that operate health plans in Brazil, FenaSaúde defended the exhaustive model of the ANS role.

In a statement attached to the process by lawyers from the Sergio Bermudes office, which represents her, she argued that this modality guarantees the actuarial balance to the sector “under penalty of making the service unfeasible, to the detriment of all”.

“If not even the State, to which the Federal Constitution has assigned the duty to take care of everyone’s health, is obliged to indiscriminately supply medicines”, the lawyers stated, “there is no reason why obligations of this same nature – supply and cost of procedures — fall, without any restriction, to operators and insurers”.

The case’s rapporteur, Minister Luís Felipe Salomão understands that the list must be exhaustive, but considered the possibility of exceptional cases. He stressed that the taxing role is adopted in several countries, such as the United States, Japan and England.

The magistrate stated that this model protects the beneficiaries of the plans from excessive increases since the legal certainty given to operators prevents the transfer of additional costs. According to Salomão, the mandatory minimum list guarantees more affordable prices.

“Considering this same list merely as an example would, in fact, deny the very existence of the ‘minimum role’ and, reflexively, deny access to supplementary health care to the widest range of the population,” he said.​

He mentioned exceptional cases in which it would be possible to determine to the health operator the coverage of procedures not expressly provided for by the ANS.

Among them would be therapies with express recommendation from the CFM (Federal Council of Medicine) that have proven efficiency for specific treatments.

An example is the case of one of the appeals analyzed by the STJ. The plaintiff sought coverage of the TMS (Transcranial Magnetic Stimulation) treatment prescribed by the psychiatrist for severe depression and schizophrenia.

Salomão understood that the exceptionality of the situation authorized the determination of coverage, by the operator, of a procedure not provided for in the list of procedures.

According to the minister, the CFM began to recognize the effectiveness of TMS, with indication for mental illnesses and in the planning of neurosurgeries. He also highlighted scientific studies that demonstrate the indication of treatment in situations where the patient does not respond adequately to intervention with antidepressant drugs.

To reinforce the argument, the rapporteur recalled that provisional measure No. 1,067/2021 explained that the breadth of coverage within the scope of the supplementary health system must be established in a rule edited by the ANS. The MP revised parts of the Health Plans Law (9,656/1998).

It established the Commission for Updating the List of Procedures and Events in Supplementary Health, with the mission of advising the agency “in the identification of scientific evidence on efficacy, accuracy, effectiveness and safety of the drug, product or procedure analyzed”.

Ministers Vilas Bôas Cueva, Raul Araújo, Isabel Gallotti, Marco Buzzi and Marco Aurélio Bellizze adhered to Salomão’s vote.

Accompanied by colleagues Paulo de Tarso Sanseverino and Moura Ribeiro, Minister Nancy Andrighi presented a dissenting vote, understanding that the role of the ANS has an exemplary character because “only in this way can the health policy idealized by the Constitution be realized”.

She classified as “utopian” the idea that the establishment of a minimum coverage, through an exhaustive list, would make health plans more accessible, above all to the mass of people unassisted by public health care policies.

For the minister, the document is an important reference, whether for health operators, professionals, or beneficiaries. “But never as a generic imposition of treatment, which must be prescribed and covered by the health plan for a given disease,” she said.

He said that admitting the exhaustive content of the list of procedures would be “accepting the exorbitant regulatory power exercised by the ANS”. Which would imply, according to her, demanding from the consumer “technical knowledge that he, due to his condition of vulnerability, does not have, nor can he be forced to have”.

Andrighi addressed marketing issues. He highlighted that, despite the increase in expenses of health operators in the last decade, the profit of the companies, “around billions of reais per year”, more than doubled between 2014 and 2018, and the sector’s revenue increased even with drop in the number of users, citing a study by IPEA (Institute of Applied Economic Research).

In a note sent after the STJ’s verdict, lawyer Marcio Vieira Souto Costa, a partner at Sergio Bermudes, stated that, “contrary to publicized allegations, in fact, the exhaustive list guarantees access to safe treatments, evaluated and recognized by regulators and bodies responsible for health care, similarly to what happens all over the world”.

“The list was created based on an in-depth technical study, and it will be up to the Executive Branch to supervise and regulate health services,” said Costa.