End of ANS’s taxing role will cause a flurry of lawsuits, say lawyers

If sanctioned by President Jair Bolsonaro (PL), the bill that obliges health plans to pay for procedures or treatments that are not on the ANS (National Supplementary Health Agency) list could cause a flurry of actions and even overload the Justice Department. , evaluate lawyers heard by the Sheet.

This Monday (30), the Senate approved the bill that rescues the exemplary list and establishes that the list of ANS procedures serves only as a “basic reference” for health plans. In other words, it puts an end to the so-called taxing role of the agency.

With approval, beneficiaries will be able to apply for coverage of treatments that are not on the list, as long as they are recognized by other agencies or there is scientific evidence.

The bill was approved in early August in the Chamber of Deputies in reaction to the decision of the STJ (Superior Court of Justice). In June, the court ruled that health plan operators are required to pay only the 3,368 treatments that are on the ANS list.

For Juliana Hasse, president of the State Commission for Medical and Health Law of the OAB-SP (Brazilian Bar Association in São Paulo), the end of the tax role should cause an increase in judicialization, calming those who were apprehensive about the previous decision of the STJ and will leave operators in an uncomfortable situation — which, however, tends to regulate itself later.

According to her, at least in the beginning, there is a risk of the Justice being overwhelmed by the fact that there will be a dammed demand to try to reverse coverage previously denied by health plan operators.

According to data made available by the São Paulo Court of Justice, actions for medical treatment involving private health are growing year after year.

According to the São Paulo Justice, the number of these actions in the state rose almost 165% in the first four months of this year compared to the first four months of 2019, that is, before the Covid-19 pandemic. The number of cases increased from 1,671 to 4,414 in the period.

At Idec (Instituto de Defesa do Consumidor), problems with health plans only did not lead complaints in the last ten years in 2020, when complaints related to financial systems, because of the pandemic, took first place.

Gustavo Kloh, a professor at FGV Direito Rio, expects that the rise in judicialization may also occur because the law does not have very clear criteria, which could be used as “working material” by health operators. “There will be a big fight between users versus plans discussing whether or not they meet the requirements of the new law.”

He recalls that there will be emergency cases that will enter these actions. “These are people with chronic, rare diseases and long-term treatment,” he says. “It’s a problem because of the volume, because of the litigation, because of the problem it causes in people, but experimental treatment is not emergency treatment.”

WHAT THE DRAFT LAW SAYS

The bill states that the treatment or procedure prescribed by a doctor or dentist that is not included in the ANS list must be authorized by the operator provided that:

• there is evidence of efficacy, in the light of health sciences, based on scientific evidence and a therapeutic plan;
• or there is a recommendation by Conitec (National Commission for the Incorporation of Technologies in the Unified Health System);
• or there is a recommendation from at least one health technology assessment body that is internationally renowned, as long as they are also approved for their nationals.

Marina Paullelli, a lawyer for the Idec Health Program, says that the institute considers the approval of the bill to be good news, as it corrects a distortion caused by the STJ judgment, which even overloads the SUS (Unified Health System) with procedures that could be paid for by supplementary health.

“The project reverses this scenario. With the simplified role, operators are obliged to welcome their own users”, says the lawyer.

For her, who considers the project coherent, Idec hopes that the law will be sufficient for operators to guarantee health coverage without the need for the consumer to initiate a legal dispute. “In historical moments, when a rule becomes beneficial to the consumer, the market presents threatening messages about rights.”

Abramge (Brazilian Association of Health Plans) says that the project approved in the Senate “may lead the Brazilian health sector, private and public, to a systemic collapse” and that it will bring risks to patient safety.

The association claims that there has not been a “further technical debate on the subject”.