Understand what can change in health plans with STJ judgment this Wednesday (23)

The STJ (Superior Court of Justice) resumes the judgment that will define whether health plan operators may be required to bear the costs of procedures not included in the mandatory coverage list of the ANS (National Supplementary Health Agency).

The debate started in September last year, but a request for a view (more time to study) interrupted the analysis of the controversy. The superior court returns to the subject this Wednesday (23), according to the trial agenda released by the court.

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

In technical language, the higher court will say whether the agency list is exemplary or exhaustive. By exhaustive, it is understood that it is restricted, without interpretative margin.

If exemplified, the list works as a minimum reference and other obligations may be added. It’s a more consumer-friendly concept and one that has prevailed in most courts for more than two decades.

The trial has had one vote so far. 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 exhaustive list is a position 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 role 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 commented.​

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 (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 ANS “in the identification of scientific evidence on efficacy, accuracy, effectiveness and safety of the analyzed drug, product or procedure”.

The judgment is the responsibility of the 2nd Section, currently composed of ten ministers and responsible for the analysis of issues in private law.

The question reached the collegiate because the two groups specialized in this area of ​​law — 3rd and 4th — reached different conclusions on the matter.

In September 2021, after Solomon’s vote, Minister Nancy Andrighi asked for more time to study the processes. She will be the first to vote this Wednesday.