The STJ (Superior Court of Justice) interrupted for the second time the judgment that will determine whether health plan operators are obliged to pay for procedures not included in the coverage list stipulated by the ANS (National Supplementary Health Agency).
Suspended in September last year, the debate resumed this Wednesday (23), but a new request for a view (more time to study) paralyzed it again. The score is tied at one vote to one. There is no date set for the resumption of the trial.
The analysis takes place in the 2nd Section, composed of ten ministers. The request for a view was made by Minister Villas Bôas Cueva, later converted into a collective.
Of strong popular appeal, the theme attracted protesters to the headquarters of the STJ. More than 100 people lined up in front of the fence that surrounds the courthouse to defend that health plans bear more expenses.
The ANS list establishes the assistance coverage to be guaranteed by private plans. It is called List 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 assesses whether the agency’s 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 can be added to meet the needs of patients. It is a more consumer-friendly concept.
A collegiate decision of the same STJ of 2019, however, revised this position, motivating, now, a broader debate that is held by the court.
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 (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”.
After Solomon’s vote, Minister Nancy Andrighi asked for a closer look at the matter. She began the resumption of the trial this Wednesday.
The magistrate 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”.
For the minister, the document is an important reference, whether for health operators, professionals and beneficiaries of coverage.
“But never as a generic imposition of treatment, which must be prescribed and covered by the health plan for a given disease,” said Andrighi.
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