a Supreme Court of Justice (STJ) It will resume, on Wednesday (8), an experiment that directly affects the nearly 50 million users of health insurance in the country. The second section of the court, made up of 10 ministers, will determine whether the National Supplementary Health Agency (ANS) list of actions is “tax” or “typical.”
If the decision is comprehensive, judgment will be created so that plans are obligated to cover only ANS-listed treatments. In this case, clients who feel hurt will have more difficulty obtaining justice for forcing health workers to pay for other procedures.
ANS’s list is published every two years, and currently contains about 3,000 treatments and medications that every plan in their clients’ healthcare should cover. It happens that very often, patients are directed by their doctors to have treatments outside this list which they consider more effective or modern.
The plans refuse to pay and the person must go to court to force them to pay for treatment. In general, judges and courts require the plan to pay, because they consider the list to be exemplary – that is, it lists the minimum coverage that must be provided. They believe that if there is an effective and safe treatment for a disease, the operator must pay. However, the plans argue that the list is exhaustive, meaning they can’t force them to pay for what’s outside the ANS list, although they may offer additional treatments if the customer pays a more expensive monthly fee.
The controversy intensified in 2019 after the Fourth Class of Syrians for Truth and Justice, a smaller group formed by five ministers, accepted the operators’ argument to define the list as comprehensive, which would exclude plans to cover what is outside the ANS list. However, the decision conflicts with the understanding of the Third Committee of Syrians for Truth and Justice, which considers the role exemplary, and a reference base that does not exhaust what plans should pay.
The deadlock over health plans led to the case being taken to the highest university in STJ
Because of the impasse, discussion of the issue began in the second section of STJ, which brings together ministers of the two groups who have different understandings about health plans. The trial began in September 2021, when Minister Louis-Philippe Salomao, defending the overall role in the fourth division, reaffirmed this position. He argues that the role benefits clients as it provides safe and effective treatments, as well as ensuring the financial sustainability of health plans. And he said in his vote, “Submission to the role of the Algerian News Agency, with all the evidence, does not discriminate any of the parties to the contractual relationship, because it dissolved his conception and the foundations of the legislator himself to coordinate the contractual relationship.”
Salomao asserts that if the list is considered model, the list, in practice, will always be flexible and undefined, which will put pressure on plans to pressure the ANS for uniform monthly fee increases for all customers, who will have to pay more to offset the costs generated by Part of them, which require special treatments not listed by the National Agency for Complementary Health. The minister concluded that this harms the poor who will not be able to pay for the basic plan.
According to him, if there is no increase for everyone, the operator may go bankrupt, making the market more concentrated, which also will not contribute to lowering prices. Salomao added that the role is comprehensive in countries such as England, Italy, Japan and the United States. He defended the competence of APS in Brazil to determine the list of medical treatments – the agency, he said, had the technical competence to periodically check scientific support and the feasibility of procedures.
Also in September, Minister Nancy Andregue, who leads the opposition in favor of the role model, boycotted the second division ruling and asked for an opinion. In February, she did the collective vote against Solomon’s position. He argued that the list could not overlap with individual situations, in which a physician would prescribe the most appropriate treatment for that person, even given new technologies that the ANS would take time to include in the list. According to Nancy Andregue, the right to health must prevail.
She added that the Health Plans Act, a standard above ANS decisions, already states that operators must treat all diseases listed in the International Classification of Diseases (ICD). The law also lists types of coverage procedures that are not mandatory, such as experimental and aesthetic treatments.
“It is not within the competence of the Air Navigation Services to create other exception assumptions for the mandatory coverage of the reference plan, in addition to those expressly provided for in the provisions of Article 10 of Law 9.656 / 1998, as well as not to reach and to reduce the scope of coverage, except for actions or events necessary for treatment The entirety of the diseases listed in the International Classification of Diseases, except as may be required by law for contract segmentation restrictions.”
It even cited recent studies showing that operators generate high profits and are not at risk of bankruptcy. She also said that it is unreasonable to ask the customer in advance to know about the thousands of actions included in the ANS, which, according to her, are described in technical language. The consumer will not be able to tell if they will need to rent a more complete plan with newer treatments not previously listed.
After Andregui’s vote, Luis Felipe Salumao made it clear that his vote allowed exceptions. In other words, it would still be possible for the court to compel plans to cover off-list treatments, especially for cancer, or other serious issues. In the case under analysis, for example, a patient with schizophrenia and depression was given the right to treatment with transcranial magnetic stimulation (TMS), which was prescribed by a psychiatrist and not included in the ANS, but already approved by the Federal Council of Medicine (CFM).
However, patient family associations and consumer protection organizations are afraid to make a decision in favor of the tax role. And they point out the dangers of lengthy and expensive treatments, such as for children with autism or people with disabilities. Since last year, these groups have encouraged protests in Brasilia to maintain their role model.
What is the perspective of the trial in Syrians for Truth and Justice
In the second section of STJ, composed of 10 judges and where the trial is taking place, four judges have already, in another trial in the Third Committee, voted in favor of the ideal list, after Nancy Andregue voted. If they maintain this understanding in the second section, the thesis is likely to prevail, because the rector, Antonio Carlos Ferreira, generally does not vote. Thus, there will actually be a majority of five votes among the nine judges.
However, some ministers may change their positions or modify them according to the compromise proposed by Suleiman. In any case, the decision will not have a binding effect on all cases – judges and courts are not obligated to follow it. But, nevertheless, a diligence will be signed that will serve as guidance.
However, it is more likely that the case will reach the Federal Supreme Court (STF) in the future, because it includes basic constitutional guarantees, such as the rights to life and health.
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