New Decision by STF Allegedly Poses Harm to Health Plan Customers: Consumer Protection Stands Against It
The Supreme Court (STF) has made a landmark decision that could potentially impact health plan users in Brazil. The decision, based on a 2022 law, requires health plans to cover treatments not listed by the National Supplementary Health Agency (ANS).
This ruling has sparked a debate among various stakeholders in the health sector. The Federation of Hospitals, Clinics, Laboratories, and Health Establishments of the State of São Paulo (FeSaúde) has expressed the need for legal certainty and regulatory balance, stating that the sector requires such clarity to avoid confusion.
Francisco Balestrin, president of FeSaúde, believes that exceptions should have clear technical criteria, proven effectiveness, regulated registration, absence of adequate alternatives, and scientific evaluation. He also advocates for the recognition of ANS as the technical instance to update the list of procedures to avoid 'excessive judicialization' in the sector.
On the other hand, the Institute for Consumer Defense (Idec) considers the STF's decision to be 'seriously harmful' to health plan users. Lawyer Walter Moura, representing Idec, believes the STF's understanding will have concrete consequences for users.
The court's decision specifies that authorizations for coverage of treatments not on the ANS list must consider five cumulative parameters: prescription by a qualified physician or dentist, absence of an explicit refusal or pending analysis of the ANS list update, absence of an alternative therapeutic option on the ANS list, proof of the treatment's effectiveness and safety, and existence of Anvisa registration.
In judicial decisions involving authorizations for treatments not on the ANS list, the Supreme Court rules that the judge must make several verifications before deciding the case. If the guidance is not followed, the judicial decision may be annulled.
The list of procedures defined by the ANS is no longer exhaustive, becoming illustrative after the law came into effect. In case of granting a favorable preliminary injunction to the user, the judge must notify ANS about the possibility of including the treatment in the list of procedures.
The STF's decision is based on a lawsuit filed by the National Union of Self-Management Health Institutions (Unidas) against portions of Law 14.445/2022. The court must verify if there was a prior request to the operator, if there was an unreasonable delay or omission by the operator in authorizing the treatment. The magistrate may not base their decision solely on the prescription or medical report presented by the plan user.
Procedures authorized by doctors or dentists must be authorized by plans, provided there is evidence of the treatment's effectiveness or it is recommended by Conitec. However, if the guidance is not followed, the judicial decision may be annulled.
Balestrin defends exceptions with clear technical criteria, proven effectiveness, regulated registration, absence of adequate alternatives, and scientific evaluation. He believes the list of procedures should not be absolute or an 'invitation to unlimited coverages'.
This decision has raised concerns among health plan users and stakeholders alike. The debate continues as the health sector seeks clarity and balance in the implementation of this new law.
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