ANS Public Consultation No. 88/2021: Regulation of notification of default to natural persons contracting a private health care plan

On June 15, 2021, the National Supplementary Health Agency (“ANS”) placed for public consultation a draft Normative Resolution (“NR”) to regulate the notification of default to natural persons that have taken out a private health care plan, and repeals Normative Precedent No. 28/2015, which dealt with the suspension and unilateral termination of individual contracts.

The NR results from the lack of a clear and objective regulation on the subject and provides for the following rules for notification of default:

• Requirement of the operator (provider entities) to notify the individual by the fiftieth (50^th) day of default, with such measure being a prerequisite for the suspension or unilateral termination of the contract at the initiative of the operator;
• The days in arrears of monthly fees already settled will not be counted as a period of default that will result in suspension or termination of the contract;
• Unilateral suspension or termination of the contract by the operator can only occur after a period of 10 (ten) days has elapsed from the receipt of the notification by the individual and if the debt is not paid within this period;
• Regarding the means of notification, the following are provided for: (i) electronic mail (email) with digital certificate or confirmation of reading; (ii) SMS, with confirmation of receipt; (iii) message in applications (Whatsapp, Telegram and others); (iv) recorded call; (v) letter with return receipt, (vi) representative of the operator with proof of receipt; (vii) restricted area in the operator’s institutional page or through an application, provided that access is via login and password; and (viii) alternatively, notice published in a newspaper of wide circulation, when it is not possible to notify by any other means;
• The operator must use the information provided by the contracting party to send the notification of default and inform, at the time of contracting the private health care plan, of the need for the contracting party to keep its information updated and the means by which such notification of default can be made;
• Amendment of the contracts in force for the insertion of the means of notification is allowed by the new regulations;
• The notification must contain the following minimum information: identification of the operator; the contracting party; the beneficiaries; the contracted health care plan; the exact and updated amount of the debt; the period of arrears; the form and the deadline, of at least 10 days, for payment; the date on which the contract will be terminated or suspended in case of non-payment; and the means of contact of the operator;
• In the case that monthly fees in arrears, a fine of, at most, 2% of the value of the debt in arrears may be applied and/or late payment interest of, at most, 1% per month may be charged, provided that it is included in the contract.

In addition, the NR establishes that in cases involving the collection by the operators or administrators directly from the beneficiaries of the corporate group plan or by adhesion, it is essential to notify the beneficiary of his/her exclusion from the contract due to the default status, in which the deadline of 10 days must be given for the payment of the debt. In this case, the exclusion of such beneficiary is only allowed if there is an express contractual provision and consent from the contracting legal entity.

Finally, the NR amends the provision of article 82 of NR. 124/2006, establishing as a penalty a fine of BRL 80,000.00 (eighty-thousand Brazilian Reais) in the case of suspension or unilateral termination of the individual or family contract not in compliance with with the law and regulations.

ANS Public Consultation No. 88/2021 will remain open to receive critiques, suggestions, and contributions from June 22, 2021 to August 5, 2021, and can be accessed in full through this link.

Demarest’s Insurance, Reinsurance, Supplementary Pension Plans and Supplementary Health teams will monitor the development of this public consultation until the publication of the final text, and will be available to provide any clarifications on the subject.