STJ authorizes readjustment by age group of collective health plans

The validity of the adjustment by age group in collective health plans, except for self-management entities, was declared in the judgment of the 2 Section of the Superior Court of Justice (“STJ”) on March 23, 2022. This discussion was decided in Repetitive Theme 1016, which deals with the validity of the age-group adjustment contractual clause and the burden of proof of the actuarial basis of the adjustment.

With the decision of the STJ, the readjustment of the collective health plan by age group is allowed throughout Brazil, but limited to the following conditions:

• Contractual provision;
• The established index must respond to ANS parameters; and
• The application of unreasonable or random percentages that excessively burden the consumer or discriminate against the elderly is prohibited.

Another discussed matter was who would be the burden of proof in cases discussing the abusiveness of the actuarial basis of the adjustment. As decided by the majority, the topic has been withdrawn from trial, leaving it to the judges to decide in individual cases.

The topic about the readjustment of the collective health plan by age group was the subject of discussion in more than 950 cases, which were suspended in the State of São Paulo. Among these, some cases reach rates of 131% in the adjustment of health plans by age group.

The case in question had already been closed for individual health plans with Repetitive Theme 952, also from STJ. In addition to the decision of the STJ, the São Paulo Court of Justice (“TJSP”) instituted an Incident of Repetitive Demands, establishing the theses that:

• “The readjustment of the monthly fee of an individual or family health plan based on the change in the beneficiary’s age group is valid”; and
• “The correct interpretation of art. 3, II, of ANS Resolution No. 63/2003, is the one that observes the mathematical meaning of the expression ” accumulated variation”, referring to the real price increase verified in each interval, and the respective mathematical formula, the arithmetic sum of readjustment percentages or the average calculation of the percentages applied in all age groups being incorrect”

With the TJSP Incident, the expectation was that it would be limited to the high variation perceived by consumers aged 59 and over. Even with the provision of art. 3 item II of ANS Resolution 63/2003, many cases show a large discrepancy between the variation percentages applied across different age groups and the higher percentage applied to users aged 59 and over.

Thus, STJ’s final decision was for the applicability of Theme 952 to collective plans, except for self-management entities.  Under this decision, the readjustment of collective health plans by age group is allowed, if it does not represent an excessive burden to the consumer or discriminates against the elderly and is provided for in the contract. The readjustment must also comply with art. 3, item II of ANS Resolution 63/2003, which limits the accumulated variation between the 44 to 48 age groups and from 59 years to the accumulated variation defined between the 0 to 18 years and 44 to 48 age groups.