On February 23, 2022, the trial for the special appeal motions to stay the proceedings – EREsp 1,886,929 and EREsp. 1,889,704 – resumed. The trial discusses whether the nature of the National Supplementary Health Agency’s (ANS) list of mandatory coverage by health insurance plans is. With the resumption of the trial, Justice Nancy Andrighi’s vote was cast.
This matter has been the subject of discussions in the courts over the last 20 years, during which a broader interpretation for the list was established, understood as illustrative in nature. As such, the understanding of the courts was settled as regards granting mandatory coverage beyond ANS’s list.
As of 2019, the 4th Panel of the Superior Court of Justice (STJ) began adopting the understanding that the list would be a mandatory minimum for health plan operators, having higher importance than if it were merely illustrative. Although most state courts of justice have consolidated their case law on the subject, understanding that the list is illustrative, there is a significant divergence between the 3rd and 4th Panels of the STJ.
In a clarification published by the National Supplementary Health Agency (ANS) on February 23, 2022, the Agency expressed its understanding of the exhaustive nature of the list, pursuant to Law 9,961/2000. This understanding is based on the competence of the ANS as a regulator and on its promptness in updating the list. The Agency also pointed out the importance of safety and predictability in the act of contracting health insurance plans, which enables their lower values, in addition to guaranteeing the regulatory capacity of the ANS itself.
With the trial involving EREsp. 1,886,929 and EREsp. 1,889,704, the expectation is that the courts will follow the understanding established by the STJ.
On September 16, 2021, the Reporting Justice Luis Felipe Salomão voted for the list to become exhaustive, reducing the scope of services whose provision by health insurance plans would be mandatory. The grounds for his vote were the importance of security in legal relations and the legitimacy of the role of ANS as a regulator.
According to the Rapporteur’s understanding, the list is a mandatory minimum that guarantees the consumer’s right to health. According to this interpretation, the illustrative list would also extinguish the notion of a minimum list of services, potentially reducing consumers’ access to healthcare. He also attributed relevance to the financial situation of health plan operators, as well as the security of the relationship between the operator and the consumer.
In the resumption of the trial, Justice Nancy Andrighi cast a vote in opposition to this interpretation, affirming that the list should be considered illustrative. Her arguments were that the illustrative role would give rise to a greater guarantee of the right to health. In opposition to the Rapporteur’s point about the financial situation of health insurance plan operators, she presented data obtained by the ANS that shows that the operators’ profits were maintained in recent years. She also stated that the limitation would be costly for consumers and would allow operators to increase profits. Finally, she pointed out that the ANS’s list has technical-scientific language, which is difficult to understand, so that it would not be possible to require the consumer to know all the procedures at the time of executing their health insurance plan agreement.
Finally, Justice Villas Bôas Cueva requested an inspection of the records, which was considered as a collective request, after Reporting Justice Luis Felipe Salomão cast his vote for the exhaustive list, and Justice Nancy Andrighi cast hers in favor of the illustrative interpretation. At 1 to 1, the final score is stopped until the lawsuit returns to the Plenary. As yet, there is no set date for this to occur.
Demarest’s Life Sciences Team continues to monitor activities in the sector and is available should you need any further clarification on this matter