Considerations on the ruling by the Superior Court of Justice (STJ) which recognised that the ANS’s list is exhaustive

The 2nd Section of the Superior Court of Justice (STJ), in a judgment on 8 June 2022, addressed the controversy on whether the ANS’s list is exhaustive or exemplary. The agency’s list details those procedures that must mandatorily be covered by health insurance plans.

The subject is quite sensitive and there was an able discussion between the justices, who settled the understanding that the list is exhaustive, which is equivalent to saying that only the examinations and procedures detailed thereon must mandatorily be paid for by health insurance plans, notwithstanding contractual provision to the contrary. There was also the caveat that, if there is no therapeutic replacement or after the procedures detailed on the list have been exhausted, procedures prescribed by the attending doctor or dentist may exceptionally be covered.

In the justices’ view, the exception also has requirements, notably that the ANS has not rejected that the requested procedure be incorporated onto the list, that the prescribed procedure is provenly effective in light of evidence-based medicine and that national and/or foreign technical bodies support and recommend it.

We must recall the origin of the ANS’s list, created in order to meet a social demand for regulation and legal certainty, in which all the actors in the contractual relationship of the health insurance plan would be served, especially consumers, since these, before the regulation of the supplementary healthcare sector provided by law 9,656/98, were subject to very restrictive agreements, unlike current agreements, which cover all diseases catalogued by the World Health Organization (WHO).

If, on the one hand, the list being recognised as exhaustive contributes to the economic, financial and actuarial balance of health insurance plans, on the other, it assures beneficiaries and policyholders that they will have the cover detailed thereon and that mutual society will not be harmed and overburdened due to an exponential increase in costs that would result from a potential understanding that the list is exemplary.

Historically, inflation in the healthcare sector is far above average. The Superior Court has given a very positive signal, since an understanding to the contrary would only contribute to intensify the already enormous judicialisation in the sector and exponentially increase monthly payments for beneficiaries, given the legal uncertainty resulting from the absence of parameters for the regular pricing of risks. As a result, the supplementary healthcare sector would see a natural departure of the population, unable to pay for the service, creating a huge social impact and overloading the National Public Health System (SUS).