Almost one year old, Law 14.454/22, which provides for the coverage of treatments outside the ANS list, is still not respected by health plans and the beneficiaries still have to appeal to the Judiciary
One year after the sanction of Law 14.454/2022, which has expanded the coverage of health plans, operators still oppose the spontaneous authorization of treatments not provided for in the List of Procedures and Events of the National Complementary Health Agency (ANS). Consequently, despite the new law providing for the coverage of examinations, surgeries and drugs based on scientific evidence of their effectiveness, beneficiaries continue to have to resort to the Judiciary to obtain approval for their treatments.
Second research at the Faculty of Law of the FGV (Fundação Getúlio Vargas), denial of assistance coverage by health plans is one of the main reasons that bring consumers to court today. This theme responds, for example, to more than half of the first and second instance decisions of São Paulo.
The study also shows that the Justice of São Paulo was in favor of users in 90% of the requests, it being understood that the ANS coverage list is exemplary, as established by Law 14.454/2022.
“In practice, nothing has changed with the new law, since judicialization remains necessary. We have returned to the previous scenario in which the list was considered exemplary, but adding the right need for the treatment to have a scientific basis”, says the professor of the postgraduate course in Medical and Hospital Law at the USP of Ribeirão Preto e health insurance claims attorneyElton Fernandes.
The law allows the role of the ANS to be overcome
According to Law 14.454/2022, issued in September 2022, it is possible to cover medical treatment provided that: there is proof of scientific efficacy; there are recommendations from the National Commission for the Integration of Technologies in the Unified Health System (Conitec); or that they are incorporated, at least, by an internationally renowned health technology assessment body. In this way it is possible to pass the ANS list when the treatment prescribed to the patient has not yet been included in the list.
The law that re-evaluated character example of the ANS role it was debated in Congress after the Superior Court of Justice (STJ) considered the list exhaustive. That is, operators were only obliged to cover treatments included in the regulatory agency’s list as per the ministers’ understanding.
The subject also continued to be debated by the STJ, in the ruling of three cases which involved the coverage of standard treatments. Last week, however, it was suspended, after the minister rapporteur Nancy Andrighi voted against the operators of the health plan, establishing that even treatments not provided for by the legislation ANS guidelines must be paid by the companies.
Application of law 14.454 to health plans
Although a year has passed since Law 14.454 went into effect, the federal government has not yet regulated it, with the publication of a decree specifying how the rule should be applied. Consequently, the refusal of treatments not envisaged by the ANS list by the operators remains, while the beneficiaries must submit lawsuit against the health plan.
However, the professor and lawyer Elton Fernandes explains that Justice has recognized the right of patients, provided that the efficacy is demonstrated in the light of the science of the prescribed treatments. Above all because what governs the Brazilian legal system is the Principle of the Hierarchy of Norms, according to which no rule of the ANS can replace the law, which is superior to any contract or guideline of the institutions.
“No contract can go against the law and, if it does, the clause can be considered abusive by the judiciary. The difficulty, however, may lie in the breadth of the concept of scientific evidence. In other words, the opinion of an expert is a scientific evidence, albeit without the same degree of reliability as a larger clinical trial, for example,” explains Elton Fernandes about the lack of regulation in the law.
Release of treatments outside the ANS list
However, Elton Fernandes underlines that to obtain the release of a treatment outside the ANS list it is necessary to comply with the requirements of law 14.454. And, for this, it is essential that the patient has a good medical report, which informs not only on the need but also on the scientific basis of the recommendation.
In this sense, the professor of medical law underlines the importance of medical support but also of health care health insurance claims attorney try to demonstrate the scientific efficacy of the treatment, as required by law. “In this way, Justice can understand that, in accordance with science and the law, the patient must have the right to coverage of care by the health plan”, she reflects.
Website: http://www.eltonfernandes.com.br
Source: Terra
Rose James is a Gossipify movie and series reviewer known for her in-depth analysis and unique perspective on the latest releases. With a background in film studies, she provides engaging and informative reviews, and keeps readers up to date with industry trends and emerging talents.
