The future of health plans: proposals on consumer protection

Health plans in Brazil are regulated by Law 9656, of June 3, 1998, which establishes the rules for operators of health plans and for the plans themselves under the observance of the National Integrative Health Agency (ANS).

The Health Plans Law provides for assistance coverage for all diseases listed in the International Classification of Diseases (ICD), of the World Health Organization, on the basis of a list of health procedures and events established by the ANS, according to the segmentation of the plan adopted , i.e. outpatient (visits, tests and home antineoplastic treatments for oral use), hospital (hospitalisation); hospital with obstetrics (hospitalization and delivery assistance), dentistry (procedures performed in the office), and referral (outpatient and hospital with a standard ward).

Much progress has been made in these 24 years of health plan regulation, but since the law, like the movements of society, is dynamic, there are still points of dissonance, above all in relation to consumer protection structured in the Consumer Defense Code, which end up being resolved by the Judiciary.

The judicialization of health care in Brazil, both public and integrativehas increased significantly in recent years. The Study Group on Health Plans (Geps), of the University of São Paulo [1], which follows data from the Court of Justice of the State of São Paulo, when it published an analysis in June 2022, showed that as regards health plans, it has increased fourfold in the last ten years, with a growth of 391 %. The denials of coverage stand out, justified by the non-inclusion in the list of ANS procedures.

In addition to the judiciary, the company also seeks to satisfy its rights at the administrative level, through Procons, and regulatory agencies. According to 2021 data, Sindec/MJ [2] and [3] they received 1.6% and 0.8% of complaints related to health plans, respectively. ANS, in turn, also received, in 2021, more than 150,000 complaints from consumers not adequately served by its operators.

The supplementary health sector, especially as regards consumer protection, is conflictual and, in this scenario, the Judiciary, in matters of health plans, assumes an active role, because it has the last word and the responsibility to pacify conflicts .

The legal uncertainty that permeates the sector is one of the main factors causing the growing judicialisation. This is because it is a complex question, in which the solution to the problems is not clear in the current regulations, and also because it is a matter of a differentiated consumption relationship, insofar as it concerns a constitutionally unavailable good which is life.

Health delivery involves a number of issues that have an economic and social impact, especially with rising unemployment, loss of consumer income and aging populations, as well as positive longer life expectancy, as well as to rapidly increase the costs of care due to the dizzying incorporation of new technologies, taking into account that resources are limited and exacerbated by the global pandemic of the new coronavirus resulting from Covid-19. Added to this is the information that is not shared between operators, suppliers and consumers, which aggravates the frequent conflicts between the players in the sector.

This is why it is important, when a new government begins, to reflect on the future of health plans and to include in the debate some topics that deserve to be included.

Initially the government, in the definition of public policies in the health sector, must integrate the information between the Unified Health System (SUS) and the private system. It is also essential that the health management invests in clearer and more transparent information mechanisms.

The second point to highlight is in relation to the appointments of directors for the ANS and their posts, who must be trained technical professionals with known knowledge and spotless reputation, and investments must also be established for the continuous training of health professionals .

As regards, in particular, the regulation of supplementary healthcare, it is important that the Special Commission for Health Plans, at the Chamber of Deputies, is accompanied, with over 265 PLs annexed to PL 7.419/2006, to amend the Law on Health Health Plans . It is understood that, in order to improve regulation, the discussion should build on the progress made to date and not retreat to ideas, which some defend, of sub-segmented, accessible or popular plans, with reduced coverage and lower costs. These plans may only have appointments, tests, treatment for a specific disease, or hospitalization or emergency room care. It also proposes the release of monthly rate adjustments for individual plans, the lengthening of care, the end of SUS reimbursement, the reduction of the penalties imposed by the ANS and the weakening of its benefits. Defenders of these proposals argue that offering less coverage will mean cheaper plans, widen consumer access and allow operators to return to offering individual plans in the market and, as a result, reduce the SUS. It should be noted that a few years ago operators adopted the strategy of ceasing to offer individual plans, having understood that the current rules are much more flexible for collective plans, which today represent around 80% of what is marketed. On this issue we agree with the study prepared by the Institute of Studies in Health Policies (Ieps) [4]created by economist Arminio Fraga, who claims that this idea will overload the SUS and increase inequalities in access and jurisdictionalization of health.

It should be noted that, at the beginning of President Lula’s government, in 2003, a Supplementary Health Forum was created, represented by all the sectors involved, with the aim of evaluating the current regulatory framework, identifying its pros and cons. Among the guidelines set by the government at the time was Guideline 3, which referred to coverage of care, stipulating that sub-segmentation was not permitted. In this sense, it would be appropriate for the Lula 3 government to set up a similar forum and maintain the position previously assumed.

As regards the list of procedures and health events of ANS, which deals with the minimum mandatory coverage by health professionals, it is understood that the recent approval of law 14.454, of September 21, 2022, was an advance, but if you are concerned about the possibility of indicating a procedure or a medicine, indicated by a doctor, which may not have scientific evidence or may not be approved by a technical regulatory body (e.g. anticancer pill or chloroquine). The legislator should have used the additive term (e) and not the alternative (o), therefore, it would be appropriate to revisit the issue, to achieve legal certainty.

In this coverage theme, it would be important to evaluate the hypothesis of creating a single technical body to evaluate the incorporation of new technologies, based on evidence-based medicine, both for SUS and for integrative health.

The adaptation of consumer protection rules in the regulation of health plans is also fundamental, i.e. compatibility with the Consumer Protection Code.

It is essential to review the Integrative Health Council (Consu), a deliberative body of interministerial representation, whose role is to define guidelines and public policies for the elaboration of actions by the ANS, but which since the beginning of the regulation has remained inert to delegate the competence of the ANS. A plan to deal with Covid-19 has been re-established and proposed, one year after the start of the pandemic, defining a policy that goes beyond the Health Plans Law and without the participation of the ANS, violating its autonomy.

Another issue that deserves attention is the need for integrated care with the personal electronic medical record and also for making telemedicine and teleconsultation practices definitive.

Another topic worthy of improvement is the introduction of new remuneration models for health professionals linked to quality and effectiveness, as an alternative to service feewhich provides for payment on demand, is still widespread and generates waste.

It would be entirely appropriate to send a PL to the Legislative Powers with the classification of crimes against fraud and embezzlement of healthcare resources.

The entire health debate must be centered on citizens and consumers, always remembering that care must be humanised, with respect for human dignity. It is essential for us to build a more just, egalitarian and supportive country that we are all united in, dialoguing to find a way with effective public policies.

Therefore, in order for these proposals to be included in the debate, the participation and involvement of all the players in this sector is urgently needed: public authorities, operators, health professionals and, above all, organizations and bodies that defend the consumer. Aiming for what? The consolidation of a responsible, transparent, ethical and fair healthcare market, for the effective construction of a virtuous sector, with positive earnings, from which all agents can benefit, seeking the much desired balance, in order to guarantee the progress achieved and reject any form of regression to the supplementary health regulatory framework.

Maria Stella Gregori is a lawyer at the Gregori Sociedade de Advogados, professor of Consumer Law at the PUC-SP, director of Brasilcon and former director of the National Agency of Integrative Health (ANS).

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