Health plans: what are the main causes of user claims against operators

After a record low number New lawsuits against health insurance During the pandemic, the judiciary has seen the number of actions against operators increase again. Data obtained from the National Council for Justice (CNJ). Estadao It turns out that in the first three months of this year alone, 25,700 new lawsuits were filed against health plans. Subject matter experts and health plan representatives converge on one point: The increase in influx is largely driven by complaints about denials of coverage, which benefits a law that made the list of treatments offered by the National Complementary Health Agency (ANS) more flexible.

In the past decade, 2020 and 2021 were the years with the lowest number of lawsuits filed against health plans, with 75,510 new lawsuits and 76,530 new lawsuits, respectively. As of 2022, rates have risen again: 88,110 lawsuits have been filed against the plans.

According to Richard Bae Kim, who coordinates the National Council of Journalists’ (Fonajus) Justice for Health National Forum, the end of the public health emergency caused by Covid-19 has also encouraged people to return to health services; In addition, the shortage of certain groups of medicines and the lack of specialists in certain fields of medicine, in many municipalities in the country, and some very complex services, reinforce the scenario of post-pandemic measures.

For professionals and sources in the complementary health sector, a law passed in Congress that made the so-called “tax roll” of ANS more flexible is one of the key points in this equation. The scale set standards that operators must pay for actions that the agency did not anticipate. With this in focus, health plan operators expect lawsuits to continue to rise.

With this decision, plans must pay for treatments that have been scientifically proven to be effective, recommended by the National Committee for Integration of Technologies into the Unified Health System (Conitec) or by a world-renowned health technology assessment body.

“In this first half, there has been a sharp increase in demand for our office, with several issues involved deny coverage, which is the main reason, even after the law required plans to cover off-list treatments. Operators continue to rely only on the ANS menu, and have not taken measures against this. We do not see any kind of inspection or punishment in these cases,” criticizes Rafael Roba, a lawyer specializing in the right to health at Vilhena Silva Advogados, in São Paulo.

In a recent interview with EstadaoANS President Paolo Rebelo stated that the agency is evolving “to try to find solutions that precede the judicial process.” According to him, there is a proactive inspection by ANS, which inspects operators and responds to complaints from customers.

Marcos Noves, Executive Supervisor of the Brazilian Association of Health Plans (APHPA), lists the factors determined by the sector: “There were 46.9 million people covered in 2019 and now we have about 50.6 million, and naturally the volume of applications is a bit higher,” he notes.

“Otherwise, we have a much larger panorama of fraud and fraudsters using both complaint to ANS, in order to expedite payment, and legal claims. Because there is a greater volume of fraud, operators are applying more controls, and even for those who use the health plan Properly, they end up causing some kind of discomfort, which can lead to a complaint,” he says. “Another point is the issue of the coverage list, which has created significant uncertainty around what is covered and what is not,” he adds.

In a statement published in early June, the National Federation for Complementary Health (FenaSaúde) used elimination as one of the arguments to justify the 9.63% readjustment rate in individual plans.

“Complementary health has been experiencing direct effects from increased health inflation, treatment costs, medications, hospital procedures, and treatments. At the regulatory level, the past few years were marked by legislative and regulatory changes that had a direct impact on the sustainability of the sector, such as Law 14454/2022, which changed the comprehensive nature of the list, creating very fragile and subjective conditions for imposing plans to cover items outside the list. This is also linked to another known factor, elimination, which is detrimental to the entire health system, said Finacide.

In a memo sent to the report, FenaSaúde stated that “increases in jurisdiction cause inequities in access, threaten the predictability of care expenses and require greater allocation of resources in long-term rulings, including costs with legal fees, medical expertise and potential for reimbursement.”

The liability of lawsuits piling up in court means that even record levels of new lawsuits throughout the pandemic have not succeeded in stemming the flow. According to NCJ data, at least since 2020, when the council began counting the total number of cases pending, the number of lawsuits awaiting judicial decision has increased nearly 16%, from 106,510 in that year to 123,190 in 2023.

Psychologist Priscilla Antunes has already sued the health plan at least three times to ensure the rights of elderly parents. In the latter suit, she sought coverage for providing treatment to her father at home. Elzmar Antunes, 77, suffers from advanced dementia: he can’t walk, can barely speak and is feeding through a tube. The elderly doctor recommended complete home care, which the health plan refused.

“We were able, through the court, to do everything his doctor thought fit,” Priscilla says, adding that her father had paid for the group plan for nearly 30 years. “It is a sense of impotence, a disappointment at being so old in the plan, which is the best internationally, and for which we have paid with sacrifices. We have paid for the peace plan and ended up wearing ourselves down so that, in the end, they had to give through justice what they could Submit it without getting to that point.”

After a court order, the plan began providing home care with physical therapy, speech therapy, nutrition, medication, a 24-hour nursing technician, monthly doctor visits, and oxygen support, among other services. Before that, Priscilla also went to court to reverse the group plan’s arbitrary modifications and recover the needless charges, and he was victorious in all situations.

The beneficiaries also sought justice to sue the operators arbitrary modifications that it Termination of contracts in group plans.

“This practice is becoming more common in companies with few lives. Because it is so difficult to contract with an individual and family plan, sometimes the only option families have is to contract with the plan by a CNPJ. Although they are business plans, they are the ones that cover Just three or four lives from the same family. And it’s very common for an operator to end up canceling that company’s plan. Those cases end up in court, and this year, we’ve seen a huge increase in demand from customers who have that kind of demand,” describes Ropa.

As the procedures piled up, the judiciary sought alternatives to make it easier for judges to analyze the procedures and speed up decisions so that patients did not have to wait too long. At the end of last year, the general meeting of the National Council of Journalists approved the regulation of the National System of Technical Opinions and Notes (e-Natjus), which was created to qualify judicial decisions in the field of health. e-Natjus is a platform that gathers opinions from the region based on scientific evidence. According to Kim, a CNJ member, Fonajus is focused on developing a policy for the judiciary to respond appropriately to demands regarding the area.

With the digital platform, these decisions can be made based on technical information, that is, taking into account scientific evidence. In addition, this technical assistance makes it possible to speed up the process, which can, for example, be stopped for several months while waiting for an expert examination, ”explains Kim.

FenaSaúde argues that it is necessary to adopt mediation strategies and ombudsman channels to “maintain the sustainability of the system,” and praises initiatives such as NAT-Jus.

For Novis, Apromy’s representative, one element that could help prevent many requests from reaching the courts is the adoption of clinical protocols and guidelines to guide doctors’ indications. According to him, specialists often recommend specific, more expensive treatments and medications while they can recommend others that are just as effective.