STF establishes rules for authorization of procedures outside the ANS list

The Federal Supreme Court (STF) decided this Thursday 18th to allow health plans to be required to cover procedures that are not on the list of the National Supplementary Health Agency (ANS), the list of procedures that must be mandatorily covered by the plans.

With the decision, the Court considered it constitutional to oblige operators to cover treatments or procedures outside the ANS list .

However, coverage of treatments outside the list must take into account five parameters, which must be cumulatively present in the cases being analyzed.

Parameters for authorization

• Prescription of treatment by a qualified doctor or dentist;
• Absence of express denial or pending analysis of the ANS list update;
• Lack of therapeutic alternatives that are already on the ANS list;
• Proof of efficacy and safety of treatment in accordance with evidence-based medicine;
• Existence of Anvisa registration.

Court decisions

In court decisions involving authorizations for treatments not listed in the ANS list, the Supreme Court ruled that the judge must conduct several checks before deciding the case. Failure to follow these guidelines may result in the court decision being overturned.

• Check whether there was a prior request to the operator and whether there was an unreasonable delay or omission by the operator in authorizing the treatment;
• Analyze information from the Judiciary's Technical Support Center (NATJUS) database before making a decision. The judge may not base his or her decision solely on the prescription or medical evidence presented by the plan user.
• If a preliminary injunction is granted in favor of the user, the judge must inform the ANS about the possibility of including the treatment in the list of procedures.

The parameters were established by the rapporteur, Minister Luís Roberto Barroso, who was followed by Minister Nunes Marques, André Mendonça, Cristiano Zanin, Luiz Fux, Dias Toffoli and Gilmar Mendes.

The other justices also voted to support the validity of the coverage of procedures not on the list, but understood that the Court could not establish the parameters. Justices Flávio Dino, Alexandre de Moraes, Edson Fachin, and Cármen Lúcia are in this position.

Understand

The Court ruled on an action filed by the National Union of Self-Management Institutions in Health (Unidas) against sections of Law 14,454/2022.

The rule established that operators must cover treatments and exams that are not included in the so-called ANS list, the procedures that must be mandatorily covered by plans.

The law was enacted following a decision by the Superior Court of Justice (STJ) in June 2022, which ruled that health insurance companies are not required to cover medical procedures that are not covered by the ANS list.

The Superior Court of Justice (STJ) understood that the list of procedures defined by the agency is exhaustive, meaning that users are not entitled to exams and treatments that are not on the list.

After the legislation came into force, the list became exemplary rather than exhaustive.

Furthermore, the rule defined that the list is a basic reference for private health care plans contracted from January 1, 1999.

Therefore, procedures authorized by doctors or dentists must be authorized by the plans, provided that there is proof of the effectiveness of the treatment or they are recommended by the National Commission for the Incorporation of Technologies into the Unified Health System ( Conitec ).