STJ decides that health plans operators are not required to pay for procedures outside the ANS list

On Wednesday, June 08, 2022, following years of ongoing discussions, the Brazilian Superior Court of Justice (“STJ”) decided, by 6 votes to 3, that the list of procedures prepared by the National Supplementary Health Agency (“ANS”) requiring mandatory coverage by health plans operators is Exhaustive. This means that health plan operators, except in specific situations, are not required to pay for tests, therapies, and treatments that are not on the agency’s list.

In the opinion of most judges, a simple medical recommendation for treatment is not enough to oblige healthcare plan operators to bear its costs. In these cases, the healthcare plan must allow the contracting of extended coverage, or the negotiation of contractual amendments to cover procedures not included in the list.

The STJ’s decision (approved argument) further clarifies that if there is no therapeutic substitute or no other procedure available on ANS’s list, the treatment indicated by the health professional can be covered as an exception, provided that the following requirements are met:

1. the ANS has not expressly denied the addition of such procedures to the list ;
2. the treatment is proven to be effective;
3. renowned Brazilian and foreign technical bodies have endorsed the respective treatment, for example the National Commission for Incorporating Technologies (“CONITEC”) in the Brazilian Unified Health System (“SUS”); and
4. when possible, discussions between magistrates and entities or people with technical expertise in the health area are carried out.

The decision carries no widespread public impact but does signal a new case law precedent that can be followed by lower courts. In addition, this decision is expected to impact the entire supplementary health sector and SUS.

Until the date of publication of this alert, we have not had access to the full text of the STJ’s decision. If necessary, Demarest will publish a new Client Alert with additions to the comments above. 

Demarest’s Life Sciences team is available to provide any additional clarifications that may be necessary.