What is the fate of health care in Brazil?
Júlio Cesar Goulart Lanes
Founding and managing partner of Andrade Maia Advogados
PhD in Law from PUCRS
Amanda Donadello Martins
Partner at Andrade Maia Advogados
Master of Laws from PUCRS
In the articles “Beneficiaries and health plans are not enemies” and “ANS's exhaustive list: beyond Greeks and Trojans” we already announced the importance of health plan operators and beneficiaries establishing a harmonious relationship. We wrote that the continuation of legal disputes between these parties would be a harbinger of an unsustainable imbalance in the supplementary health sector, with effects also on the health care owed by the state.
Now, at the Public Hearing held by the ANS to review the pricing and readjustment policy for health plans, this has been confirmed: there is a need for regulatory intervention to avoid market distortions and guarantee the sustainability of the sector in the coming years. At the time, the bipolar debate continued: on the one hand, operators pointed to the unsustainability of individual plans, given the discrepancy between price and the cost of coverage; on the other hand, consumers protested about the granting of high-cost treatments and medicines.
The complaints, although genuine, converge towards a single solution: the need to preserve and sustain supplementary healthcare.
This is because, without neglecting the necessary access to the most advanced medical treatments, the fact is that the cost of such therapies should be a weighting factor for granting coverage in a system that is based on a mutualist logic. For no other reason, there has been a rise in the cost of health insurance, which often marginalizes the population to the Unified Health System. This is not good for anyone.
However, not even the universality attributable to the SUS escapes cost considerations - and the Supreme Court's assessment of Themes 6 and 1234 was no different.
In the aforementioned judgments, the criteria for legitimacy and responsibility for the cost of medicines between public entities were defined, in addition to establishing guidelines for the granting of high-cost drugs. Among them are: the illegality of not incorporating the drug, or the lack of incorporation, the lack of a substitute drug, high-level scientific evidence, based on systematic review, randomized studies and meta-analysis and financial impossibility to afford the treatment.
The initiative is commendable, because it aims to organize the public health system in this type of demand. It seems to us that the guidelines of STF Themes 6 and 1234 will be more efficient than those that currently exist in the supplementary health sector, which are currently limited to the content of Law 14.454/22.
Added to this is the fact that medicine is moving in leaps and bounds towards the genetic personalization of treatments - which has already been seen in certain cancer treatments - which has not yet been regulated in terms of its granting and which even raises discussions about its conceptualization. And here too, there is a growing and worrying provocation of such discussions before the judiciary.
As for the future, if the ANS list no longer in itself limits medical coverage and if the private health sector needs to keep up with advances in the medical and pharmaceutical industry, it will also be inevitable to rethink the regulation of supplementary health, reviewing not only the guidelines currently used to grant treatments not covered by the list, but also the ways in which claims are adjusted and passed on to the consumer.
All this effort applied to the SUS, based on dialogue, duly led by the Federal Supreme Court, although deserving of eventual evolution, should also be a guide for the relationship between consumers and health plan operators, since, directly or indirectly, the main sensitivities, at some point, may end up finding the same decisive course for the fate of health in Brazil.