Since 2015, a lawsuit promoted by the NATIONAL FEDERATION OF HEALTH SERVICES ESTABLISHMENTS (FENAESS) and UNION OF HOSPITALS, CLINICS, HEALTH CARE HOMES AND RESEARCH AND CLINICAL ANALYSIS LABORATORIES OF THE STATE OF PIAUÍ has been running in the Federal Court of the Federal District against the NATIONAL AGENCY OF SUPPLEMENTARY HEALTH (ANS) – process n. 0074233-60.2015.4.01.3400, 2nd COURT, BRASILIA.
This action aims to discuss the validity of some provisions of ANS Resolutions (363 and 364), which regulated Law 13,003/2014 (deals with contracting, readjustment and other measures on the relationship between providers and operators of insurance and health plans.
Thus, in mid-2019, the judgment of the 2nd Federal Court understood that several provisions of the aforementioned Resolutions would be contrary to the dictates of the Law, giving a different interpretation to what the legislator wanted, therefore determining the nullity of these dictates.
In summary, the following points were clarified and/or considered void:
- Art. 5th, VIII, of RN No. 363, of 2014: it is understood that it is not possible to reduce the real value of the contract. The legislator intended to preserve the real value, even in cases of deflation, not meaning that this value can be reduced. Thus, the service provider is entitled to expressly forecast an official inflation index in its contracts.
- Art. 12, § 1, of RN No. 363, of 2014: The correct interpretation of the device shows that the consideration of quality and performance attributes of health care cannot result in a variation lower than that of inflation.
- Art. 12, § 2, of RN No. 363, of 2014: This device was considered void, as it conflicts with what the Law says. The readjustment cannot be made on the anniversary date of the contract, but within a period of 90 days, counting from the beginning of each calendar year.
- Art. 21 of RN No. 363, of 2014: deals with the deadline for adapting contracts (12 months), which was considered void, insofar as the Law became effective 180 days after its enactment, and an infralegal norm cannot modify the content of Federal Law.
- Art. 7 of RN nº 364, of 2014, and art. 4 of IN No. 61, of 2015: with the edition of RN nº 436, of 2018, which did not allow readjustments lower than the IPCA, this issue was overcome.
- Arts. 4th, 6th and 8th of RN No. 364, 2014: recognized the right of providers without a written contract to apply the readjustment defined by the ANS.
As luck would have it, this was the decision:
“1) Declare the right to an express contractual forecast of an official inflation index to readjust the values of services contracted by health plan operators;
2) Declare the right not to have a readjustment lower than the official inflation index chosen due to the consideration of the attributes of quality and performance of health care;
3) Declare the right to the annual readjustment within the non-extendable period of 90 (ninety) days, counted from the beginning of each calendar year, and not from the anniversary of the contract;
4) Declare that the rules established by Law nº 13.003, of 2014, become mandatory after 180 (one hundred and eighty) days from their publication (art. 4), being ineffective the postponement of this term by infralegal normative act;
5) Declaring the illegality of annual readjustments that do not compensate for inflationary variation, according to an official inflation index;
6) Declare the right of substitutes who do not have a written contract to define the readjustment index by ANS, pursuant to art. 17-A, § 4, of Law No. 9,656, of 1998, as amended by Law No. 13,003, of 2014.”
Even though it is not a final decision, the ANS, on March 30, 2020, issued Resolution n. 456, which brought adjustments according to the sentence, which brought the following text:
“Art. 1 The following articles are suspended:
I -art. 12, § 2, of RN nº 363, of December 11, 2014, which provides for the rules for entering into written contracts signed between health care plan operators and health care service providers and other measures; It is
II -art. 6 of RN nº 364, of December 11, 2014, which provides for the definition of the readjustment index by the National Supplementary Health Agency – ANS – to be applied by health care plan operators to their healthcare service providers health in specific situations.
Single paragraph. The effects of the suspension described in this article will remain in effect until the final judgment issued in the case file No. 0074233-60.2015.4.01.3400”.
Thus, even if the mentioned judicial process has not been closed, the decision recorded therein already brings beneficial effects to the providers, especially with regard to the readjustment of the contract, its terms and definitions of the index, having been fully clarified that no readjustment will be allowed that do not preserve the real value of services performed.