STJ maintains thesis of the ANS’s exhaustive list for cases prior to the new law

The 2022 law that transformed the list of procedures of the National Supplementary Health Agency (ANS) into an example cannot be used to judge actions prior to its coming into effect, even in cases where the request involves continued treatment.

This conclusion is from the 2nd Section of the Superior Court of Justice. By majority vote, the board decided that, without exceptions, Law 14,454/2022 only applies to processes that are based on denials of coverage that occurred after September 21, 2022.

This means that, for processes and appeals due to previous facts, the position established by the 2nd Section that year still applies, in the sense that the list of ANS procedures is exhaustive, but can be mitigated in exceptional situations.

The discussion started from a proposal by Minister Nancy Andrighi that the entry into force of Law 14,454/2022 would have surpassed the position of the 2nd Section.

This would allow the STJ not to apply the exhaustive list thesis in cases prior to the new law, but which involved treatments that were still ongoing when the rule came into force.

The dissenting vote of Minister Ricardo Villas Bôas Cueva prevailed, for whom this is unfeasible. In ongoing treatments, the patient can only request funding for procedures that are not on the ANS list if the denial of coverage occurred from the date on which Law 14,454/2022 came into force.

“The jurisprudence of the 2nd section must be maintained, which standardized the interpretation of the legislation of the time, and the rules that were in force when the facts occurred must apply to the case, with the new law being able to apply from the moment in force to the events that followed”, explained the magistrate .

How it was and how it turned out

Until the enactment of Law 14,454/2022, there was no clear definition in the legislation regarding the taxation of the ANS list. Operators used to refuse coverage for medications and procedures not included in this list. It was then up to the Judiciary to make this definition.

Standardization only came in 2022, through the 2nd Section. The conclusion was that the ANS role is exhaustive. Therefore, operators are not obliged to pay for procedures prescribed by the doctor if there is already an effective, effective and safe alternative on the list.

On the other hand, if there is no therapeutic substitute on the list or if those listed prove to be ineffective, the health plan must pay for the medical recommendation, as long as it has proven efficacy, a scientifically based recommendation and has never been refused by the ANS.

The judgment represented a victory for the operators and led to an immediate reaction: the following day, Bill 2,033/2022 was filed in the Chamber of Deputies, sanctioned as Law 14,454/2022 on September 21, after just three months.

From then on, the list became exemplary. Therefore, the operator is obliged to pay for the treatment or medication if it is effective based on scientific evidence, even if there are cheaper alternatives on the ANS list that are just as effective.

Final result

Ministers Marco Aurélio Bellizze, Moura Ribeiro, João Otávio de Noronha and Isabel Gallotti voted with Minister Cueva and formed the majority.

Ministers Humberto Martins and Marco Buzzi voted with Minister Nancy Andrighi.

The divergence in the 2nd Section, although relevant, was fundamental. In the three cases judged, the special resources of health plan operators were denied, maintaining their obligation to pay for the recommended treatment.

This means that, even with the previous guidance, in the sense that the list is exhaustive, the conditions already indicated that it would be up to the operators to pay for what was recommended by the doctor.

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