Since 2023 there has been a topic that has been surrounded by controversy. New authorizations for medical courses and the expansion of places in old courses. In 2013, Law No. 12,871 changed the historical system and imposed the publication of public notices so that HEIs could compete with each other. The idea seemed good, but the execution by the Ministry of Education left a lot to be desired. If before, everyone knew what was needed for a University to offer a medical course (having health courses, most of which had their own hospitals, a strong relationship with the SUS, etc.), everything was uncertain from then on. For example, in the two previous major notices (already concluded), the core of the issue was the economic-financial analysis of the entities in dispute, formulas on financial performance, EBITDA analyses, typical concepts of Public Limited Companies were heavily used. The academic topic was relegated to a secondary, less important level.
As expected, the situation generated an increase in legal actions, mainly from Universities, University Centers and non-profit Colleges that felt harmed. Imagine an HEI that maintains two doctorates and four master’s degrees (the minimum to be considered a University). This costs a lot and the return is linked to the training of highly specialized labor for teaching, research and industry, but not to the direct and immediate surplus.
Are these the same entities that are setting up large technology parks for the country and what was examined by the Public Administration was their ability to generate short-term profits? The immediate profitability of education is something so complex that most higher education systems enjoy high incentives and public support not only in Brazil (FIES and PROUNI…), but also in the rest of the world, in the most capitalist countries such as the United States. (with its extensive student funding) to Europe, China and Australia.
Once the general context of uncertainty is understood, it is impossible not to talk about some of its prominent aspects that are intertwined with this story; One of them is the legal battle that has been fought until now by the IES and the MEC. At the STF, Minister Gilmar Mendes is the rapporteur of two constitutionality control actions (ADI no. 7,187 and ADC no. 81) that discuss whether notices are a valid means or not for authorizing medical courses. This same judge granted an injunction so that institutions that managed to file their individual course requests or increase in vacancies via eMEC (MEC’s electronic petitioning system) can continue with them until the end, but as long as the administrative procedures had already gone beyond the pre-document analysis phase. The decision is from the beginning of the second semester of 2023, however, until November, the Ministry of Education did not comply with the order. It is true that the Union published Ordinance MEC No. 397/2023 in October, which created the basis for following the Supreme Court’s command. However, reading the text led to the conclusion that the administrative rule covertly confronted the judicial decision.
What Minister Gilmar determined is that the Public Authorities create a “hybrid standard” of authorization, using the legislation in force at the time of the protocol of administrative requests for courses and increase in vacancies, but also §§1, 2 and 7, of art. 3rd, of the More Doctors Law. As a result, the region’s SUS structure, urgency and emergency programs, specialized outpatient and hospital care, commitment to scholarships and investments in the hospital network, in addition to criteria such as the proportion of doctors per population (up to 3.3 doctors per thousand inhabitants) should be observed by the Ministry of Education. It turns out that the MEC created an alternative to this, something that had nothing to do with these determinations. To be clear, while everything that was reported was happening, in parallel, the “2023 public call notice” was launched, after more than five years without an instrument of this type. The forecast is for 95 new courses with 60 places each and with the possibility of increasing 40 more places, after recognition. The Ministry of Education, then, instead of complying with the imposition of the Judiciary, decided to link the individual administrative processes of requesting courses and increasing vacancies to the aforementioned public notice instrument, saying that it would only analyze the administrative procedures that were in the listed cities and that Both the competition champion and individual order holders would share the same places, regardless of the installed capacity of the SUS network in the health region.
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As expected, this generated a strong disagreement between the HEIs with individual requests and the MEC, which insisted that it was complying with the preliminary order. It turns out that several experts showed two pieces of evidence that were embarrassing to the Public Entity: i) the first, that the notice did not indicate or detail how the health regions were chosen, precisely because the studies were confidential or confidential. More than that, there were flagrant inconsistencies, the undersizing of the North region – for example, Acre, which was not even listed to receive vacancies –, while São Paulo (the largest epicenter of concentration of doctors in the country) will receive thirteen new courses; ii) the second, there is no reason why a health region should only receive sixty initial course places to be distributed among all interested parties if there is enough SUS equipment for more places. In this hypothesis, the main criterion was always five SUS beds for each medical course space.
All these concerns were taken not only to the Ministry of Education, but also to the Constitutional Court and in their own legal proceedings in the first and second instances and this made public managers back down and publish a new administrative rule, Ordinance MEC No. 421/2023 . Basically, it goes back and establishes more clearly that “social need for a medical course” is not a political concept, but a technical one, parameterized by Law No. 12,871/2013 based on highly concrete criteria.
There is something that is still not clear, why is the Federal Public Administration so resistant to complying with court orders in this matter? Perhaps because the Union wants to regain all the protagonism it lost in 2018, when it declared an unconstitutional moratorium on medical courses. One cannot lose sight of the fact that big players educational institutions benefited greatly in previous competitions and, finally, other institutions, of high quality and much smaller than these business conglomerates, learned to resist, to not allow themselves to be harmed due to strange public conduct, to say the least. So much so that several entities representing community HEIs and even the CNBB signed letters repudiating public management on these issues. UNE supported these demands from education entities.
What is at stake are not just new places in medical courses; That’s part of the problem. What is not visible to the naked eye is that such courses in the hands of a few business conglomerates can annihilate other competitors such as the Pontifical Catholic Universities, the Mackenzie, Methodist and Lasallian Universities, the system of non-profit Universities of Santa Catarina and Rio Greater South, those entities historically internalized by Brazil.
Dyogo Patriota He is a legal advisor at ABRUC.