The general rule of the Health Plans Law (Law 9,656/1998), which imposes on operators the obligation to cover treatment or procedures not listed on the ANS list, does not cover cases of medication for home use.
Case judged involved prescription of cannabidiol for patient with ASD, ADHD and epilepsy
With this understanding, the 3rd Panel of the Superior Court of Justice upheld the special appeal of a health plan operator, to exempt it from paying for the cannabidiol-based medicine prescribed by the doctor of one of its beneficiaries.
The patient suffers from severe autism spectrum disorder, attention deficit hyperactivity disorder (ADHD) and epilepsy.
The Court of Justice of Rio Grande do Sul understood that the operator should pay for the medicine, based on article 10, paragraph 13 of the Health Plans Law.
The ruling says that, in the case of a prescribed treatment or procedure that is not included in the ANS list, coverage must be authorized by the operator as long as there is proof of its effectiveness or it is recommended by specialized bodies.
The rule was included by Law 14,454/2022, published by Congress specifically to transform the list of ANS procedures into an exemplary one, as a reaction to a judgment by the STJ that understood that it would be exhaustive.
To the STJ, the health plan operator pointed out that it cannot be forced to pay for medication for home use, pursuant to article 10, item VI of the same law.
General rule and exceptions
The vote of the rapporteur, Minister Nancy Andrighi, points out how these apparently incompatible standards should be interpreted, in order to give coherence to the Health Plans Law.
She highlights that, first, the legislator excluded the provision of medicines for home treatment from the health care reference plan. Then, it added exceptions for medicines linked to antineoplastic treatment, related to cancer.
Finally, parliamentarians defined that the operator must pay for medicines for home use if they are used in cases of hospitalization to replace a hospital stay.
For minister Nancy Andrighi, the general rule that imposes the obligation to cover treatment or procedures not listed on the ANS list does not reach the exceptions provided for in the sections of the caput of article 10 of Law 9,656/1998.
“The same law cannot exclude an obligation from the operator (article 10, VI) and then impose compliance on it (article 10, paragraph 13). Returning to Carlos Maximiliano, these two rules must be interpreted as ‘parts of a single whole, intended to complement each other’,” he said.
“Thus, except in the cases established by law, contract or regulatory standard, the operator cannot be obliged to cover medication for home use, even if the requirements of paragraph 13 of article 10 of Law 9,656/1998 are met”, concluded.
Well-placed limits
Second Rachel Quintanalawyer at Bhering Cabral Advogados, the decision is important because it reaffirms the limits imposed by current legislation, which objectively establishes the obligations of operators.
“It is necessary to consider that operators, within the scope of Supplementary Health, have the duty to guarantee their beneficiaries access to health care services, not in full, but on a supplementary basis, within legal and contractual limits and in support to public policies”, he assesses.
Click here to read the judgement
REsp 2,071,955
