When the collective health plan contract is changed and the operator does not take measures to demonstrate its calculation in a transparent manner, the adjustments applied may be eliminated. And the increase cannot establish a service that is too onerous for the consumer, nor allow the supplier to act unilaterally in varying the amounts charged.
Operator made an adjustment of 18%, but the judge reduced the rate to 9%
Thus, judge Marcos Vinicius Krause Bierhalz, from the 2nd Civil Court of Santana de Parnaíba (SP), determined that a collective health plan contract has a maximum adjustment of 9.63% and ordered the operator to return amounts paid in excess by the Chamber Ibero-American Arbitration and Mediation Association (Ciaam).
Ciaam took legal action to contest an 18.43% adjustment in the value of monthly payments. According to the plaintiff, the increase was not based on an adequate calculation.
The operator argued that the increase was, in fact, less than necessary to maintain contractual balance.
Burden of proof
Judge Marcos Bierhalz highlighted that the health plan operator, as the only one that has the necessary documents, “has the burden of proof” to demonstrate the correlation between costs and the contractual clause that authorizes the adjustments.
According to the judge, the operator’s contractual freedom “is not entirely subject to its discretion” and must respect the “criteria that lead to the requirement of predictability and probity in the application of contractual clauses”.
For him, the “exceptional or abnormal” use of the health plan by a group of beneficiaries does not justify the “automatic and unilateral transfer of increased costs to the consumer”.
In the specific case, Bierhalz found that “there was not sufficient documentary evidence to attest and justify the increase made by the defendant and its compatibility with what was agreed in the contract and regulatory standards”.
The calculation and reports made by the defendant to justify the need to increase the monthly fee were not “sufficient to prove her allegations”, in the judge’s view. This is because it was just data in spreadsheets and formulas, without documents to attest to its veracity.
Furthermore, there was nothing to indicate that the defendant had transparently informed Ciaam about the adjustments. The correspondence sent to the author contained only “generic information and devoid of any evidential basis”.
Complex operations
The operator did not even explain the “complex and difficult” mathematical operations provided for in “obscure and imprecise” contractual clauses. In other words, it did not allow Ciaam to have “broad knowledge of the content of the contract”.
According to the judge, it would be necessary to prove the relationship between the increase and the “intensification of accidents” — especially in comparison with previous years — and provide the opportunity for “negotiating discussions in this regard”.
To the extent that the increase is made in an imposing and unilateral manner, without space for full communication to the consumer, there is also a violation of the duty of information and transparency”, noted the judge.
Given the lack of clarity in the operator’s calculation, Bierhalz applied the adjustments foreseen by the National Supplementary Health Agency (ANS) for individual or family plans.
The sentence also ordered the defendant to pay a fine of 2% of the value of the case for litigation in bad faith, due to repeated non-compliance with a previous injunction.
Lawyers worked on the case Rodrigo Diegues Cruz It is José Carlos Cruz.
Click here to read the decision
Process 1002875-85.2023.8.26.0529
Tags: Judge reduces readjustment arbitration chambers collective health plan
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