Consumer News

STJ validates health plan adjustment rules by age group

1/16/2017

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This decision hampers the consumer's life, which will continue to have to 

BY IONE LUQUES

1/15/2017 4:30

Weighs in the pocket. At age 78, Ana Maria fights in court to reduce the monthly fee of R$ 4,500 from the health plan - Guito Moreto / Guito Moreto

RIO - When Justice returns from the recess, on June 23, some 1,400 lawsuits are still pending, awaiting the decision of the Superior Court of Justice (STJ) regarding the readjustment of health plans for the elderly. The final decision of the STJ, published two days before the beginning of the break of the Judiciary, on December 19, recognizes the legality of increasing tuition per age group, unless it is characterized as abusive. The sentence, experts say, does not make life easier for the 5.8 million Brazilians who use health insurance plans over 59 years old, who will have to continue to appeal to the courts if they consider that the percentages applied to the monthly payments are abusive. 

- The decision of the STJ does not leave the consumer in an advantageous situation, because, even though the increase is abusive, the user will have to file a lawsuit, only after a decision, simply to adjust the readjustment - emphasizes the sub-coordinator of the Center for Consumer Protection (Nudecon ) Of the Public Defender of Rio, Eduardo Chow.

Retired teacher, Ana Maria Gusmão, 78, disburses $ 4,500 a month with her health plan, an expense that has been weighing in her pocket. After a failed attempt in accordance with Bradesco Saúde, the teacher decided to appeal to Justice in the hope of reducing the monthly fee.

"I'm a retired from the state, and I've used the plan just to do exams. It's a top plan, I'm interested in keeping it, but it's getting harder every day. In order to change, there are requirements of lack, and it is difficult to get a good price for individual plans - says Ana Maria.

ORIENTATION FOR ALL OTHER COURTS

Ana Maria's contract predates Law 9,656 of December 1998. In spite of this, her lawyer Luciana Gouvêa points out, the operator set her up in 2005 in the new legislation for readjustment:

- The operator alleges that the readjustments would be in accordance with the current law, which does not correspond to the truth, since it is a contract prior to December 1998. Therefore, its rights must be respected in accordance with the Code of Defense of the Consumer. We were awaiting the decision of the STJ and now it remains to know the judge who handles the case.

The sentence of the STJ, explains the president of the Institutional Relations Committee of OAB-RJ, lawyer Vitor Marcelo Rodrigues, is important because it guides the judges of the lower courts. Rodrigues states that, as a result of the abusive increases in monthly health plans, hundreds of actions were distributed in State Courts in order to discuss the validity of the contractual clause that provides for this increase based on the change in the age range of the user. Some of these cases were tried and, to a degree of appeal, reached the STJ (last instance for this type of action). To avoid conflicting decisions, to speed up, to guarantee isonomy and legal certainty in the judgment of special appeals that deal with the same legal controversy, clarifies Rodrigues, the so-called Repetitive Resources were created, by Law 11,672 / 2008.

- An appeal is considered repetitive when it is identified that there is a multiplicity of remedies based on the same legal question. It is true that magistrates are not required to replicate the decision of the STJ, but the understanding of the superior court has an important role of guidance - explains Rodrigues.

System analyst Margaret Salles, 62, and husband, civil engineer Sérgio Salles, 67, who paid R $ 9,592 for the individual plans of SulAmérica, obtained a favorable preliminary injunction in the courts. With the outcome, Salles's monthly payment fell to R $ 2,680 and Margaret's R $ 3,546, a reduction of almost a third in the monthly payment of the couple with the plan.

- We, the elderly, can not be without health insurance, even because we can not count on public health. It is not luxury, but a necessity. But you can not afford to pay a fortune for the right to have decent medical care, "Margaret complains, who does not yet have the final sentence of her case.

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In fact, health spending doubles with aging, says Salomão Quadros, deputy superintendent for inflation at FGV / Ibre. While spending on health insurance and drugs represents 7% for the general population, the budget of the elderly almost doubled, 12%. In 2016, prices of health insurance for this age group were 13.2% higher. Data are from the inflation of the elderly, as measured by the FGV / Ibre Consumer Price Index of the Third Age (CPI-3i), which increased by 6.07% in 2016, slightly below the 6.29% accumulated by the IPCA .

Asked about Ana Maria's complaint, Bradesco Saúde said it did not comment on cases brought before the Judiciary. SulAmérica, the Salles operator, says that the adjustments applied are in accordance with the rules of the National Supplementary Health Agency (ANS), adding that the annual and age-adjusted readjustments affect the monthly rate, as informed to customers in the Act of contracting the plan.

In the evaluation of Claudia Silvano, president of the Brazilian Association of Procons (ProconsBrasil), the STJ's decision has the positive point of reinforcing that "unreasonable or random" percentages can not be applied that burden excessively or discriminate against the elderly:

- This is good for the beneficiary. We took contracts in which, when the person passed 60 years, the readjustment reached 70%. This caused the user to be kicked out of the plan. This is the big question.

For Solange Beatriz Palheiro Mendes, president of FenaSaúde, which represents companies in the sector, the Court's decision puts an end to the debate about the disagreement of the adjustment by age group. She adds:

- The calculation of readjustment of monthly payments takes into account, among other issues, the balance in care expenses between young and old, the so-called mutualism system.

Specialist in the right to health, lawyer Rodrigo Araújo disagrees with Solange. Araujo affirms that, in fact, what is being discussed is not whether or not the age adjustment for the elderly is allowed, but how much greater can this cost really be:

- The Statute of the Elderly, by excluding the age adjustments that were foreseen for 60 and 70 years at the time, intended to reduce the impact that the total increase of 500% between the first and last age group (allowed by the ANS) caused For the elderly. Keeping those same 500% and anticipating the last adjustment for 59 years is not protecting the elderly, but compelling him to cancel the health plan earlier because of absolute lack of condition to continue paying.

And the sentence of the STJ, says lawyer Caio Fernandes, makes clear that the adjustment by age group is valid provided there is such a provision in the contract, that the legal rules are met, that the applied rates are not inconsistent.

SPECIALIST DEFENDES BAND STRENGTH

To dilute the weight of this adjustment, the executive director of the National Association of Benefit Administrators (Anab), Luciana Silveira, defends the revision of the rules on the readjustments by age. She believes that increasing the number of bands beyond the age of 60 would be pertinent at this time when reforming Welfare and extending the minimum age for retirement to 65 years. She reminds us that the new parameter will keep the Brazilian more time in the labor market and thus in a portfolio of corporate health.

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- It is not simple to do, because it is in the law and in the Statute of the Elderly. But I believe that further dilution of readjustments would be one of the means to alleviate expenditures and thereby enable the elderly to continue to pay for their health plan. No use fighting the old man. We will all be old. What we have to do is seek a reasonable solution - he says.

Consulted, the ANS only informed the planned rules of readjustments. In the case of plans prior to Law 9.656 / 98, it is worth what is in the contract. For those subsequent to the law, annual adjustment by cost variation is foreseen, as well as by age group, for both individuals and companies.

Contributed by Daiane Costa

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