By law, companies can unilaterally suspend or terminate health insurance contracts in case of non-payment of the monthly fee for 60 days, consecutive or not, in a period of 12 months.
The agency also said that “it is studying to allow operators to have more freedom to move resources that today are reserved for other purposes or for exceptional situations”.
The measures under analysis involve approximately R $ 15 billion and include a reduction in the capital requirement and the release of authorization for the movement of guarantee assets. The goal is to facilitate investment in expanding beds and outpatient units to patients with coronavirus.
On March 19, the MPF (Federal Public Prosecutor’s Office) issued an official letter to the ANS for health plans to adopt measures to ensure the provision of services to policyholders who are in default due to the crisis caused by the coronavirus pandemic.
The author of the document, the Deputy Attorney General of the Republic Luiz Augusto Santos Lima, stated in his letter that “the maintenance of medical coverage, at such a sensitive moment in national public health, is totally aligned with the efforts undertaken by medical and economic authorities, aiming at minimize the impact of the pandemic in Brazil “.
FenaSaúde (National Federation of Supplementary Health) did not respond until the publication of this report.
Changes can be voluntary
Lawyer Boris Bruno, a professor of consumer law at Universidade Presbiteriana Mackenzie, said that, even if there is no determination to guarantee coverage to policyholders during the crisis, health plan operators themselves can voluntarily take steps to do so.
This is because, according to the expert, the legislation does not oblige service providers to suspend or cancel contracts. The text simply authorizes companies to take this type of action after the mentioned deadline. “That is, in a case like this, attending to defaulting consumers is a decision of the company itself”, he explains.
In Bruno’s opinion, companies that choose to increase the default tolerance period or take other emergency measures can obtain competitive advantages in relation to the competition, since, in addition to retaining the customer, they tend to strengthen their image in the face of the market.
Government can intervene
The lawyer adds that the federal government can also intervene in this situation. For that, Planalto would have to create an MP (provisional measure) with the new determinations.
According to the Congress’ bylaws, MPs are valid for 60 days and may be extended for an equal period. After that period, they may or may not be converted into ordinary laws, depending on the understanding of the parliamentarians who consider the matter.
Professor Carlos Eduardo Manfredini Hapner, a specialist in consumer law and a professor at UFPR (Federal University of Paraná), points out that the government can also take even more drastic measures, especially after the state of public calamity came into force in Brazil.
The bill that recognizes the situation of public calamity in the country due to the coronavirus pandemic was approved by the Senate on Friday (20) and is already in effect.
According to Hapner, the state of calamity allows the State (in its three spheres of government) to appropriate private assets in the public interest. That is, in cases of extreme need, private hospital beds may have to be used by patients who do not have health plans. In situations like this, there is the subsequent payment of indemnity by the government.
“Pandemics are equivalent to moments of war or extreme public need and justify the intervention of the State to guarantee or try to reduce the negative effects of all this,” says Hapner.
Consumer Protection Code can be triggered
For Harpner, policyholders who are eventually disqualified from their health insurance plans for default caused by the effects of the coronavirus can turn to consumer protection agencies.
He cites item I of article 6 of the CDC (Consumer Protection Code) as justification, which classifies as a basic right “the protection of life, health and safety against the risks caused by practices in the supply of products and services considered dangerous or harmful. “.
“The refusal to attend can be considered criminal if, in this dramatic moment, the company refuses to provide services for default,” he adds. Article 56 of the CDC imposes sanctions ranging from fines to revocation of activity licenses for companies that commit crimes against consumer relations.
According to Harpner, those who feel injured in situations like this may seek, at first, the municipal and state units of Procon and, later, the Judiciary.