Section 32 of the Health Plans Act (Federal Law no. 9,656/98, as amended) establishes that private health plans (commonly known as Health Maintenance Organizations or delivered by the latter to individuals enrolled with HMOs. Since its inception, such duty has raised a heated debate amongst HMOs, hospitals and other medical services providers both for its uniqueness and for creating an obligation for private entities to fund the public health sector, which claims to be universal and entirely free of charge. On a judgement session held yesterday, the STF unanimously (9 Justices voted) held that the reimbursement by HMOs to SUS was fully lawful and in line with the Brazilian Constitution. Justice Marco Aurélio Mello delivered the opinion of the court. He concluded that the healthcare services agreement obliges HMOs to pay for medical care, regardless of whether such care is provided for by private or by the public sector. He added that concluding otherwise would amount to unjust enrichment on the part of the HMOs. Justice Alexandre de Moraes further stated that people only go to the public health system when HMOs fails to fulfill its duty to deliver care.
The lawsuit challenging the constitutionality of the Health Plans Act was brought by the Health National Confederation (CNS) an entity that represents HMOs and private hospitals.
The invoicing of such reimbursement to SUS is conducted by the Supplementary Health Agency (ANS). ANS, which holds a complete database of enrollees with HMOs, cross checks data collected from de Department of Health of individuals assisted by the public health sector. ANS issues notices of charge to HMOs which must be settled within fifteen days, on pain of a 10% penalty plus interest.
Between 2001 and 2016 approximately 30% of HMOs were invoiced for reimbursements to SUS over medical care. Nevertheless, payment rates of such charges is still below 1% of the overall amount owed by HMOs under such rubric to the public health system. Just to give a sense of magnitude, only last year ANS collected approximately BRL 458 MM from HMOs in We are at your disposal if you have any questions or need additional information.
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