Brazil, Private Health Insurance and the Imminence to Come: Constructing the Small (Invisible) Print.

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Private health insurance covers health care otherwise not paid for by the local public health system, such as Australian or American health insurance. In Brazil, it also means a back-up plan for those financially able to afford amplified and – sometimes – improved therapies and treatments, a wider health network, a seemingly accelerated medical response. While the Brazilian Constitutes dictate universal coverage of public health care, SUS – Brazil’s health insurance – struggles to deliver on its constitutional promises. Ergo, the booming Brazilian market for private health insurers.

As noted by the U.S. International Trade Administration1, Brazil is the largest healthcare market in Latin America and spends 9.1% of its GDP on healthcare. Of the approximately 6,642 hospitals, 63% are private. In 2021, there were approximately 532,645 hospital beds (21,000 for COVID-19 patients only), 88,000 complementary health services, 502,000 doctors, 331,000 dentists and 89,000 pharmacies. The Brazilian private healthcare market is vast and often described as nebulous. Depending on your side of the dispute, an upcoming court hearing can brighten up the scenario or make it even murkier.

ANS, Brazil’s National Agency for Complementary Healthcare, is responsible for all regulations relating to private healthcare, including rules for merger and acquisition activities related to operators and compulsorily drugs, therapies and treatments. Covered. Specifically with regard to medical innovation, ie drugs and devices, the ANS maintains a list of items that are compulsorily insured. If the item is listed, then the private health operator must provide access and pay for it. Generally, the list is revised every two years after careful consideration of multiple applications from companies and individuals for the listing of new medical innovations. “Listing” decisions are essential in establishing (or eradicating) a market for a specific item. As products are listed in the ANS, the barriers to prescribing and/or recommending by healthcare professionals decreases, as they know that users/patients will be able to access and/or act on their medical suggestions. Conversely, unlisted items may find a more restricted market, as access will be limited to those able and/or willing to directly pay in full for it. Making the list is a goal for most health innovators. And a challenge for all.

Despite the already convoluted “listing” process, payers and plan operators have to contend with a highly controversial feature. Does the list contain fine print? Is it possible to force insurers to cover unlisted items, treatments or therapies? Is the list made up of examples of covered items or is it made up of a non-modifiable inventory of covered health items? This is the answer that STJ, ie the highest Brazilian Court (for non-constitutional matters), is expected to give on Wednesday, June 08, when the judges of the Court will meet to continue a long hearing of the affair. On the one hand, private health operators ask the STJ to decide that the list of ANS is immutable.

On the other hand, consumer associations and representatives argue that the list should provide guidance rather than limits to the SLA. Private operators claim that uncertainty about the structural dynamics of the list makes their operations both uncertain and unsustainable. Operators are challenging court rulings that have sided with individuals (and their association) and required private payers to cover unlisted items because they have interpreted the ANS list to be flexible. Furthermore, the operators claim that such a move forces them to keep raising prices and premiums, in order to meet both predictable (listed) and unpredictable (likely court-ordered) coverages.

The STJ hearing began in September 2021. At the request of a lead judge, the hearing was adjourned. The case reporter hinted that he would side with plan operators that wider, open-type coverage would be financially unsustainable. Consumer representatives state the opposite and claim2 operators (and associated profits) thrive within the existing structure. Further, consumers claim that the ANS (an executive branch agency) does not have the mandate to regulate items that can only be legislated by federal law (and congressional action).

Cold waters may find the debate heated, but the shutdown is certainly not expected. A victory for the operators can translate into adversity for medical innovation, which may have a harder time finding Brazilian beneficiaries. A victory for consumers may force operators to continue adjusting prices. As healthcare stakeholders closely monitor the discussion, one statement is final. Dullness is not an appropriate adjective for the Brazilian healthcare market.

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