Learn how the Supreme Federal Court's decision on health plans can affect your treatment
- ti0957
- Sep 19
- 5 min read
The Federal Supreme Court (STF) voted on an unconstitutionality action that directly affects the procedures and technologies that health plan operators are obliged to guarantee to consumers, the so-called list of the National Supplementary Health Agency (ANS) .
The list contains over three thousand medical services, ranging from consultations to exams, surgeries, treatments, and therapies that insurance companies must cover for their users, depending on their contract type. If a procedure isn't on the list, a special request must be submitted to receive coverage.
With Thursday's decision, access to unlisted procedures may become more difficult. Below, check out five questions and answers to understand what the vote represents and how the decision could affect the lives of plan users.
What was voted on by the STF?
Yesterday, the Supreme Federal Court (STF) concluded its vote on a Direct Action of Unconstitutionality (ADI), in this case, ADI 7,265. The lawsuit challenged the constitutional adequacy of Law 14,454/2022, which amended the Health Insurance Law (Law No. 9,656/98) and recognized the minimum or exemplary nature of the list of events, procedures, and technologies that health insurance providers are required to guarantee to consumers. Prior to this, only the ANS's list was valid when deciding which coverage plan customers would have access to.
In the understanding of the majority of votes, which followed the assessment of the case's rapporteur, Justice Luis Roberto Barroso , the list is illustrative rather than exhaustive. In other words, the official list is not the only one that must be followed. Therefore, as a rule, expanding coverage within health plans is not permitted unless five cumulative requirements are met.
Barroso was joined by Justices Kassio Nunes Marques , Cristiano Zanin , André Mendonça , Luiz Fux , Dias Toffoli , and Gilmar Mendes . According to the ruling, when prompted, the Judiciary must analyze each case and consult agencies with "technical expertise" before making a decision. Verdicts cannot be based solely on a medical report. Flávio Dino , Edson Fachin , Alexandre de Moraes , and Cármen Lúcia voted to maintain only criteria already provided for by law, regulated by the ANS, and were outvoted.
What changes for health plan users?
In practice, this means that it will still be possible to obtain treatment outside the list, but the documentary and technical requirements will be strict, and will depend on a well-founded medical prescription as well as robust proof of the need and effectiveness of the treatment.
In general, the application now needs to meet five cumulative requirements:
Prescription by a doctor or dentist justifying the reason for recommending a procedure outside the list;
ANS cannot have expressly refused to include the treatment in the list, nor can there be a proposal pending analysis by the agency;
The treatment must be unique, that is, there cannot be an adequate alternative for the patient's condition authorized by the ANS;
Proof of efficacy and safety in light of evidence-based medicine, necessarily supported by “high-level scientific evidence”;
Existence of registration with Anvisa.
When the new rule comes into effect, the carrier may reject the request if it does not meet the five cumulative criteria defined by the Supreme Federal Court (STF). The initial assessment will be made by the carrier itself, which will have to verify that the request meets all these requirements.
When does the new measure come into effect?
The new rule will only take effect upon publication of the judgment minutes in the Electronic Official Gazette. In theory, the effects extend to actions that have not yet been finalized, unless the Supreme Federal Court expressly decides to modulate the effects. It also leaves open the possibility of future disputes through declaratory motions.
If a patient's treatment request is denied, they must request a detailed explanation from the health plan, which can be forwarded to the ANS for appeal, along with the complete request documentation.
What are people saying about the decision?
For two experts in supplementary healthcare regulatory law interviewed by Viva, the decision to establish objective criteria for health plans to be required to cover treatments outside the ANS list of procedures was positive.
"The decision deserves to be celebrated, as it establishes clear criteria based on scientific evidence. Furthermore, by defining the 'absence of express refusal by the ANS' as one of the requirements for authorizing the procedures, the STF reaffirms the Agency's authority to decide on the inclusion of treatments in the list, an objective fact often disregarded by the judiciary," analyzes Aline Lourenço, partner responsible for regulatory matters at Bhering Cabral Advogados.
For Rachel Quintana Rua Duarte, partner at the same firm, the STF reinforces the idea that "health is health, regardless of whether it is public or private, and must be viewed in an integrated manner," and explains: "Binding Precedents 60 and 61 already require scientific proof in the SUS, and now this same approach is extended to supplementary health."
"This is an important step towards building a unified healthcare system, designed and treated as a whole."
The Consumer Defense Institute (Idec) said the measure is negative and "cannot help but regret and be outraged by the understanding consolidated by the Constitutional Court." In a statement, it argued that, "by understanding the judicialization of health as a problem, not as a consequence of abusive practices by the providers themselves [...] the Court deepens asymmetries between users and providers and disregards data that prove that supplementary health is not experiencing a systemic crisis."
According to Igor Britto, executive director of Idec, "at the end of this trial, consumer rights were violated, because one of the few laws demanded by us, consumers, and approved by the National Congress ended up being practically revoked."
"By prioritizing the regulatory comfort of companies over the protection of life and health, the Court's position reveals a seriously damaging decision, with concrete consequences for thousands of people who depend on the supplementary health system."
Gustavo Ribeiro, CEO of the Brazilian Association of Health Plans (Abramge) , says the decision will increase legal certainty for health plan providers and help curb the growing litigation in the sector. He believes the number of lawsuits against health plan providers has been increasing over the past five years. "It's caused significant instability for the sector," he noted.
Ribeiro stated that, from 2019 to 2024, the sector's losses from fraud, waste, and lawsuits reached R$36 billion, and that with the establishment of clearer coverage parameters, these costs are expected to decrease. He added, however, that the problem isn't expected to go away completely, and that there will always be some level of such demands in the sector. "It's cultural."
How is the decision impacting the economy?
Shares of health insurance companies are rising en masse this Friday. Hapvida gained 1.68%, Qualicorp advanced 2.84%, and Rede D'Or gained 0.29%. The positive performance of the shares can be explained by the Supreme Federal Court (STF) ruling on the constitutionality of the law requiring plans to cover treatments outside the National Supplementary Health Agency (ANS) list, as long as the parameters established by the Court are met.
For Citi , the decision "may help partially reduce the current subjectivity of the ANS, since it requires coverage only when there is no therapeutic alternative in the current ANS list. For now, it appears to be a positive step towards less actuarial underwriting uncertainty." The Ibovespa is up 0.61%, at 146,387 points.