A obrigatoriedade do rol de procedimentos da ANS pelos planos de saúde e o advento da lei nº 14.454/2022, à luz do direito do consumidor

Abstract

In 2022, with the reversal of jurisprudence by the Brazilian’s Superior Court of Justice on the interpretation about the list of procedures from the National Health Agency (ANS) being exhaustive, there was a series of discussions in Brazilian’s society about whether this decision was fair or not, as there are a series of lawsuits in the Judiciary that managed to force health plans to pay for treatments that, even though not provided for in the ANS list, are often crucial for maintaining the lives of some people, this legal phenomenon is known as the “Judicialização da Saúde”. In one hand, defenders of strictness allude to the fact that this phenomenon in an unbridled way can lead to the end of Brazilian supplementary health, on the other hand, there are defenders of non-taxability, using the argument of the right to health as a fundamental right that must be protected by the legal system. These discussions had repercussions in the National Congress, corroborating with the advent of Bill 2033/2022, which aimed to overturn the understanding that the list of procedures of the Brazilian’s autarchy was exhaustive, listing hypotheses where the health plan would be obliged to pay for a certain treatment, if it is in accordance with the legal text of the project. So, the project became Law 14.454/2022 that regulates the situation under analysis. The present work aims at exposing the obligatoriness or not of the list of procedures of the ANS, the formation of the law 14.454 and the arguments of both sides in the development of the legislative regulation on the subject, to reach this objective, several jurisprudence were examined, opinions of scholars and the last understanding of the Federal Supreme Court when dealing with the application of the new Law 14.454/2022, all this in order to achieve the proposed objectives and discuss the problem achieved within the present work.