Group health plans lose 6 in every 10 lawsuits due to abusive adjustments, says FGV

According to the research, the São Paulo Court of Justice generally uses the adjustment index applied by the National Supplementary Health Agency (ANS) to individual and family plans in its reviews. This year, the adjustment of these plans was 6.9%, while collective plans had an average increase of 14%.

The legislation that regulates collective plans provides that the price is defined by free negotiation between the parties. However, Daniel Wang, professor at FGV Direito SP and one of the authors of the study, points out that the court decisions indicate a distrust of the Judiciary in relation to this negotiation.

“In 60% of the cases in our sample, the adjustment ended up being reviewed by the TJ-SP, with the argument that the way the calculation was made is not transparent or is not properly substantiated”, says Wang to Estadão/Broadcast. The academic assesses that although the rate is high, it is lower than the success rate of actions in which users litigate against operators due to denial of coverage.

Wang assesses that, although he cannot confirm whether free negotiation is the ideal model, he indicates that the majority of judicial decisions in the research suggest that the Judiciary questions whether this format, applied to readjustments in collective plans, leads to a fair price.

Currently, there are three regulation models for readjustment. In individual and family plans, the adjustment follows the ANS index. For collective plans with less than 30 lives, operators must group all their contracts with less than 30 lives by category (without hospitalization, with hospitalization without obstetrics, and with hospitalization with obstetrics) and apply the same adjustment percentage to all contracts of a cluster. For collective plans, free negotiation prevails between the contracting legal entity and the operator.

The judiciary’s expectation is that in the case of collective plans covering 30 lives or more, the regulation is based on the assumption that the asymmetry of information and power between the contracting legal entities is lower and, therefore, market mechanisms would lead to a lower price. “fair”.