Conditions that authorize assistance coverage outside the ANS role and its proof study of decisions of the Court of Justice of the state of São Paulo

Abstract

Contextualization: In 2022, the Superior Court of Justice (STJ) defined that the list of health coverage provided by the National Health Agency (ANS) is a mitigated exhaustive list, meaning that health operators are not required to offer treatments not included in the list, except under specific conditions that justify coverage. Following this decision, Law No. 14.454/22 was enacted, reaffirming the ANS list as a reference but establishing that if certain conditions are proven, operators must provide coverage not included in the list.Problem: With the ruling of the Superior Court of Justice and the enactment of Law No. 14.454/22, it is essential to investigate the conditions that make coverage of treatments not listed in the ANS list mandatory and how these conditions are proven in legal proceedings. This issue is particularly important for the São Paulo Court of Justice (TJSP), which had already established a consolidated understanding of the illustrative nature of the list. Objective: To examine TJSP rulings regarding the conditions that authorize or make mandatory the provision of treatments and procedures not covered by the ANS list. Methods: Descriptive, qualitative research based on the collection of collegial judicial decisions and doctrine, through literature review and documentary research on the discussed topic. Results: The analyzed judgments show a tendency to grant treatments allegedly outside the ANS list, based on medical prescriptions, supported by summaries No. 96, 100, and 102 of the TJSP. Conclusion: The results indicate that a process of transition and revision of the understanding of TJSP summary 102 is underway. This adaptation is likely to strengthen as the Superior Court re-evaluates judgments that granted health coverage outside the ANS list, without considering the legal conditions of Law No. 14.454/2022. This highlights the need for a new specific study on the subject.