Refusal of autism treatment is the reason for most lawsuits against health plans in SP

Most of the refusals of treatment by health plans that go to court in São Paulo are for people with autism, according to a survey carried out by Idec (Brazilian Institute for Consumer Protection) in partnership with PUC-SP (Pontifical Catholic University of São Paulo). The study collected data from January 2019 to August 2023, obtaining a figure of 40,600 lawsuits.

In 16,800 lawsuits, it was possible to determine the health condition and in 3,000 of them, the patient seeking care had Global Developmental Disorders. An estimate by PAHO (Pan American Health Organization) shows that one in every 160 people in the world has ASD.

According to the research, the increase in lawsuits caused by health insurance refusals increased during the Covid-19 pandemic, which occurred in Brazil from the first months of 2020 until April 2022, but returned to the levels recorded in previous years after that period.

Marina Magalhães, a researcher in Idec's health program, says that it is not possible to determine exactly what caused the accumulation of lawsuits against health plans. "What we can speculate is that during the pandemic period there was an increase in the number of denials," she explains, assuming that health services were focused on Covid-19 and left other patients on hold.

"Another possibility is that, during the period, there was an increase in clients associated with health plans. As there are more consumers, there are more claims that end up in court," adds Marina Magalhães.

Autism treatment

For the Idec researcher, health plans are conceived as a service that would guarantee a cure for patients, which is not possible in cases of ASD. "The autistic patient will require care for the rest of their life that is not conceived in this logic," says Marina Magalhães, adding that health insurance companies are obliged by law to provide treatment for the disorder.

The specialist clarifies that, despite the legal issues, many companies maintain that there are no accredited clinics to provide therapies, that the patient would be asking for too many therapeutic resources or that some type of procedure is not covered by the plan. "Since the approval of the so-called 'Rol Law', operators are obliged to cover treatments that are not on the list as long as they have proven efficacy."

Consumer law

Marina Magalhães explains that, since 2022, there have been significant changes in the regulation of health plans, especially after the "Rolling Law". The ANS (National Supplementary Health Agency) list is a list of consultations, exams, surgeries and treatments that operators are obliged to offer consumers.

However, according to the specialist, the recent legislation also determines the coverage of procedures that are not on the ANS list, but have proven scientific evidence, for consumers who have medical prescriptions requiring such treatments. "The patient needs to check that the denial is in accordance with the law," says Marina Magalhães.

The Idec researcher reiterates that refusals are only in accordance with the law if medicines are requested that are not registered by Anvisa (the National Health Surveillance Agency) or if there is no scientific proof of the treatment's effectiveness. "If the refusal doesn't follow these parameters, there are two possible options: file a complaint with ANS or take legal action."

Despite this, Marina Magalhães points out that a lawsuit against a health plan should only be filed after the claim has not been resolved, even after a complaint to the ANS, an administrative process in which the company must reassess the denial and justify it. "Idec does not recommend that patients go to court, because it is an expense and the consumer puts themselves at risk of losing the lawsuit," he concludes.

According to a study by FGV (Getúlio Vargas Foundation), between 2018 and 2021, 67% of court decisions in the first instance regarding mental disorders in the state of São Paulo were favorable to consumers. In relation to requests for therapy for autism treatments, 69% of consumer requests were granted by the courts.

What the operators say

In response, FenaSaúde (National Federation of Supplementary Health), which represents 13 health plans in Brazil, argued against the Idec and PUC-SP study. The organization claims that the official ANS figures suggest a contrary view to the one that operators have high refusal rates for ASD treatments.

"Between 2019 and 2022, health plans guaranteed more than 31 million speech therapy consultations, 103 million psychology consultations and another 12 million occupational therapy sessions," said FenaSaúde, adding that the increase in ASD diagnoses demands changes so that operators can adapt to the demand and supply of the care network.