Priscilla Folgosi Castanha
Lawyer at Marcos Martins Advogados
On November 24, 2011, the National Supplementary Health Agency (ANS) issued Normative Resolution No. 279, which provides for the regulation of the maintenance of the medical assistance condition for former employees dismissed or exonerated without just cause and retirees. The Resolution regulates articles 30 and 31 of Law No. 9,656, of June 3, 1998, and revokes CONSU Resolutions Nos. 20 and 21, of April 7, 1999.
However, almost four years on, the issue still raises many questions for both employers and employees. The main question is what conditions are necessary to benefit from the resolution.
The right to maintain a healthcare plan is only granted to former employees who have been dismissed or exonerated without just cause and retirees who contributed to the products referred to in item I and § 1 of article 1 of Law No. 9,656, of June 3, 1998.[1]
As a contribution, the Resolution states that:
I – contribution: any amount paid by the employee, including with a payroll deduction, to cover part or all of the pecuniary consideration of their private health care plan offered by the employer as a result of employment, with the exception of amounts related to dependents and aggregates and the co-participation or deductible paid solely and exclusively in procedures, as a moderation factor, in the use of medical or dental care services;
Even if the contribution is not being paid at the time of dismissal, dismissal without just cause or retirement, the right is guaranteed to the employee in proportion to the period or sum of the periods of their actual contribution to the private healthcare plan.
According to the rule, the provisions do not apply in the case of plans with post-established price characteristics, in the operational cost modality, since the employee’s participation is only in the payment of co-participation or deductible in procedures, as a moderation factor.
Although the Resolution is quite clear and didactic, the Judiciary has repeatedly broadened the interpretation of the expression “contribution”, on the grounds that the employer’s full funding of the medical assistance plan does not prevent the employee from benefiting from the rules, as it is a real in natura salary that is part of the remuneration.
In this regard, the São Paulo Court of Justice stated that
(….) it is irrelevant that the ex-employer bears the full cost of the plan for its employees, who, at most, would only pay a symbolic portion of the premium, since this subsidy takes on the character of an indirect salary. “ (TJSP, Appeal No. 0024447-39.2011.8.26.0011, 10th Chamber of Private Law, Rapporteur Roberto Maia, 27/11/2012).
Co-participation has also been considered an indirect salary, see the decision handed down by the same São Paulo court, which stated that
(…) the co-participation system does not cease to constitute consideration, and therefore does not detract from the requirements of article 31 of Law 9.656/98, because the appellant actually paid for more than ten years, so that he would later be entitled to maintain his health plan. Moreover, even if this were not the case, the contribution exists, since the insured received the benefit as a form of indirect salary (TJSP, Appeal No. 0025375-44.2010.8.26.0554, 4th Chamber of Private Law, Reporting Judge Teixeira Leite, August 30, 2012).
Not infrequently, the Consumer Protection Code is also invoked to broaden the interpretation of NR 279 so that the former employee or retiree’s right to maintain the health plan is not obstructed.
Unfortunately, judicial activism ends up contributing to legal uncertainty insofar as it expands and distorts ANS regulations, encouraging the filing of lawsuits questioning the denial of employers and operators.
Once this discussion has been overcome, once the legal requirements have been met, the right to maintain medical assistance will be guaranteed, under the same conditions of coverage enjoyed when the employment contract was in force, as long as the beneficiary assumes full payment.
The maintenance period will be 1/3 (one third) of the time you have contributed, with a guaranteed minimum of 6 (six) and a maximum of 24 (twenty-four) months.
Retired ex-employees who have contributed to the health insurance plan for at least 10 (ten) years are guaranteed the right to maintain their status as beneficiaries, under the same conditions of healthcare coverage that they enjoyed when the employment contract was in force. If contributions were made for a shorter period, the right to remain a beneficiary will be at the rate of one year for each year of contributions. In either case, the pensioner must pay the benefit in full.
The benefit is obligatorily extended to the employee’s entire family group and does not exclude the possibility of including a new spouse and children during the period of maintaining beneficiary status. In addition, in the event of the death of the beneficiary, the right to maintain their dependents covered by the healthcare plan is guaranteed.
The beneficiary may opt to maintain the status of beneficiary within a maximum of 30 (thirty) days, in response to the employer’s notice, to be formalized at the time of notice or notice of retirement.
The right guaranteed by the Resolution is extinguished in the following cases: (i) the expiry of the deadlines set out in the rule, (ii) the beneficiary’s admission to a new job that provides medical assistance or (iii) the cancellation of the private healthcare plan by the former employer.
Article 13 of the Resolution establishes that employers may keep beneficiaries in the same health care plan they were in at the time of dismissal or retirement or contract an exclusive health care plan for their dismissed or retired ex-employees, separate from the plan for active employees, in which case new price and adjustment conditions may be set that are different from those found in the plan contracted for active employees.
This Resolution undoubtedly consolidates and represents an advance in workers’ rights, however, it can become a burden for employers who do not implement efficient contract management with health insurance providers, resulting in an increase in the claims rate and a consequent increase in the cost of the benefit granted to active employees, as well as unwanted legal costs and attorney’s fees.
[1] Art. 1 Subject to the provisions of this Law are the legal entities governed by private law that operate health care plans, without prejudice to compliance with the specific legislation that governs their activity, adopting, for the purposes of applying the rules established herein, the following definitions:
I – Private Health Care Plan: continuous provision of services or coverage of care costs at a pre- or post-established price, for an indefinite period, with the purpose of guaranteeing, without financial limit, health care, through the faculty of access and care by health professionals or services, freely chosen, whether or not part of an accredited, contracted or referenced network, aiming at medical, hospital and dental care, to be paid in full or in part at the expense of the contracted operator, through reimbursement or direct payment to the provider, on behalf of the consumer.
§ Paragraph 1 – Any type of product, service and contract which, in addition to guaranteeing financial coverage of medical, hospital and dental care risks, has other characteristics which differentiate it from an exclusively financial activity, is subject to the rules and supervision of the National Supplementary Health Agency (ANS), such as: ( Edited by Provisional Measure No. 2.177-44, of 2001)
