Judges prohibit reimbursement request on behalf of patient – 05/28/2023 – Cotidiano

Health plans have obtained in court the right to deny reimbursement of medical consultations, exams and other procedures performed by unaccredited clinics and laboratories that use the patients’ login and password to request reimbursements from operators.

According to court proceedings, the establishments make advertisements and promise the patient treatment at no cost in exchange for a credit assignment, that is, a contract is made in which the beneficiary transfers his rights to the reimbursement to the clinic.

With false payment receipts and possession of the user’s access data, they ask for refunds in his name. When the amount falls into the beneficiary’s account, they issue bank slips or request the transfer of the amount through bank transfer.

When the operator denies reimbursement, the clinics also file complaints with the ANS (National Supplementary Health Agency) on behalf of the beneficiaries, which can generate fines for the plans. Finally, if they cannot get reimbursed, they require the patient to pay.

The practice, considered fraudulent, already occurred before the Covid pandemic, but spread after the health crisis. In addition to lawsuits, there are ongoing police investigations and a mobilization of the business sector to curb it, since many plans are offered by companies.

Last month, CCR (Companhia de Concessões Rodoviárias) fired 100 employees after detecting, in an internal investigation, the misuse of the plan’s reimbursement. Also in April, Itaú laid off 80 employees for the same reason.

“We’ve always had fraud, but before, they were occasional, of opportunity. With the digital age and the popularization of the use of applications, they became professional. They are real gangs acting”, says Cássio Alves, medical superintendent of Abramge (Associação Brasileira de Planos of health).

There is no survey of the volume involved in these fraudulent refunds. Many cases are still being investigated by operators, in police investigations and by the Public Ministry.

According to data from Fenasaúde (National Supplementary Health Federation), which represents large groups of health insurers, from 2019 to 2022 the total volume spent by operators with reimbursements jumped from R$ 6 billion to R$ 11.4 billion, a 90% increase.

In the same period, the increase in assistance expenses with payment of doctors, clinics, laboratories, hospitals, suppliers of materials and medicines was 20% (from R$ 171.8 billion to R$ 206.5 billion).

At Abramge, the total volume of reimbursements increased from R$ 6 billion in 2019 to R$ 10.9 billion in 2022. Just by way of illustration, if last year these reimbursements had accompanied the general variation in assistance expenses, the expenses would have been R$ 7.2 billion, according to the entity. “It is in these R$ 3.7 billion that fraud is located”, estimates Alves.

In the decisions, judges have authorized operators to deny reimbursements that come unaccompanied by proof of payment of expenses by beneficiaries and determined that ANS suspend any punishments to plans for this reason.

Assisted reimbursement is not provided for in the plan law, therefore, the issue is not regulated by the ANS. However, the agency has been discussing with the supplementary sector ways to prevent the legitimate consumer complaint mechanism against a plan (the NIP, Notification of Preliminary Intermediation) from being used by fraudsters.

In the lawsuits, the laboratories and clinics accused argue, in their defense, that consumers transfer the right to credit in their favor and that this would be a service that adds value to the service, bringing convenience, by reducing bureaucracy in the operators’ reimbursement system . The judges, however, have dismissed these appeals.

A Sheet had access to four decisions handed down in São Paulo this year. In them, there is a determination for clinics and laboratories to refrain from asking for login and password from the beneficiary or requesting reimbursement on their behalf, under penalty of a fine of up to R$ 50,000 per act of non-compliance.

“[Os estabelecimentos] engendered a true architecture to circumvent the reimbursement system and what is authorized to be reimbursed in contracts, harming consumers and distorting freedom of choice and free competition”, says an excerpt from a decision of May 8, by judge Clarissa Rodrigues Alves , of the 4th Civil Court of São Paulo.

In another decision, when granting urgent relief to an operator, Judge Carlos Eduardo Borges Fantacini, of the 26th Civil Court of the Central Court of the Judicial District of the Capital, considered the assisted reimbursement “a clear abusive and misleading advertisement”.

For him, the practice violates the Consumer Protection Code and good faith, “because in the reimbursement system, obviously, the consumer first makes the payment, and then he reimburses himself with the health insurer”.

On March 21st, Judge Andrea de Abreu, from the 10th Civil Court of the Central Court of the Capital, also justified the decision in favor of an operator, arguing that “the request for patients’ confidential data, such as login and password, puts consumers in obvious disadvantage, who end up vulnerable in the necessary secrecy of their medical data”.

According to Vera Valente, executive director of Fenasaúde, in addition to participating in a fraud and running the risk of being penalized, beneficiaries who provide login and password to third parties put their personal information at risk. “They can be used, for example, to change the bank account linked to the reimbursement or to request reimbursement for procedures not performed. It is a blank check.”

She says that there are several types of fraud, such as clinics and laboratories that, even before the patient undergoes a medical consultation, ask for the login and password and already carry out a series of tests, many unnecessary and overpriced, followed by requests for reimbursement.

In the lawsuits, requests for PSA (prostate antigen) exams, used in the screening of prostate cancer, to women are mentioned.

Another frequent situation, according to Valente, is the user performing a procedure that is not covered by the plan (application of botox or cosmetic surgery, for example) and, in agreement with the clinics, requesting reimbursement with a receipt for another type of service that it is covered. “There are many cases in which people know they are wrong. They are going to have an abdominoplasty, and the doctor states that they have an inguinal hernia.”

For Cássio Alves, from Abramge, there are patients who clearly agree with fraud and benefit from it, but there are many who are induced by them out of naivety or lack of knowledge.

In March, Fenasaúde launched the Health without Fraud campaign to make beneficiaries aware of the damage caused by fraud (which, in the end, make monthly fees more expensive) and to mobilize the sector in the fight against them. The campaign had now reached companies.

“We are going to distribute material aimed at HR on how they have to deal with these benefits and clarify their employees”, says Vera Valente.