This Wednesday (5th), the Federal Supreme Court (STF) will once again judge whether the rule established by the Statute of the Elderly — prohibiting the readjustment of health plans based on the age of users — also applies to contracts signed before the legislation came into force in 2003.
The Elderly Statute establishes that “discrimination against elderly people in health plans by charging different amounts based on age is prohibited”. The debate, however, is whether this prediction also applies to contracts prior to the law’s entry into force on December 30, 2003.
One of the cases being analyzed by the STF is an extraordinary appeal (RE), with general repercussions. This means that the process began around a specific situation, but that a thesis will be defined to be applied in all similar situations.
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The controversy
- In this trial, all votes have already been counted, with a score of seven votes to two to prevent readjustments also in plans contracted before the Statute, in cases where the person turned 60 years old after the law.
- The trial was not concluded, however, precisely to wait for the analysis of the other case, also on the same topic. It is a declaratory action of constitutionality (ADC). In this case, however, there are three votes to the contrary, to allow adjustments to old contracts.
What will be analyzed now?
- Now, both processes will be analyzed by the STF plenary this Wednesday afternoon. Although the theme is the same, the score for the two actions must be different because they include the votes of retired ministers, which continue to be valid.
The RE, for example, was reported by minister Rosa Weber, who voted to prevent the readjustment of old plans. She was accompanied by two retired ministers, Celso de Mello and Ricardo Lewandowski, and four current members of the STF: Alexandre de Moraes, Cármen Lúcia, Edson Fachin and Gilmar Mendes. Marco Aurélio Mello, who has also left the Court, was against it, and was accompanied by Dias Toffoli.
The thesis proposed by Rosa was that the prohibition of the adjustment also occurs “when entry into a different age group is subsequent to the validity of the so-called Elderly Statute (2004), even if these are previously signed health plan contracts”.
Relator
The ADC is reported by Toffoli, who was accompanied by two ministers who did not vote in the other trial: André Mendonça and Cristiano Zanin. When a retired minister has already presented his position, his successor does not vote. Mendonça takes Marco Aurélio’s place, while Zanin succeeded Lewandowski.
Gilmar Mendes followed Toffoli, but with the exception that the prohibition applies to contracts signed before the statute, but renewed afterwards.
Nunes Marques and Flávio Dino will also vote this time, who replaced, respectively, Celso de Mello and Rosa Weber.
Southern Decision
The RE was presented by a Unimed subsidiary against a decision by the Rio Grande do Sul Court of Justice (TJ-RS) which, based on the Elderly Statute, considered a monthly fee increase to be abusive. The ADC was filed by the National Confederation of General Insurance, Private Pension and Life, Supplementary Health and Capitalization Companies (CNseg) asking for the law to apply only to subsequent contracts.
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Lawyer Rachel Quintana Rua Duarte, partner at Bhering Cabral Advogados, states that there are already decisions in other instances preventing adjustments to previous contracts, but that a definition from the STF would provide more legal certainty.
— In general jurisprudence, in the STJ, even in the first instance, the understanding is that adjustments cannot be applied even to previous contracts. In practice, decisions have already been made in this regard. Now, this issue being taken to the STF will bring greater legal certainty.
Duarte explains that the statute prohibits automatic adjustment based on age, when a person reaches 60 years of age, but that elderly people end up paying higher monthly fees due to other factors, such as accident rate (an indicator that relates medical expenses, with the use of the plan, and income from monthly fees).
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— The accident rate, the use, ends up having a natural impact. So the plans of older people end up having to be readjusted. What is prohibited is this automatic change due to the change from 59 to 60, this automatic readjustment, without justification based on the accident rate.
