Cost-sharing in a health insurance plan: the clause is valid both in cases where it stipulates a fixed amount and in contracts that establish a percentage of the cost of the procedure.
With this understanding, the Third Panel of the Superior Court of Justice (STJ) granted the appeal of a health insurance operator from Rio Grande do Sul, holding as legitimate the contractual clause that established cost-sharing of 20% for chemotherapy treatment.
Justice Nancy Andrighi recalled that the Health Insurance Plans Law (LPS) is explicit as to the possibility of cost-sharing, which may have a fixed amount or be a percentage of the cost of the treatment.
Cost-sharing, according to Nancy, is a way of making cheaper health insurance plans possible for the consumer, who is aware of the possible charges when choosing this modality.
“It is quite true that those who choose the option with cost-sharing spend less on the monthly fee, compared to a traditional plan, and must be aware that they will bear, in accordance with the health insurance contract chosen, part of the payment in case of use of the coverage,” she said.
Consumer Protection Code – The justice said that the Court of Justice of Rio Grande do Sul judged the case based on item IV of article 51 of the Consumer Protection Code (CDC) and considered the cost-sharing clause abusive, among other reasons, because it does not establish a fixed amount to be paid. According to the court, the clause would be harmful to the consumer.
Justice Nancy stated that the case law of the STJ holds that the CDC does not preclude the application of the rule set out in the LPS. According to her, the contractual clause of cost-sharing is not abusive, even when a fixed amount to be paid by the client is not specified. The magistrate recalled that in July 2017 the STJ had already decided that the percentage of 20% is not considered abusive.
An article in Folha de S. Paulo from a few days ago shows that a plan in the cost-sharing model may turn out to be more expensive. See here.
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