Retirees may be entitled to maintain the company’s health plan; understand the rules

Workers who paid part of the company’s health plan are entitled to keep the benefit when they retire. The rule, which is in Law 9,656, of 1998, is also valid for dismissed professionals, even if they are not retired. The agreement can be extended to citizens and their families.

Lawyers specialized in health and consumer rights heard by Folha detail the benefit rules. According to experts, retirees need to be aware of their rights, comply with what the legislation determines and, if they do not have the medical insurance extended after retirement, file a lawsuit in court.

Giselle Tapai, a specialist in consumer law with a focus on health and a partner at Tapai Advogados, says that the law guarantees the maintenance of the agreement that the worker enjoyed in the company in case of dismissal without just cause or retirement, provided that the professional has contributed with part of the monthly fee.

For those who paid part of the monthly fee for more than ten years, it is possible to maintain the health plan for life, for the retiree and their dependents. Those who paid for less than ten years are entitled to the agreement for the same period in which they paid for the payment.

“That is, this right does not apply to health plans that are fully paid by the company to its employees”, she says.

José Luis Toro da Silva, president of the Brazilian Institute of Supplementary Health Law and partner at Toro Advogados, says that the payment of amounts made through co-participation does not fall under this rule. That is, the worker who contributed with the co-participation in consultations and exams will not be able to maintain the plan.

HOW TO REMAIN IN THE COMPANY’S HEALTH PLAN

To remain in the company’s plan, the retiree needs to be informed of this possibility. He has 30 days, counted from the date of the communication about his rights, to give a response to the former employer about whether or not to remain in the agreement.

“The employer must inform the right to maintenance in the company’s health plan when communicating the notice or retirement”, says the booklet of the ANS (National Agency for Supplementary Health).

According to the agency, if the retiree is not informed by the former employer about the right to remain in the health plan, he should look for the human resources area of ​​the company and the operator of the plan to seek information about his rights.

In 2022, the agency published a resolution on the subject, which also brings other determinations. According to the regulation, former employees can remain in the active employee plan or in an exclusive plan for those dismissed without just cause and retirees, as chosen by the company.

WHAT ARE THE RIGHTS OF THOSE WHO MAINTAIN THE SAME AGREEMENT:

• The retiree and/or their dependents are entitled to the same benefits of the health plan to which they were already linked before the dismissal or retirement, including the assistance network, standard of accommodation in hospital (individual or ward) and coverage, which must be offered in the same counties or states
• It will also maintain the same readjustment conditions, price, age group and moderating factor as before dismissal or retirement

WHAT ARE THE RIGHTS WHEN THERE IS AN EXCLUSIVE AGREEMENT FOR RETIRED AND DISMISSED PEOPLE:

• It is necessary to maintain the same assistance characteristics of the health plan to which the worker was linked before dismissal or retirement, including assistance network, standard of accommodation in hospitalization (individual or ward) and coverage, which must be offered in the same municipalities or states.
• There is the possibility of offering a second health plan to the former employee with the same coverage, but with a different care network and standard of hospital accommodation, and coverage in other municipalities or states. The offer of this plan is at the discretion of the employer
• Readjustment and price by age group must be different from the plan before dismissal or retirement, that is, different from what is offered to active employees

Leonardo Camiza Machado, partner at Silveiro Advogados and member of the special commission on the right to health of the OAB/RS (Order of Lawyers of Brazil in Rio Grande do Sul), recalls that, in case of impossibility of paying the agreement that the company offers to retirees, the professional can request portability in 60 days from the moment he “becomes aware of the loss of the status of beneficiary of the health plan in effect until then”.

The same rule applies to those who do not have the right to remain in their former employer’s health plan because they did not contribute to the monthly fee, according to Rafael Robba, a lawyer specializing in health law at Vilhena Silva Advogados. “He [o aposentado] you must ask for the portability of the grace period for the new plan and you do not need to fulfill the grace periods that you have already fulfilled in the original operator”, he says.

RULES AND ADJUSTMENTS WILL BE DEFINED AT THE STF AND STJ

The rules are controversial and, therefore, are under discussion in court. According to Toro da Silva, the STJ (Superior Court of Justice) debates, in Theme 1,034, which are the conditions that health plan operators must maintain for the so-called “inactive beneficiaries”.

In the STF (Federal Supreme Court) there is another action, under Theme 381, which also debates health plans for the elderly, this time with regard to the readjustment. According to Giselle Tapai, the extraordinary appeal, which has general repercussions and will apply to all processes of the type, discusses the application of the statute of the elderly in the case of agreements contracted before the effectiveness of the law, but the case is stalled.

“The discussion revolves around the possibility of health plan operators to increase monthly fees as the user’s age range changes to 60 years.”