Direito fundamental à saúde sob o enfoque do princípio da igualdade: a questão do ressarcimento ao Estado pelas operadoras dos planos de saúde

Abstract

The work aims to verify the claim of health plans to be the State's duty to provide care in Brazil, for exemption of compensation, violates the fundamental right of access to health equally in the Brazilian Democratic State. It was used the deductive method. In the introduction, it presents the problem, its extent and the division of work into four chapters. In the first chapter, it refers to the law of health plans and the determination of compensation. They came across the discussions to include the reimbursement to the law and the current text of Article 32, in order to determine it. They highlighted the discussion at Adin 1931 on the compensation and the preliminary decision of the Supreme Court. It also refers to the arguments in favor and against the claims, contained in lawsuits, and the transgression of Article 32. The second chapter presented the evolution of the concept of equality within philosophical, contextual and social state of law, as well as stressed out equality as human and fundamental right and its function of protecting these rights. It was found that equality in a democratic state is confused with social justice and human dignity, is not a fanciful idea when it is applied to the thoughts of Ronald Dworkin, defending it as a division of responsibilities. It is not different in the Brazilian Democratic State. Thus, equality requires positive and negative actions and is not antagonistic to freedom. The third chapter presents the evolution of the concept of health considering health as a human right and essential social services, involving funding. It states, in this sense, the discussion on the possible reservation. It also states the responsibility of the State and private enterprises in relation to that right. Considering public health, it narrates the evolution, principles, and the lack of financial resources. In relation to the private health care, it narrates the late legislative regulation of it, which is done by ANS (National Health Agency), the actions of the ANS, as well as the guiding principles. It questions if there is subsidization between public and private health care. Finally, it mentions the effectiveness of health care in Brazil, mostly from private health care, such as the promotion of equality, social justice and dignity, which are also principles of economic activity. It demonstrates the problems of economic power in this sector. In the fourth chapter, it is defended the compensation, adopting existing theories in planning. There was a remark about the democratic state of law and the equality, both focused on the dignity and social justice. It names health as a fundamental social human right. It mentions the constitutionalization of private law, using the theory of application of fundamental rights in relations between individuals allied to social solidarity, social role of business and contract and to the objective good faith. Finally, it was analyzed the proportionality and reasonableness. It was concluded that, in the Brazilian state, there is a division of responsibilities between the public and private sectors, it is not merely the State's duty to provide health care and that when private health plans do not make the reimbursement to the state, because they consider it is the State’s duty of providing health care, they are hurting social justice, human dignity and undermining the equality in the provision of health.