Legal nature of the indemnity of the private health care to the Public Health care System

Abstract

ACCORDING TO ARTICLE 32 OF LAW 9.656/1998, PRIVATE HEALTH CARE COMPANIES ARE OBLIGATED TO INDEMNIFY THE BRAZILIAN PUBLIC HEALTH CARE SYSTEM (“SUS”) WHENEVER ANY OF THEIR CLIENTS USES THE LATTER. ANALYSING THE REQUISITES NECESSARY FOR THE OCCURRENCE OF CIVIL RESPONSIBILITY, THIS PAPER DEMONSTRATES THAT THE OBLIGATION MENTIONED IN ARTICLE 32 DOES NOT POSSESS THE CHARACTERISTICS NECESSARY TO BE DEFINED AS AN INDEMNIFICATION. ON THE OTHER HAND, THE CLOSE ANALYSIS OF THAT OBLIGATION LEADS TO THE CONCLUSION THAT IT IS A TAX, MORE SPECIFICALLY CALLED “CONTRIBUIÇÃO SOCIAL”. SINCE LAW 9.656/1998 IS NOT A “LEI COMPLEMENTAR”, THIS TAX CATEGORY COULD NOT HAVE BEEN CREATED BY THIS LAW. IF THE FEDERAL CONSTITUTION OBLIGATES ALL “CONTRIBUIÇÕES SOCIAIS” TO BE CREATED THROUGH A TYPE OF LAW CALLED “COMPLEMENTARY”, AND THAT DID NOT OCCUR IN THE CASE IN QUESTION, THEN THE TAX INSTITUTED IS UNCONSTITUTIONAL. THEREFORE, PRIVATE HEALTH CARE COMPANIES ARE NOT OBLIGATED TO PAY THE PUBLIC HEALTH CARE SYSTEM ANY INDEMNIFICATIONS REGARDING PUBLIC HEALTH CARE SERVICES USED BY THEIR CLIENTS.