Operadoras de saúde e crianças e adolescentes com autismo: uma análise sobre a legalidade da negativa de fornecimento do tratamento de análise de comportamento aplicada

Abstract

The aim of this article is to prove the illegality of health insurance plans refusing to cover the treatment of children and adolescents with autism using the ABA method. To this end, it seeks to demonstrate that the fundamental right of children and adolescents to health is a consequence of the constitutional principles that are exclusively granted to them and ensure their full protection. It is also pointed out that the obligation of health plans to pay for treatment stems from the legislation that regulates the supplementary health service, so the inclusion of ABA treatment in the list of procedures to be covered by the referral plan provided for by Law 9.656/98 should be unrestricted. In addition to the very nature of the private healthcare plan contract, which must respect the principles of good faith and pacta sun servanda. Finally, it analyzes the case law of the Superior Court of Justice, in order to ascertain the court's understanding of the issue, and also the initiatives of the Legislative Houses with the intention of promoting innovations in legislation in order to guarantee effective health protection for children and adolescents with autism. The conclusion is that the effectiveness of comprehensive protection and best interests in the treatment of autistic children and adolescents is met with resistance, especially in the absence of legislation guaranteeing that health professionals can accompany them outside of the sector's establishments.