Independent regulatory agency: Inadequate institutional...
Transcript of Independent regulatory agency: Inadequate institutional...
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Independent regulatory agency:
Inadequate institutional design or inefficient external control?1
Maria Antonieta Almeida Pimenta
National Agency of Supplementary Health (ANS)
Federal University of Rio de Janeiro
Paper to be presented at the Third Biennial Conference of the ECPR Standing Group
on Regulatory Governance – Regulation in the Age of Crisis
June, 17 – 19, 2010 - University College Dublin
1I would like to thank Professor Charles Pessanha for his support and incentive and Ana Cecilia Faveret, Ana Cristina Martins, Gustavo Granado, Juliana Machado and Valeria Fontelles de Lima for their comments and suggestions. All mistakes are my responsibility.
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Introduction
After its establishment in Brazil in 1996, the independent regulatory agency model has
been considered ideal by members of the Brazilian government in the task of accomplishing the
goals set by the regulatory reform, namely i) the promotion of competitiveness, ii) ensuring
consumers’ rights and the rights of public services users, iii) stimulus to private incentives, iv)
seeking quality and safe services at the least possible cost for users, v) ensuring appropriate
remuneration for investments made by service companies and vii) the prevention of economic
power abuse by public service agencies (Bresser-Pereira, 1997).
If standard features of democracy include the alternation of groups in power and, as a
result, the questioning of the political options of preceding groups it is not surprising that with the
change in government occurred in Brazil in 2003, after the same coalition had held power for eight
years, one of the first measures adopted was the establishment of an Interministerial Working
Group to analyze, discuss, and propose measures to perfect the institutional models adopted by
regulatory agencies. This model was the symbol of the former administration’s institutional
modernization, carried out in order to reestablish the governance of Brazil. The main questioning
by the recently-elected government in 2003 referred to the degree of autonomy of agencies, which
at the same time it allowed assuming the control of policies in different fields of action it also
prevented control by the Executive branch. This controversy is not a new one neither is it restricted
to Brazil.
The interministerial report which laid out the groundwork for the drafting of Law Project n.
3.337/2004, which made provisions on the administration, organization and social control of the
Regulatory Agencies and was submitted to the National Congress, contains the following
guidelines: i) the necessity of strengthening the safety of the fixed tenures of agency staff and its
non-coincidence with presidential tenures, ii) the activation and improvement of collegiate bodies
for policy definition and iii) the definition of new mechanisms of social control and Legislative
accountability (Brasil, 2003a). The report and the Law Project seek a solution to the dichotomous
dilemma usually faced by regulating agencies, namely autonomy vs. control, a subject which has
been the object of several academic studies.
The autonomy of regulatory agencies represents rather than the satisfaction of
circumstantial interests, the stability and technical criteria required for the carrying out of the
public policies established in the laws that created them at the initiative of relevant actors – the
Executive and the Legislative. The responsibility of implementing these policies in respective
fields being regulated belongs to the regulatory agencies (Aragão, 2005; Gheventer, 2005).
Discretionary powers granted to the regulator is not political in nature but rather technical and
operational, being that decisions must respect the principle of legality, as with any other public
body.
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Gheventer broadens the scope of the debate by indicating that the problem for democracy
is not autonomy in itself, but the imbalance among powers in the exercise of agency control, which
entails in the Executive’s dominance in the definition of policy guidelines (Gheventer,2005, 31). In
this sense, it is key to establish the adequate balance between regulatory agencies and the
executive, legislative, judicial, and social entities of control and definition of public policies, from
which derive the vitality and legitimacy of these bodies.
This study intends to analyze the forms of social control over a specific regulatory
agency, the National Agency of Supplementary Health (Agência Nacional de Saúde Suplmentar –
ANS), responsible for the market regulation of private health insurance plans in Brazil. The study
focuses on understanding whether this control prevents the agency from being captured either by
the market, the action of elected politicians or technical staff in the regulatory agency. The first
section provides a synthesis of the two most important forms of control over the activities of the
state: parliamentary control and social control, as well as the forms of control of the regulatory
agencies. In what follows, I present a brief description of the ANS. Lastly, I investigate the control
exercised by the Brazilian Audit Court (Tribunal de Contas da União – TCU) and by society over
the Agency in order to assess its performance.
Parliamentary Control
Classic procedural controls are based on the principles of the democratic conception of
power: the separation of powers and power as a mandate granted by the people’s sovereignty and
aim to verify whether the compliance to existing norms according to the principles of probity and
universality of government actions, the respect of citizen rights and the prevention of corruption
(Groisman e Lerner, 2006).
Anastasia (2006) indicates that, in a democratic context in which it is inevitable that
functions and services provided by the state are delegated by elected representatives to the
bureaucracy, parliamentary control represents an important counterweight to the high degree of
autonomy enjoyed by public bodies and to the possibility of being captured by private interests.
Investigations, demands for explanations, inquiries, financial, budget, accounting and asset
overseeing by other branches, institutions, and bodies responsible for the administrations of public
expenses and revenues are instruments used by parliamentary control. In several countries, the
Legislative is aided by autonomous technical bodies responsible for the permanent control of
administrative activity.
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Social control
In particular starting in the 1980s when governability and governance deficits being
experienced by several countries called for an urgent reconnection between public administration
and democracy (Bresser-Pereira, 1997; Diniz,1997; Farah, 2000; Cunnil Grau, 2006), social control
acquired greater significance in the task of ensuring that the State could satisfy the interests of
society. For Cunnil Grau (2006), social control over public administration can be summarized as
follows:
Chart 1: Social control over the public administration
Who controls
Any actor (individual and/or collective) acting according to interests that are public or susceptible of being defended as such
How control is exercised
Oversisght and reaction to actions and decisions, past (results) or future (decision-making process and policy formation). In conditions of autonomy, regardless of circumstance.
Instruments of control
Effective resources to force compliance to administrative duties, whether they are rights (veto power, elections, public deliberation, etc) or indirect (actions guaranteed juridically and administrative instruments that can be activated by a controlling and judicial institution).
Object of control
Control is exercised over both the strategic core of public administration and public services (individual/network or state/non-state), considering types of organizational structure
Source: Cunnil Grau,2006,278
As a basic condition for the exercise of social control, this author champions the
importance of the participation of society in the process of policy formulation and decision-making
through public hearings and the public exposition of policy drafts of general administrative acts,
thus constituting public arenas of deliberation. Although this model has been adopted in several
countries in Latin American countries, it is noticeable that they are restricted to local domain and
cover only certain issues. Cunnil Grau further emphasizes the importance of the citizen’s right to
free access to public information and the requirement of accountability.
Although it is not consensual, the crucial ideal underlying the term accountability assumes
that an actor A must be accountable to another actor B who has the right to demand the
accountability of A. Accountability can be translated as the relation between the one actor’s
obligation and another one’s right. So that actor B does not abuse the right to demand the
accountability of A, the process must assume the existence of operational patterns that allow for the
assessment of the performance of actor A. Only if these patterns are not followed, can actor A incur
sanctions imposed by actor B (Pessanha, 2007).
In the process of social control the availability of information is important so as to allow
citizens to acquire an understanding of reality and act appropriately. Otherwise, how can one
control what one does not understand? In this sense, three fundamental issues must be addressed:
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the availability of information for citizens, the citizen’s capacity to process the information
received, and the asymmetry of information.
Despite the efforts of governmental agencies to make available varied types of
information, often the use of language that is excessively technical and specialized. On one hand,
this kind of information impedes the comprehension and processing of this information, and, on the
other, all but makes it impossible to analyze and therefore extract abstract generalizations,
something that any one should at first glance be able to do. If the information exists and is available
yet cannot be understood or analyzed, the process of social control is compromised. Combined with
the technical nature and specificity of the language being employed and the sheer volume of
information one receives and certainly is not able to process, there is, furthermore, the issue of the
possibility of asymmetric information, which means that some actors, as a result of strategic
positions they occupy, end up having access to privileged information. Considered together, these
three factors can compromise the process of social control over the State, given the importance of
clear, understandable, and accessible information.
The participation of citizens in decision-making processes and in the effective control and
oversight of public administration has been one of the main challenges of the State, regardless of
the incumbent government. The State should strive for its implementation if not out of a utopian
sense of respect due to society, the reason of its existence, at least for the possibility of remaining
in power that abiding to transparency and control.
Control over regulatory agencies
Regulatory agency capture, either by the market, by elected politicians or even by
bureaucrats is one of the main issues approached in studies on regulation. If the institutional design
of regulatory agencies was elaborated with the aim of ensuring effectiveness and credibility within
the regulatory process, how to assure that these agencies do not deviate from their objectives?
Lodge (2004) states that the absence of transparency and accountability on the part of regulatory
agencies compromises the process of control over these agencies leaving room for potential drifts:
These involve agency drift by the regulated actor(s) through the evasion of control in the pursuit of self-interested action (potentially leading to ‘capture’ of the regulatory regime; Stigler, 1971), bureaucratic drift by regulatory and bureaucratic authorities enforcing regulation through selective or biased attention, budget – and turf – maximization strategies, and, finally, coalitional drift, where the governing coalition seeks to move beyond the policy preferences established by the enacting coalition. (Lodge,2004,126)
Its role as one of the earliest creators in the creation of the modern Regulatory State also
led the United States to become one of the pioneers in the debate on how to control regulatory
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agencies. During the 1970s the main critique was the absence of information and instruments
which would allow Congress and the Judiciary to exercise effective control over regulatory
agencies. McCubbins and Schwartz (1984), in their presentation of different types of control such
as the fire alarm and the police patrol raised the level of the debate on the issue, demonstrating that
such forms of control are exercised indirectly and in a distinct manner compared to traditional ones.
These authors associate police patrol control to systematic scrutiny and oversight, which is high in
cost and is exercised by members of the legislature in relation to any potential deviation or
opportunistic behavior on the part of the bureaucracy or in implemented policies. The fire alarm
control consists of more selective and cost-efficient oversight and focuses on identifying deviations
or opportunistic behavior usually based on accusations by congressmen. For the author the
predominance of fire alarm types of control over police patrol types created a sensation of a lack of
control, when in fact control is exercised indirectly.
Kiewiet and McCubbins (1991), inscribed within the principal-agent approach, in which
members of the legislature (the principals) delegate powers to the regulators (the agents) defined
four mechanisms that allow the Legislative to increase its control over regulatory agencies: contract
design; filtering and selection; institutional control; oversight and accountability.
Contractual design comprises the rules and commitments established so as to ensure that
the interests of principals are respected by agents, including incentives for compensation if action is
in accordance to the preference of principles and the punishments of undesirable or discrepant
behavior. Through filtering and selection, Kiewiet and McCubbins defend the possibility that
principals select agents that share their preferences and interests.
Institutional control, on its turn, encompasses veto-power and budget control. The
possibility of conceding or liberating resources for regulatory activity is a powerful tool of control
in the hands of congressmen in the Unites States, to whom belong the fundamental attributes
related to the definition and approval of several bodies within the public administration. Calvert,
McCubbins and Weingast (1989) in addition include the possibility of dismissing agents.
Finally, oversight and accountability are pointed out by commentators as fundamental
tool for the control of agents. These include the requirement that agents share information and
allow access to internal information, the possibility of audits and investigations through
parliamentary commissions and the obligatory compliance of the procedural requirements as
stipulated by the Administrative Procedures Act (APA), in 1946.
Exercising control over an agency implies costs. Thatcher (2005) emphasizes that, for
elected politicians, activating control mechanisms can signify undermining the value of the
independent regulatory agency. Furthermore, one cannot ignore the cost in terms of time,
legislative resources, acquisition of information and bargaining with political partners, all of which
are inherent to the process of agency control.
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For Lodge (2004) the rise of the so-called Regulatory State brought new momentum to the
debate on accountability and transparency in the media, public opinion, investors and interest
groups. Questions concerning who should or should not be accountable, for whom and in which
terms do these become crucial in any regulatory regime, as well as the reorganization of
governmental design, mechanisms of control, and relation between the several actors involved.
Lodge highlights that the discussions concerning accountability and transparency, which are
traditionally restricted to inputs and parliamentary mechanisms that obligate regulators to be
accountable, practically ignore broader dimensions in which the regulatory process can and must be
more transparent and accountable. For Lodge, accountability and transparency in regulatory
systems involve five distinct dimensions i) the accountability and transparency of the decision-
making process involved in the setting of rules and standards; ii) the transparency of the rules to
be followed; iii) the accountability and transparency of the activities of regulated actors; iv) the
accountability and transparency of the activities of regulating actors and v) the accountability and
transparency of so-called feedeback processes (Lodge, 2004, 128). In this way, the author expands
the analytical scope of the process of accountability and transparency within regulation and focuses
beyond the emphasis on the decision-making process by encompassing several multidimensional
relationships possible in any regulatory system. More than benefits in themselves, transparency and
accountability become instruments for the allocation and negotiation of power in society, crucially
contributing to prevent the regulating body to deviate from its set objectives.
The National Agency of Supplementary Health
Created by Law n. 9,961, on January 28, 2000, the ANS has the institutional mission to
promote the defense of public interests in the supplementary health services, regulate operators in
this area of activity – including their relation to service providers and users – and contribute to the
development of health actions in Brazil (Brasil, 2000a). The creation of the agency covered the gap
opened by the 1988 Constitution, which, despite having established that health services and actions
should be considered relevant public issues, empowering the state with right to regulate, oversee
and control these service, it did not define the specific forms of regulation of private activities in
this sector, already in place in Brazil since the 1960s. In addition to the lack of regulation, this
sector historically faced the problem of asymmetric information.
Instituted with the goal of regulating the supplementary health market in accordance to
Law 9,656/98 (currently in effect as Provisional Measure 2,177-44/01), the ANS is closely
connected to the Ministry of Health as defined by the signing of an administration contract in
which indicators for performance evaluations are stipulated. As a regulatory agency, formatted as a
special autarchy, the ANS possesses administrative, financial, technical, patrimonial, and human
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resource autonomy. With funds from both the federal budget and as also collected independently,
the agency also has a collegiate board of directors, composed by five directors appointed and
nominated by the President of the Republic, dependent upon Senate approval, with non-coinciding
tenures defined by law (Brasil, 2004). Restricted to the public policies laid out by the Constitution,
to specific sector laws and to the policies laid out by the government for the health sector, the ANS
regulates a market which displays the following characteristics:
Chart 2: The Brazilian market for private health in surance plans (as of December 2009)
Consumers of private health insurance plans with or without dental care
42,856,872
Percentage of coverage by private health insurance plans with or without dental care
21.5%
Consumers of private plans exclusively for dental care
13,213,794
Percentage of coverage by private plans exclusively for dental care
6.1%
Medical-hospital insurance companies
1,108
Dental insurance companies
408
Revenue of medical-hospital insurance companies
R$ 62,333,845,970.00
Revenue of exclusively dental insurance companies
R$ 1,275,386,063.00
Source: ANS website
Parliamentary control over the ANS
The Brazilian Federal Constitution establishes that it is the responsibility of the National
Congress to exercise control over the Union and the direct and indirect public administration bodies
with respect to legality, legitimacy, cost efficiency, the application of subventions and revenue
abdication, through accounting financial, budget, operational, and patrimonial oversight. To this
end, the National Congress can rely on the assistance provided by the Brazilian Audit Court (TCU)
which has the specific tasks of i) analyzing the annual accounts of the Presidency; ii) judging the
accounts of administrators responsible for monies, assets, and public values in the direct and
indirect administration; iii) analyzing the legality of acts admitting personnel, with the exception of
appointments for commissioned positions; iv) performing accounting, financial, budget, operational
and patrimonial audits in the administrative units of the three branches of power; v) oversight of the
accounting of supranational companies in which the Union has a stake; vi) oversight of resources
transferred by the Union to members of federation; vii) responding to inquiries by the National
Congress concerning oversight, audits, and inspections; viii) enforcing sanctions stipulated by law
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to those responsible for illegal expenses or irregular accounting; ix) determining the deadline for
compliance to law in case an illegality is identified; x) suspending the execution of the impugned
act, and communicating this decision to the Congress; xi) present representations to the branches of
power of irregularities and reported abuses (Brasil, 2005a,67-68). Furthermore, the Constitution
also stipulated that each power should possess a system for internal control. Within the Executive
power, this responsibility belongs to the Office of the Comptroller General (Controladoria Geral
da União – CGU).
The TCU is an administrative collegiate court composed by nine ministers, all of them with
life mandates. Of this total, six are appointed by Congress, while the President is responsible for
the appointing of the remaining three, who take office upon approval by the Senate. In general,
deliberations by the court are made by the Joint session or by one of the two chambers in cases
specified by the internal rules.
The TCU is ensured with the possibility of applying fines as punishment for damages
caused to public finance, in addition to fines due to i) accounts considered irregular that did not
result in debits; ii) acts practiced in infringement of legal norms or regulations that are accounting,
financial, budget, operational, patrimonial in nature; iii) illegitimate or anti-economic act of
administration resulting in unjustified damages to public treasury; iv) non-compliance within fixed
deadlines and without justified cause of inquiries or decisions of Court; v) obstruction of free
exercise of inspection and determined audits; vi) unlawful concealment of legal cases, documents
or information in inspection or audits made by the Court; and vii) reiteration of disobedience of
Court orders. In addition to the application of fines, if the absolute majority of judges of the Audit
Court consider an infraction serious, the responsible administrator can be made ineligible to occupy
any position in the Public Administration during a period of 5 to 8 years (Brasil 1992).
The range and amplitude of the activities included in dispositions, in combination with the
diversity of entities within the Brazilian Public Administration, are some of the main challenges
faced by the TCU. In relation to the control regulatory agencies, Martins et al (2005) indicate that
the TCU in addition to evaluating the activities of regulating agencies in terms of the
accomplishment of results, efficiency and effectiveness, seeks to identify and recommend practices
of regulatory administration and to create a history of regulation policies that assist in decision-
making. However, despite the creation of a specific unit for the oversight of regulation (Gomes,
2005), Martins et al (2005) identify the main causes responsible for compromising the efficient and
effective action of the TCU (Chart 3).
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Chart 3: Factors that hinder the action of the TCU in external control over regulation
Topics Causes
Acquisition and diffusion of knowledge on regulation and its control
1. Difficulty in access to information sources with respect to doctrines, theories, privatization practices, regulatory reform, and state regulation. 2. Lack of consolidated knowledge on regulatory reform and state reform, specially in the national literature. 3. Lack of systematic actions directed towards the training and specialization of a technical staff. 4. Inexistence of a model of corporate education which comprises the control of regulation.
Systemization, consolidation, and development of methods and techniques applied to the external control over regulation
1. Scarcity of methods and techniques already developed in control over regulation. 2. Need of consolidating and systematizing methods and techniques already employed by the TCU in the exercise of control over regulation. 3. Difficulty in accessing databases and information available within regulatory agencies.
Organization, management and planning of activities involved in the control over regulation
1. Absence of a clear definition of the role and extent of control of the TCU over regulating entities. 2. Need to perfect planning, organization and management model for external control over regulation 3. Uncertainty as to the ideal structure need to efficiently and effectively exercise control over regulation.
Communication strategy of the activities in the control over regulation
1. Lack of communication strategy and diffusion of control over regulatory activity which would satisfy different audiences to which information is aimed, determination and control recommendations. 2. Insufficient degree of interaction with the public involved in de-statization and regulation processes
Source: Martins et al, 2005: 35
An analysis of the actions of TCU with respect to the ANS
Between the years 2003 and 2009 the TCU proffered 13 decisions in which the ANS
figures as an affected entity. In twelve of them, the decision applied directly to the agency. In only
one (an account analysis), the entity the decision is directed at is the General Coordination of
Human Resources of the Ministry of Health (Coordenação-Geral de Recursos Humanos do
Ministério da Saúde - CGRH/MS), being that the ANS, an autarchy attached to the Ministry of
Health, is cited in the recommendations section of the decision.
Considering the nature of decisions, according to a classification made by the court itself,
one notices that between 2003 and 2009, the TCU’s range of action varied from the analysis of
public biddings and contracts made by the Agency to the presentation of accounts and responding
to inquiries made by the Congress (Chart 4).
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Chart 4: TCU decisions concerning the ANS according to nature
Nature of decision Quantity
Representation 3
Accounting analysis of bodies of the direct administration 1
Accounting analysis of bodies of the indirect administration 4
Audit report 1
Inquiry by National Congress 4
Source: chart elaborated by the author based on the analysis of decisions availale at the TCU website.
Accounting analysis
Considered one of the best instruments in the assessment of the performance of an
administrative body, the analysis of the ANS accounting is the result of a joint effort by the Office
of the Comptroller General (Controladoria Geral da União - CGU), the body responsible for
internal control within the Executive branch, and the Tribunal de Contas da União (TCU). It starts
with an audit by the CGU in the regulatory agency and the subsequent elaboration of a report
submitted to the Ministry of Health. The Ministry must then send the report to the TCU. The report
is analyzed by the technical staff of the 4th Secretariat of External Control (SECEX), a technical
unit of the TCU in charge of control over the ANS. This unit elaborates a new report submitted to a
TCU minister for judgment. After the minister elaborates a vote, the minister submits the case to
the other judges so that a decision is made containing the result of the analysis of the accounting.
Importantly, the reporting minister for each case is chosen at random, allowing for alternating
perspectives. Furthermore, the minister is free to disagree with the analysis made by the Court’s
technical unit (Chart 5).
Chart 5: Stages of the analysis of accounts procedure of the ANS by the TCU
Stage Activity
1 CGU audits the ANS
2 Drafting of audit report by the CGU
3 Audit report by the CGU is submitted to the Ministry of Health
4 Audit report by the CGU is submitted by the Ministry of Health to the TCU
5 Analysis by the 4th SECEX/TCU (Technical Unit)
6 Draft of report by the 4th SECEX/TCU based on CGU report
7 Report by the 4th SECEX/TCU to the reporting minister
8 Analysis of report and elaboration of reporting minister’s vote.
9 Cases are judged by ministers
10 Approval of joint decision on the accout analysis process
11 Decision sent to the ANS
Source: the author
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Of the 13 decision analyzed, only four refer to ANS accounting: decision numbers
918/2000, 360/2003, 771/2005 and 251/2007 (Brasil, 2000b; Brasil, 2003b; Brasil 2005b and
Brasil, 2007). The result of the judgment of the accounting for the agency’s first year of activity
(2000) is included in decision n. 918/2000 (Brasil, 2000b). The decision n. 360/2003 refers to the
accounting for the year 2001 (Brasil, 2003b). Worthwhile mentioning is the fact that decision
771/2005 refers to the accounting for the year 2003, while only two years later a decision was made
concerning the accounting for the year 2002 of the ANS, in decision n. 251/2007. Until now, all of
the ANS accounting was judged regular with caveats by the TCU, following the conclusions of the
analysis performed by the CGU (Chart 6). Accounting that did not cause damage to public
finances, yet present formal flaws are considered regular with caveats (Brasil, 1992).
Chart 6: Result of judgments in the accounting of the ANS by year of exercise according to analysis of the CGU and TCU.
Exercise CGU TCU
2000 regular with caveats regular with caveats
2001 regular with caveats regular with caveats
2002 regular with caveats regular with caveats
2003 regular with caveats regular with caveats
2004 regular with caveats under analysis
2005 regular with caveats under analysis
2006 regular with caveats under analysis
2007 fully regular under analysis
2008 fully regular under analysis
2009 under analysis under analysis
Source: the author
In 10 years, the ANS only had its accounting judged for the first four years (2000, 2001,
2002, and 2003). Since 2004, the judgment of its accounting is still underway. The fact that all
accountings were considered regular with caveats shows that the Agency has formal flaws in its
management since its creation. Such fact should have been considered a good indication that there
would be no delays in the process of analyzing the agency’s accounting which is not only an
innovative form of public management but also active in the supplementary health sector
functioning in Brazil for approximately 40 yeas without any form of regulation, until the agency’s
creation and the promulgation Law n. 9,656, on June 3, 1998.
If the premise of the process of accounting is to evaluate how the agency behaves every
year, avoiding deviations or the repetition of mistakes, the TCU, by judging accounting with
considerable delay and out of order, as in the case of the years 2002 and 2003, for which
accounting was not judged until 2007 and 2005, respectively, subverts the logic of this process,
hindering more precise oversight of the acts practices by the regulatory body. Furthermore, since
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the mandate of ANS directors is of three years, several directors still did not have their accounting
judged, despite the fact they respond to potential detected errors. Once the result of the judging
process by the TCU reaches the conclusion that the public administrator is not capacitated to fulfill
a position in the Public Administration for 5 to 8 years, the delay in the judgment of accounting
ultimately favor public administrators, since they are eligible to occupy other positions while the
court does not reach a final decision.
As the accounting process stipulates that the CGU should evaluate the compliance of
recommendation and determination of the TCU after the decision is published, the court’s tardiness
prevents verifying if the Agency acted in accordance to what was established by the external
control body, affecting the whole dynamics of the process of accounting verification.
Another fact worthwhile pointing out is the percentage of non-compliance of
recommendations, which reached 50.0% and 42.1% with respect to the determinations passed in
2003 and 2005, respectively (Chart 7)
Chart 7: Percentage of non-compliance of recommendations of the TCU by year of exercise evaluated
Decisions by TCU
Year evaluated
Percentage of recommendations not complied
decision 918/2000
2000 0.0%
decision 360/2003
2001 50.0%
decision 251/2007
2002 0.0%
decision 771/2005
2003 42.1%
Source: chart elaborated by the author based on reports by the CGU
Representation
Any citizen can approach the Audits Court and call for the annulment of the process or
decision of public bidding. Of the three decisions concerning representation cases against the ANS,
one notices that only one of them was considered unfounded by the TCU.
Decision n. 247/2003 (Brasil, 2003c) considered one of the representations partially, being
that several recommendations were passed to the ANS in order to avoid the repetition of detected
flaws. Decision n. 870/2006 (Brasil, 2006a) was considered another representation fully acceptable,
and demanded the cautionary suspension and revocation of bidding for a contract for multimedia
services, which included the shutting down of a call center.
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These two decisions refer to bidding for the service contracts based on the criteria of
“technical requirements and price,” being that the 2006 decision verified the repetition of the errors
detected in 2003.
Inquiries by the National Congress and Audit Reports
As an auxiliary body of the National Congress, responding to inquiries made by the
Chamber of Deputies of the Federal Senate are priority within the TCU, and must be executed
within 180 days.
Of the four decisions classified as inquiries by the National Congress, the two most recent
ones - decision 459/2009 and decision 1442/2009 (Brasil, 2009a ; Brasil 2009b) - refer to the
determination that operational hearings were to be held in the administrative sections of regulatory
agencies that provide services by telephone, offered to users of services regulated by the agency
with the aim of evaluating efficiency, efficacy, and effectiveness. Articles 1 and 2 of Decree n.
6.523 (July 31, 2008) established the general norms concerning Consumer Services (Serviço de
Atendimento ao Consumidor - SAC) by telephone for the providers of services regulated by the
Federal Government. Although the decree does not encompass the regulatory agencies of each
service, many of the country’s main newspapers published articles on the flaws of the regulatory
agencies in Consumer Services and motivated the audit, given that there is a high expectation that a
public body must serve as an example in terms of the quality of services provided. Decision
1442/2009 (Brasil, 2009b), extended the deadline for the audit an additional 90 days. Even so there
is still no report concerning this audit, which according to the legal deadline stipulated, should have
been concluded in the end of 2009.
The other two decisions classified as inquiries made by the National Congress - 1146/2006
(Brasil, 2006b) and 1023/2008 (Brasil, 2008) - , as well as the decision concerning the audit report
502/2009 (Brasil, 2009c), concern the rules and procedures relative to reimbursement the Sistema
Único de Saúde – SUS (Unified Health System) for expenses related to patients with health
insurance, as stipulated by article 32 of Law 9,656/98, for which the ANS is responsible (Brasil,
1998).
The identification of services that should be reimbursed by health plans follows these steps:
1. The ANS cross examines and compares the data of SUS data system concerning the
identification of users with data from the Agency’s own Information System of
Benefits (Sistema de Informações de Beneficiários - SIB).
2. After those SUS users also benefitted by health plans are identifies, the ANS excludes
the services that are not covered by contract.
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3. The ANS notifies the health plan operators regarding the amounts owed, whose values
are determined internally in the form of a table, calculated considering the values
charged by SUS and those charged by insurance operators.
The fragility of the ANS in the process of charging dues was identified by the TCU in its
decision 918/2000 (Brasil, 2000b) regarding the accounting of the Agency’s first year, when it was
determined that the ANS should improve this procedure. In a similar manner, in decision 771/2005
(Brasil, 2005b), concerning the judgment of the accounting for 2003, new recommendations were
made for the improvement of this same procedure. In a an article published in the O Estado de São
Paulo on April 21, 2010, the ex-president-director of the ANS, Fausto Pereira dos Santos admitted
that “the regulating agency was not able to adequately guarantee the functioning of SUS contracts”
the cause of his “frustration” after six years as head of the ANS. Fausto presided the agency from
December 24, 2003 and April 24, 2010. In sum, after ten years, the Agency remains ineffective at
this task.
Decision 1146/2006 (Brasil, 2006b) was motivated by an inquiry by the Commission of
Social Security and Family of the Chamber of Deputies (Comissão de Seguridade Social e Família
da Câmara dos Deputados), proposed by deputy José Aristodemo Pinotti, in which three issues
were raised: 1) an apparent conflict between the Resolution of the Collegiate Directory (Resolução
de Diretoria Colegiada – RDC) n.18 of March 30, 2000 with article 32 of Law n. 6.656/1998; ii)
problems in the definition of the emergency or urgent procedures; and iii) the lack of progress of
the ANS with respect to the definition of actuary costs of the health insurers. Of these three issues,
the second one was judged unfounded. The other two were considered favorably and were the
object of determinations passed by the TCU to the ANS. Furthermore, the ministers also
acknowledged the difficulty of controlling the regulation of the supplementary health sector,
determining that a specific training program for the court technical staff should be conducted.
Training should focus of oversight methodology of the regulatory process applicable to the ANS.
On November 19, 2007 federal deputy José Aristodemo Pinotti lodged another inquiry at
the TCU demanding that an evaluation of the compliance to the terms of decision 1146/2006 be
conducted. The analysis by the 4th SECEX revealed but small advances in the collection of
reimbursements owed to the ANS, despite changes in the methodology informed by the agency.
Considering that the sums involved were in effect due, the conclusion reached by the technical unit
concerning the inadequate form the ANS was dealing with the reimbursing procedure, and the
weakness of the instruments inhibiting the use of SUS resources for the benefit of health insurers,
the minister of the TCU approved decision 1023/2008 (Brasil, 2008) and determined an audit with
aims to evaluate the reimbursing procedure adopted by the ANS.
Held between August 25 and September 5, 2008 the audit culminated with decision
502/2009 (Brasil, 2009c). Considering that the TCU still has not judged the measures taken by the
16
ANS, the analysis of the compliance to the recommendation contained in this decision was made
based on the information presented by the Agency to the TCU. The initial responses were
submitted in June 2009, when José Leoncio Andrade Feitosa was still the Director of Sectoral
Development of the ANS, a division responsible for the SUS refunding procedure. With the
termination of his mandate on August 19, 2009, after six years in the agency, he was replaced by
Maurício Ceschin, which took office on November 11, 2009. Upon taking this position, the director
met with the TCU in December 2009 and presented a summary of the previously established
measures.
Comparing the positions taken by the two directors in relation to the eighteen
recommendations and determinations made by the TCU, it can be concluded that the directors
diverged in 44.4% of the cases. Setting aside the divergences, allowed by the autonomy they are
granted by their respective mandates, and the complexity of the subject, the percentage of non-
compliance of these recommendations reaches 44.4%, whereas the compliance rate was 16.7%
(Chart 8).
Chart 8: TCU Recommendations according to the divergent positions of the directors and status of compliance
TCU Recommendation
Position of directors Status of compliance
Divergent Coincided Complied Partially complied Not
complied 1 x x
2 x x
3 x x
4 x x
5 x x
6 x x
7 x x
8 x x
9 x x
10 x x
11 x x
12 x x
13 x x
14 x x
15 x x
16 x x
17 x x
18 x x
Total 8 10 3 7 8
Source: elaborated by the author based on decision 502/2009 and interview with the ANS Internal Audit
17
Flaws were identified in the Health Ministry’s oversight of the performance of the ANS’s
performance which had been stipulated by the Administration Contract signed by the Ministry and
the Agency. The TCU determined the that the Ministry of Health should improve the indicators
used to gauge the performance of the Agency concerning refunds, given that the audit by the TCU
concluded that “although the numbers attest the achievement of the goals established, they do not
express the reality encountered by the Court in the oversight missions conducted” (decision
502/2009, p:33).
Ten years after the agency’s creation, one notices that the procedure for SUS refunds
through the ANS still presents operational flaws, deficiencies in the prioritization of actions and
management, according to the TCU’s evaluation. In addition to the fact not all procedures are being
refunded, as stipulated by Law, the ANS still presents delays in charging for hospital stays. Old
problems such as the need to render all the ANS systems interoperable, already pointed out by the
TCU in previous evaluations, remain without a satisfactory solution, thus compromising the
administration of ANS as well as the monitoring of the Agency by control organs.
With regard to the control of the agency by the TCU, the analysis of the specific case of the
reimbursements the SUS indicates weaknesses within the Court in the performance of this task,
made evident by the recommendation of a training program in methodologies for oversight and
regulation procedures applicable to the ANS for TCU technical staff in charge of this task.
Although the legislation guarantees the TCU with the right to enforce sanctions to punish
those who damaged public finances as a result of illegitimate, anti-economic acts of administration
or acts infringing accounting, financial, budget management, and operational norms, and even
rendering ineligible for public positions for a given time, until this moment no sanctions of this
nature were applied to the ANS.
Social Control over the ANS
In the case of the regulatory agencies, social control is closely connected to a form of
control that precedes the establishment of norms and rules for the sector, through the participation
of the several actors in the decision-making process. To this end several instruments are employed
so as to allow that these actors can manifest themselves, such as the formation of councils and the
technical chambers, public consultations, and public hearings (Ferreira, 2003; Mattos, 2005).
The participation of society in the ANS decision-making process is ensured by means of
the Supplementary Health Chambers (Câmara de Saúde Suplementar - CAMSS), pursuant to the
law that created the Agency (Brasil, 2000a). In fact, the CAMSS’s existence precedes the ANS, as
it was created as a body connected to the National Council for Supplementary Health (Conselho
Nacional de Saúde Suplementar - CONSU), a collegiate that is integrated into structure of Ministry
of Health, in charge of the design of policies in the field of supplementary health..
18
After the creation of the ANS, the CAMSS became a permanent consulting body of the
regulatory agency, thereby constituting an institutionalized entity for the process of social control
and participation. With 34 members, it is composed by representatives by the government, private
health insurers, service providers and consumer’ rights defense entities, under the presidency of the
director-president of the ANS. Considering only the number of participants, an analysis of the
composition of the Chamber suggests at least apparent equilibrium in terms of forces and interests
involved (Table 1).
Table 1: Participants of the CAMSS according to interest representation
CAMSS participants according to interest
representation Quantity Percentage
Government 10 29.4 Market 13 38.2 Consumers 11 32.4 Total 34 100.0
Source: elaborated by the author based on information available at the ANS website.
However, the capacity to bring cohesiveness, articulation, and organization of health
insurers and service providers as well as the legislation which ensures the ANS with the final
decision concerning issues related to supplementary health confer the representatives of the Market
and the Government greater “power” in this game.
Although the CAMSS is not a deliberative entity, that is, it is not in charge of defining
regulation (a role played by the ANS) the practice of the Agency consisting of editing and
publishing resolutions and only informing the members of the Chamber of the resolutions passed
removes from its members the possibility of positioning or being influenced on the subjects to be
regulated, further restricting the role of this forum.
The possibility of creating technical chambers which are consultive in nature so as to
subsidy the decision of the Agency was also established by the same Law which created the ANS
(Brasil, 2000a). The employment of public consultations as an auxiliary instrument for the
decision-making process was instituted by then director of the ANS, Januário Montone, during the
10th CAMSS meeting, held on May 23, 2000: “regulation processes will be the object of public
consultations, in frequent and routinely fashion, thus constituting another instrument that ensures
transparency and participation” (ANS, 2000,4).
The data relative to the holding of technical chambers and public consultations previous
to the edition of norms show that, despite the ANS’s effort to implement these instruments, they are
seldom used. Between January 7, 200 and April 15, 2010 310 resolutions were edited and
published. Of this total, considering the relevance of the subject and its impact on the sector, 131
19
could be discussed in technical chambers and 119 could be opened to public consultations.
However, only 27 resolutions were edited after the promotion of technical chambers and 29 after
public consultations (Table 2 and Graph 1). Also important is that there are no rules or criteria
defining that resolutions will be the object of technical chambers or public consultations, being that
this decision depends on the discretionary powers of the directors. Even considering that many
times the a certain context will require more immediate action on the part of the ANS and that
therefore it should act promptly so as not compromise the functioning of the sector, the most
effective use of these instruments can confer the ANS greater legitimacy and institutional
credibility.
Table 2: Resolutions edited by the ANS according to use of social control instrument
Social Control Instruments
Resolutions edited by the ANS
Not subject Subject to but not
practiced Subject to and
practiced Total
Technical chamber 179 104 27 310 Public consultation 191 90 29 310
Source: the author elaborated based on the ANS website
Graph 1: Resolutions edited by the ANS according to holding of technical chambers and public consultations
179 191
104 90
27 29
0%10%20%30%40%50%60%70%80%90%
100%
Technical chamber Public consultation
Not subject Subject to but not practicedSubject to and practiced
Source: the author elaborated based on the ANS website
Participation implies knowledge. In this sense, another obstacle for effective social control
over the ANS is the low level of knowledge the society has of the Agency. Among those benefitted
by private health insurance, which comprises a significant portion of Brazilian civil society directly
affected by the actions of the Agency, people who would therefore have an incentive to participate
in the process of control, this level of knowledge has not varied significantly over the years if the
results of surveys conducted by the ANS in 2001, 2001, 2003, 2005, and 2006 are compared.
20
Despite differences in sampling and methodologies employed in each survey, the percentages can
be considered rather low, taking into consideration the universe of consumers of private health
insurance plans (Charts 9 and 10).
Chart 9: Percentage of private health plan consumers with knowledge of the ANS
Year Percentage
2001 21.0 % 2002 17.0 % 2003 14.7 % 2005 16.0 % 2006 21.0 %
Source: ANS website
Chart 10: Consumers of private health care insurance
Years Consumers of private
healthcare plans with or without dental care
Consumers of private plans exclusively for dental care
2001 31,132,361 3,234,364 2002 31,105,254 3,788,701 2003 31,771,197 4,447,374 2005 35,112,339 6,365,144 2006 36,926,726 7,531,428
Source: ANS website
Final remarks
A defining trait of the so-called Regulatory State is the adaptation to a new institutional
design for regulatory policy, traditionally an important arena of power struggles, in which the
allocation of goods and public services, a significant amount of resources and conflicting interests
which ultimately affect the relations between the State, the market, and the society come together.
Gheventer emphasizes the crucial role of institutional design in the definition of public policy, in
that it can act as an incentive for opportunistic behavior, in the form of populism, the capturing of
regulation or other special interests, as well as favor courses of action that converge with public
interest (Gheventer, 2005,83)
Established in Brazil in 1996, the independent regulatory agency model is currently the
subject of a law project which aims for its improvement. If the institutional design of the regulatory
agencies was formulated by the previous government in order to guarantee the effectiveness and
credibility of the regulatory process by means of the ensuring the autonomy this model requires for
agencies, the solution proposed by the current government consists of strengthening the process of
control, especially parliamentary and social control.
21
To get to know and truly understand how certain processes are carried out is the first step
in order to improve them. In this sense, the analysis of social and parliamentary control over the
National Agency of Supplementary Health, some specificities cannot be neglected, such as: i) the
fact the private health insurance market has been in place for almost 40 years without being
submitted to any form of regulation, which did not start until 1998 with the promulgation of Law n.
9.656/98; ii) the low level of information on this sector available; all the instruments and
mechanisms for the dissemination of information on and organization of this sector were
established with the beginning of regulation in 1998 and the creation of the ANS in 2000; iii) the
innovation that the agency model symbolizes for public administration in Brazil; and iv) the
incipient tradition in Brazil in the practice of control over the state.
In the case of control exercised by the TCU, the diversity of bodies within the Brazilian
public administration and the broad scope of activities stipulated are from the onset one of main
challenges to be overcome. With respect to the regulatory agencies the difficulties faced also
comprise the acquisition and diffusion of information on regulation and forms of control over it;
the systematization, consolidation, management and planning of control activities. Despite the
efforts of the Audits Court (TCU) to adapt to the new requirements of the Brazilian State as a
regulator, which includes the creation of a specific unit for the control of regulatory agents, there is
a deficit in terms of enforcements in this sector. In the specific case of the ANS, the lack of
promptness in judging of the TCU compromises closer oversight of the actions of the regulatory
body, opening up room for operational flaws in the management of the Agency. Old problems such
as the need to render ANS systems interoperable were not solved, compromising both the
administration process of the ANS as well as the monitoring of the Agency’s actions through
control bodies. Until this moment, despite flaws identified by the court, no sanctions have been
applied to the ANS.
In the case of social control over the ANS, although the CAMSS is the entity
institutionally equipped to perform such task, the participation of several actors in the decision-
making process of the Agency has been enlightening for all parties involved, even those who, for
several reasons, can be considered the strongest links in this chain. And if the uniquely consultative
nature of the Chamber represents a limiting factor in terms of social control, the task to organize
effectively belongs to the actors such as to pressure the government to make it deliberative.
Historically, it has become clear that there is no change without the mobilization and pressure of
those who feel “less favored” within any process.
Another important challenge to be faced is the low level of knowledge of consumers of
private health insurance plans concerning the ANS. In this regard, one can identify a deficit in
terms of the actions of the regulatory agency. Although through its trajectory the agency has
22
demonstrated its concern in increasing transparency of its actions by instituting mechanisms of
participation and control, such as technical chambers and public consultations, use of these
mechanisms is still quite low compared to the edition of resolutions that regulate the sector.
Furthermore, there are no explicit rules or criteria for the definition as to when technical chambers
or public consultations will take place. Both still depend on the whims of the director’s
discretionary power. Even considering that often immediate action is required from the Agency in
order to preserve the sector’s functioning, the effective use of these instruments is crucial in order
to ensure the Agency’s legitimacy and credibility.
The analysis of parliamentary and social control over the National Agency For
Supplementary Health demonstrates that there is still a long way to go. More than modifying the
institutional design of the agency, it is necessary to improve the practice of control over the State,
breaking with Brazil’s lack of tradition in this practice.
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Website ANS: www.ans.gov.br
Website TCU: www.tcu.gov.br