It is usual that service contracts entered into by
Health plans with clinics or private hospitals contain clauses with
Provision of deadline for presentation of accounts and for the delivery of invoices of
Services made by providers to the beneficiaries of the plan in question.
The argument that the contractual deadline for the presentation of hospital accounts
was breached and therefore declined the right to collect.

It turns out that the contractual structure used as a rule allows you to verify
that the presentation of the accounts for payment by the health plan is not a potestative right (powers or faculties of their holder and who do not admit any < br /> contestation), but a subjective right resulting from the very essence of the business.

This is because the presentation of accounts by the service provider does not automatically generate the right to receive the values ​​mentioned there, as it will depend on the evaluation of the health plan. That is, the right of the service provider
is not automatic and admits contestation by the health plan.

Thus, there is no way to maintain that the right to charge the amounts arising from the medical-hospital services provided is decay, but prescribed. And being prescribed the subjective right, one cannot speak of a change in the term provided by law in view of the express legal prohibition of art. 192, Civil Code, which prevails over the interests of the parties and limits the autonomy of will. If the law expressly prohibits the parties' convention on the prescription, there is no doubt that it is a public order norm.

In the case of service contracts entered into by
MEDICAL AND HOSPITAL SERVICE PROVIDERS WITH HEALTH PLANS, Little will import the wording of the clause or even if there was an express exclusion of the duty
Make the payment if the accounts are not presented on time. It is necessary to have in mind the nature of law (subjective and therefore prescribed),
preventing the rules of public order brought by applicable coding.

If there is prior authorization from the health plan, the payment negative configures violation of the principle of objective good faith and its attachments, especially the duty of “non venire against factum proprium ”. And the preview

Provision of the service (authorized) constitutes substantial compliance with the obligation, so that the exception of the contract not complied with to deny the
payment can not be used.

Possible non -compliance with the term provided for in the contract may, in the maximum, remove the arrears from the health plan. However, it cannot dismiss the right from the service provider to receive the amounts by the services actually authorized and provided, obviously after the audit procedure and, if applicable, gloss and its
Resources.

Therefore, it is concluded that it is possible to require health plans
to normally analyze the hospital accounts presented after the deadline provided for in the contract, and their payment to the exclusively technical GLOSA is subject. P>

Rafael Miele - Partner of Carpena Advogados