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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

antonieta.pimenta@ans.gov.br

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