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Partner

Ana Cândida Sammarco

Ana Cândida Sammarco
55 11 3147 7699 ana.sammarco@mattosfilho.com.br São Paulo – Paulista

Areas of expertise

Experience

Leading our Life Sciences & Healthcare practice, Ana, works with various Brazilian government agencies, notably the National Health Surveillance Agency (Anvisa) and the National Supplementary Health Agency (ANS). She counsels and litigates on behalf of domestic and foreign clients on regulatory, transactional and contractual matters. Ana previously practiced at the New York office of Linklaters LLP, and is part of the São Paulo Bar Association’s (OAB-SP) Special Committee on Health Law and Special Committee on Medical and Health Law.

Education

Bachelor of Laws – Universidade Presbiteriana Mackenzie;

Master of Laws (LL.M.) – University of Miami, EUA;

Extension course in Business Negotiaion – Harvard Law School, Cambridge;

Extension course in Business Law – Escola de Formação da Sociedade Brasileira de Direito Público (SBDP).

Recognitions

Análise Advocacia 500 – Regulatory (2019-2021), Chemical & Petrochemical (2019-2021), São Paulo (2019-2021), Commerce (2021)

Análise Advocacia Mulher – Regulatory (2019-2021), Chemical & Petrochemical (2019-2021), São Paulo (2019-2021), Contracts (2021), Competition (2021), Health Insurance (2021), Agriculture & Livestock (2021) Commercial (2021) Health Plans (2021)

The Legal 500 – Next Generation Partner, Life Sciences (2021-2022)

Leaders League – Life Sciences (2019-2021)

Who’s Who Legal Global – Healthcare (2020-2021), Life Sciences – Regulatory (2022)

Who’s Who Legal Brazil – Life Sciences (2021)

Chambers Brazil (formerly Chambers Latin America): Life Sciences (2021), Healthcare: Regulatory (2021)

Único. The Mattos Filho news portal

Authored publications

Mattos Filho in the media

With Ana Cândida Sammarco

The Brazilian government authorizes pension plans and healthcare companies to directly access the reinsurance market

On March 9, 2020, the National Council of Private Insurance (Conselho Nacional de Seguros Privados – “CNSP”) published the Resolution No. 330, dated March 4, 2020 (“Resolution No. 380/2020”), amending Resolution No. 168, dated December 17, 2007. Among the changes introduced by Resolution 380/2020, open-end pension plan entities (“OPPE”) were deemed equivalent to insurers, whereas closed-end pension plan entities (“CPPE”) and healthcare management operators (“HMO”) were deemed equivalent to ceding companies, for purposes of contracting reinsurance coverage.

Therefore, as from April 1, 2020, all existing and future OPPEs, CPPEs and HMOs will be able to cede/transfer the risks inherent to their respective portfolios directly to reinsurers, without having to take out insurance coverage (for the abovementioned risks) from an insurer.

We highlight below some comments related to the interpretation of the definition of ‘cedant’, which has been the object of debate since the dismantling of the Brazilian reinsurance monopoly.

Before the enactment of Resolution No. 380/2020, the definition of ‘cedant’ was very restrictive, only allowing insurers to contract reinsurance coverage and reinsurers to transfer the risks of their respective portfolios in retrocession. Only cooperative associations authorized to operate insurance were deemed equivalent to insurers for purposes of contracting reinsurance coverage. In light of the new regulation, as from April 1, 2020 the list of cedants will also encompass OPPEs, CPPEs and HMOs, to the extent they are now deemed equivalent to insurers.

Although the Resolution was recently published, the debate regarding the subject matter of the abovementioned regulation is not new. The possibility of allowing open-end/closed-end pension plan entities and HMOs to contract reinsurance coverage directly from reinsurers has been thoroughly discussed since the opening of the Brazilian reinsurance market, when Supplementary Law No. 126, dated January 15, 2007 (“Supplementary Law No. 126/2007”), was enacted.

The reason for this debate arises from the fact that Supplementary Law No. 109, dated May 29, 2001 (“Supplementary Law No. 109/2001”) and Law No. 9,656, dated June 3, 1998 (“Law No. 9.565/1998”), both of which regulate private pension and private healthcare systems, respectively, already authorized their regulated entities to contract reinsurance coverage[1] directly from reinsurers.

After Supplementary Law No. 126/2007 was published, there were many debates regarding the broadness of the definition of ‘cedant’ arguing that it should encompass OPPEs, CPPEs and HMOs, since the Legislative Explanatory Memorandum (Exposição de Motivos Legislativo) of said law had as one of its main goals the alignment of the Brazilian reinsurance system with international practices.

With the enactment of Resolution No. 380/2020 this issue now settled. According to the Federal Public Prosecutor’s Office, which has assessed the lawfulness of said resolution, all the aforementioned laws are supplementary and must be interpreted systematically. Therefore, it concluded that the contracting of reinsurance directly by such entities is possible (and legally foreseen) – reason why they are equalized to ‘cedants’ in this kind of operation, in all aspects.

Having an understanding different than the one shared by the Federal Public Prosecutor’s Office (i.e. that the contracting of reinsurance coverage by OPPEs, CPPEs and HMOs is only possible via insurers), means granting insurers a mere intermediation role – which could not be accepted due to the exclusive corporate purpose of these entities, which cannot encompass intermediation activities.

Hence, in alignment with the Legislative Explanatory Memorandum of Supplementary Law No. 126/2007, CNSP clarified that the rule it recently enacted is part of an agenda to improve Brazilian reinsurance regulation. As set forth by CNSP upon the approval of Resolution No. 380/2020, the objective is to foster the growth of competition and encourage product diversification.

Notwithstanding the above, the rules which grant local reinsurers exclusivity in reinsuring risks related to portfolios of private pension plans, as well as those which set forth risk cession limitations which every cedant must comply with (including first offer/preemptive rights of local reinsurers), are still in full force and effect. Resolution No. 380/2020 is also consistent with Resolution No. 363, dated October 11, 2018, that permits the acceptance of foreign risks by such reinsurers, as long as the related ‘cedant’ is authorized to contract reinsurance or retrocession by the appropriate governmental authority/regulator of its respective jurisdiction.

Authority to inspect the regulated entities addressed herein is also maintained, i.e. the Brazilian Private Pension Authority (PREVIC) and the National Agency For Supplementary Health (ANS) continue to have oversight regarding CPPEs and HMOs, respectively. SUSEP’s role regarding these entities is limited to inspecting the reinsurance transactions per se.

It is possible that new and specific rules regarding the subject matter of the resolution addressed herein will be issued jointly by PREVIC, ANS and SUSEP. However, Resolution No. 380/2020 has already presented itself as an important business opportunity for the market.

We will closely monitor any developments of this subject and report related news.  

[1] In private healthcare system, on June 23, 2009, the Brazilian healthcare regulator made available in its website a note, stating that only the HMO incorporated as insurers would be authorized to contract reinsurance directly (Available in: http://www.ans.gov.br/a-ans/sala-de-noticias-ans/a-ans/1073-resseguro-na-saude-suplementar).

ANVISA publishes new Resolution on Cannabis-based Products

​The Brazilian National Health Agency (“ANVISA“) published the Collegiate Board of Directors Resolution No. 327/2019, which sets forth the procedures for granting marketing authorizations, as well as the requirements for the manufacturing, sale, prescription, dispensing, monitoring and inspection of Cannabis Products for medicinal purposes. 

See the Resolution highlights and download the report.

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