Brazil’s National Agency of Supplementary Health publishes new anti-money laundering regulation

On May 2, 2022, the Brazilian National Agency of Supplementary Health (ANS) published ANS Normative Resolution No. 529/2022. The purpose of this resolution is to regulate anti-money laundering and anti-terrorism financing (AML/CTF) duties, as they are applicable to healthcare operators.

The new resolution replaces a 2005 resolution, then amended by ANS Normative Resolution No. 244/2011, and introduces some changes.  This subject was debated in the 571^st Meeting of the ANS Collegiate Board, held on April 25, 2022.

Changes to AML/CTF compliance obligations for healthcare plans

Although the new resolution results from a review and consolidation of regulations at the federal level – and not a regulatory reform – Resolution No. 529 introduces the following changes:

• Suspicious transactions should no longer be reported to the ANS but directly to Brazil’s financial intelligence unit, the Council for Financial Activity Control (Coaf);
• Record-keeping standards have been simplified. It is now mandatory to keep copies of payment of claims or other events exceeding BRL 10,000 – the regulations no longer mention a record-keeping standard influenced by the Single Table of Equivalence of Procedures (Tunep), which no longer applies.

References to proposals or transactions with “non-cooperative countries” have also been removed. Now, Resolution No. 529 determines that healthcare operators must observe indications of money laundering in proposals or transactions with the following characteristics:

Individuals or legal entities residing, domiciled or headquartered in:

• Jurisdictions that the Financial Action Task Force (FATF) considers to be of high risk or with strategic deficiencies for preventing and combating money laundering and the financing of terrorism; or
• Countries or dependencies that the Brazilian Federal Revenue Service (RFB) deems to have favored taxation, or a privileged tax regime.

Healthcare operators also must observe indications of money laundering in these jurisdictions in the context of the appointment of administrators residing in these locations, or any other financial and commercial transactions made in these jurisdictions by partners, shareholders or the management of legal entities.

These new obligations and updated criteria are effective as of June 1, 2022. Healthcare operators have 120 days from the publication date of Resolution No. 529 to comply with its new obligations and record-keeping criteria.

Registrations, transaction records and other obligations

Resolution No. 529 determines that healthcare operators must keep records of their beneficiaries and dependents (Know Your Client – KYC), representatives, brokers, partners, shareholders, management, and service providers (Know Your Partner – KYP).

Healthcare operators must also keep records of transactions amounting to or exceeding BRL 10,000 or transactions with any indication of the crimes provided for by the Anti-Money Laundering Law (Law No. 9,613/1998).

All records must be kept organized and available for the ANS for at least five years.

Healthcare operators must also develop and implement AML/CTF policies and procedures in compliance with the resolution, providing adequate training for their employees.

List of suspicious transactions and reports to Coaf

As specified above, healthcare operators must report suspicious transactions directly to Coaf, instead of the ANS — as previously provided for by ANS Normative Resolution No. 117/2005. Resolution No. 529 provides a long list of transactions and circumstances that may indicate the crimes provided for by the Anti-Money Laundering Law.

Some suspicious transactions relate to the core activities of healthcare plans, including:

• Significant increases in the volume of premiums or consideration payments without apparent cause;
• Sudden, unjustified changes in the movement of funds and types of transactions undertaken;
• Payment of brokerage commission to individuals or legal entities based on an agreement whose triggering events are not related to the respective coverage;
• Policies and agreements concerning non-existing or deceased people;
• Payment of indemnification or reimbursement with triggers unrelated to the respective coverage;
• Circumstances where claims are not compatible with the portfolio profile.

The ANS also lists circumstances related to the beneficiaries that must also be reported, including:

• Requests for early cancellation of policies or agreements and refund of cash premiums or considerations with no clear purpose;
• Hiring services provided by foreign clients without a justifiable reason;
• Proposals that are incompatible with the beneficiaries’ profile or under other-than-ordinary market conditions considering their profile; and
• Payment of high cash premiums with subsequent refund of the difference.

Finally, the resolution provides a list of the management activities that may be considered suspicious, including the acquisition of shares or capital increase per individual or legal entity without compatible financial resources.

The following transactions are also potentially suspicious:

• Financial transactions with individuals or legal entities residing, domiciled or headquartered in jurisdictions that FATF considers of high risk or with deficiencies in combating and preventing money laundering and the financing of terrorism; or
• Financial transactions in countries or dependencies that the Brazilian Federal Revenue (RFB) deems to have favored taxation or a privileged tax regime, including administrators residing in these jurisdictions.

Administrative enforcement

In the event that healthcare operators or their managers fail to comply with Resolution No. 529, they may be subject to the penalties provided for in section 12 of the Anti-Money Laundering Law, in addition to those provided for in the new ANS Normative Resolution, including warnings, fines, temporary disqualification from management positions, and the potential cancellation or suspension of the authorization to operate.

For further information, please contact Mattos Filho’s Compliance & Corporate Ethics and Life Sciences & Healthcare practice areas.