Privatized SUS – what does it mean?

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By PAULO CAPEL NARVAI*

Social Health Organizations represent an administrative kludge, a narrow-minded “pull” that cannot be a management model

“Health is not a commodity”, “No to Social Health Organizations”, “No to the privatization of SUS”, “Shoo [name of Social Health Organization]! Get out of that SUS that doesn't belong to you”. Among many others, some quite aggressive, these slogans express the positions of trade unions and popular health movements, on what they consider to be the “privatization of the SUS”.

In a previous article (State SUS – what does it mean?) I mentioned that, created as a public institution within the scope of the Brazilian State, in whose administration all federative entities (Union, DF, States and Municipalities) must participate directly, the SUS is state-owned, a condition that derives from its condition of being state property. I also pointed out that, although the 1988 Constitution, which created the SUS, determines that at the municipal level the system must be administered directly by the city halls, responsible for “commanding” the SUS at the local level, many have not been doing so, preferring to transfer management from the SUS to privately owned companies.

It is not just municipalities of small demographic or economic size that do so. Large metropolises such as São Paulo and Rio de Janeiro are also on the list of cities that have been renouncing this constitutional attribution and legal competence. These municipalities, however, do not give up the financial resources that, by legal determination, are transferred to them. By breaking the law and even the Constitution of the Republic, they violate the state character of the SUS, by transferring to private individuals not only the administration of some health services, but the management of the SUS itself.

Many mayors and health secretaries justify this option by arguing that the Fiscal Responsibility Law (LRF), Complementary Law No. 101, of 4/5/2000, sets a budget ceiling of 54% for personnel expenses. As health expenses basically result from the payment of professionals' salaries (approximately 3 out of 4 reais are used for this purpose), the mayors claim that they seek to “dribble” this restriction, which would not apply to the so-called Social Health Organizations (OSS ).

According to the Comptroller General of the Municipality of Rio de Janeiro, the city's total expenditure on personnel corresponded in 2019 to 51,97% of the current net revenue earned in the period - below the ceiling of 54%, set by the LRF. But, when adding to the 51,97% the expenditures made by the OSS that work in the city, this percentage rises to 62%. This characteristic is widespread in the country, not restricted to the capital of Rio de Janeiro. To curb fraud, a National Treasury ordinance established that, from 2021, personnel expenses made by OSS must be computed to assess compliance with the LRF. But this is just an ordinance.

In addition to the temptation to circumvent the LRF, many municipalities are attracted by the “solution” of handing over the management of the SUS to one or more OSS, as at least half do not have the capacity, in direct municipal administration, to take over the state command of the SUS. Abandoned by the state governments, and above all by the federal government, in their direct administrative role over the SUS, these municipalities easily fall into the clutches of those willing to “help them with the difficulties of managing the SUS”. The neoliberal ideology is responsible for “tying up the ends” of this strategy, as it also weighs heavily in this option of outsourcing the SUS at its municipal base, the belief that “public servants do not work” and that it is necessary “to bring public administration the efficiency of the private sector”. In summary, the ideology that everything state-owned is bad and does not work and that everything that is “private” (in fact, privately owned) is more efficient and of better quality plays a decisive role in the privatization of the SUS.

The OSS, as we know them today, began to emerge in the last decades of the 1990th century, under the inspiration of community counterparts with a long tradition, linked to the Portuguese, Arab, Italian, Israeli communities, among others. These organizations are a type of legal entity governed by private law, owned by individuals, formally non-profit. The fact of being able to hire health personnel in accordance with the Consolidation of Labor Laws (CLT) and being able to buy without public bidding, in accordance with the consolidated understanding of the Federal Court of Accounts (TCU) exercised – and continues to exercise – a great persuasive power over public authorities and opinion makers. From XNUMX, stimulated by the creation of the National Privatization Program, the OSS began to assume, at an increasing pace, the management of state health services, new and old, in certain territories, through contracts for the global provision of services, actions and procedures.

But, once the door was opened, the OSS went further, moving into many municipalities, taking over strategic areas of SUS management, and even the management of the municipal system as a whole, or part of it in large municipalities such as São Paulo, exercising a substitutive function. public bodies of direct administration. It is a flagrant illegality, widely tolerated by both the executive and the judiciary. The legislature, as we know, through the majority of its members, not only turns a blind eye to the debacle, but also tries to take all kinds of advantages, including electoral ones, from the situation.

There is an important legislative vacuum related to the subject, as there are still conflicts of interpretation of the current norms regarding what the OSS can and cannot do when assuming the management of SUS services. There are even doubts about whether, in addition to managing services, they can assume the management of the system or not, as they have been doing.

In this respect, it should be clarified that an important distinction between “management” and “management” within the scope of the SUS was made by the Basic Operational Norm of the SUS (NOB-SUS 01/96), which conceptualized “management” as a function that concerns to the “management of a health unit or body (ambulatory, hospital, institute, foundation, etc.), which is characterized as a provider of services to the SUS”. But “management”, for NOB-SUS 01/96, is much more than that, going far beyond mere management, as it corresponds to the “activity and responsibility of directing a health system (municipal, state or national) , through the exercise of functions of coordination, articulation, negotiation, planning, follow-up, control, evaluation and audit. Therefore, SUS managers are the Municipal and State Health Secretaries and the Minister of Health, who represent, respectively, the municipal, state and federal governments”.

In the governance system that has been outlined since the creation of the SUS by the Constituent Assembly, on 17/5/1988, and which had an important milestone in the enactment of federal laws 8.080 and 8.142, of 1990, which regulated it, the bipartite (states and municipalities) and tripartite (Union, states and DF and municipalities) inter-management commissions represent a relevant advance in the system's management processes. However, these interagency commissions have no administrative attribution and, therefore, do not manage health services.

On the other hand, there are still conflicts over the interpretation of norms, both legal and non-legal, regarding the functions and attributions of direct administration bodies and privately owned organizations qualified to provide health services to the SUS. Conflicts such as those that occur between the aforementioned ordinance of the National Treasury and the Judgment of the Federal Supreme Court (STF), regarding the Direct Action of Unconstitutionality (ADI) nº 1.923, of 1998. Normative collisions of this type are deserving the approval of a law to settle divergences of interpretation as to what they can and, above all, what they can not the OSS at SUS.

While recognizing the relevance of approving a law for this purpose, most members of the National Congress seem to be very busy with other issues. Federal deputy Aécio Neves (PSDB-MG), for example, a leader at the highest level, took the trouble to present a bill for the consideration of his peers in the Chamber of Deputies so that the Minas Gerais municipality of Lagoa Dourada would be declared , by means of federal law, the “National Capital of Rocambole”. In the so-called “low clergy” of the National Congress, the legislative horizon is no better.

In 1998, anticipating the aggravation of distortions that the performance of the OSS could produce in the SUS, the aforementioned ADI-1.923 was presented to the STF. On 16/5/2015, 17 years later, the Supreme Court decided that it is constitutional for public resources to be transferred to social organizations. By 7 votes to 2, the ministers understood that these companies can receive money from the public budget to “assist in the implementation of policies” in the areas in which they operate. For this, it is enough that the federative entities observe, in their relations with OSS, duly qualified, the constitutional principles of legality, impersonality, morality, publicity and efficiency for public administration actions, direct or indirect.

The decision reiterated the powers of the Public Prosecutor's Office and the TCU to oversee the application of resources transferred to the OSS. The Judgment relating to ADI nº 1.923 states that public-private relations must be governed by a “management contract” and that “since they are part of the Third Sector, they are not part of the constitutional concept of Public Administration, which is why they are not subject, in its contracts with third parties, to the duty to bid”. The bidding requirement for state purchases is the object of the Federal Law 8.666/93.

The consequences of this “administrative solution” for the SUS are well known: the systemic character of the SUS is broken at its municipal base, with an important impact on public health policies and programs, leaving the system reduced to a shapeless and contradictory cluster of organizations of private property, with different owners in different parts of the territory, from which conflicts, antagonisms and disputes of various kinds emerge. In addition, SUS matters are prohibited from community participation, one of the main, if not the main, characteristic and strength of the SUS, created by the 1988 Constitution. company”, as if they were the supermarket on the corner or a bank chain, whose owners do what they want with their companies. Such serious consequences concern only the non-police effects of the work of the OSS in the SUS, since, as is widely known, many OSS are "front companies" covering up theft of public money, money laundering and other crimes. But banditry, although very serious, is another sector and I will not deal with it in this space.

The fact is that, acting within legal frameworks, any company registered as an OSS can be qualified, in any municipality, to assume the administration of public resources of the SUS, provided that it demonstrates that it is capable of executing what is expressly signed in management contracts. Nothing prevents, therefore, that an OSS, created by who knows who, in the hypothetical Conchinchina da Serra, with 4 thousand inhabitants, assumes the management of the SUS in, for example, Sergipe. Or that an OSS from Sergipe “provides services to the SUS” in Curitiba. This means that, evidently, such OSS have nothing more to do with “social”, nor “community” and that, not even remotely, they can be equated with their historical “congeners”, which began to be created a little over a century ago, in the turn of the XNUMXth to the XNUMXth century.

Currently, a scenario is clearly configured in which companies with very different purposes coexist under the same acronym (OSS). There are those OSS created to effectively meet the social demands of communities that self-organized to deal with common problems that affected those who belonged to them, such as entities whose mission is still today to provide assistance to people with disabilities, or linked for any condition that is common to them. And there are OSS that are just “companies” disguised as non-profit social organizations. They are facade OSS, whose purpose cannot be compared with that of community OSS. If law and bureaucracy do not distinguish one from the other, ethics imposes a distinction between them.

If there is a place in the SUS for ethical and community-based OSS, whose performance must always be subordinated to public control, exercised by health councils and conferences, and by the direct participation of users of these services in matters related to the planning, execution and evaluation of actions and health programs within its scope, there should be no place, nor tolerance in the SUS, for OSS of a business nature, “front OSS”, “drawer OSS”.

There is no place, for several reasons, starting with the characteristic of health work, which must be co-managed, with the participation of public authorities in charge of managing health units, democratically defined, as well as health professionals and users of these services. The nature of health work requires co-management, as it is co-management that enables the sharing of decisions about interventions that should or should not be carried out on environments, processes, people and collectivities, so that they are effective. There is abundant literature demonstrating that, in health work processes, the effectiveness of health actions and programs, of preventive and therapeutic interventions, fundamentally depends on these interactions that co-management enables, much more than on managerial decisions or system management.

It makes a lot of difference, however, for the effectiveness of health work, the conditions under which the work is carried out. In this sense, one scenario is one in which the owner of the health facility is the public, through the State; Another, very different scenario is characterized by ownership by an individual, an OSS, which no one knows for sure why it became the “owner of the business”. When this happens – and it has been happening in droves throughout Brazil –, the public character of the SUS is inexorably lost. It should be noted, by the way, that this is illegal, as it flagrantly violates constitutional provisions and, above all, art. 197 of the 1988 Constitution, which established that health actions and services “are of public relevance” and not a private, private or exclusive matter for anyone.

However, state ownership is not enough to ensure the public nature of SUS health services, as in many situations, state institutions are captured by private interests that, in Brazil, control power and impose their will on the state, crossing it from top to bottom and making prevail, in all powers, not the public interest, but private interests.

The Brazilian State is privatized, as is often heard. Thus, the necessary deprivatization of the SUS cannot be seen, in a mechanical and uncritical way, as corresponding only to the nationalization of ownership of the network of health units that constitute it, but to its effective control, under participatory management, of the organized population. It is a huge challenge, but the complexity of the SUS requires considering this complexity, in search of a solution to the problems of our universal health system.

This article could end here, with the diagnosis of the situation and the verification of the problems arising from the privatization of the SUS (I emphasize that I am not referring to the “privatization of health”, which is equally important, but it is another topic) and the negative role of the OSS in this scenario. Closing it in this way would, however, be disappointing for the reader, as the question immediately arises of how to overcome this situation in which the presence of the OSS in the SUS has been consolidating itself as a kind of “management model” for the system, which has been harshly criticized by union leaders and social health movements.

I am among those who make these criticisms and, therefore, I feel obliged to go beyond the statement that this management model is a bad model and that, contrary to what many people think, it is not enough to “regulate the OSS” or “improve the quality of management contracts”, so that these organizations “deliver quality to users”. This conversation, supposedly technical and based on “scientific management”, does not move me – nor is it misleading. The core of the problem is, for me, the management model, which the SUS needs to move away from – without having to move away, in my opinion, from the contribution that ethical and community social organizations can make to the system, under certain conditions and public control .

If the presence of ethical OSS, managing health units, is compatible with the SUS, as demonstrated by many well-evaluated experiences in several municipalities (which makes many of them well-regarded and valued when participating in the SUS), their performance, in together, in the national context, represents a mistake, if this participation is conceived as a management model. Especially if it is accepted as a good, adequate model, which should be “deepened and developed”.

If it is possible, and even desirable in specific situations, for OSS to participate in the SUS at the municipal level of the system, the requirement for this participation not to be deformed in its purpose is that in these municipalities the SUS is effectively managed by the public administration. directly and that it exercises its legal competence to “command” the SUS within its scope. Without meeting this requirement, misstatements will be uncontrollable.

I reiterate that the exercise of the "command" of the SUS is a difficulty for many municipalities, since exercising this attribution currently requires, among other administrative competences, the integrated operation of information/data systems that are often not within the reach of these municipalities, marked by administrative precariousness. The disregard for the SUS (but not for the financial resources that reach the municipality for the SUS and which often “evaporate”, in whole or in part...) is so great that, in hundreds of municipalities, the head of the health department, in thesis, the “commander” of the SUS is someone without training in health and, often, without any training. There is no legal impediment for anyone to be appointed to the position, to the perplexity of the health professionals who are under such “command”.

But this is not considered a problem for the city hall, as the effective command of the SUS is privatized, handed over to any OSS. I am sure that facing this situation requires more than just saying no to it. Slogans such as “OSS out!”, “Health is not a commodity”, “No to the privatization of the SUS”, express an important political position of rejection of this course, but, by themselves, do not point to another course to follow , as they do not present, as a counterpoint, the institutional proposal of another management model. What model?

The management of SUS, at national and state level, cannot take place within the framework of a “management model” that is characterized by being a cluster of OSS, shapeless and without systemic character, in which each city hall makes decisions at its pleasure. about the SUS and in which improvisation and amateurism predominate. A model with this characteristic, without cooperation and solidarity among the members, and marked by the values ​​of individualism and competition, is a kind of “management pull”, an administrative kludge, narrow-minded, incompatible with the needs of the system. The SUS cannot be managed like this, as the system requires administrative support whose dimensions are compatible with its size and complexity.

OSS may be useful, under the state command of the SUS, to provide services, but they should not and cannot assume the management of the SUS, either in whole or in part, replacing some federal entity. This is the road to administrative disaster and the destruction of the SUS, one of the pillars of Brazilian Social Security.

And then what to do?

As I write this, several social segments, recognizing the “management pull” as a problem, are looking for alternatives to the “OSS management model”. They expect to contribute to tackling the problem and, through various social channels, influence decision makers, politicians, parties. This is good, because in a democratic context society must express itself and create solutions for its problems.

The conclusion that is often reached when discussing this subject is that it is necessary to create an alternative, at least one, for municipalities that, for various reasons, are unable, or do not want, to exercise command of the SUS in their territory, but they don't want to hand over their management to one or more OSS. They do not want to “privatize the SUS”. Many want to maintain command of SUS management, but do not want to manage health units or manage health personnel. Today, these municipalities have no option.

It is therefore necessary to create this alternative. Urgently.

The creation of a state-owned entity to support and develop the management of the SUS has been considered. But no one wants this entity imprisoned by the fabric and bureaucratic culture of a State politically controlled by private interests, as they recognize that more than just being a state body, this entity needs to be effectively public, controlled by the public interest so that, having a national scope, be able to make a new management model feasible for the SUS and on which the municipalities can count on to support them in their difficulties and impossibilities.

Now it is spoken (2007) in “state foundation” (a FUNDASUS?), now it is considered (2014) to create a “federal autarchy” (SUS-BRASIL), now there is talk (2015) of a “national public company” (to EMBRASUS).

Whatever the administrative modality of the state entity to be created, it is urgent to delineate it, with broad and democratic participation of Brazilian society, having as a reference what has been indicated, as a path for the SUS, by the most recent national health conferences , especially those carried out from 2003 onwards. We could call this entity, preliminarily, the Brazilian Agency for Support to SUS Management, and give it the significant acronym ABRASUS.

ABRASUS would endow the SUS with a powerful state-owned organization, which would, among other functions, assume the administration of the SUS in municipalities that do not want or cannot carry out its management in its territorial scope, or manage its health units , including professional personnel, and, necessarily under participatory management and co-management of health work, enable the administration of regional health care networks, systemically grouping sets of municipalities (or defined areas of metropolises), and the Career State of the SUS , nationwide, unique, interfederative and multidisciplinary.

Due to its size, scope and attributions, ABRASUS would make it possible to develop the SUS on other bases, but in total alignment with the constitutional principles and guidelines that define it, and reorient the management model in order to overcome the amateurism of the “management pull” represented by the cluster of OSS into which our universal health system is becoming, illegally, because without “community participation” and violating “public relevance”, both provided for in the 1988 Constitution.

And then, create ABRASUS? Or allow the SUS to follow the path of destruction that is being imposed on it by SUScides from within and outside our universal health system?

*Paulo Capel Narvai is senior professor of public health at USP.

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