Law No. 13097, of January 19, 2015 (Law 13097/2015), which amended Law No. 8080 of September 19, 1990 (Law 8080/1990), allows the direct or indirect participation of foreign capital companies in the health care business in Brazil. This provision came into full force and effect as of January 20, 2015, the date of publication of Law 13097/2015 in the Official Gazette of the Union (Diário Oficial da União – DOU).
From now on, as a result of the new rules, Brazilian or foreign capital companies may hold a direct or indirect participation, including for control purposes, in the health care business in the following cases:
- donations from international agencies linked to the United Nations for technical cooperation and financing and loans entities;
- legal entities aimed at installing, operating or exploring: (a) general hospital (including philanthropist), specialized hospital, polyclinic, general practice and specialized clinic; and (b) actions and family planning surveys1;
- health services maintained, without lucrative purpose, by companies for their employees and dependents, without any burden for the social security; and
- other cases provided for in the specific legislation.
Regarding health actions and services, activities in support of health care are those developed by human genetics, production and supply of medicines and health products laboratories, as well as clinical, pathology and diagnostic imaging laboratories, and are free (i.e. without any restriction whatsoever) insofar as the direct or indirect participation of domestic or foreign capital companies is concerned2.
The previous legislation allowed foreign capital in health plan operators which in turn could acquire hospitals but hospitals could not buy other hospitals with foreign capital. The unrestricted opening of foreign capital to hospitals in Brazil corrects an asymmetry. This authorization applies to general and specialized hospitals, including philanthropic, which is the case of leading institutions in high complexity attendance, such as Sírio-Libanês and Albert Einstein, both headquartered in São Paulo.
The Brazilian Confederation of Health (Confederação Nacional de Saúde - CNS) estimates that the health sector represents 10.2% of the gross domestic product (GDP) of the country.
1 This new possibility contemplated in item (ii) was introduced by article 142 of Law 13097/2015, which approved the new wording of article 23 of Law 8080/1990. Previously, the foreign capital participation in the health care business was restricted to the hypothesis mentioned in items (i) and (iii).
2 According to the new article 53-A of Law 8080/1990 listed in article 142 of Law 13907/2015.
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