The formulation of social assistance law and the legitimation of the social assistance public policy

Ariane Rego de Paiva Lenaura de Vasconcelos Costa Lobato About the authors

Abstract

This paper analyzes the decision-making process involving the formulation of Bill 3077/20081 by the Ministry of Social Development and Fight against Hunger, and its subsequent approval as Law 12.435/2011, which institutionalized the Unified Social Assistance System (SUAS). The methodology was based on bibliographic research, analysis of the minutes of the National Social Assistance Council from 2008 to 2011, and public documents from the Ministry and interviews with key stakeholders who worked at the Ministry between 2008 and 2011. The results showed that the Law aimed mainly to legitimize management practices already underway in Social Assistance and to establish legal certainty for federal managers. The decision to propose the Law highlights the relevance of “policymakers” in including issues on the public agenda.

Unified social assistance system; Decision-making process; Policy formulation

Introduction

This study aimed to analyze the decision-making process of the Executive’s formulation of Bill 3077/200811. Projeto de Lei 3077 de 2008. Câmara dos Deputados. [acessado 2013 Maio 04]. Disponível em: http://www.camara.gov.br/proposicoesWeb/fichadetramitacao?idProposicao=387873
http://www.camara.gov.br/proposicoesWeb/...
, known as PL SUAS, and its approval procedure by the House of Representatives and the Federal Senate, becoming Law 12.435/201122. Brasil. Lei nº 12.435 de 6 de Julho de 2011. Altera a Lei no 8.742, de 7 de dezembro de 1993, que dispõe sobre a organização da Assistência Social. Diário Oficial da União 2011; 7 set.. Under the new law, through the Ministry of Social Development and Fight Against Hunger (MDS), the Federal Government institutionalized the Brazilian Unified Social Assistance System (SUAS) as a decentralized and participatory social assistance system, significantly modifying the Organic Law of Social Assistance (LOAS), Law 8.742/199333. Brasil. Lei Orgânica nº 8.742, de 7 de Dezembro de 1993. Dispõe sobre a organização da Assistência Social e dá outras providências. Diário Oficial da União 1993; 8 dez..

The study is part of the field of analysis of public policies, using the theoretical references of historical neo-institutionalism and the cognitive and normative approach. Both these references are medium-range and value the role of institutions and stakeholders in the institutionalization of public policies in their socio-historical and economic context. The main argument for these approaches is that, besides the influence of national and international economic policy, a public policy is elaborated and implemented under the strong influence of the constraints imposed by institutions and their formal and informal rules, as well as interests, ideas, and strategies of the various stakeholders that participate in the decision-making process, permeated by disputes of powers and knowledge.

The study was based on qualitative research conducted through bibliographic research, documentary analysis of the Minutes of the National Social Assistance Council (between 2008 and 2011) and public documents of the MDS and interviews with key stakeholders who worked at the MDS from 2008 to 2011, during the drafting and follow-up process of the Bill in the House of Representatives and the Federal Senate. The research project was submitted to the Ethics Committee of the Fluminense Federal University/Niteroi-RJ, CEP/CONEP System, approved under opinion nº 692.118, of 06/06/2014.

The Unified Social Assistance System (SUAS) was proposed by the IV National Conference on Social Assistance in 2003 and was formalized through the 2004 National Social Assistance Policy (PNAS)44. Brasil. Resolução nº 145 de 15 de outubro de 2004. Diário Oficial da União 2004; 28 out. and the Basic Operational Standard (NOB) 200555. Brasil. Resolução nº 130, de 15 de Julho de 2005. Norma Operacional Básica do SUAS. Diário Oficial da União 2005; 16 jul. approved by resolutions of the National Social Assistance Council (CNAS). The two documents have been established as the main normative instruments, thus outlining a new format for the implementation of social assistance throughout the national territory. In 2008, the message with Bill 3077 (PL SUAS) was forwarded to the National Congress by the then Minister Patrus Ananias and President Luiz Inácio Lula da Silva, that is, when SUAS was already in full swing in the country, with approximately three years of implementation. Its approval in Law occurred in 2011, in the first term of the government of President Dilma Rousseff, who proposed to continue Lula’s government, but with its specifics and new political coalitions.

The paper points out that the definition, in Law, of an already ongoing process, responded to the need to provide legal support to the new institutional configuration of a public policy traditionally seen as a ‘second class’. A specific Law that included this new configuration was necessary to legitimize new social assistance before managers of different spheres of government, public agents, public opinion and control bodies, facilitating the necessary changes to their implementation in the public administration.

Muller and Surel66. Muller P, Surel Y. A análise das políticas públicas. 2ª ed. Pelotas: Educat; 2010. show the relevance of the legitimation stage in a decision-making process. Although it is often difficult to distinguish the stage of legitimation from the formulation stage, the latter would be termed “the activity of the choice of answers given to a political question”, whereas the legitimacy stage would designate the mechanisms that will make the government’s choices acceptable, both in legal terms and in the public opinion.

However, the outcome of a decision-making process of a public policy is never previously defined. The decision processes are complex and include different actors, many interests and ideas about problem-solving, as well as constraints imposed by institutional rules and procedures, legislation, red-tape routines and power strategies66. Muller P, Surel Y. A análise das políticas públicas. 2ª ed. Pelotas: Educat; 2010..

SUAS bill drafting context

Kingdon77. Kingdon J. Como chega a hora de uma ideia? In: Saravia E, Ferrarezi E, organizadores. Políticas Públicas. Brasília: ENAP; 2006. Coletânea Vol. 1. p. 219-223.,88. Kingdon J. Juntando as coisas. In: Saravia E, Ferrarezi E, organizadores. Políticas Públicas. Brasília: ENAP. 2006. Coletânea Vol. 1. p. 224-245. presents the following steps for the formulation of a public policy: the establishment of an agenda, the specification of alternatives (where choices are made), a final choice among the alternatives through the legislature or the President, and implementation of the decision. Its focus is on establishing the agenda and specifying alternatives, called pre-decision processes77. Kingdon J. Como chega a hora de uma ideia? In: Saravia E, Ferrarezi E, organizadores. Políticas Públicas. Brasília: ENAP; 2006. Coletânea Vol. 1. p. 219-223..

In the policy cycle, the problem is the “kickoff” for policy formulation. Not all issues or situations are seen as problems, only those that get the attention of government officials and public and private stakeholders with decision-making power. The political flow would be another explanation for whether or not a theme is on the agenda. Even with no definite problem, the pathways of politics can press an agenda: elections, interest groups, new political arrangements, and so forth. Still, in the analytical model of the author, he identified that the visible actors (who have media appeal) have a strong influence on the agenda formulation, while the invisible ones (bureaucrats, technicians, specialists, researchers, and so forth.) influence the choices of alternatives.

In order to explain how changes in the agendas emerge, Kingdon (2006b) systematizes that the flows of problems, the political game and the public policies themselves are independent of each other. They sometimes line up and there is an opportunity for a theme to enter the agenda of decisions and bring about innovations in a public policy. Kingdon88. Kingdon J. Juntando as coisas. In: Saravia E, Ferrarezi E, organizadores. Políticas Públicas. Brasília: ENAP. 2006. Coletânea Vol. 1. p. 224-245. calls this opportunity “window”, which can be open either in political flows or in the flow of problems. These “windows of opportunity” may be predictable, such as changing legislation, for example, or unpredictable, such as changing “decision-makers” because of unexpected election results. The windows do not stay open for long, and if they close, one must wait for a new opportunity. Here, policymakers find a prominent place, because they must identify these open windows to undertake policies that favor them from the solutions already formulated.

Some studies that analyze the public policy of Social Assistance from the formulation of the SUAS have shown that the institutional and normative changes occurred in 2003/2004 were strongly influenced by the electoral results of 2002, when a new composition of the stakeholders in the governmental setting was possible and in spaces of the decision-making process of the public agenda and the formulation of policies. Mendosa99. Mendosa D. Gênese da política de assistência social do governo Lula [tese]. São Paulo: Universidade de São Paulo; 2012., for example, classifies the importance of Social Workers as specific political agents, mainly professors and researchers from public universities, mostly Workers’ Party (PT) militants who held decisive positions in the Lula government and influenced agenda decisions.

It can be admitted that there was a community of specialists who had been developing alternatives for social assistance since its inclusion in Social Security, from the interpretation of legal provisions, with publications in scientific journals of their ideas, construction of concepts, elaboration of academic research that reinforced arguments for a long time and played the “softening” of politics until they were able to find the opportunity with the arrival of Minister Patrus in 2004 and the ministerial reform to put their proposals into practice and set themselves up as entrepreneurs who mobilized the necessary tools to present the Unified Social Assistance System.

Bill PL 3077/2008, or PL SUAS, has been drafted by the directors of the National Social Assistance Secretariat and its work teams to alter Law No. 8.742, of December 7, 1993, namely, the LOAS. In the message forwarded by Minister Patrus Ananias to the President of the Republic, Luiz Inácio Lula da Silva, the MDS manager explained that the decentralized and participatory system referred to in Article 6 of the LOAS would be renamed SUAS, and its services and actions would prioritize families (socio-familial joint efforts) and as a basis for organization, the territory (territorialization of actions). Also, it was in the interest of the Executive to establish the rules of public policy management, its social control, monitoring and evaluation and timely adjustments in the LOAS.

The intention was to include what was fundamental to establish the SUAS in the Organic Law of Social Assistance without, however, there being many loose-end points. This was one of the strategic actions1010. Diniz S. Interações entre os Poderes Executivo e Legislativo no Processo Decisório: Avaliando sucesso e fracasso presidencial. Revista de Ciência Sociais 2005, 48(1):333-369. of the MDS for the processing of the PL SUAS, placing in the proposal all that had already been implemented through decrees and resolutions, without including controversial issues, such as matters relating to financing, the role of CNAS or nonprofit entities. The Law’s first deadlock occurred within the MDS. There was an internal divergence in the Ministry about the need for a law to regulate SUAS. Some professionals related to the historical militancy of social assistance in the municipalities and states understood that the LOAS sanctioned in 1993 contained elements that institutionalized the SUAS, and also that the CNAS was a deliberative and legitimate body, and there was no need to change the LOAS, since the resolutions agreed in the CNAS would be in charge of regulating the SUAS, strengthening the CNAS.

The movement to establish the Law was coordinated by the Minister of Social Development through the Executive Secretariat of the MDS and the National Social Assistance Secretariat, which, as the leading managers in charge of the MDS in 2007/2008, understood that, while the argument was correct, the fact that the changes brought by the group were not made explicit in the Law hindered the work of public management, especially regarding the issue of budgeting and funding the public policy and the rendering of accounts. It was also of political interest to demarcate the SUAS as the policy of this ruling group, which contained two steps in the Social Assistance portfolio.

Besides leaving a “historical mark”, there was a need to legitimize the actions of MDS/SNAS managers in the legal framework, as they faced hardships with the supervisory bodies, so that they understood that the changes that had been made were already in place in the LOAS. Also, some municipal managers had not yet adhered to the SUAS, as it was not mandatory by law. This is the most compelling argument among those interviewed: the legal uncertainty they had regarding the implementation because the SUAS is not explicit in law.

The opportunity to present the Bill was the four-year anniversary of the MDS in 2008, which would be celebrated on March 12. The Minister and his team sought to commemorate the anniversary of the MDS by presenting milestones that established their place of relevance on the national setting: the reformulation of the MDS organizational chart to ensure its expansion and public tender to establish a bureaucratic capacity in public policy; modifications in the Law of Certificates of Charitable Social Welfare Entities (CEBAS)1111. Projeto de Lei 3021 de 2008. Câmara dos Deputados. [acessado 2013 Maio 04]. Disponível em: http://www.camara.gov.br/proposicoesWeb/fichadetramitacao?idProposicao=387129
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; the establishment of the Decentralized Management Index (IGD) of the Bolsa Família (Family Grant)1212. Brasil. Ministério do Desenvolvimento Social (MDS). Manual do Índice de Gestão Descentralizada Do Programa Bolsa Família e do Cadastro Único. Brasília: MDS; 2016. as an incentive to join the Program and improve its management; besides the PL SUAS.

The Civil House was the most critical arena in the first phase of the formulation of the bill and involved not only the MDS actors, but other Ministries for the elaboration of the project sent to Congress, especially the Ministry of Planning, which is an action-limiting body due to the need to control the government’s economic policy. If the first difficulty was to convince the MDS staff themselves about the relevance of establishing the SUAS into law, one could consider a second one, which was the negotiation between the government, that is, between the Ministries, to agree on a bill that did not entail budget expenditures. According to the 2008 CNAS minutes, MDS members expected to sanction the SUAS Law as of 2008, specifically in December, at the LOAS 15-year celebration. However, the course of politics made the other bill, namely, the Bill of Certificates of Charitable Social Welfare Entities (PL CEBAS, PL 3021/08) become a topic of many debates, which mobilized the actors of the CNAS and MDS, the House of Representatives and civil society organizations and their forums. The approval of the SUAS Law in December 2008 was not successful and was only achieved three years later.

Briefly, PL CEBAS came with the intention of changing the regulation of the Certificates of Social Welfare Entities and the procedures for the exemption from social security contributions. With the Certificate, the entities can claim exemption from all taxes, social contributions such as Social Integration Program (PIS) and Contribution for Social Security Funding (COFINS), and the employer’s contribution to Social Security1313. Brasil. Constituição da República Federativa do Brasil de 1988. Diário Oficial da União 1988; 5 out.,1414. Colin DRA. Sistema de Gestão e Financiamento da Assistência Social: transitando entre a filantropia e a política pública [tese]. Curitiba: Universidade Federal do Paraná; 2008..

This is a very dear and disputed topic in the pathway of social assistance in its relationship between the public sector and private entities1515. Sposati A. Modelo brasileiro de proteção social não contributiva: concepções fundantes. In: MDS. Concepção e gestão da proteção social não contributiva no Brasil. Brasília: MDS, UNESCO; 2009. p. 13-55.. The bill mainly aimed: a) to establish the criteria and requirements for the characterization and certification of social welfare charities; b) to remove from the National Social Assistance Council the competence for the certification of charitable entities and distribute it among the Ministries of Health, Education and Social Development and Fight against Hunger, by area of action of the requesting entity; c) to establish the requirements and the procedures so that the certified entities could enjoy exemption from social security contributions. The PL CEBAS was approved on November 27, 2009, and was enacted as Law 12.1011616. Brasil. Lei nº12.101, de 27 de Novembro de 2009. Dispõe sobre a certificação das entidades beneficentes de assistência social; regula os procedimentos de isenção de contribuições para a seguridade social. Diário Oficial da União 2009; nov 30..

Between 2008 and 2011, however, the PL SUAS mobilized CNAS and its advisers, as well as other stakeholders of the System, such as the National Forum of State Secretaries of Social Assistance (FONSEAS) and the National Association of Municipal Social Assistance Managers (CONGEMAS), mainly to press its approval in Congress. Two points were highlighted in the Legislative process: the attempt to interfere in the regulation of the Continuous Cash Benefit (BPC) and the social assistance financing situation.

The achilles heel of social policies: funding

The process of formulating the PL SUAS included a requirement by the Ministry of Planning in that the law should not create expenses. President Lula sent Message No. 119 to the National Congress with the Bill on March 12, 2008, following what is the responsibility of the President of the Republic according to Article 61 of the Federal Constitution. The PL SUAS was submitted as a priority to the National Congress on March 25, 2008. The Internal Regulations of the Federal Chamber state the following: “Art.158. Priority is the dispensation of regimental requirements for a particular proposition to be included in the Agenda of the next session, immediately after the proposals on an emergency basis.”

The PL SUAS was distributed to the Social Security and Family Commissions (CSSF); Finance and Taxation (CFT); and Constitution and Justice and Citizenship (CCJC) and processed as a proposal subject to the conclusive appreciation by the Commissions, that is, which exempts the consideration of the Plenary of the Legislative Chamber. The draft bill submitted by the MDS proposed changes in the wording of the following LOAS articles: 6, 13, 14, 15, 16, 17, 20, 22 and 36 (Article 1 of PL 3077/2008). It also proposed the addition of 4 paragraphs: 6-A, 6-B, 6-C, 6-D (Article 2 of PL 3077/2008).

In summary, the changes were distributed as follows: Article 6 nominated the decentralized and participatory system and established the federative pact by implying shared management and financing among federated entities and establishing a public-private partnership in the conduct of social assistance since it included social welfare entities and organizations, as well as participation and social control from the councils in each governmental sphere.

Articles 6a, 6b, 6c, 6d address specifically the hierarchy of social protection (primary and special) and presented the Social Assistance Reference Center (CRAS) and the Specialized Social Assistance Reference Center (CREAS) as mandatory public state facilities in the implementation of the social policy of social assistance, with attention to the need to adapt to the proposed activities and mainly with accessibility for older adults and the disabled; established the socio-welfare surveillance as part of the protection guaranteed by the social assistance policy; decided that the social assistance network is composed of the public and private network of services, which included social assistance entities and organizations and with the novelty of being linked to the SUAS, which means a new structure of operation to adapt to the norms and service standards.

Articles 13, 14 and 15 referred to the possible benefits and the responsibility for co-financing them. Articles 16 and 17 reinforced the relevance of social control levels, their deliberative role and the need to secure resources for their proper functioning.

Article 20 reduced the age of the elderly to receive the Continuous Cash Benefit (from 70 years to 65 years) and changed the concept of family for the eligibility criterion in granting the right to benefit, which translates the quest to regulate a parameter to include family members who live in the same household and who have responsibilities in the care and maintenance obligations. It should be noted that the BPC is a constitutional benefit, included in the LOAS, which provides older adults and the disabled with one monthly minimum wage, when family income has been proven insufficient (per capita income of ¼ of the minimum wage) and incapacity to work (in the case of people with disabilities).

Article 22 extended the benefits. In the LOAS, these benefits were only directed at death and birth situations and families with a per capita income of ¼ of the minimum wage, which limited the right to the extremely poor. Article 36 linked private entities to the SUAS, which implies that these entities have to observe the policy standards for the provision of social assistance services.

After being forwarded to Congress and the CNAS, the PL SUAS was subject to change. An agreement was reached between the representatives of the MDS and the Advisors of CNAS in that the latter could submit new proposals to the Representatives, which would be referred to the committees as amendments, provided they were agreed in the CNAS. The fact that Rep. Raimundo Gomes de Matos of the Brazilian Social Democracy Party of Brazil (PSDB/CE) was the PL rapporteur facilitated access and interaction between the Executive and the Legislative, as the Deputy’s interest in the sector area and his articulation as member President of the Parliamentary Front in Defense of Social Assistance. Also, other Representatives also contributed to the relationship between the Executive and the Legislative, with attention to the other Rapporteurs of the Commissions, João Dado, of the Democratic Labor Party (PDT/SP) and José Genoíno, of the Workers Party (PT/SP). Attention was drawn to the active participation of Representative Eduardo Barbosa, also of the PSDB, who contributed to the negotiations and on several occasions sent his advisory team to participate in the CNAS meetings to follow discussions.

Although they were not from the same party, even from the opposition to the ruling party, Representatives became involved in favor of the proposed Law. Eduardo Barbosa and Raimundo Matos were two Representatives who had already been social assistance managers in their states, which ensured good articulation between the Executive and Legislative actors.

The CNAS referred the specific issue of the PL SUAS to the CNAS Policy Committee to be discussed and taken to the Plenary. The members of the Policy Committee submitted their proposals to modify the PL at an ordinary meeting in August 2008 (CNAS Minute 159, August 2008)1717. Conselho Nacional de Assistência Social (CNAS). Atas de reuniões ordinárias e extraordinárias, entre 2008 e 2011. [acessado 2013 Maio 04]. Disponível: www.mds.gov.br/cnas/pautas-e-atas-cnas
www.mds.gov.br/cnas/pautas-e-atas-cnas...
. The discussion of advisors in this plenary produced a CNAS note in favor of the PL, made available on the Council’s website and sent to the Congress. The main argument used by the Committee to support the PL was the need to consolidate the management system. In the note, it explains why the advisors support the PL SUAS:

  1. Consolidation of the Unified Social Assistance System (SUAS);

  2. Strengthening of the management, monitoring, and evaluation of the Social Assistance Policy;

  3. Improving the criterion of access to the Continuous Cash Benefit (BPC).

The note was published as a strategy to collect signatures in favor of the PL SUAS, to put pressure on Congress, as there was an expectation that this bill would proceed quickly. At the CNAS, the note was approved by nine advisors, three directors abstained and two disagreed without justification. Thus, the CNAS proposed to improve the PL:

1. To include the concept of social assistance entities and organizations (it extended the original PL proposal to include the concepts and definitions about organizations that provide services or assign actions in social assistance, following the discussions already carried out by the CNAS and MDS in this matter); 2.Organization and management of the Social Assistance Policy and linkage of the entities to the SUAS (proposed a new wording to the articles that specified the management of the SUAS in the original PL, mentioning the relevance of the entities in conducting the social assistance policy and including the need to secure public resources to these entities through an agreement); 3.Inclusion of family concept for the purposes of services and benefits of the social assistance policy (this proposal was not echoed in Congress and the “focus on the family” presented in the PNAS was not included in the Law); 4. Guarantee of budgetary resources for the Social Assistance Councils (this proposal was not included in the Congress); 5.Funding and competencies of each governmental sphere (there was an initiative to establish in law the co-financing of the policy in the three spheres of government and the automatic transfer – “fund to fund” - ending the conventional procedures of financial transfers between entities. The proposals concerning the financing and the role of the federated entities influenced the elaboration of the Clean Bills presented in the CSSF, by Representative Raimundo Gomes de Matos); 6. Payment of Personnel with funds from Social Assistance Funds (this proposal was also presented as Clean Bill in the CSSF); 7. The composition of the CNAS (the advisors presented a proposal to increase representation and participation in CNAS, but was not incorporated in the Congress).

All of 2009 was a year of mobilizing the actors to pressure the Chamber to vote the PL, but despite the articulation, the approval did not occur. Although the Parliamentary Advisory Committee (ASPAR) and the MDS believed in the possibility of approving the PL SUAS in 2010, the electoral process that year indeed interfered in the procedure, that is, the situation reduced the pressure of the groups and many significant actors focused on their electoral campaigns. Subsequently, there was a period of change in the transition to a new government, which also delayed the process.

Also, the process that elected Dilma Rousseff President of the Republic was beset by political difficulties that involved corruption scandals of members of the Workers’ Party, which weakened the government at the time, which lost the strength to have its projects voted.

Some of the amendments presented by the Representatives derived from the contributions of civil society, CNAS advisors and the participation of Representatives’ advisors in meetings of the same Council, as well as the manifestation of the MDS to allied Representatives, including from other non-governmental parties. As there was a great articulation between the MDS and the Parliamentary Committee Rapporteurs, the justification for amendments was interfered with by the Ministry’s team, which, in informal rules, actively participates in the legislative process.

Amendment 17 by Rep. Eduardo Barbosa (PSDB/MG) in the Social Security and Family Commission was pointed out by one of the respondents as the main point of conflict during the proceedings of the PL in the House of Representatives early in the process. This amendment proposed to raise the per capita income for access to the BPC from ¼ of the minimum wage to ½ minimum wage, which would increase the target public and, thus, public expenditure.

At the request of the Taxation and Finance Commission (CTF), the MDS and the Institute of Applied Economic Research (IPEA) conducted a research to study the impact of this change in the budget. In 2010, BPC served 3.3 million people, with an expenditure of R$ 20.2 billion reals, while the Bolsa Família Program, with a coverage of 12.1 million families, had an estimated cost of R$ 13 billion. Also, we considered the minimum wage valorization policy, which would increase the number of beneficiaries and also the amount of the benefit, and the increased life expectancy, which forces increased spending on benefits. The use of the research was a significant argument for not accepting the change of the criterion of income for granting the BPC.

The delayed processing of the SUAS Bill provided the organized groups with a possibility to interfere in the initial proposal, with articulation between the MDS, CNAS and the House of Representatives. The initial proposal of the PL SUAS was changed by the participation of several stakeholders. The pressure from organized movements and representations at CNAS allowed the inclusion of articles on Financing in the Law, contrary to the initial negotiation between the Ministries of Development and Planning.

The process of the PL SUAS in the Senate was much less time-consuming than in the House of Representatives. In the Committee on Economic Affairs, Senator Romero Jucá of the Party of the Brazilian Democratic Movement (PMDB/PE), then Government Leader, presented an amendment to the bill, which removed the term “compulsory” in item II of Article 12, which addressed the co-financing to improve management and social services, programs and projects at the national level. Removing the compulsory federal co-financing of the policy was a maneuver, according to interviews, of the Ministry of Planning with the leadership of the government in the Senate, arguing that it is a semantic issue, not interfering in the merit of the PL.

It was through an Opinion of the Federal Attorney General’s Office (AGU) No. 075/2011/DENOR/CGU/AGU1818. Brasil. Advocacia Geral da União. Parecer nº 075/2011/DENOR/CGU/AGU de 29 de Junho de 2011. [acessado 2013 Maio 04]. Disponível em: www.mds.gov.br.
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that the MDS actors minimized the loss of the incorporation of mandatory federal funding into legislation, i.e., the linkage of the budget to the social assistance area. The AGU’s opinion, among other points, ratified the understanding that transfers of social assistance resources from the federal sphere can be carried out to pay staff in the municipalities and that these resources are mandatory.

Another “blockade” appeared in the Senate’s Social Affairs Commission, where Senator Lúcia Vânia of the Brazilian Socialist Party (PSB/GO) presented another significant amendment to the financing. In the third paragraph of Article 12a, she proposed to include 10% of the total budget forecast for federal co-financing of basic and special social protection for technical and financial support. The text was approved with the inclusion of “up to” 10%.

The SUAS Law was another step in consolidating social assistance as a policy. Far from being one that will ensure social rights, it is known that the practice of public action transforms reality and gives the real possibility of realizing the social rights of citizenship. The Law advanced by legally establishing what had already been implemented by other normative devices. The new institutional configuration of social assistance policy was defined from it and the ensuing debates for its construction, emphasizing its precepts of non-contributive and demerchandized public policy. There is still a long way to consolidate the law, but the process of its formulation has undoubtedly brought gains to democracy and the strengthening of its institutionality in Brazilian society.

Final considerations

The social assistance policy has undergone recent changes in its management and its funding and has therefore been the subject of several studies, due to the importance it has been assuming in the role of Brazilian public social policies. The SUAS has brought new concepts to the social assistance policy and its actions have sought to strengthen the non-contributory policy design of the Social Security System, aimed at a broad public.

To this end, the federal agency responsible for the management of the SUAS, namely, the MDS, has adopted some strategies: it changed criteria for the operation of services, programs and benefits, elaborated new planning, management and accountability mechanisms, with the follow-up of new formats to finance the policy and transfers of resources among the federative entities. Undoubtedly, there have been advances in the institutionalization of this area by the Brazilian State, which deserve attention from analysts and social policy scholars.

The research demonstrated that the SUAS Law initially drafted by the Executive Branch through the MDS mainly aimed to legitimize existing practices and establish legal certainty for the group of federal, state and municipal government managers to ensure continuity in driving the SUAS. The decision to draft the Law points to the relevance of the policymakers in the process of including subjects in the public agenda.

The Law was a decision of “visible actors” who had the formal legal authority to decide that the Bill should not contain conflicting issues, but only the basics for establishing the SUAS. The proposal was elaborated by the “invisible actors”, directors and technicians of the MDS, and later negotiated with other sectors of the government, with the mediation of the Civil House.

Parallel to the PL SUAS process, the CEBAS approval process ended up interfering in the procedures of the former, mainly because it was understood that, in the law proposing to establish the SUAS, it was necessary to legitimize a new place for social assistance entities in the system, ending the parallel service of the private network, without the state regulation. The PL CEBAS monopolized the debate and negotiation between Executive, Legislative and the private entities movement during the first two years of the two laws, namely, 2008 and 2009, until it was approved in 2009.

It was assumed that the PL SUAS would have a brief procedure, but it only managed to be approved by active mobilization of the actors (MDS, CNAS, FONSEAS, CONGEMAS, among others) in 2011, since 2010 was still an electoral period, which contributed to the demobilization of the Executive and the Legislative itself.

The decision-making process of formulating and legitimating the SUAS was permeated not only by actors’ actions but also by constraints imposed by the constitutional provisions, the Organic Law of Social Assistance and by the “rules of the game” in the different spheres in which the bill was debated and approved. The articulation between economic policy and social policy permeated the whole process and the direction of the economic policy of the Lula government, and then the Dilma government directly influenced the configuration of the Law and the impossibility of advances to fund social assistance.

Based on the analysis of the interaction among stakeholders and how the process of the PL SUAS proceeded, the study strengthened the argument that a policy is not limited to its formal statement, and was able to show the reasons why Law 12.435 of 2011 emerged with the current format, its main focuses of disputes and what possibilities are found in that context to be approved.

References

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History

  • Received
    26 Oct 2016
  • Reviewed
    22 May 2017
  • Accepted
    24 May 2017
  • Publication
    Mar 2019
ABRASCO - Associação Brasileira de Saúde Coletiva Rio de Janeiro - RJ - Brazil
E-mail: revscol@fiocruz.br