Abstract

This study investigated legislative proposals on the single waiting list for hospitalizations and ICU beds within the scope of the Federal Legislative Branch in the first year of the pandemic (2020). This was an exploratory, qualitative, and document- based study, which analyzed bills analyzed in the Brazilian National Congress on the subject. The results were organized according to the authors’ profile and qualitative content of the bills. There was a predominance of male parliamentarians, affiliated with left-wing parties and professional training in areas other than health. Most bills dealt with a general single waiting list, specifying hospital beds, the mixed management of hospital beds, and indemnity through the Brazilian Unified Health System’s (SUS, in Portuguese) price table. The House of Representatives presented more bills, but no progress was made in their processing. Among the analyzed bills, only one was prioritized in the External Commission to Combat COVID-19. It was concluded that the Federal Legislative Branch once again missed the chance to legislate for the future and prepare the country with a normative framework capable of confronting health emergencies, which will demand much from health managers and SUS itself.

Key words:
Legislative Branch; Hospital bed capacity; Health law; COVID-19 pandemic

Introduction

In Brazil, the COVID-19 pandemic brought back the discussion on a chronic problem in public health: the scarcity of hospital beds, especially in intensive care units (ICUs). With the increased number of infected people, the violation of sanitary measures for virus containment and insufficient vaccine coverage, the country faced an unprecedented overcrowding of ICUs, be they in private or public hospitals during the three epidemic phases of COVID-19¹1 Fundação Oswaldo Cruz. Balanço de dois anos da pandemia de COVID-19: janeiro de 2020 a janeiro de 2022. Boletim Observatório COVID-19. 2022. [acessado 2022 mar 8]. Disponível em: https://www.arca.fiocruz.br/handle/icict/55828
https://www.arca.fiocruz.br/handle/icict... .

Surveys indicated that the Brazilian Unified Health System (SUS, in Portuguese) would face a challenge in terms of access to hospital beds during the pandemic²2 Rache B, Rocha R, Nunes L, Spinola P, Malik AM, Massuda A. Necessidades de infraestrutura do SUS em preparo ao COVID-19: leitos de UTI, respiradores e ocupação hospitalar. Instituto de Estudos para Políticas de Saúde (Nota Técnica n. 3). 2020. [acessado 2021 jun 21]. Disponível em: https://ieps.org.br/wp-content/uploads/2020/04/IEPS-NT3.pdf
https://ieps.org.br/wp-content/uploads/2... ^,33 Noronha KVMS, Guedes GR, Turra CM, Andrade MV, Botega L, Nogueira D, Calazans JA, Carvalho L, Servo L, Ferreira MF. Pandemia por COVID-19 no Brasil: análise da demanda e da oferta de leitos hospitalares e equipamentos de ventilação assistida segundo diferentes cenários. Cad Saude Publica 2020; 36(6):e00115320., since even before the pandemic, Brazil had already been showing a reduction in numbers of places for hospitalization, in addition to the lack and the poor distribution of ICU beds.

In terms of available hospital beds (including available beds for surgery, clinical treatment, obstetric, pediatric, day care and other specialties)⁴4 Brasil. Ministério da Saúde (MS). Cadastro Nacional de Estabelecimentos de Saúde. Notas Técnicas [Internet]. [acessado 2022 mar 6]. Disponível em: http://tabnet.datasus.gov.br/cgi/cnes/NT_RecursosF%C3%ADsicos.htm
http://tabnet.datasus.gov.br/cgi/cnes/NT... , there was a reduction of more than 23,000 beds (SUS and others) between 2008 and 2018⁵5 Confederação Nacional de Municípios. Brasil perdeu 23.091 leitos hospitalares em dez anos [Internet]. 2018. [acessado 2021 dez 7]. Disponível em: https://www.cnm.org.br/cms/biblioteca/Estudo-tecnico-Leitos%20hospitalares-2018.pdf
https://www.cnm.org.br/cms/biblioteca/Es... . At a time when the World Health Organization (WHO) established the need for 30 to 50 hospital beds for each 10,000 inhabitants, in 2008, Brazil only had the equivalent of 24 beds/10,000 inhabitants, which had been reduced to 21 by 2018⁵5 Confederação Nacional de Municípios. Brasil perdeu 23.091 leitos hospitalares em dez anos [Internet]. 2018. [acessado 2021 dez 7]. Disponível em: https://www.cnm.org.br/cms/biblioteca/Estudo-tecnico-Leitos%20hospitalares-2018.pdf
https://www.cnm.org.br/cms/biblioteca/Es... .

Meanwhile, in terms of ICU beds, the WHO proposes a proportion of 1 to 3 beds/10,000 inhabitants, and Brazil had, by 2019, 2.2 ICU beds/10,000 inhabitants⁶6 Associação de Medicina Intensiva Brasileira (AMIB). AMIB apresenta dados atualizados sobre leitos de UTI no Brasil [Internet]. 2020. [acessado 2020 ago 10]. Disponível em: https://www.amib.org.br/fileadmin/user_upload/amib/2020/abril/28/dados_uti_amib.pdf
https://www.amib.org.br/fileadmin/user_u... , meeting the proportion defined by the WHO. However, the inequality in the distribution of these ICU beds resulted in a deficit in the North, Northeast, and Midwest regions of the country³3 Noronha KVMS, Guedes GR, Turra CM, Andrade MV, Botega L, Nogueira D, Calazans JA, Carvalho L, Servo L, Ferreira MF. Pandemia por COVID-19 no Brasil: análise da demanda e da oferta de leitos hospitalares e equipamentos de ventilação assistida segundo diferentes cenários. Cad Saude Publica 2020; 36(6):e00115320.

4 Brasil. Ministério da Saúde (MS). Cadastro Nacional de Estabelecimentos de Saúde. Notas Técnicas [Internet]. [acessado 2022 mar 6]. Disponível em: http://tabnet.datasus.gov.br/cgi/cnes/NT_RecursosF%C3%ADsicos.htm
http://tabnet.datasus.gov.br/cgi/cnes/NT...

5 Confederação Nacional de Municípios. Brasil perdeu 23.091 leitos hospitalares em dez anos [Internet]. 2018. [acessado 2021 dez 7]. Disponível em: https://www.cnm.org.br/cms/biblioteca/Estudo-tecnico-Leitos%20hospitalares-2018.pdf
https://www.cnm.org.br/cms/biblioteca/Es...

6 Associação de Medicina Intensiva Brasileira (AMIB). AMIB apresenta dados atualizados sobre leitos de UTI no Brasil [Internet]. 2020. [acessado 2020 ago 10]. Disponível em: https://www.amib.org.br/fileadmin/user_upload/amib/2020/abril/28/dados_uti_amib.pdf
https://www.amib.org.br/fileadmin/user_u... ^-77 Marinho A. Proposta de adoção de fila única nas unidades de terapia intensiva e nas demais internações hospitalares, durante a pandemia de COVID-19 no Brasil: considerações teóricas do campo da economia da saúde sobre as alternativas disponíveis [Internet]. 2020. [acessado 2020 jun 4]. Disponível em: http://repositorio.ipea.gov.br/bitstream/11058/10011/1/NT_65_Diset_%20Proposta%20de%20Adocao%20de%20Fila%20unica%20nas%20Unidades%20de%20Terapia%20Intensiva.pdf
http://repositorio.ipea.gov.br/bitstream... . Another inequality to be considered is the availability of places provided by SUS when compared to the other hospitals, which, though with a higher supply, provide care for only 25% of the population⁷7 Marinho A. Proposta de adoção de fila única nas unidades de terapia intensiva e nas demais internações hospitalares, durante a pandemia de COVID-19 no Brasil: considerações teóricas do campo da economia da saúde sobre as alternativas disponíveis [Internet]. 2020. [acessado 2020 jun 4]. Disponível em: http://repositorio.ipea.gov.br/bitstream/11058/10011/1/NT_65_Diset_%20Proposta%20de%20Adocao%20de%20Fila%20unica%20nas%20Unidades%20de%20Terapia%20Intensiva.pdf
http://repositorio.ipea.gov.br/bitstream... .

The COVID-19 pandemic worsened that chronic situation even further. Noronha et al.³ warned of the risk of a collapse in the health system in all the macro-regions of the country if the rate of transmissibility SARS-CoV-2 reached 1% per month.

Such an expectation became a reality as the ratio was overcome still in the early months of the pandemic⁸8 Lisboa V. Taxa de transmissão da COVID 19 no Brasil cai para 1,01, diz estudo. Agência Brasil. 2020. [acessado 2022 fev 10]. Disponível em: https://agenciabrasil.ebc.com.br/saude/noticia/2020-08/taxa-de-transmissao-da-COVID-19-no-brasil-cai-para-101-diz-estudo
https://agenciabrasil.ebc.com.br/saude/n... . Moreover, regardless of the creation of new ICU beds aimed at keeping up with the sanitary emergency, they were not sufficient to meet the demands of the population⁹9 Rodrigues P, Bomfim C. Brasil tem 6,3 mil pacientes com COVID-19 na fila por leitos de UTI, aponta conselho de secretários. G1. 2021. [acessado 2021 out 2]. Disponível em: https://g1.globo.com/bemestar/coronavirus/noticia/2021/03/25/brasil-tem-63-mil-pacientes-com-COVID-19-na-fila-por-leitos-de-uti-aponta-conselho-de-secretarios.ghtml
https://g1.globo.com/bemestar/coronaviru... . Moreover, the increase in the number of hospital beds between December 2019 and April 2020 (14,220) benefited mostly the users of the supplementary health network, since the private sector was responsible for the creation of 11,115 beds¹⁰10 Agência Nacional de Saúde Suplementar. Dados do setor, competência abril/2020 [Internet]. [acessado 2020 mai 20]. Disponível em: http://www.ans.gov.br/.
http://www.ans.gov.br... , thus increasing the iniquity among the users of the health system. According to the Committee on Economic, Social and Cultural Rights (CESCR) from the United Nations (UN)¹¹11 Organização das Nações Unidas (ONU). Comitê de Direitos Econômicos, Sociais e Culturais. Comentário Geral nº 14 [Internet]. 2020. [acessado 2022 mar 15]. Disponível em: http://acnudh.org/wp-content/uploads/2011/06/Compilation-of-HR-instruments-and-general-comments-2009-PDHJTimor-Leste-portugues.pdf
http://acnudh.org/wp-content/uploads/201... , availability and accessibility are some of the essential elements that should be observed by countries as far as health rights are concerned. A sufficient number of beds available to all, the equality of distribution, and access determined by a regulated order that reduces possible inequalities, are all criteria that must be considered, especially in a pandemic scenario. The waiting lists, therefore, should be considered as important indicators of the conditions of access to the health system and as indicators of the system’s equity¹²12 Marinho A. Um estudo sobre as filas para internações e para transplantes no sistema único de saúde brasileiro; Instituto de pesquisa aplicada [Internet]. 2004. [acessado 2021 nov 8]. Disponível em: https://www.scielo.br/j/csp/a/D579DPWHMHh3nL5gc9LS7RB/?lang=pt
https://www.scielo.br/j/csp/a/D579DPWHMH...

13 Grupo de Estudos sobre Planos de Saúde da Universidade de São Paulo, Grupo de Pesquisa e Documentação sobre Empresariamento na Saúde da Universidade Federal do Rio de janeiro. As empresas de planos de saúde no contexto da pandemia do coronavírus: entre a omissão e o oportunismo [Internet]. Nota Técnica. 2020. [acessado 2020 ago 8]. Disponível em: http://observatoriohospitalar.fiocruz.br/sites/default/files/biblioteca/Nota-T%C3%A9cnica_Coronavirus_PlanosDeSaude_GEPS_GPDES.pdf
http://observatoriohospitalar.fiocruz.br... ^-1414 Vidas iguais. Leitos para todos. Rede solidária em defesa da vida Pernambuco [Internet]. 2020. [acessado 2020 set 20]. Disponível em: https://www.vidasiguais.com.br
https://www.vidasiguais.com.br... .

During the pandemic, discussions arose in academia¹³13 Grupo de Estudos sobre Planos de Saúde da Universidade de São Paulo, Grupo de Pesquisa e Documentação sobre Empresariamento na Saúde da Universidade Federal do Rio de janeiro. As empresas de planos de saúde no contexto da pandemia do coronavírus: entre a omissão e o oportunismo [Internet]. Nota Técnica. 2020. [acessado 2020 ago 8]. Disponível em: http://observatoriohospitalar.fiocruz.br/sites/default/files/biblioteca/Nota-T%C3%A9cnica_Coronavirus_PlanosDeSaude_GEPS_GPDES.pdf
http://observatoriohospitalar.fiocruz.br... and social movements¹⁴14 Vidas iguais. Leitos para todos. Rede solidária em defesa da vida Pernambuco [Internet]. 2020. [acessado 2020 set 20]. Disponível em: https://www.vidasiguais.com.br
https://www.vidasiguais.com.br... concerning the idea of a single waiting list for hospital beds, in face of the binomial scarcity-necessity of the resource.

However, the creation of a single waiting list for hospital beds is a competence of the National Congress, since it is a governmental action that creates expenses and changes the current legislation, thus demanding federal legislation to render it effective.

Considering the theme and its temporality, the current study is unprecedented in investigating the legislative proposals concerning the single waiting list for hospitalization and/or hospital beds, in the Federal Legislative sphere.

Methodology

This is an exploratory, qualitative, document-based study, using a secondary databank obtained from a research project on Congressional Bills at a time of sanitary crisis.

The original study obtained a total number of 2,835 bills classified as part of the public healthcare sphere, from February 3^rd to December 31^st, 2020. The initial landmark of the database was the declaration of a Public Health Emergency of National Importance (ESPIN, in Portuguese) by the Brazilian Ministry of Health, and the end of the database corresponded to the end of the first year of the pandemic.

From the original survey, 27 documents were categorized as being about “hospital beds”. After reading the entire content, 16 bills were excluded for not dealing with the theme of a “single waiting list for hospital beds”, and some of the bills were withdrawn by the Congressional member/author.

The results were systematized in two groups: The first included information about the profile of the authors of the bills, including political party and ideology, gender and profession. We adopted, for the definition of ideological spectrum, the adaptation of the classifications done by Tarouco and Madeira¹⁵15 Tarouco GS, Madeira RM. Os partidos brasileiros segundo seus estudiosos: análise de um expert survey. Civitas 2015; 15(1):e24-e39.. To define the profession of the legislators, we looked up their biographies on the internet.

The second group covered the qualitative content of the bills, considering five variables: (i) kind of waiting list, considering as “general single waiting list” (GWL) the total of beds available in the realm of the public and private health systems, and considering as “partial waiting list” (PWL) the total number of beds in the public system plus a portion of beds provided by the private sector. In terms of “kind of bed”; (ii) we considered ICU and general hospitalization beds in terms of the criteria for prioritizing access; (iii) we considered “single criteria” or a combination of several kids of criteria, such as order of request, clinical and/or epidemiological criteria (seriousness), and waiting list management; (iv) considering each member of the federation, individually or in association; and (v) financing, considering whether funding comes from the National Budget or not.

The study conforms to Resolution 510/2016 from the National Health Council (CNS, in Portuguese), which was therefore exempt from submission to the Research Ethics Committee.

Results and discussion

After applying the criteria of inclusion and exclusion, the final sample had 11 documents, 10 of which from the House of Representatives and one from the Senate. There were no bills from the Executive branch.

Among the authors, there were 88 Congress members, 82 of whom were State representatives and six senators. The high number of State representatives was due to many bills having a high number of signing legislators.

Concerning the modality of the bills, only legislative proposals were found.

We must mention that most of the bills were under analysis simultaneously, since article 142 from the Internal Regiment of the House of Representatives defines that: “when having two or more bills of the same nature, regulating issues which are identical or correlated, it is legal to analyze them together”¹⁶16 Câmara dos Deputados. Regimento Interno da Câmara dos Deputados [Internet]. [acessado 2022 abr 19]. Disponível em: https://www2.camara.leg.br/atividade-legislativa/legislacao/regimento-interno-da-camara-dos-deputados
https://www2.camara.leg.br/atividade-leg... .

Chart 1 shows that the first trimester of the pandemic was the initial point for presenting bills concerning hospital beds and a waiting list for them. Other studies proved that the beginning of each legislative session is the period when a higher number of bills of a social nature is introduced by legislators¹⁷17 Bem IP, Delduque MC. Análise da produção legislativa em saúde na 54ª e 55ª legislaturas do Congresso Nacional do Brasil: o que os parlamentares produzem em saúde? Physis 2018; 28(4):e280408., possibly in response to the voters’ demands.

Until the end of the legislative session, no information was obtained regarding the bills being ratified into laws.

Authors’ profile

The bills created by female legislators were clearly present, with 31 female legislators and 57 males, showing expressive female representation (35%), especially considering the overall proportion of women in Congress (15%)¹⁸18 Agência Câmara de Notícias. Bancada feminina na Câmara será composta por 77 deputadas na nova legislatura [Internet]. 2019. [acessado 2021 nov 3]. Disponível em: https://www.camara.leg.br/noticias/550935-bancada-feminina-na-camara-sera-composta- por-77-deputadas-na-nova-legislatura/
https://www.camara.leg.br/noticias/55093... ^,1919 Agência Senado. Conheça a composição do Senado para a 56ª legislatura [Internet]. 2019. [acessado 2021 nov 3]. Disponível em: https://www12.senado.leg.br/noticias/materias/2019/01/18/conheca-a-composicao-do-senado-para-a-56a-legislatura
https://www12.senado.leg.br/noticias/mat... .

Bill 2,548/2020 was signed by 18 female legislators from left-wing and right-wing parties, all members of the House of Representatives Women’s Secretariat. Joint bills from legislators from opposing parties are common and even desirable, since heterogeneity strengthens the Legislative branch, enabling the habit of considering the legislators as being exclusively focused on their own class interests²⁰20 Bruno R. Frente Parlamentar da Agropecuária (FPA): campo de disputa entre ruralistas e petistas no Congresso Nacional. Estud Soci Agri 2021; 29(2):461-502.. Elias²¹21 Elias N. A sociedade dos indivíduos. Rio de Janeiro: Zahar; 1994. stated that an individual focused only on him/herself ends up denying belonging to a group and the interdependence between individuals and social groups, between foes and allies who define and face each other in the relationship which denies them, which has been denominated as homo clausus²¹21 Elias N. A sociedade dos indivíduos. Rio de Janeiro: Zahar; 1994..

 This is common in parliamentary fronts, groups which unite position and incumbent representatives, in order to gain more weight in congressional voting, even more than the parties’ representation in Congress²⁰20 Bruno R. Frente Parlamentar da Agropecuária (FPA): campo de disputa entre ruralistas e petistas no Congresso Nacional. Estud Soci Agri 2021; 29(2):461-502..

However, even though women are the majority of the Brazilian population (51.8%)²²22 Instituto Brasileiro de Geografia e Estatística (IBGE). Estatística de gênero: Indicadores sociais das mulheres no Brasil [Internet]. 2019. [acessado 2021 set 24]. Disponível em: https://educa.ibge.gov.br/jovens/conheca-o-brasil/populacao/18320-quantidade-de-homens-e-mulheres.html
https://educa.ibge.gov.br/jovens/conheca... , they are still underrepresented in political life. This can be verified in the “ranking of female representativeness in Congress”, which ranks Brazil in 134th place among 193 countries, even behind countries such as Afghanistan (57th) and Saudi Arabia (109th)²³23 Inter-Parliamentary Union (IPU). Monthly ranking of women in national parliaments. Ranking as of 1st October 2019 [Internet]. 2019. [cited 2021 set 25]. Available from: https://data.ipu.org/women-ranking?month=10&year=2019
https://data.ipu.org/women-ranking?month... . The mismatch in representation may be attributed to factors such as the belief, still strongly present in the Brazilian culture, that women are not supposed to become involved in political and partisan activities, as well as the insufficient incentive from parties to have female candidates. Moreover, praxis demonstrates that at the level of the political parties, there is a higher chance of success for veteran candidates²⁴24 Araújo C, Borges D. O gênero, os elegíveis e os não-elegíveis: uma análise das candidaturas para a Câmara Federal em 2010. In: Alves JED, Pinto CRJ, Jordão F, organizadores. Mulheres nas eleições de 2010. São Paulo: ABCP. 2012. p. 337-385..

Concerning the legislators’ profession, 15 of the 88 Congressional members were health professionals, while the other 73 were from other areas, especially lawyers (Graph 1). This does not mean that legal professionals are interested in approaches of a medical and public health nature, but rather that most legislators - be they from the House of Representatives or from the Senate - are lawyers by profession. Moreover, bills in the health area always make the legislator stand up for his/her electorate¹⁷17 Bem IP, Delduque MC. Análise da produção legislativa em saúde na 54ª e 55ª legislaturas do Congresso Nacional do Brasil: o que os parlamentares produzem em saúde? Physis 2018; 28(4):e280408.^,2626 Departamento Intersindical de Assessoria Parlamentar (DIAP). Série Os "Cabeças" do Congresso Nacional - uma pesquisa sobre os 100 parlamentares mais influentes [Internet]. 2020 [acessado 2021 out 1]. Disponível em: https://static.poder360.com.br/2020/07/congressistas-2020.pdf
https://static.poder360.com.br/2020/07/c... , attracting legislators from a variety of backgrounds.

However, the presence of legislators with a background in the area in discussion is an important element in the political debate, since those legislators may be perceived as a source of information by their peers, besides being able to act in the coordination of negotiations and/or being authors of the bills²⁶26 Departamento Intersindical de Assessoria Parlamentar (DIAP). Série Os "Cabeças" do Congresso Nacional - uma pesquisa sobre os 100 parlamentares mais influentes [Internet]. 2020 [acessado 2021 out 1]. Disponível em: https://static.poder360.com.br/2020/07/congressistas-2020.pdf
https://static.poder360.com.br/2020/07/c... .

Regarding the analysis of party ideology, Tarouco and Madeira¹⁵15 Tarouco GS, Madeira RM. Os partidos brasileiros segundo seus estudiosos: análise de um expert survey. Civitas 2015; 15(1):e24-e39. defined that, regardless of the lack of ideological consistency of Brazilian political parties, the left-right classification is recognized by both the politicians themselves and by the analysts, and it is a valid instrument for studies on the effects of party ideology on different variables.

In this context, the results indicate a higher participation of legislators from parties within the left-wing ideological spectrum (Graph 2).

Other studies have already demonstrated that political parties with a progressive orientation have a major participation in proposing bills of a social nature¹⁵15 Tarouco GS, Madeira RM. Os partidos brasileiros segundo seus estudiosos: análise de um expert survey. Civitas 2015; 15(1):e24-e39..

Content of the bills regarding a single waiting list for hospital beds

Most of the bills propose, explicitly, the compulsory requisition of hospital beds and facilities from the private sector by the public sector, during pandemic events (Chart 2).

Although based on social equality and on the governmental intervention, which is more evident during pandemics, requisition is something that should and ought to be used by the government in the case of emergencies or calamity; however, there is an administrative process, which should precede any form of intervention by SUS in private health facilities.

It is important to make it clear that requisition falls upon vacant hospital beds, and that the government is responsible for compensating the hospital for any damages to the requested resources. For cases of using private hospital services when there is no vacancy in the public hospitals, there must be remuneration, which the bills define according to SUS cost table, always preceded by the administrative process.

Bill 1,254/2020 proposes one single waiting list for hospitalization in the private and public health systems, stratified by the states of the federation (SF), including all of the patients with a medical recommendation, exclusively for the duration of the COVID-19 pandemic.

The criterion of the waiting list is strictly chronological, according to the entry of the patient’s name on the waiting list of the respective State of the Federation (SF), after medical recommendation for hospitalization. However, the medical criteria are not considered for a later change of place in the waiting list, and the chronological criterion prevails as the only one.

The waiting list is managed at a state level, and the health managers of each SF are responsible for producing a list with all the patients who have a medical recommendation for hospitalization. The state lists should be constantly updated and published in official media so that they can be checked by anyone who is waiting to be hospitalized. The federal management is in charge of gathering the information from around the country and publishing it in the official media so as to ensure transparency and access to the entire population.

The costs of the occupation of private hospital beds by patients from the public health system will be refunded according to the table of cost procedures defined by SUS (no specification of which federal department will be responsible for the refund).

Bill 2,176/20, differs from the previous bill by dealing exclusively with the creation of a single waiting list for ICU beds in the private and public systems for the duration of the pandemic, with no provision regarding regular hospital beds.

That bill differs from the previous one as it bases the waiting list not solely on the order of arrival, but also on the seriousness of each patient’s case, combining criteria for the organization of the list and for access to resources. It also proposes that the list should be managed by the SUS at the municipal and state levels, coordinating access to those beds.

The necessary resources to pay for the use of private hospital beds should come from the federal budget as compensation expenses after proof of use. However, Bill ,2176/20 does not refer to using the SUS cost table as a parameter for the payments.

Bill 2333/20 has a broader reach, it proposes a single waiting list to manage all of the hospital beds, from the private and public systems, at both the civilian and military spheres, for the duration of the emergency and calamity state, supported by Law 13,979/20 and by Legislative Decree 6/20.

In terms of access to hospital beds, the bill proposes that the criterion is combined and based on an evaluation of the individual and collective seriousness, as well as on the chronological criterion as well.

The management of the waiting list is of a mixed nature, the responsibility being of the State, the Federal District, and the municipalities to regulate access through an Emergency Single Waiting List for all serious cases of COVID-19.

As regards financing, the bill establishes that payment for the use of services, and resources should come from the Federal Budget, based on the reference values from the SUS cost table.

Data shows that nearly 72% of the bills propose a single waiting list (SWL) encompassing all the hospital beds, public and private. For Marinho⁷7 Marinho A. Proposta de adoção de fila única nas unidades de terapia intensiva e nas demais internações hospitalares, durante a pandemia de COVID-19 no Brasil: considerações teóricas do campo da economia da saúde sobre as alternativas disponíveis [Internet]. 2020. [acessado 2020 jun 4]. Disponível em: http://repositorio.ipea.gov.br/bitstream/11058/10011/1/NT_65_Diset_%20Proposta%20de%20Adocao%20de%20Fila%20unica%20nas%20Unidades%20de%20Terapia%20Intensiva.pdf
http://repositorio.ipea.gov.br/bitstream... , the adoption of a single waiting list addresses the dimension of equity and the reduction of inequalities in access to hospital beds, and also brings positive results to the management process, such as centralizing the information and decisions, optimizing the resources, and facilitating the reallocation of patients between health units.

Adopting the SWL would create more egalitarian parameters²⁷27 Barros FPS, Sousa MF. Equidade: seus conceitos, significações e implicações para o SUS. Saude Soci 2016; 25(1):9-18. for access to ICU beds, providing the possibility of access to hospital beds for SUS patients who otherwise would not have this possibility.

Among the bills that defend a general single waiting list (GSWL), we highlight Bill 2,333/20, which has more constitutional elements, such as the universality of access and sanitary equity, besides the transparency of the information for social control, thereby reinforcing the importance of the issue, especially in situations of sanitary crisis.

On the other hand, bills which define only a partial single waiting list (PSWL) were few (Bill 892/20 and Bill 2,324/20). The first suggests the request of 20% of the beds from private hospitals in cases of sanitary emergencies, and the second proposes that requests of private ICU beds take place only when their rate of occupation is below 85%. The reference to a maximum occupation rate which allows for the request of private beds was not part of the initial text of PL 2,324/20. It originated in the Senate, but its final text had the addition of 20 amendments before being sent for approval by the House.

Marinho⁷7 Marinho A. Proposta de adoção de fila única nas unidades de terapia intensiva e nas demais internações hospitalares, durante a pandemia de COVID-19 no Brasil: considerações teóricas do campo da economia da saúde sobre as alternativas disponíveis [Internet]. 2020. [acessado 2020 jun 4]. Disponível em: http://repositorio.ipea.gov.br/bitstream/11058/10011/1/NT_65_Diset_%20Proposta%20de%20Adocao%20de%20Fila%20unica%20nas%20Unidades%20de%20Terapia%20Intensiva.pdf
http://repositorio.ipea.gov.br/bitstream... argues that in the case of the PSWL, the overcrowding that might eventually occur in the hospitals not run by SUS would exclude patients who are exclusively dependent on SUS, since private hospitals would primarily address the needs of their own patients.

The kinds of single waiting lists appear as alternatives to optimize access to healthcare services and to reduce the inequalities present in contexts of intense use of health services, as happens in the event of sanitary crises. However, the GSWL is more inclusive than the PSWL, and manages to achieve more social justice, since all the patients would have the same chances of access.

Considering that the bills were created in a context of sanitary crisis, guaranteeing access of the population to the scarce resource in an egalitarian manner is an important initiative that must be led by the Legislative branch²⁸28 Barbosa LA, Bem IP. Microcefalia pelo zika vírus: as ações dos Poderes Legislativo e Executivo brasileiros no combate à epidemia. Cad Ibero Am Direito Sanit 2018; 7(1):127-146., providing juridical safety for the managers of the health system to intervene in an efficient and responsible manner.

Most of the bills (63%), however, dealt with the theme of a single waiting list for hospital beds without specifying or prioritizing ICU beds. Those are actually the care resources, which is the most critical for the treatment of COVID-19 patients, and which were already scarce before the pandemic⁶6 Associação de Medicina Intensiva Brasileira (AMIB). AMIB apresenta dados atualizados sobre leitos de UTI no Brasil [Internet]. 2020. [acessado 2020 ago 10]. Disponível em: https://www.amib.org.br/fileadmin/user_upload/amib/2020/abril/28/dados_uti_amib.pdf
https://www.amib.org.br/fileadmin/user_u... . This indicates that the federal legislators missed an opportunity to advance in the discussion that could generate a better management of scarce resources, not only in the case of the COVID-19 pandemic, but also for future emergencies which can possibly happen²⁸28 Barbosa LA, Bem IP. Microcefalia pelo zika vírus: as ações dos Poderes Legislativo e Executivo brasileiros no combate à epidemia. Cad Ibero Am Direito Sanit 2018; 7(1):127-146..

It is important to note that nine bills (Bills 1,110/20, 1,254/20, 2,161/20, 2,176/20, 2,301/20, 2,333/20, 2,324/20, 2,548/20, and 2,674/20) reduced their reach to the context of the COVID-19 pandemic only, failing to considering future perspectives. Only PLs 892/20 and 1,316/20 proposed changes in Law 8,080/90, aimed at guaranteeing more efficiency for measures to be adopted in case of sanitary emergencies.

It is a well-known fact that the basic cycle of the legislative process requires considerable time for analyses and deliberations. Hence, actions to mobilize the Legislative structure in order to obtain temporary legislation, even though the legislators are aware of the gaps in the federal health legislation concerning epidemics and are also aware of the structural problems in the system, may be interpreted as inaction or a lack of commitment by the Brazilian Legislative Branch.

Some of the bills left important gaps regarding operationalizing the waiting lists and did not cover specific aspects, such as the prioritization criterion of access for a single waiting list, its management, and its financing.

The prioritization criterion is a fundamental variable to guarantee equalitarian access in the waiting list for hospital beds; however, that was the least discussed variable among the bills. Only four bills mentioned that variable, including Bill 1,254/20, which proposes an isolated criterion, considering only the chronological order of the patient in the waiting list.

To prioritize means to establish a hierarchy of the identified problems, ranking them according to relevance, efficiency and level of feasibility of the proposed interventions²⁹29 Pallàs J, Bertrán E, Baiges J. Bases para la programación en atencíon primaria. In: Zurro A, Pérez J, compiladores. Atención primaria: conceptos, organización y práctica clínica. Madrid: Elsevier; 2003. p. 408-419.. Sousa et al.³⁰30 Sousa FAM, Goulart MJG, Braga AMS, Medeiros CMO, Rego DCM, Vieira FG, Pereira HJAR, Tavares HMCV, Loura MMP. Estabelecimento de prioridades em saúde numa comunidade: análise de um percurso. Rev Saude Publica 2017; 51:11. considered that the process of selection of priorities is too subjective; hence, there is a need to clarify the adopted strategies in order to achieve a transparent process that is properly grounded and auditable.

Moreover, considering the imbalance between the health needs and the available resources, the use of prioritizing criteria for access to ICU beds may be an invaluable tool in the process of decision-making, based also on equity criteria.

The objective of the management of the waiting list is to make the healthcare resources available, based on scientific criteria to classify risks and prioritize the users, thus avoiding the worsening of the clinical situation. The delay in providing care significantly impacts the chances of cure and of incurring aftereffects on the patients, their families, and society¹²12 Marinho A. Um estudo sobre as filas para internações e para transplantes no sistema único de saúde brasileiro; Instituto de pesquisa aplicada [Internet]. 2004. [acessado 2021 nov 8]. Disponível em: https://www.scielo.br/j/csp/a/D579DPWHMHh3nL5gc9LS7RB/?lang=pt
https://www.scielo.br/j/csp/a/D579DPWHMH... .

Such criteria are somewhat similar to what is adopted for the management of the single waiting list for The National Transplant System. In this case, care is also provided by order of arrival, but criteria considering seriousness, urgency, and compatibility are also taken into account¹²12 Marinho A. Um estudo sobre as filas para internações e para transplantes no sistema único de saúde brasileiro; Instituto de pesquisa aplicada [Internet]. 2004. [acessado 2021 nov 8]. Disponível em: https://www.scielo.br/j/csp/a/D579DPWHMHh3nL5gc9LS7RB/?lang=pt
https://www.scielo.br/j/csp/a/D579DPWHMH... . It is important to remember that patients who are in the transplant waiting list, despite being serious medical cases, are usually chronic, which makes them differ from the demand for ICU beds caused by COVID-19, a case in which the patients need a quick response, since they have a serious and acute clinical situation⁷7 Marinho A. Proposta de adoção de fila única nas unidades de terapia intensiva e nas demais internações hospitalares, durante a pandemia de COVID-19 no Brasil: considerações teóricas do campo da economia da saúde sobre as alternativas disponíveis [Internet]. 2020. [acessado 2020 jun 4]. Disponível em: http://repositorio.ipea.gov.br/bitstream/11058/10011/1/NT_65_Diset_%20Proposta%20de%20Adocao%20de%20Fila%20unica%20nas%20Unidades%20de%20Terapia%20Intensiva.pdf
http://repositorio.ipea.gov.br/bitstream... that should demand more agility in revising the patients’ health conditions and updating their place in the waiting list.

Combined criteria would enable a better evaluation of the patients, give priority to their hospitalization, and optimize the allocation of available resources.

Regarding the management of the waiting list, three bills suggested a state-run management, similarly to the model of the National Transplant System, with waiting lists managed by the states even though the patient list follows a national registry, and organs and patients may be transported from one state to another in order to reduce waiting time and optimize the allocation of the organs.

There is no bill suggesting federal management, which is consistent with the idea of decentralized and regionalized actions in such a way that the management of health services and public health actions are no longer concentrated on the hands of the Federal Government, as was the case before the 1988 Constitution³¹31 Gomes FBC, Carvalho EL, Reis R. Projetos de lei ordinária apresentados na Câmara dos Deputados entre 1999 e 2006: tramitação geral e dos relacionados à saúde. E-Legis 2009; 2:32-44..

Concerning the financing criteria for the use of private ICU and regular hospital beds, 72% of the bills indicate financing from the Federal budget for the use of private beds of either kind, since it refers to a costly service, and its expansion and maintenance would be compromised if conducted only by state and municipal governments. Some of the bills (Bills 892/20, 1,110/20, and 2,301/20) did not mention this category.

Santos³²32 Santos VC. Análise qualitativa e quantitativa da produção legislativa relacionada à saúde em tramitação no Congresso Nacional nos anos de 2007 e 2008 [dissertação]. São Paulo: Universidade Federal de São Paulo; 2011., considers that many bills are not approved due to a lack of elements that would guarantee their implementation and execution, such as the scarcity of human and financial resources, and difficulties for social control and fiscalization. Reis (1999 apud SANTOS, 2011, p. 54)³²32 Santos VC. Análise qualitativa e quantitativa da produção legislativa relacionada à saúde em tramitação no Congresso Nacional nos anos de 2007 e 2008 [dissertação]. São Paulo: Universidade Federal de São Paulo; 2011.highlights that, in order for a bill to be commenced, it must undergo a prior evaluation of its viability and potential efficiency, considering coherence between the proposed solutions and the reality that it is supposed to change. Therefore, we can see that many of the bills take a long time for deliberation, as they lack elements that would guarantee viability and implementation, such as the indication of the source of financing.

Costa e Silva³³33 Silva TALC. Controle sobre os limitadores do planejamento público: o exame de admissibilidade orçamentária e financeira realizado pela Comissão de Finanças e Tributação da Câmara dos Deputados [monografia]. Brasília: Universidade de Brasília; 2016. pointed to the difficulties the legislators have in presenting bills which meet the criteria defined in the Constitution, Law of Fiscal Accountability, in the Budget Guidelines Law, and in the Internal Norms of the Commission for Financing and Taxation of the House of Representatives. In the study, 87% of the bills examined by the Commission were presented by legislators, but less than 12% were approved, since the rest did not meet the criteria required to make them compatible and adequate to planning and budgeting.

Taking into consideration the existence of a historical embarrassment regarding SUS financing, aggravated by the publication of EC/95³⁴34 Paim JS. Sistema Único de Saúde (SUS) aos 30 anos. Cien Saude Colet 2018; 23(6):1723-1728., one can notice that the flaws in the processing of the bills occur by the lack of consideration to requirements established in the very legislative process, notably when analyzing bills regarding the increase in expenses with no indication of the source of financing. This shows the legislators’ fragility and/or lack of knowledge about how to fulfill the prerogatives that the law requires.

Although there were several bills, with a greater or lesser degree of detail and coverage, the theme has had great progress in the Federal Legislature. Among the analyzed bills, only Bill 1,316/20 was prioritized in the External Committee Against COVID-19 (CEXCORVI in Portuguese) from the House of Representatives³⁵35 Câmara dos Deputados. Comissão Externa destinada a acompanhar as ações para o enfrentamento da pandemia de COVID-19 [Internet]. 2020. [acessado 2022 mar 29]. Disponível em: https://www2.camara.leg.br/atividade-legislativa/comissoes/comissoes-temporarias/externas/56a-legislatura/enfrentamento-pandemia-covid-19/outros-documentos/documentos-encaminhados-pela-comissao/projetos-de-lei-apoiados
https://www2.camara.leg.br/atividade-leg... . That commission was created on February 11th, 2020 with the purpose of following up on the actions aimed at fighting the pandemic, and it became consolidated as a prime space for prioritizing and analyzing legislative proposals³⁶36 Penaforte TR. O negacionismo enquanto política: o debate da cloroquina em uma comissão parlamentar. Cad Saude Publica 2021; 37(7):e00023021..

However, regardless of being prioritized, Bill 1,316/20 still awaits an opinion from the Commission on Social Security and Family from the House of Representatives.

A consultation conducted on 3/29/22 regarding the status of the 11 bills under analysis showed that all of them have been in the CSSF for more than 300 days awaiting a legislative opinion.

Bill 2,324/20, the only one that originated in the Senate, is the bill that is the farthest ahead, since it has already been sent to the House. But it has also been awaiting a legislative opinion since May 2021.

Gomes³¹31 Gomes FBC, Carvalho EL, Reis R. Projetos de lei ordinária apresentados na Câmara dos Deputados entre 1999 e 2006: tramitação geral e dos relacionados à saúde. E-Legis 2009; 2:32-44., in a study which evaluated the processing of bills in the House from 1999 to 2006, noticed that the time for processing bills in the House, including those that were introduced and converted into laws, was 889 days. The author also highlighted that time for processing is a fundamental variable in the process of conversion, since bills from any of the merit commissions to which they were sent will be filed away at the end of the Legislative period, which does not happen to bills from the Senate and the Executive, for example³¹31 Gomes FBC, Carvalho EL, Reis R. Projetos de lei ordinária apresentados na Câmara dos Deputados entre 1999 e 2006: tramitação geral e dos relacionados à saúde. E-Legis 2009; 2:32-44..

The delay in advancing this debate, especially during a pandemic, when the resource - hospital beds - is so important, is similar to what was found by Romero³⁷37 Romero LCP. O congresso nacional e as emergências sanitárias: a resposta do poder legislativo às necessidades da saúde, 2013 [dissertação]. Brasília: Universidade de Brasília; 2013. when analyzing the way the Legislative Branch acted in another four epidemics, when the author observed that the National Congress had several bills introduced, but none ended up becoming a law.

Final considerations

Although this study has temporal limitations, since the data gathered refers only to the first year of the epidemic, we were able to examine Congress’ actions in terms of legislative production in the healthcare area, capacitating the judicial system through the creation of legislation capable of providing more juridical security for interventions during episodes of sanitary crisis.

The federal legislature was responsible for presenting bills which proposed the regulamentation of the emergency single waiting list for hospital beds, or ICU beds, aiming at dealing with the scarcity of the resource, aggravated by the COVID-19 pandemic.

Although we found that the initiative of the bills came only from the legislators, with no participation of the Executive power (at least during the period studied), those bills were fragile and casuistic. They were also considered fragile, for not pushing forward the discussion concerning a general, single waiting list, integrating the resources from the private and public systems to deal with a sanitary crisis that spread throughout the country, perhaps ensuring more equity in access and a better use of the resources.

In the other aspects analyzed in this study, fragility is also expressed in the absence of the necessary clarity and required elements for the implementation of single waiting list bills - be they total or only partial lists - such as the management of the resources and the financing parameters for the use of hospital beds from the private sector.

Casuism is evident in the sense that the legislators were short sighted, creating laws exclusively for an episodic disease and not addressing the normative gaps concerning the customary lack of beds in SUS. It is also emphasize that the time for legislative production does not attend to the kind of disease, which demands urgent measures. The bills presented were not processed completely in the Legislative chambers where they originated, except for Senate Bill 2,324/2021, which is now in the House of Representatives, but still has no prospective of becoming a law. The bills should be filed away at the end of the legislative period in 2022, because the internal regulation of the House¹⁶16 Câmara dos Deputados. Regimento Interno da Câmara dos Deputados [Internet]. [acessado 2022 abr 19]. Disponível em: https://www2.camara.leg.br/atividade-legislativa/legislacao/regimento-interno-da-camara-dos-deputados
https://www2.camara.leg.br/atividade-leg... determines that, at the end of a legislative period, the bills which are not being processed regularly, should be filed away indefinitely. That, however, does not prevent them from being unfiled by the same legislator in case of re-election, or by anyone else who is interested in the matter, as long as the unfiling occurs within the first 180 days of the new legislature¹⁶16 Câmara dos Deputados. Regimento Interno da Câmara dos Deputados [Internet]. [acessado 2022 abr 19]. Disponível em: https://www2.camara.leg.br/atividade-legislativa/legislacao/regimento-interno-da-camara-dos-deputados
https://www2.camara.leg.br/atividade-leg... .

It can thus be concluded that the federal legislative branch once again missed an invaluable opportunity to legislate for the future and to prepare the country with a normative substrate capable of dealing with sanitary emergencies that can possibly happen and that will certainly demand much from the managers of the healthcare system.

References

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