The Right to Health, enshrined in Article 196 of the 1988 Federal Constitution, imposes on the State the duty to guarantee, through social and economic policies, universal and equal access to actions and services for its promotion, protection, and recovery.
In Brazil, the Unified Health System (SUS) is the main instrument for realizing this right. However, the chronic problem of long waiting lists for consultations, exams, and specialized procedures has become one of the biggest challenges to the system's effectiveness, generating a social liability and, in many cases, leading to litigation.
In response to this problem, the Federal Government established the "Now There Are Experts" Program (ATE), formalized by Law No. 15.233, of October 7, 2025.
The core of the initiative lies in the use of a tax compensation mechanism to encourage the participation of the private hospital network in the care of SUS (Brazilian Public Health System) patients. The law allows private hospitals, whether for-profit or non-profit, that adhere to the Program to benefit from financial credits related to the value of medical and hospital care provided, which can be used to offset federal taxes.
This study begins with an analysis of articles 196 and 198 of the 1988 Federal Constitution, Law No. 8.080/1990, Complementary Law No. 141/2012, and Constitutional Amendment No. 95/2016, culminating in an examination of Provisional Measure No. 1.301/2025, which established the "Now There Are Specialists" Program. The aim is to assess whether these instruments are sufficient to guarantee the effectiveness of the right to health and improve the quality of public spending.
The Constitutional Basis of Extrafiscality and the Right to Health
The 1988 Federal Constitution established a paradigm of social protection by enshrining, in Article 196, that "health is a right of all and a duty of the State, guaranteed through social and economic policies aimed at reducing the risk of disease and other health problems, and at universal and equal access to actions and services for its promotion, protection and recovery." This is a fully effective and immediately applicable norm, which imposes positive duties of action on the public authorities.
Article 198 of the Constitution complements this mandate by structuring the Unified Health System, establishing decentralization, comprehensive care, and community participation as guiding principles. The constitutional model adopted presupposes tripartite financing—federal government, states, and municipalities—and decentralized management, with a single command in each federative sphere.
It is worth noting that health is not limited to an occasional state service, but constitutes a true subjective public right, subject to judicial enforcement. However, the realization of this right depends directly on the adequate allocation of budgetary resources, which highlights the inseparable relationship between constitutional law and financial law.
The financing of the SUS (Brazilian Public Health System) and sub-constitutional legislation.
Law No. 8.080/1990, known as the Organic Law of Health, regulated the SUS (Unified Health System), detailing its organization, competencies, and sources of funding. Subsequently, Complementary Law No. 141/2012 more rigorously regulated the minimum percentages of resources to be applied to public health actions and services, in accordance with Article 198, §2, of the Federal Constitution.
Under current legislation, states must allocate at least 12% of their tax revenue to healthcare, while municipalities must allocate 15%. The federal government, in turn, has had its funding floor redefined over time, culminating in the changes promoted by Constitutional Amendment No. 95/2016.
Constitutional Amendment No. 95/2016, by establishing the so-called "spending cap," limited the growth of the Union's primary expenses to the variation of the inflation index. Although presented as a fiscal balance measure, its effects on the financing of the SUS (Brazilian Public Health System) were significant, as it froze, in real terms, the federal health spending floor, exacerbating the system's historical underfunding.
From a legal perspective, this amendment sparked intense debate about the compatibility between fiscal austerity policies and the maximum effectiveness of fundamental social rights. The budgetary constraints began to directly strain the principle of non-regression in social rights and the minimum subsistence level in health matters.
Efficiency of public spending and regionalization of health
The efficiency of public spending on health cannot be analyzed exclusively under economic or managerial parameters. Within the SUS (Brazilian Unified Health System), efficiency must be interpreted in light of the constitutional principles of universality, comprehensiveness, and equity. Thus, spending better does not only mean spending less, but allocating resources in a way that reduces regional inequalities and expands effective access for the population.
Brazilian legislation under the Unified Health System (SUS) foresees regionalization as an essential strategy for rationalizing the provision of services, especially those of medium and high complexity. Decree No. 7.508/2011 reinforced this model by establishing health regions and care networks, seeking integration between the federative entities.
However, the absence of an intermediate federative entity responsible for regional management and the limitations imposed by public finance legislation hinder the full implementation of this model. Furthermore, the increasing participation of mandatory parliamentary amendments in the health budget introduces a political component to resource allocation, often disconnected from technical planning and the real epidemiological needs of the population.
Tax compensation and the Now There Are Experts Program
In a context of fiscal constraints and increasing waiting lists, the federal government issued Provisional Measure No. 1.301/2025, establishing the "Now There Are Specialists" Program. Inspired by previous experiences, the program allows private hospitals to use credits from services provided to SUS (Brazilian Public Health System) users to offset federal taxes.
From a legal and tax perspective, the measure represents an indirect form of financing public health, through tax waivers conditioned on the provision of services. The Provisional Measure establishes annual limits for waivers and imposes requirements for tax and social security compliance, seeking to make the program compatible with Article 195, §3, of the Federal Constitution.
From the perspective of the right to health, the initiative could contribute to reducing waiting lists by utilizing the idle capacity of the private network. However, its effectiveness depends on swift sub-legal regulation, interoperable information systems, and control mechanisms that ensure that the tax compensation effectively results in increased access and not just a tax benefit.
It is important to point out that taxation, in its classical conception, has a primarily fiscal function, aimed at raising funds to cover state expenses. However, modern tax law recognizes an extra-fiscal function, whereby taxes are used as an instrument of state intervention to induce or discourage certain behaviors, in accordance with the social and economic objectives of the Constitution.
In the context of the ATE Program, tax compensation acts as a clear manifestation of extra-fiscality. The State, instead of simply collecting the tax, chooses to waive a portion of that revenue (the so-called tax expenditure) in exchange for a socially relevant benefit: the expansion of access to specialized health services.
The use of fiscal instruments to encourage private sector participation in the public healthcare system, under the aegis of the SUS (Unified Health System), is supported by the social function of property and the possibility for the Public Authority to decide on the organization of healthcare, including through incentives.
The constitutionality of Law No. 15.233/2025, from an extra-fiscal perspective, lies in its primary purpose: the realization of a fundamental right. The mechanism does not aim merely at a financial transaction, but rather at inducing behavior that aligns private interest (debt compensation or obtaining credit) with public interest (reducing waiting lists and improving service in the SUS).
The "Now There Are Experts" Program (ATE) and the Legal Nature of Financial Credit
Law No. 15.233/2025 establishes two pillars for the adherence of private hospitals:
a) Negotiation of tax debts (allowing up to 50% of the amount to be used for assistance) and
b) the granting of financial credits to debt-free hospitals, to offset current or future taxes.
The central point of the legal analysis is the legal nature of the "financial credit" foreseen in Article 4 of the Law. It is fundamental to distinguish this mechanism from the traditional tax credit, governed, for example, by Article 170 of the National Tax Code (CTN).
While traditional tax credits arise from an undue or excessive payment of tax, constituting a subjective right of the taxpayer to a refund in order to restore their financial balance, ATE credits have a different nature.
The ATE financial credit is, in fact, a remuneration or incentive credit with a clear extra-fiscal purpose. Its origin is not the undue payment of taxes, but rather the provision of medical and hospital services to the SUS (Brazilian Public Health System). Its purpose is to realize the right to health and reduce waiting lists, and its use is permitted for the offsetting of federal taxes, whether or not registered as outstanding debt, expanding the scope of compensation beyond the strict limits of traditional tax credits.
Financial credit, therefore, is not a tax credit in the strict sense of the Brazilian Tax Code (CTN), but rather a legal fiction that the law allows to be used as a means of extinguishing a tax obligation (compensation), under the terms of Article 156, II, of the CTN, which provides for compensation "in accordance with the law". Law No. 15.233/2025 is the specific law that defines this form, allowing a credit of a remunerative nature to be used to settle tax debts.
However, joining the Program imposes strict conditions, such as waiving administrative appeals and legal actions related to the debts to be offset (Art. 4, § 1, IV and V) 2.
This requirement, common in installment payment and tax settlement programs, aims to guarantee legal certainty and the effectiveness of public policy, but raises debates about limiting the taxpayer's right to defense.
Criticisms and Risks of Misuse of Purpose
Initial reports on the Program point to significant challenges, such as low hospital participation and a lack of transparency in defining accreditation and reimbursement criteria.
From a legal standpoint, the main criticism lies in the risk that the measure could become a mere debt refinancing mechanism for hospitals in precarious fiscal situations, without the proper guarantee of quality and continuity of services provided to the SUS (Brazilian Public Health System).
The Law establishes an annual limit of R$ 2 billion for financial credits (Art. 4, § 2), which, although representing a significant volume of resources, may be insufficient to meet the pent-up demand of the SUS throughout the national territory.
Furthermore, prioritizing offsetting debts registered as outstanding tax liabilities (Article 5, § 2, I) may distort the focus of the policy, which should be expanding service capacity, not merely tax regularization.
Conclusion
The "Now There Are Experts" Program and the tax compensation mechanism established by Law No. 15.233/2025 represent an innovation in the field of public health policies, anchored in the extra-fiscal function of taxation for the realization of the fundamental right to health.
The measure is, in essence, constitutional, as it uses the tax system as an incentive for socially desirable behavior, aligning private interest with the public need to reduce waiting lists in the SUS (Brazilian public healthcare system).
The legal nature of "financial credit" as an incentive credit or remuneration that extinguishes the tax obligation through compensation, as provided by law, dispels objections based on the rigidity of the National Tax Code.
However, the effectiveness of the public policy will depend on overcoming practical and legal challenges. Low participation, the need for transparency in resource management, and ensuring that tax compensation does not override the primary objective of expanding the capacity and improving the quality of the SUS (Brazilian Public Health System) are crucial points.
For the ATE (Tax Assessment and Evaluation) to fulfill its promise, it is imperative that the regulatory acts of the Ministry of Health and the Ministry of Finance establish oversight and monitoring criteria that ensure the effective delivery of high-quality health services to the population, transforming tax expenditure into a legitimate and effective social investment.
Improving the quality of public spending on health requires not only regulatory innovation, but also a review of the federal fiscal pact, the strengthening of regional planning, and the preservation of the essential core of the fundamental right to health, otherwise the 1988 constitutional project will be undermined.
References
BRAZIL. Constitution (1988) . Constitution of the Federative Republic of Brazil. Brasília, DF: Presidency of the Republic, 1988.
BRAZIL. Law No. 5.172, of October 25, 1966. Establishes the National Tax Code. Official Gazette of the Union: Brasília, DF, October 27, 1966.
BRAZIL. Law No. 8.080, of September 19, 1990. Provides for the conditions for the promotion, protection and recovery of health, and the organization and operation of the corresponding services. Official Gazette of the Union: Brasília, DF, September 20, 1990.
BRAZIL. Law No. 8.142, of December 28, 1990. Provides for community participation in the management of the Unified Health System (SUS) and for intergovernmental transfers of financial resources in the health sector. Official Gazette of the Union: Brasília, DF, Dec. 31, 1990.
BRAZIL. Complementary Law No. 141, of January 13, 2012. Regulates paragraph 3 of article 198 of the Federal Constitution to provide for the minimum amounts to be applied annually by the Union, States, Federal District and Municipalities in public health actions and services. Official Gazette of the Union: Brasília, DF, January 16, 2012.
BRAZIL. Decree No. 7.508, of June 28, 2011. Regulates Law No. 8.080, of September 19, 1990, to provide for the organization of the Unified Health System (SUS), health planning, health care, and inter-federative coordination. Official Gazette of the Union: Brasília, DF, June 29, 2011.
BRAZIL. Constitutional Amendment No. 95, of December 15, 2016. Amends the Act of Transitory Constitutional Provisions to institute the New Fiscal Regime. Official Gazette of the Union: Brasília, DF, Dec. 16, 2016.
BRAZIL. Provisional Measure No. 1.301 of 2025. Establishes the "Now There Are Specialists" Program and authorizes the offsetting of financial credits resulting from services provided to the Unified Health System. Official Gazette of the Union: Brasília, DF, 2025.
BRAZIL. Law No. 15.233, of October 7, 2025. Establishes the "Now There Are Specialists" Program (ATE) and provides for tax compensation mechanisms to expand specialized care in the Unified Health System. Official Gazette of the Union: Brasília, DF, October 8, 2025.
HOMBEECK, Guilherme van. Tax compensation in the strategy to reduce waiting lists in the SUS: is it sufficient? JOTA – Opinion & Analysis , Brasília, June 13, 2025. Available at: https://www.jota.info/opiniao-e-analise/artigos/compensacao-fiscal-na-estrategia-para-reduzir-filas-no-sus-e-suficiente. Accessed on: December 15, 2025.
SANTOS, Lenir; FUNCIA, Francisco Rógerio; OCKÉ-REIS, Carlos Octávio. Challenges to improving the quality of public spending on health . In: SANTOS, Lenir; FUNCIA, Francisco Rógerio (org.). Public financing of health . Brasília, DF: National Health Council, 2019. chap. 8, p. 197-222.
