National health minister, Dr Aaron Motsoaledi, believes the Competitions Commission should revoke its decade-old ruling outlawing collective negotiation in the private healthcare sector - as the first major step in reducing the current ‘chaos’ surrounding tariffs.
Currently doctors can charge up to four times as much as medical aids are willing to pay out (depending on the terms of each scheme’s ceiling rules), leaving patient members either forking out for ‘gap’ cover insurance or reaching deeper into their pockets to make up the difference.
Speaking to Leadership, Motsoaledi said, "I don’t believe that tariff setting (prior to the 2004 Competitions Commission ruling) was collusive. They must just do away with that ruling; it’s the quickest and fastest way. Now, whoever puts up suggested guidelines…you know there’s going to be a court case".
He was referring to the threatened legal action by the South African Medical Association, (SAMA) and other doctor groupings when the Health Professions Council of South Africa (HPCSA), last year published what it said were ‘fair’ tariff guidelines. An outraged medical profession said they were so low as to be out of touch with reality. The HPCSA is now calling for wider stakeholder input in an ambitious bid to get multiple role-players to agree, but its relations with the Medical and Dental Professions Board (one of the 12 health professions board under its umbrella), have reached an all-time low.
Motsoaledi said it was not the HPCSA’s legislative competence to set tariff guidelines, agreeing with HPCSA President Professor Sam Mokgokong that their job was to protect the public and guide the profession, intervening only when tariff ceilings (of which there are currently none) were exceeded.
The High Court invalidated the National Health Reference Prince list in 2010, effectively leaving a vacuum in which doctors can charge up to four times what medical aids set as their individual ceilings for patient-member payouts. This followed the Competitions Commission ruling in 2004 that medical aid schemes may not collectively bargain with healthcare providers - because this would be anti-competitive and lead to price-setting. Motsoaledi said the Commission’s 2004 ruling had caused and was still causing ‘havoc’ in the private healthcare sector. "How do you go back (to the negotiating table) when you’re not allowed to talk to the stakeholders – and then there’s this High Court ruling invalidating the tariffs!?"
BHF seeks legal clarity on ‘pay in full’
Leadership learnt that the Board of Healthcare Funders, BHF, which represents 75% of South Africa’s medical aid schemes, is preparing a court bid to force a clearer interpretation of Regulation 8 of the Medical Schemes Act. The regulation says medical aids must ‘pay in full’ the claims of patients – but is silent on whether this means the maximum rate as defined by each medical schemes rules or the actual full service provider fee.
The former is the current practice, although the Council for Medical Schemes, (CMS), a regulatory body, has engaged in a sabre-rattling exercise, warning medical schemes that it will act against them if they continue to flout its November 2008 ruling that they must "pay in full" the invoices of service providers. Dr Humphrey Zokufa, MD of the BHF, confirmed that they aim to secure either a High Court or Constitutional Court ruling, declaring Regulation 8 (i.e. pay in full), ‘ultra vires’ (without legal force) - or unconstitutional.
His central argument is that it’s not about quantum, but the very survival of medical aids. If medical schemes went out of business due to impossibly high pay-outs, millions of current members (17% of the population), would suffer an infinitely worse fate than just coughing up ever-increasing premiums. The BHF made an abortive attempt two years ago in the Pretoria High Court to obtain a ruling on the meaning of ‘pay in full,’ but was thwarted by a technical ruling that it had only filed 15 medical schemes in its’ papers, thus giving it no ‘locus standi’ (i.e. inadequate representivity). A petition to the Supreme Court of Appeal in Bloemfontein a year later was denied and the original ruling upheld. The BHF has also twice asked for exemption from the Competitions Commissions Act, without success.
Motsoaledi promised to continue "chasing’ the Competitions Commission to get it to overturn it’s 2004 ruling, explaining that a new Acting Commissioner had only just been appointed (Thembenkosi Bonakele) and he had yet to ‘engage him on the matter". He reiterated his call for a pricing commission to provide the government with guidance and emphasized that, contrary to public opinion, he had not called for the market enquiry into the private healthcare sector which a subpoena-strengthened commission launches this January. "In their wisdom they decided to do the enquiry, which I welcome, but I must tell you, it’s not what I asked for".
"I’m not in charge of them. Things are very complex and technical but I still believe they can revoke their (2004) ruling. If that happens, we can go back to parliament and show them (his fellow MP’s) that they (the legislators) are making life difficult (via the existing Act and Regulation 8)". Leadership’s legal sources said it was entirely possible that the courts could thwart the BHF court bid by refusing to interfere in the workings of the national legislature.
Motsoaledi said the CMS ruling gave a perverse incentive to doctors. "Give me any area of industry where you can just put something on the invoice and say you must pay for this?" he asked. He agrees with Zokufa that medical schemes are too heavily regulated, "while there’s nothing (regulation) on the provider side". Asked about the impending White Paper paving the way for National Health Insurance (NHI), Motsoaledi predicted that it would almost certainly push general practitioners back into the role of gatekeepers," thus preventing the current overwhelming practice of patients seeking out already overworked and ‘thin on the ground,’ specialists as a first port of call.
"In law you don’t go to an advocate first, you consult an attorney. We need to be delegating everything downwards, not upwards", he said citing the success of the Nurse Initiated Ante Retroviral Treatment (NIMART), which enabled government to reach 2,1 million people. He said he could not see an NHI working without using GP’s as gatekeepers and without nurses becoming more utilitarian.
He said his primary goal was affordable healthcare. "If that’s always subjected to court cases, surely there must be a different method? It must be negotiated out". Treating healthcare as a market commodity (instead of a ‘public good’) was hugely inappropriate", he added.