Kick the NHI Bill back, it’s unconstitutional – Busa to Ramaphosa

Lobby groups Business Unity SA (Busa) and Business for SA (B4SA) have called on President Cyril Ramaphosa to kick the National Health Insurance (NHI) Bill back to the National Assembly on the grounds that it is unconstitutional.

“What the country needs is an NHI underpinned by the Constitution, and which is affordable and implementable. This bill does not meet these criteria, and is not ready to be signed into law,” says Cas Coovadia, CEO of Busa.

Read: ‘Totally irresponsible’ to adopt NHI Bill in current form

Busa cites several grounds where the NHI bill falls short of procedural and constitutional requirements, among them an inadequate socio-economic impact process to determine its effect on the broader economy. There are also concerns that public participation inputs were not properly considered and that the many suggestions from business and medical aid schemes were ignored.

A collaborative Nedlac process to address high-level issues around the NHI between government, business and labour also appears to have withered on the vine.

The NHI appears to have been rammed through the legislative machine with unseemly haste as a vote-winning strategy by the ANC in an election year.

It aims to provide universal healthcare for all South Africans paid for out of an NHI fund, using the power of bulk buying to bring down costs.

Funding

One of the key objections to the NHI is its estimated R859 billion cost (for prescribed minimum benefits) and where the government plans to find this money, bearing in mind the current budget for healthcare is just R233 billion.

Read:
Is NHI the straw that will break Treasury’s back?
Biggest farce in the NHI charade is the funding story: Mavuso

The bill has been roundly condemned by medical schemes and business organisations as unaffordable and unworkable, though all say they support the concept of universal healthcare. How we get to that lofty goal is an entirely different matter.

Read: NHI means 31% more tax and 69% less benefits for medical scheme members

Discovery CEO Adrian Gore has warned that the NHI proposals as they stand mean medical aid members will be required to pay 31% more tax and receive 69% less benefits in return.

‘Damaging’

Busa says Section 33 of the NHI bill is unconstitutional as it gives the minister of health unfettered freedom to determine what services medical aid schemes will be allowed to offer, and argues that this power is unnecessary for achieving the policy objectives of the NHI.

This is damaging to the private health sector as a whole and there is no rational basis for this approach, say the two business groupings.

“Busa noted that the single fund model [where government will buy and pay for all healthcare services for everyone] introduces significant concentration risk and adversely impacts people’s ability to seek care in the private sector.

“This is also likely to result in significant strain being placed on the public sector. The amendments proposed by Busa seek to allow for the role for medical schemes to be determined in a consultative process, in measured phases in a manner that is consistent with the policy objectives.”

The NHI also runs afoul of the Constitution when it comes to accessing healthcare and appealing treatment denied by the NHI, as these could potentially hinder or violate constitutional rights to healthcare services.

Purchasing and pricing

Other offending clauses in the NHI bill are sections 11 and 26, which deal with the purchase of healthcare services and the determination of prices for those services, guided by a committee of up to 24 people.

These provisions “are unsustainable and inconsistent with the principles of value-based care and strategic purchasing, which is the global trend for sustainable healthcare contracting that is patient centred,” says Busa.

“They focus on price in an unsophisticated manner which contradicts the Constitution’s criteria for lawful procurement.”

Rollout

The rollout of the NHI, covered under Section 57 of the bill, talks of a phased and progressive implementation of the scheme based on available resources and split into two phases.

The first five years would focus on the healthcare needs of the vulnerable, with the second phase lasting four years and focused on strengthening existing systems and contracting healthcare services from private providers.

Busa argues that this rollout needs to be linked to milestones that are workable and relevant to South Africans having reasonable access to quality healthcare services, rather than dates which are arbitrary and unrealistic, and already outdated.

Control

Medical aid schemes view Section 33 of the NHI bill as the key threat to their longevity.

The bill states: “Once National Health Insurance has been fully implemented as determined by the minister through regulations in the [Government] Gazette, medical schemes may only offer complementary cover to services not reimbursable by the Fund.”

That means they may not provide services already covered by the NHI.

If the NHI covers treatment for osteoarthritis or hip replacements, medical aid schemes will be prevented from offering these services to their members.

There are contradictions between the NHI and various other statutes, including the Competition Act and the Protection of Personal Information Act, as well as contradictions between different clauses within the NHI bill itself.

One of those contradictions appears to remove with immediate effect the health functions of the provinces, impacting funding of about R196 billion.

Gore pointed out to Moneyweb that when the NHI starts taking effect a decade from now, we should expect to see a dramatic drop in the quality of healthcare in SA with an increasing burden being thrust onto the shoulders of taxpayers.

“Busa and B4SA are confident that, in a constitutional democracy, these views will be taken into account by the President when he assesses the constitutionality of the Bill prior to his assent,” says B4SA Steering Committee chair Martin Kingston.

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Interview starts at the 6:04 mark.