Monday 15 April

24 July 2015

On 14 July 2015, the Minister of Health published an amendment to Regulation 8 of the Regulations to the Medical Schemes Act for public comment by 14 October 2015.

This amendment seeks to change the current position concerning prescribed minimum benefits (PMBs), which is that medical schemes, regardless of the plan a member is on, must pay in full for the diagnosis, treatment and care of PMB conditions. In other words, the member cannot be required to make a co-payment for the costs associated with any PMB condition.

The underlying rationale is to provide continuous care and ensure that members –especially those suffering from serious illnesses – do not run out of benefits for the specified medical conditions. This is meant to ensure that everyone has a right to health care services, including members of medical aid schemes.

The amendment introduces tariffs for payment of PMB conditions. The amendment refers to the “2006 NHRPL tariffs made by the Council”.  However, the 2006 NHRPL was intended to be an interim measure and was criticised at the time as not reflecting the true cost of providing health care services. The approach taken in the proposed amendment is concerning if the tariffs are not likely to reflect the cost of services as this may place an additional burden on patients to cover the costs of PMB conditions.

Treatment Action Campaign (TAC), South African Depression & Anxiety Group (SADAG) and People Living With Cancer (PLWC) are all patient advocacy groups involved in promoting access to treatment, care and support for patients with HIV/AIDS, mental illnesses and various forms of cancer, both in the public and private health sectors in South Africa. These groups are concerned about the consequences of the amendment for patients’ rights to have access to health care services. PMBs include, amongst others, HIV and TB, common conditions such as hypertension and diabetes as well as mental health and cancer conditions. Importantly, PMBs also include emergency medical treatment. Patients and health care providers cannot afford uncertainty around these conditions.

The recent amendment fails to explain to the public the underlying rationale for it, or to provide evidence as to the reasoning in support of it.

Recent public statements from the Department of Health state:

“the aim of the draft regulations was to protect medical schemes from open-ended liability for prescribed minimum benefit conditions claims” (Business Day, 20 July).

“In the current context, we are trying to fix an immediate problem faced by schemes” (Business Day, 21 July).

It is clear from these statements that the purpose of the amendment is to promote the interests of the medical schemes industry.

According to the Business Day of July 20, the Department further ‘conceded that patients might face co-payments’.

Cassey Chambers of SADAG said: the organisation is very concerned about the removal of the requirement to pay in full. “Many patients with mental health conditions will not be able to afford to pay or co-pay for the medicines they need and will land up in hospital with even more serious conditions”.

Linda Greeff of PLWC said: “Many cancer treatments will simply be out of reach for anyone without the guarantee of payment for PMB conditions related to cancer”.

Genesis’ claim that medical schemes are in financial dire straits and that health professionals abuse regulation 8 is highly contested. In its litigation against the Minister, Genesis Medical Scheme claims that the Minister does not have the powersto require schemes to pay for the PMB conditions in full. A range of parties including the Council for Medical Schemes, Hospital Association of South Africa and the South African Private Practitioners Forum have applied to the court to oppose Genesis’ case. TAC, SADAG and PLWC have applied to be a friend of the court.  These patient groups argue that the Minister does have the authority to make regulation 8.  They argue furthermore that Regulation 8 is necessary to give effect to the right of access to health care services under section 27 of the Constitution.

The Minister did not oppose Genesis’ application, nor did he inform the court that an amendment to Regulation 8 was imminent.

TAC, SADAG and PLWC have not seen any definitive evidence on which to base such a far-reaching change in the law, which has the potential to take away access to health care for patients. However, there is evidence to show that patients face financial ruin when forced to pay or co-pay for PMBs. One family with a child suffering from Crone’s Disease – a PMB – fought Genesis for years to pay for their child’s treatment.  This has exhausted all their finances and the parents have had to tap into their pension fund and sell their home to pay for their child’s treatment.

We acknowledge that there are legitimate concerns about the high cost of private health care in South Africa, but limiting medical scheme coverage for PMBs is not a sensible solution to this problem.

The state is obliged to respect, protect, promote and fulfil the rights in the Bill of Rights, including the right to have access to health care services, which is at risk of being violated. The Minister of Health is required to adopt appropriate legislative and other measures toward the progressive realisation of the right.

There are at least three processes already underway to address this: the market inquiry into the private health care sector, the intellectual property policy reform process and draft regulations for international benchmarking of medicine prices. These processes should be prioritised and implemented to address the cost of health care.

While, TAC, SADAG and PLWC would support steps by the Department to regulate fees charged by health care providers, we are of the view that the current amendment constitutes a whittling down of government measures to protect the right to access health care services.

We therefore urge the Minister to withdraw the proposed amendment to Regulation 8.

For more information:

Marcus Low, Treatment Action Campaign 082 962 8309

Cassey Chambers, South African Depression & Anxiety Group 082 835 7650

Linda Greeff, People Living With Cancer 082 551 3310

Umunyana Rugege (Attorney for TAC, SADAG, PLWC), SECTION27 083 458 5677


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