Regulations are usually only made after the president signs an Act and determines when it would come into operation.
The NHI regulations that Minister of Health Dr Aaron Motsoaledi published last week were made in terms of legislation that the president has not proclaimed yet. The regulations deal with establishing an ad hoc advisory panel and a board for the NHI.
While President Cyril Ramaphosa assented to the National Health Insurance (NHI) Act in May last year just before the general election, but he has not assented to any parts of the legislation yet. However, Motsoaledi published the draft governance regulations to section 55 (x), (z) and (zA) of the NHI Act.
NHI: Unlimited power for health minister
According to the draft regulations, the minister of health will oversee all key appointments. Various stakeholders pointed out during public hearings in parliament that this would be a governance issue, saying that the NHI Fund must be independent to avoid political interference.
The draft regulations also stipulate that the minister will call for nominations to the board of the NHI Fund, while the director general of health must establish a nomination committee to draw up a shortlist of nominated candidates.
The shortlist will be referred to an ad hoc advisory committee – also appointed by the minister. The committee will recommend candidates to the minister, who will submit the names to Cabinet for approval. Once the board is appointed it will recruit a CEO – also subject to ministerial and Cabinet approval.
The CEO will then recruit candidates for a benefits advisory committee and a healthcare benefits committee, subject to approval by the ad hoc committee and – again – the minister.
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Publication of NHI regulations premature
The Health Funders Association (HFA) CEO, Thoneshan Naidoo, says it is still in the process of conducting a thorough review of the regulations. “However, given the significant legal challenges currently mounted against the NHI Act, HFA believes that the publication of the regulations is premature.
“The fundamental concerns regarding the feasibility, sustainability, benefits package and overall implementation of the NHI remain unaddressed and it is crucial that these core issues are resolved before any regulations are promulgated.”
Naidoo warns publishing draft governance regulations in isolation before demonstrating the viability of the NHI as a whole, risks creating further uncertainty for South Africans.
“We note that the sections of the NHI Act that authorise the minister to publish regulations have not yet been proclaimed by the President and that the NHI Act also requires that regulations may only be made by the minister after consultation with the NHI Fund and the National Health Council.
“Therefore, the legal status of the draft regulations is not clear.”
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NHI regulations lets minister make all appointments
Naidoo also notes that despite the various processes introduced by the draft regulations regarding nominations, shortlisting and consultation, it does not change the fact that the minister makes all the appointments of the various advisory committees, the board and the CEO.
He also points out that this underscores that regulations do not rectify the flaws in the NHI Act.
“We remain committed to engaging with government to progress towards an equitable system of universal health coverage achieved in the most efficient way possible, leveraging the strengths of both the public and private healthcare systems.”
Naidoo says it will continue to study the proposed regulations and provide input to ensure that the governance of the NHI Fund aligns with best practices and the needs of the healthcare sector.
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BHF disappointed that minister published NHI regulations despite legal challenges
Dr Katlego Mothudi, managing director of the Board of Healthcare Funders (BHF), says it will also make a formal submission on behalf of its members.
“We are disappointed that the minister moved ahead with the publication of regulations under the NHI Act, despite several court challenges questioning the overall constitutionality of the legislation and in circumstances where the section of the NHI Act on which he is relying to do so is not legally in force.
“This includes the BHF’s court challenge which was heard in the North Gauteng High Court this week, which requests the court to review and set aside president Ramaphosa’s decision to sign the NHI Bill into law.
“We are in court because we believe that the president was obligated by law (section 79(1) of the Constitution) to refer the NHI Bill back to the National Assembly for reconsideration due to the clear reservations expressed, which were before him regarding the constitutionality of the Bill.”
Mothudi says after signing the NHI Bill into law, Ramaphosa committed to engage with stakeholders on their concerns regarding the legislation. “However, it appears the president and Minister Motsoaledi continued to ignore all well-reasoned arguments made by various groups, including the BHF, on why the NHI Act is unconstitutional.
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‘NHI Act undermines universal health care’
“We are resolutely committed to achieving universal health coverage in South Africa. However, the NHI Act, in its current form, will undermine this goal. NHI will not address the current deficiencies in the healthcare system and will, instead, cause the mass departure of skilled healthcare professionals. It is also unaffordable at a time when the fiscus is already severely constrained,” Mothudi says.
He believes that doing away with medical schemes, which provide cover to more than 9.7 million people, of which 67% are from disadvantaged groups, will further weaken the quality of healthcare available.
“The BHF will continue fighting for the establishment of a model that includes both the NHI and access to affordable medical schemes. This includes permitting the rollout of low cost benefit options – pared down medical aid schemes – which would allow a further 10 million people to access quality private healthcare.
“It is disappointing that, instead of working with the private healthcare sector to find sustainable ways to address the urgent healthcare needs of the country, the national department of health continues to forge ahead with the implementation of the unworkable, unaffordable and unconstitutional NHI Act.”
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Four independent legal challenges have already been instituted against the NHI Act. Business Unity SA (Busa) is also trying to change the NHI Act and submitted a proposal to Ramaphosa last year.
