The Board of Healthcare Funders is not aware of the legal basis upon which the statements were made by SAMA in its press release of 11 October 2006. However it wishes to make the following observations;

The regulations referred to by SAMA in section 90 of the National Health Act are around the processes of determination and publication by the Director-General of one or more reference price lists for services rendered, procedures performed and consumable and disposable items utilised by categories of health establishments, health care providers or health workers in the private health sector.

The National Health Reference Price List itself is not envisaged as a regulation in terms of the National Health Act. The NHRPL itself will never be law.

The Act specifically states that there is the possibility of regulation of processes to determine more than one reference pricelist and that such pricelist may be used by medical schemes to determine their benefits. These pricelists may also be used by health establishments, health care providers or health workers in the private health sector as a reference to determine their own fees.

The National Health Act specifically states that such reference pricelists are not mandatory.

The Minister is therefore not obliged to make any regulations at all in this regard. She has a discretion to do so.

The National Health Act also stipulates that the Director-General must issue, and promote adherence to, norms and standards on health matters, including the provision of health services, such as social, physical and mental health care.

In the view of the BHF a norm can include a benchmark price list which indicates what most health care providers are charging. The norms and standards contemplated in the National Heath Act are not law but are commonly accepted or recognised principles for the good of the heath system as a whole. One must also never lose sight of the government’s constitutional responsibility to promote access to health care services. This responsibility is not restricted by the Constitution to the public health sector .

The Medical Schemes Act obliges medical schemes to provide in their rules for the payment of any benefits according to a scale, tariff or recommended guide or specific directives prescribed in the rules of the medical scheme. The law cannot oblige someone to do something that is illegal. Therefore medical schemes are legally mandated to provide in their rules for payment of benefits according to a scale, tariff or recommended guide.

Whilst medical schemes are aware that collaboration between schemes is contrary to competition law, they are legally empowered to decide as individual schemes what scale, tariff or recommended guide to follow and are legally obliged to include provision for this in their rules. Schemes are not legally obliged to follow the NHRPL but may choose as individual schemes to do so on the basis of the provisions in the Medical Schemes Act.

The BHF cannot comment on the reasons of the National Department of Health for deciding not to publish a National Health Reference Price List. However it is clear that if the Minister is given a discretion to make regulations as to the processes for the publication of such a list and chooses not to do so, this does not necessarily mean that the publication of the list or the list itself is illegal. It simply means that if the Minister so chooses, she can regulate the processes in terms of which such a list is published.

For further information please contact Heidi Kruger, Head of Corporate Communications at BHF on 011 5370200