Court ac­tion shows up se­ri­ous­ness of PMB dis­pute

Weekend Argus (Saturday Edition) - - GOODWINES - LAURA DU PREEZ

An or­gan­i­sa­tion rep­re­sent­ing med­i­cal schemes this week ap­plied to court for an or­der giv­ing clar­ity on what schemes have to pay for the pre­scribed min­i­mum ben­e­fits (PMBs) that they are obliged to pro­vide to you.

The court ap­pli­ca­tion re­veals that the Coun­cil for Med­i­cal Schemes is in­ves­ti­gat­ing Med­scheme, an ad­min­is­tra­tor, and Fed­health, a large open scheme, for not ad­her­ing to their in­ter­pre­ta­tion of the law per­tain­ing to the pay­ment of PMBs.

The coun­cil has taken the view that schemes must pay at what­ever rate health­care providers charge for PMBs, while schemes say PMB claims should be paid at the rate the scheme has set for the rel­e­vant op­tion.

The semi-ur­gent ap­pli­ca­tion by the Board of Health­care Fun­ders (BHF) in the North Gaut­eng High Court against the Coun­cil for Med­i­cal Schemes was, how­ever, not heard this week, as other stake­hold­ers, in­clud­ing the South African Pri­vate Prac­ti­tion­ers Fo­rum rep­re­sent­ing 800 spe­cial­ists, the Phar­ma­ceu­ti­cal So­ci­ety of South Africa, and hos­pi­tal group MediClinic, have asked for an op­por­tu­nity to in­ter­vene in the mat­ter.

The BHF agreed to give other par­ties time to file pa­pers and will seek to have a hear­ing of the ap­pli­ca­tion in full, in­stead of on an ur­gent ba­sis, and to be given pref­er­ence on the court roll when all pa­pers have been filed early next year.

The long-run­ning dis­pute over what schemes must pay for PMBs cen­tres on a reg­u­la­tion un­der the Med­i­cal Schemes Act that says schemes must “pay in full” with­out co-pay­ments or de­ductibles for PMB claims.


In 2008 the Ap­peal Board of the Coun­cil for Med­i­cal Schemes made two rul­ings stat­ing that the reg­u­la­tion must be in­ter­preted to mean that schemes must pay what­ever a health­care provider charges for a PMB claim.

Both cases in­volved pae­di­a­tri­cians who treated new-born ba­bies in emer­gen­cies cov­ered by the PMBs but charged more than the rate pro­vided for in the rules of the re­spec­tive schemes – the Govern­ment Em­ploy­ees Med­i­cal Scheme and Samwumed, a scheme for mu­nic­i­pal work­ers.

The BHF says the in­ter­pre­ta­tion is un­sus­tain­able for schemes, which then face an open li­a­bil­ity for the PMBs. It says this is es­pe­cially so in the light of a court ap­pli­ca­tion ear­lier this year that re­sulted in the scrap­ping of the Ref­er­ence Price List (RPL), the guide­line tar­iffs for schemes and providers.

Schemes say in­sist­ing that they must pay the full cost of PMBs gives health­care providers an open cheque book to charge as much as they like, know­ing schemes are forced to pay.

In re­ply­ing pa­pers to the BHF’s ap­pli­ca­tion, the ex­ec­u­tive of­fi­cer of the Coun­cil for Med­i­cal Schemes and the Reg­is­trar of Med­i­cal Schemes, Dr Mon­wabisi Gantsho, says if schemes fail to pay for PMBs in full as in­voiced, mem­bers may be­come li­able for the short­fall.

Court pa­pers re­veal on­go­ing, but so far un­suc­cess­ful, at­tempts to re­solve the is­sue, in­clud­ing those dur­ing a re­cent process of set­ting up a code of con­duct for the PMBs.

The BHF’s ap­pli­ca­tion says the mat­ter be­came ur­gent for its mem­bers when the code failed to re­solve the is­sue and the Coun­cil for Med­i­cal Schemes is­sued a cir­cu­lar in Oc­to­ber stat­ing it would en­force the in­ter­pre­ta­tion that schemes must pay for PMBs at the in­voiced rate.

The BHF’s ap­pli­ca­tion refers to an in­ves­ti­ga­tion into Med­scheme and Fed­health and an in­struc­tion by the Coun­cil for Med­i­cal Schemes to schemes to re­port to it any fail­ures to ad­here to the ap­peal board in­ter­pre­ta­tion of the PMB reg­u­la­tion. A coun­cil cir­cu­lar said a fail­ure to do so could re­sult in a scheme’s ac­cred­i­ta­tion be­ing with­drawn or sus­pended.

Fed­health re­cently lost an ap­peal to the ap­peal com­mit­tee against a coun­cil di­rec­tive that it should pay in full the PMB claims of an ac­ci­dent vic­tim whose doc­tor charged more than the scheme rate, the court pa­pers say.

The BHF’s ap­pli­ca­tion says le­gal opin­ion ob­tained by Med­scheme and that of the BHF’s for­mer le­gal ex­pert, Dr Deb­bie Pear­main, is that the coun­cil’s view is in­cor­rect.

Ac­cord­ing to the ap­pli­ca­tion by the BHF’s man­ag­ing di­rec­tor, Dr Humphrey Zok­ufa, Pear­main ar­gues that the Med­i­cal Schemes Act binds schemes to pay­ing ben­e­fits, in­clud­ing those for PMBs, in terms of its rules.

The BHF ar­gues that, ac­cord­ing to this view, pay­ing for PMBs at a rate higher than that set by a scheme’s rules would be il­le­gal.

The reg­is­trar ar­gues in the court pa­pers that schemes’ rules are not leg­is­la­tion and are not su­pe­rior to the pro­vi­sions of the Act or its reg­u­la­tions.

He says the rules of a scheme must be made, or amended if nec­es­sary, to con­form with the pro­vi­sions of the Act, in­clud­ing its reg­u­la­tions.

The reg­is­trar has also dis­puted the BHF’s right to bring the case to court.

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