National Health Insurance (NHI) Bill: clauses 51 to 56 deliberations

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02 November 2022
Chairperson: Dr K Jacobs (ANC)
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Meeting Summary


NHI: Tracking the Bill through Parliament

In this virtual meeting, the Committee continued its clause-by-clause deliberations on the National Health Insurance (NHI) Bill and worked through Clauses 51 to 56 most of which the majority party agreed to. Members of the opposition parties either rejected the clauses or put forward suggestions to modify some of them. Their main criticisms include:
- Minister’s far-reaching powers without corresponding accountability checks and balances. Members suggested that the Minister would have a large fiscal responsibility and should be obligated to account to Parliament throughout the year. The Minister was effectively running the Fund’s day to day operations as opposed to having a general oversight role and triggered questions on the separation of powers. It would be open to abuse.
- Ambiguities: Some clauses were ambiguous and provided little clarity on the precise meaning of the provision. The wording should be clear to ensure certainty.
- Penalties: The lack of adequate penalties. The suggestion was that a more appropriate corruption deterrent would be imprisonment.
- Protection for whistleblowers: Nothing in clause 54 provided protection for whistleblowers. This was very concerning as civil servants were murdered after exposing corruption
- Transparent Regulations Process: Regulations should go out for public comment and be tabled in Parliament. This was the reason for opposing the removal of clause 55(4).

Meeting report

Clause 51: Annual Reports
In the previous meeting, time constraints meant not all Members had commented on this clause so the Chairperson gave them the opportunity.

Ms H Ismail (DA) suggested that clause 51(2)(d) include a report on health outcomes by a market enquiry. She requested that clause 51(3)(e) clarify that an independent actuary valuation report be conducted. This would maintain the information integrity and objectivity contained in the report.

Dr K Jacobs (ANC) said that the ANC supported clause 51(2)(d) because it provided the Minister of Health as the executive authority adequate powers to enable gazetting regulations on additional information that must be incorporated into the NHI Fund annual report. The Minister was empowered to gazette any other information through a public participation process. This will assist in ensuring that processes to do with funds, activities and reporting are transparent and consider public input.

The ANC supported clause 51(3)(e) because for the Fund to effectively execute and achieve its legislated mandate it is essential that the Fund provides an annual actuarial report that considers the population demographics, disease profile, and personal healthcare services, utilisation profile and actuarial valuation. The report will assist in providing a snapshot of the Fund’s users during a given financial year and ensure the determination of the Fund liabilities and users funded status.

The Fund’s activities require that the Minister provide an actuarial valuation report. That report kept him accountable and reassured stakeholders, including the public and accredited and contracted providers on the sustainability of the Fund’s finances as well as on the validity of using the results for policy reforms and financing decision-making. He supported the inputs given by Ms A Gela, Mr T Munyai, Mr E Siwela, Mr N Xaba, and Dr X Harvard the previous week on clause 51.

Clause 52: Assignment of Duties and Delegation of Powers
The Chairperson read clause 52 of the Bill

Mr E Siwela (ANC) said that the ANC was in support of clause 52(a). Creating regulations was the core responsibility of the executive authority and cannot be delegated to functionaries of an entity as in the case of the Fund. It implied that the minister would weigh his/her options and delegate where appropriate. This would provide flexibility to the CEO and executive team and staff to effectively execute the functions of the Fund.

Ms M Clarke (DA) commented that the Minister should be tabling reports more than once per annum to Parliament. Being responsible for such a large fiscal responsibility should obligate the Minister to account to Parliament throughout the year. The Minister should not be given such far reaching powers to begin with because the amount of power delegated to the Minister in the Bill was unprecedented. She hoped to see a far more transparent process in the Bill's implementation.

Ms H Ismail (DA) noted her concerns. The delegation of authority must be subject to the approval of the board because this would allow for more accountability, transparency, and efficiency. She was on the lookout for good governance when it came to the implementation of the Bill. She rejected the involvement of the Minister as a way of preventing political interference. She opted to remove the presence of the Minister entirely from the clause.

Ms E Wilson (DA) agreed with Ms Clarke and Ms Ismail. The entire Bill gives the Minister too much discretionary power which is unprecedented. The amount of power delegated to the minister meant that the minister would be both the judge and jury which was not possible and practical. The clause would create major conflict if for instance the Fund CEO and the Minister disagreed on any issue. The clause undermined the transparency that the Act requires. She opposed the clause.

Dr X Harvard (ANC) said that the ANC supported clause 52(b) because it ensures that the CEO has the power to delegate functions to the executive team to ensure effective execution of the functions of the Fund. She agreed with Mr Siwela.

Ms A Gela (ANC) agreed with Mr Siwela and Dr Harvard.

Dr K Jacobs (ANC) agreed with Mr Siwela and Dr Harvard and the support given by Ms Gela.

Clause 53: Protection of Confidential Information
The Chairperson read clause 53 of the Bill

Ms A Gela (ANC) said that the ANC supported clause 53 because it ensures that the Bill is consistent with the Constitution and the Protection of Personnel Information (POPI) Act.

Ms M Clarke (DA) said the clause was in line with what was expected of the Committee.

Mr E Siwela (ANC) agreed with Ms Gela's contribution.

Dr X Harvard (ANC) agreed with Ms Gela and Mr Siwela

Ms E Wilson (DA) said her only concern was the number of Acts and regulations that would have to be adapted to harmonise with the Bill.

Dr K Jacobs (ANC) stated that it was important that the clause be part of the Bill and that it was necessary for everyone support it. He agreed with Ms Gela.

Clause 54: Offences and Penalties
The Chairperson took the Committee through clause 54of the Bill

Ms M Clarke (DA) said that a big problem that needed to be addressed was transparency and the differentiation between natural and juristic persons which would cause confusion for offences and penalties. Also, juristic persons should not be excluded from offences and penalties.

Ms H Ismail (DA) pointed out that clause 54(e) was too ambiguous because it was difficult to ascertain if the clause refers to mere information or confidential information. She asked that it be clearly expressed in the clause that it referred specifically to confidential information. The fine of R1000 was a small penalty for a crime so severe and suggested that the fine be accompanied with imprisonment as this would be a more appropriate deterrent from corruption.

Mr E Siwela (ANC) said that the ANC supported clause 54(1)(c) because although it was possible for those who are reimbursed by the Fund to elect to use the money to pay for non-healthcare benefits, the clause ensured that the penalties for such behaviour would be justifiable. Money paid from the Fund should strictly be for services for which the Fund contracted with accredited healthcare service providers based on the healthcare needs of users.

The ANC supported clause 54(1)(e) because the clause introduced mechanisms that make provision for preventing the selling or disclosing of information to third parties without the consent or permission from affected parties. The penalties deter the likelihood of stakeholders selling information for commercial purposes.

Mr T Munyai (ANC) said that the ANC supported clause 54(b) as it would be relevant in dealing with users who are not described in clause 5 Registration of Users or who do not comply with clause 6 Rights of Users.

Ms E Wilson (DA) said that there was nothing in the clause that provided protection for whistleblowers. She found this particularly offensive considering reports that a whistleblower had been murdered after exposing corruption in the Health portfolio. The clause gave the Minister the sole mandate to manage the entire situation. Yet if the Minister was not transparent there would be no control over the situation.

A court of law is an independent tier of government. The legislature making decisions about prison terms and fines was an infringement on the terrain of the judiciary and an overreach by the legislature. Only the courts could determine sentencing terms. The Committee could not override the independence of the courts by making that determination.

Ms A Gela (ANC) agreed with Mr Munyai. The ANC was in support of clause 54(1)(c) because there was a possibility that those who were reimbursed by the Fund may opt to use the money for non-healthcare benefits. The penalties for such behaviour would be justifiable. Money paid from the Fund should strictly be for services for which the Fund contracted with accredited healthcare service providers based on the healthcare needs of users.

The ANC supported clause 54(1)(d) because it provided penalties which would be imposed in instances where money and benefits from the Fund are used untruthfully and for personal benefit.

Ms M Clarke (DA) pointed out that the clause had no framework in place to prevent officials and their family members from doing business with the state. It is an issue that would proliferate the chances of fraud and corruption taking place. This was nothing new. One had seen this kind of situation over the years where if an investigation was done on who was doing business with the state, the companies were registered under family members of officials. This was the reason she had raised juristic persons. She requested that a provision be put in place to prevent this sort of fraud and corruption from happening.

Dr X Harvard (ANC) said that the ANC supported clause 54(3) because it made provision for penalties to be paid directly to the Fund. She agreed with Ms Gela, Mr Siwela, and Mr Munyai.

Mr T Munyai (ANC) agreed with Ms Gela, Dr Harvard, and Mr Siwela.

Dr K Jacobs (ANC) stated that the ANC supported clause 54(1)(a) to (e) because the clause ensured that accurate and truthful information would be essential. It ensured that there was accurate planning and prevented malfeasance and fraudulent and undesirable practices. The clause prohibited inaccurate information that would cause the Fund to take incorrect decisions impacting negatively on the sustainability of the Fund.

The ANC supported clause 54(2) because the clause was applicable to situations where there is an investigation against stakeholders. The clause ensures that the Fund would not be held ransom because of a stakeholder who may be facing other parallel legal proceedings. The provision empowers the Fund to receive requisite information on the execution of the functions of the Fund without any restrictions or resistance.

On the potential overreach of the legislature, he replied that it was general practice that when a Bill provides details on offences. He pointed out that references to offences are laid out in municipal bylaws and other laws. Although the power to impose sanctions against anyone found liable or guilty solely lies with the courts, reference to fines can still be made by the legislature.

Clause 55: Regulations
The Chairperson read clause 55 of the Bill

Mr T Munyai (ANC) said that the ANC supported clause 55 because it ensured that the Minister does not exceed the assigned powers or deviate from the responsibilities as a member of the national executive in accordance with the Constitution. The clause empowered the Minister to develop and pass regulations after consultation with the National Health Council in line with section 90(i) of the National Health Act. Everything in the Bill was in line with the Constitution and the National Health Act.

The ANC supported clause 55 as it provides for the Minister of Health in consultation with the National Health Council to pass regulations that clearly outline the nature of the legal relationship that the NHI Fund can have with other entities, suppliers, health establishments, and healthcare providers as part of its process to achieve their functions and responsibilities outlined in the Act. The clause noted the importance of ensuring that the processes are consistent with the National Health Act. The clause also ensures that the Minister can put into effect provisions in the Bill.

The ANC supports clause 55(1)(e) as it is critical to creating a uniform platform for submitting regular clinical information using standardised diagnostic and procedural codes. This would ensure that the Minister is able to gazette standard information that all accredited public and private healthcare providers must submit to the Fund using coding schemes stipulated in the national health policy. It informs how providers are reimbursed and how information is collated for reporting purposes.

The ANC supports clause 55(g) because it ensures that the Fund publicly provides clear and accessible information to users on the systems and processes implemented for the purpose of registering users. He suggested that the information be published in the Gazette to ensure that the public is informed about the registration systems. This would be consistent with maintaining a form of administrative justice for users as well as ensuring that all users have access to the necessary information essential for them to access the healthcare services.

The ANC supports clause 55(1)(j) as it allows for regulations to be promulgated for the purpose of ensuring functions and powers of a contracting unit for primary health care as per the proposed amendment to clause 37 of the Bill. The contracting unit for primary healthcare will be the mechanism though which the Fund will contract the primary healthcare providers.

The ANC supports clause 55(1)(m) for reasons including the establishment of the NHI Fund and the phase-in implementation of the NHI which will eventually lead to changes in the role of medical schemes within the healthcare sector. As the implementation process continues, it is important that the regulations that outline the relationship between the Fund and the medical schemes are promulgated considering current provisions and changes to the Medical Schemes Act.

The ANC supports clause 55(1)(x) for reasons including that the scope and the nature of the healthcare services covered under the NHI Fund will be prescribed in the regulations and will be reviewed on a regular basis informed by the burden of disease evidence with technological advances included. The clause empowered the Minister to publish regulations that will ensure that the users are provided with the necessary information on the personal healthcare services that the Fund covers. The regulations would be informing users and other stakeholders of the scope and nature of the prescribed healthcare services and programs and the extent to which they must be funded.

The ANC did not support clause 55(4) and it proposed that the clause be deleted as the clause was not consistent with how other health legislation empowers the Minister to use regulations in line with section 90(1) of the National Health Act. The clause should be deleted in its entirety.

Ms H Ismail (DA) said that clause 55(p) and (q) were looking at the regulations so the whole complaints and appeals procedure and process had to be stipulated in the clause to avoid issues later. Alternatively, there could be specifications in other clauses in the Bill relating to complaints and appeals. On clause 55(t), she asked what fees it was referring to and how these would be identified. There should be greater specificity on the fees structure under these regulations including clarity on evaluations of the fees and how this was going to be implemented.

On clause 55(1)(y) she suggested greater specificity on what the functions of the committees and its principles should be. The code of conduct needed to be specified as well. The same suggestion extended to the boards. Clause 55(2) states that the Minister must publish a copy of proposed regulations in the Gazette and invite interested persons to make comments or representations. Nowhere in the clause did it mention that the Minister must consider inputs, comments or representation made by interested persons before issuing regulations under this Act. She suggested that it be stipulated in the clause that these inputs by interested parties must considered and deliberated on by the Minister

Ms M Clarke (DA) commented that there was a big problem in the country in paying suppliers on time. She asked about the implications that hindered supplying citizens with quality healthcare. The country had huge accruals that accumulate year on year deducted from budgets before healthcare is even delivered to South Africans. This was a big concern and only in an ideal world would the clauses be able to reach the outcomes intended.

Clause 55(e) talks about the clinical information, diagnostic and procedure codes. She asked if the Department has currently started putting those processes and codes in place. It was common knowledge that when the healthcare sector changed over to the ICD 10 codes and the diagnostic CPT codes it was a very difficult procedure and people needed to be trained to know what they were doing otherwise there would be a lot of rejections around this. She expressed her concern on how they would have systems and staff in place that understand these diagnostic codes that need to be implemented.

She agreed with Ms Ismail about the regulations and the need for transparency. The regulations had to go out for public comment. She opposed the removal of 55(4) because regulations must be tabled to the National Assembly and the National Council of Provinces for a period of one month before being finalised. This was a transparent process that required input from stakeholders.

Clause 55(1)(a) circumvents the powers of provinces which reduces its health function to that of an agent for the Fund. The Minister did not have the power to regulate relationships and powers that are specifically designated in the Constitution. On (1)(a) and (b), as per previous deliberations the Minister should not have such far reaching powers because it is irrational and will be completely open to abuse. The effects of these powers will result in the Minister effectively running the Fund’s day to day operations as opposed to having a general oversight role. This brought up the question of the separation of powers.

On 55 (1)(k) she asked what the purpose would be for the Minister to regulate the relationship of the Office of Health Standards Compliance when it was supposed to be a completely independent body. In Clause 55(1)(m) and (n) the Minister regulates the relationship between private and state healthcare provision and funding central to the constitutionality of the Bill and the feasibility of the universal healthcare project which should be contained explicitly in the Bill itself.

Clause 55(3)(b) provides for a pre-regulations public consultation process which the Minister deems to be in the public interest. The clause further provides that the minister is obligated first to consult with the board. She suggested that this consultation should be with the stakeholder advisory committee as well as the board. This provision can be completely abused by the minister, as was seen with Covid-19 regulations that were not based on scientific evidence but only the will of the minister. They were still waiting for the outcome of that public process after many months of receiving no feedback on the matter. The delays in producing an outcome tied back to the Minister being able to choose his/her own board. This blurred the lines of accountability and created a situation where there was no separation of powers. There could be no assurance that this provision will not be open to abuse.

Mr E Siwela (ANC) said that the ANC supported clause 55(1)(b) because it empowered the Minister of Health to pass regulations that inform all accredited and contracted healthcare services, health establishments, and suppliers on the specific reimbursement mechanisms that will be applied for the payment of services rendered and goods supplied. The clause will ensure that the payment mechanisms implemented by the Fund are transparent in that all parties with whom the Fund is dealing with are fully aware of how they will be reimbursed. The transparency will contribute to sustainability as costs can be predetermined and better managed.

The ANC supports clause 55(1)(f) as it ensures that the information system and data requirements stipulated by the Fund are consistent with the National Health Information System requirements as indicated in the National Health Act, as well as the health patient registration system. These will contribute towards ensuring an integrated and functional information system that supports planning, decision making, efficient payment systems, and active monitoring and evaluation.

The ANC supports clause 55(1)(i) as it allows for regulations to be promulgated for the purposes of outlining the key functions and powers of the District Health Management Office. The ANC supports clause 55(1)(q) as essential for ensuring that the Minister publishes regulations that outline the mechanism that users, health establishment, and healthcare providers must follow when appealing the decisions of the Fund. This will be consistent with other relevant Acts such as Promotion of Administrative Justice Act (PAJA) and the POPI Act.

The ANC supports clause 55(1)(w) as it ensures that appropriate regulations are gazetted to inform the public and stakeholders on all procedures and practices to be followed by healthcare service providers, health establishments or suppliers when interacting with the Fund. This will ensure transparency and accountability when procedures and practices are executed informed by PAJA.

The ANC supports clause 55(2) as it is consistent with the constitutional values of access to information and ensures that the public have access to and is aware of the various regulations that the Minister intends to implement. It ensures that all regulations to be gazetted by the minister are not unilaterally implemented, but are finalised through a participatory and transparent process considering inputs received from interested members of the public and health practitioners.

The ANC supports clause 55(1)(v) because it was important in fostering transparency and public accountability in the way it utilises the money allocated to it, particularly how it invests the money and the returns it yields from the investments. He supported the contributions by Mr Munyai.

Dr K Jacobs (ANC) asked Ms Wilson to shed clarity about who she was referring to in her statement when she spoke about members of the Committee being involved in corruption.

Ms E Wilson (DA) replied that her choice of words may have been misleading but she certainly did not imply that the corrupt person was anyone in the Committee. She was in fact referring to someone who was in a high profile position. She read out the article headline she had been referring to: ‘Tender tycoon with ties to President Ramaphosa’s family raked in almost R400 million from Gauteng hospitals’. This was the article she was referring to and at no point did she implicate anyone in the Committee or the Department. The point she had been trying to make was that nowhere in the Bill did it offer whistleblowers much-needed protection, especially after the murder of Babita Deokaran, a whistle blower who was gunned down outside her home.

Mr T Munyai (ANC) clarified saying that President Ramaphosa was not a Member of Parliament nor was he a member of the Portfolio Committee nor was his son a Member of Parliament or in the Portfolio Committee. If Ms Wilson wanted justice for Babita Deokaran she should open a case by reporting the incident with the police and following up with judicial services. The matter of corruption in society was not related to the clause.

Ms M Clarke (DA) pointed out that Ms Wilson had clarified her statement. She urged Committee members to exercise their conscience about fraud and corruption because it was in their mandate to do so. Any Bill must ensure the utmost transparency.

Ms E Wilson (DA) stated that she would not enter into a debate about the merits of the article. The point she was making was that the clause called on people to expose situations where there is potentially a problem, but it did not make provision to protect those who come forward. She used the case of Babita Deokaran as an example to illustrate that whistleblowers needed protection so no one else would have to pay with their life in the process of doing the right thing.

Ms A Gela (ANC) wanted Ms Wilson to stop bringing gossip to the meeting. The reason they were part of the Committee was to save their community rather than to listen to gossip. It was disturbing to listen to such an old lady gossip in the Committee. She urged the Chairperson to stop such behaviour because it reflected badly on the Committee. If Ms Wilson asked about the ANC’s affairs then she should just join the organisation.

Ms H Ismail (DA) raised a point of order that it was not the first time that Ms Gela was pinpointing members of the opposition. Members of the Committee needed to understand that they were not enemies in the Committee. Everyone was an equal and full member of the Committee with the desire to make an important contribution towards the Bill. It was unfortunate that in some cases it was necessary to use constructive examples of what is happening currently in society to highlight the ways that the Bill had to respond to the social ills in society. Ms Gela had a tendency of getting personal with Committee members when discussing the Bill which was totally unnecessary. Ms Gela had behaved in this manner the previous week and she was continuing in this meeting.

She asked the Chairperson to explain to Members that it was unnecessary to get personal in the meeting. Ms Wilson had clarified the intention behind her statement which was that there is a huge issue in the country where whistleblowers are not being protected. There were many more whistleblowers besides Ms Deokaran who had lost the lives because they had not been given adequate protection. The issue had to be handled more diplomatically.

Ms M Clarke (DA) also raised a point of order. She asked Ms Gela to withdraw the term ‘old lady’ in reference to Ms Wilson. Ms Gela’s remarks had been disrespectful.

Dr Jacobs asked Ms Gela to withdraw her statement referring to Ms Wilson as an ‘old lady’.

Ms A Gela (ANC) withdrew her statement referring to Ms Wilson as an ‘old lady’. She apologised to Ms Wilson. They would not entertain newspaper gossip in the meetings and that in future Ms Wilson must refrain from bringing gossip into the meeting.

Dr K Jacobs (ANC) stated that if he had not acknowledged what Ms Wilson had said there would have been a view in the public that Committee members are involved in some form of corruption. It was not correct to make careless statements especially when they cast aspersions on other Members. He urged all Members to refrain from politicking when they were dealing with serious Committee work. He asked Ms Wilson to apologise for making a mistake and insinuating that Members were engaging in corrupt activities. He also implored Members to refrain from bringing newspaper gossip to meeting.

Ms E Wilson (DA) said that if she had created the impression of implying that Committee members or those in the Department of Health were involved in corruption, she apologised. She still maintained the point she was trying to make about raising important societal issues in the media and dealing with those important issues in the Committee.

Dr K Jacobs (ANC) asked Members to proceed with the discussion on clause 55.

Ms A Gela (ANC) said that the ANC supported clause 55(1)(d) because the clause ensures that the NHI Fund develops and maintains an effective, accessible, appropriate, and secure financial information system. She suggested that there must be regulations published by the Minister on the nature and structure of the information provided to the Fund by all parties. The clause will ensure that the Fund has access to the necessary data and information to support analysis to enable proactive decision making, effective user management, and coordination.

The ANC supported clause 55(1)(m) because it ensures that implementation of the NHI is truly premised on the need to create an integrated health system that is directed at progressively achieving universal health coverage in South Africa. It also allows the Minister of Health to gazette regulations that outline the relationship and role of the public and private health establishments in the provision of personal healthcare services to users. In addition, it allows the Minister to gazette regulations detailing what mechanisms the Fund must put in place to allow for the contracting in of private providers.

The ANC supported clause 55(1)(p) as it provides for the Minister to publish regulations that will enable the Fund to effectively conduct investigations in a manner that is constitutionally sound and consistent with other relevant Acts such as PAJA and POPIA.

The ANC supported clause 55(1)(s) because the core purpose and function of implementing NHI is to ensure that the country achieves universal health coverage . In doing so this clause ensures that every user has access to quality and affordable healthcare.

It was important for the Minister to publish regulations that provide for mechanisms and processes for the effective and timely monitoring and evaluation of the Fund performance over time to achieve its objects.

The ANC supports clause 55(1)(z)(A) and (B) as it provides the Minister with the necessary flexibility to publish additional regulations to enable the proper functioning and governance of the Fund as the implementation processes continue during and beyond the transitional arrangement.

Dr X Harvard (ANC) said that the ANC supported clause 55(1)(c). The NHI Fund as a schedule 3A non-business entity must prepare and submit its annual budget as outlined in section 53 of the Public Finance Management Act (PFMA).

The ANC supports clause 55(1)(h) because for the Fund to enter into a contract with a healthcare establishment or service provider or supplier, it must comply with clearly stipulated criteria and conditions. These criteria and conditions must be made available through the government gazette using a public participation process, which ensures that such mechanisms are designed and implemented through a transparent process.

The provision allows full regulations to be updated from time to time, taking into account various developments as well as requirements related to other entities such as the Office of Health Standards Compliance.

The ANC supported clause 55(1)(z) because the provision is essential for ensuring the promotion of access to information and that the penal tribunal operates in a way that ensures administrative justice and fairness.

The ANC supported clause 55(3)(a) to (b) because it is consistent with the expectation that the Minister of Health must comply with existing legal prescripts in publishing and demanding regulations. She supported the submissions made by Mr Munyai, Mr Siwela and Ms Gela.

Ms E Wilson (DA) stated that the overall framework of the clause appears not to have been fully thought through which would explain the general absence of any supporting research or evidence or feasibility study indicating how the clause would work. There was simply no research into the practicality of the entire clause and the framework substantially undermined the constitutional power of the provinces to finance, plan and run healthcare services. The centralisation of the provincial equitable share (PES) was effectively an intrusion by the national government into the legitimate tax revenue of provinces to carry out their constitutionally mandated functions which the clause eliminates.

The reference in Schedule 4A of the Constitution to health services plainly requires that all aspects of health services are legitimately the domain of provincial governments, including finance, which is the raising and allocation of funds, planning, organizing, and service delivery. These powers include all personal health services such as hospitals, clinics and transport services. A simple piece of legislation cannot take precedence over the Constitution, which is exactly what is happening in this clause. The Constitution cannot be circumvented by itself which is the purpose of the NHI Board and all other related amendments to the National Health Act.

The entire Clause 55(3) should be taken out. They had seen the result of having regulations gazetted without any prior consultation or scientific evidence during Covid. Many regulations had been gazetted and insisted upon and yet when they got to a court of law, they were declared to be unconstitutional and inappropriate due to a lack of proper evidence-based research. Clause 55(4) should stay because it is important that the regulations must go to National Assembly and to the National Council of Provinces as it affects the provinces and their constitutional mandate.

Mr N Xaba (ANC) supported the submissions of Mr Munyai, Dr Harvard and Ms Gela.

Dr K Jacobs (ANC) said that the ANC supported clause 55(1)(k) because it allows the minister to gazette regulations outlining how best the relationship between the Fund and OHSC should occur. The provision is important because it takes into account that OHSC will undertake core activities of certifying health establishments and healthcare providers and the certification process will be a key requirement in the Fund undertaking its accreditation processes.

The ANC supported clause 55(1)(l) because it allows for the Minister to gazette regulations outlining the relationship between the Fund and the Department of Correctional Services which would ensure that inmates are covered under the NHI as they were entitled to these benefits through the Constitution and the Correctional Services Act. The Act stipulates that inmates have the right to access quality personal healthcare services. The provision will clarify the mechanisms for the purchasing of healthcare services with available resources for inmates, and it will ensure that inmates are covered by the Fund in accessing healthcare services provided by accredited and contracted providers based on the appropriate level of care.

The ANC supported clause 55(1)(t) because it ensures equitable and fair access to information, especially on all fees payable by or to the Fund and that the minister must be empowered to gazette regulations that inform stakeholders as well as the public of such fees. This will ensure that there is transparency on fees payable by or to the Fund and the Fund will remain accountable to the public on its fee structures and payments.

The ANC does not support clause 55(1)(u) and proposes its deletion because as a Schedule 3A entity, the Fund is a non-business entity as defined in the PMFA. The NHI will be tax funded on a non-contributory basis that does not require it to accumulate reserves.

The ANC supports clause 55(1)(y) as the Fund will be supported by a number of technical committees appointed by the Minister to assist in this execution of functions and mandate that take the form of regulations published to promote access to information for the public. The clause will ensure that the public and other stakeholders have access to relevant and necessary information on the operations and activities of these committees and the conduct of the persons appointed to sit on such Committees. The provision will contribute to ensuring that the public is aware of activities being undertaken by these committees and what value they are adding to the functions and operations of the Fund.

Ms A Gela (ANC) supported the submissions made by Mr Munyai, Mr Siwela and Dr Harvard. The ANC supports 55(1)(r) as it provides for the application of regulations that stipulate the information standards that are to be complied with by all healthcare service providers, health establishments and suppliers who are accredited and contracted by the Fund. The regulations must indicate the way the providers and suppliers of services should report to the Fund on healthcare services purchased by the Fund.

Ms E Wilson (DA) said that clause 55(1)(c) talks about the budget of the Fund including the process to be followed in drawing up the budget in compliance with the PFMA. She suggested that it add a directive that states that there must be a consultation with Treasury when drawing up the budget to prevent a situation where the NHI ends up being bailed out like other SOEs.

Clause 55(r) talks about all fees payable by and to the Fund. She had concerns about this because there have been situations in many healthcare facilities where the suppliers have stopped supplying critical equipment and medical supplies due to non-payment.

The provision did not provide clarity about what happens when the Fund cannot pay. She suggested that if the Fund is unable to pay there should be some kind of indication of how healthcare facilities may then purchase essential supplies to ensure that healthcare does not come to a standstill because the Fund has not performed optimally and as a result cannot pay their suppliers. There must be no reserves and by the same token there must be no loans or overdrafts.

Mr T Munyai (ANC) supported the contributions made by Mr Siwela, Ms Gela, Dr Harvard, and Dr Jacobs. He cautioned that the Committee not delve too deep in matters on the operation of the Fund because those sections will be dealt with in due time.

Clause 56: Directives
The Chairperson read clause 56 of the Bill

Ms H Ismail (DA) requested that the legal advisors provide clarity at the end of the discussion on the NHI Fund about if the Fund is allowed to issue directives. If the Fund is allowed to issue directives, then the directives should also be published at least 30 days before being issued. If the Fund is not allowed to issue directives, then the clause must be removed from the Bill.

Ms E Wilson (DA) stated that everything must be gazetted and subject to scrutiny either from stakeholders or the public. If they did not have everything clearly laid out for everyone, they were going to be in trouble.

Mr T Munyai (ANC) said that the ANC unreservedly supported clause 56 because the directives will provide the Fund with flexibility to issue instructions for compliance with aspects of implementation and administrative acts. Directives will not be contradictory to the spirit of the Act and are reviewable. The directives are not punitive but allow regulated entities to comply within specified timeframes.

Ms A Gela (ANC) agreed with Mr Munyai.

Mr E Siwela (ANC) agreed with Mr Munyai as the directives were not contradictory to the spirit of the Act and were reviewable.

Dr X Harvard (ANC) agreed with Mr Munyai, Ms Gela, and Mr Siwela

Mr N Xaba (ANC) agreed with Mr Munyai and Ms Gela.

Dr K Jacobs (ANC) supported all the inputs made by the ANC Members.

Closing remarks
Dr K Jacobs suggested that clause 57 be discussed in the next meeting because the remainder of the meeting was too short to accommodate a discussion on the clause, especially considering that it was a lengthy clause.

The Committee agreed and the meeting was adjourned.


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