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06 November 2019
What is the significance of 1 January 2026? Under Section 57 of the National Health Insurance (NHI) Bill 2019, 1 January 2026 is 'D-Day' for the NHI scheme's coming into force.
Broadly, the NHI scheme (as contemplated by the bill) will centralise the purchasing of healthcare services in a single body established by the national government: the NHI Fund. The fund will operate much like a medical scheme. In other words, with a benefits advisory committee's assistance, the fund will determine the kinds of healthcare service that it will cover (ie, the benefits package). All healthcare services that fall into this benefits package will be covered by the NHI scheme (of course this is subject to certain exceptional cases, such as where a user has not complied with the prescribed referral pathways). The fund will acquire the healthcare services that fall into the benefits package directly from accredited hospitals, doctors, specialists, pharmaceutical companies and other healthcare service providers.
The bill broadly provides that the NHI scheme "must be gradually phased in using a progressive and programmatic approach based on financial resource availability". However, notwithstanding the acknowledgement that the NHI scheme's implementation is dependent on financial resource availability, the bill proceeds to contemplate the NHI scheme's implementation in two phases: phase one is to be completed in 2022 and phase two is to be completed in 2026.
During both phases, the government must implement several broadly stated outcomes and objectives. For example, during phase one, the government must not only "continue with the implementation of health system strengthening initiatives", but also establish the fund and start purchasing certain healthcare service benefits, including those linked to maternity. The phase two objectives include the "establishment and operationalisation of the Fund".
Although the objectives that must be achieved for both phases are stated in pre-emptory terms, the bill is silent on what will happen if the positive outcomes linked to the stated phase one and two activities are not achieved before 2026 – for example, will the NHI scheme's implementation be suspended pending the achievement of these outcomes? This is believed to be a fundamental gap in the bill, particularly because these positive outcomes are necessary for the NHI scheme to be implemented. As such, it is possible that on 1 January 2026 the NHI scheme may be deemed to be fully implemented, notwithstanding the fact that some of the requirements for its roll-out have not been put in place. For example, if the healthcare strengthening initiatives contemplated in Section 57 have not resulted in most public healthcare establishments obtaining certification by the Office of Health Standards Compliance by the end of phase two, how will the NHI scheme properly operate from 1 January 2026 (as, under Section 39 of the bill, the fund will be unable to accredit these uncertified healthcare establishments)?
Considering this gap, and the uncertainty around whether the objectives and stated outcomes in the bill will be achieved by the 1 January 2026 long-stop date, the NHI scheme's implementation should arguably be milestone related, rather than date based. This way, when the NHI scheme is fully implemented, the underlying infrastructure will be in place.
The question that remains is on which milestones the NHI scheme's implementation should hinge? Pursuant to the 25 July 2019 Presidential Health Summit, which focused on the strengthening of the healthcare system towards an integrated and unified system, the summit identified the nine ways (or so-called 'pillars') in which the existing healthcare system must be strengthened and the kinds of intervention that must be implemented if the outcomes relating to each pillar are to be achieved. For example, some of the outcomes to which the pillars relate include:
The achievement of these outcomes, through the measured and controlled achievement of the interventions linked to each pillar, will better position the healthcare system for the NHI scheme's implementation, and more simply the provision of standardised quality healthcare services. Why not then link the NHI scheme's implementation to the achievement of these nine pillars, or alternatively, milestones that better position the healthcare system for the NHI scheme's introduction and operation?
From a legal perspective, the proposed link between the NHI scheme's full implementation and the arbitrary date of 1 January 2026 may be irrational considering the risk of the requisite infrastructure not being sufficiently in place by such date. Arguably, it would make more sense for the progressive implementation of the NHI scheme to be based on the achievement of necessary infrastructural and other milestones.
For further information on this topic please contact Altair Richards or Alexandra Wood at Edward Nathan Sonnenbergs Inc by telephone (+27 11 269 7600) or email (firstname.lastname@example.org or email@example.com). The Edward Nathan Sonnenbergs Inc website can be accessed at www.ensafrica.com.
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