South Africa’s National Health Insurance (NHI) regulations, published last week by Health Minister Dr. Aaron Motsoaledi, have sparked controversy for being released prematurely. The regulations, which outline the establishment of an ad hoc advisory panel and a board for the NHI Fund, were made under legislation that has not yet been proclaimed by President Cyril Ramaphosa.
Premature Publication of NHI Regulations
The NHI Act was signed into law by President Ramaphosa in May 2023, just before the general elections. However, the president has not yet proclaimed the Act, meaning it is not yet in operation. Despite this, Minister Motsoaledi published draft governance regulations under sections 55(x), (z), and (zA) of the NHI Act.
Typically, regulations are only made after the president signs an Act and determines its commencement date. The premature publication has raised questions about the legal status of the regulations and the process followed by the Department of Health.
Governance Concerns: Minister’s Unlimited Power
The draft regulations grant the health minister significant control over key appointments, including the NHI Fund board, CEO, and advisory committees. According to the regulations:
- The minister will call for nominations to the NHI Fund board.
- A nomination committee, established by the director general of health, will shortlist candidates.
- An ad hoc advisory committee, appointed by the minister, will recommend candidates to the minister, who will then submit the names to Cabinet for approval.
- The CEO, once appointed, will recruit members for the benefits advisory and healthcare benefits committees, subject to ministerial approval.
Stakeholders, including the Health Funders Association (HFA) and the Board of Healthcare Funders (BHF), have criticized this centralization of power, arguing that it undermines the independence of the NHI Fund and opens the door to political interference.
Legal Challenges and Stakeholder Criticism
The publication of the regulations comes amid ongoing legal challenges to the NHI Act. Four independent legal challenges have been lodged, including one by the BHF, which argues that the Act is unconstitutional and unworkable.
Health Funders Association (HFA):
HFA CEO Thoneshan Naidoo described the publication of the regulations as “premature,” noting that the sections of the NHI Act authorizing the minister to publish regulations have not yet been proclaimed. He emphasized that the fundamental concerns about the feasibility, sustainability, and implementation of the NHI remain unaddressed.
Board of Healthcare Funders (BHF):
BHF Managing Director Dr. Katlego Mothudi expressed disappointment that the minister proceeded with the regulations despite the legal challenges. He reiterated the BHF’s commitment to achieving universal health coverage but warned that the NHI Act, in its current form, could undermine this goal by causing the mass departure of skilled healthcare professionals and weakening the quality of healthcare.
The Path Forward
Stakeholders are calling for a more collaborative approach to healthcare reform. The BHF has proposed a model that includes both the NHI and access to affordable medical schemes, including low-cost benefit options that could extend coverage to an additional 10 million people.
Business Unity South Africa (Busa) has also submitted proposals to President Ramaphosa, seeking changes to the NHI Act to address its constitutional and practical shortcomings.
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