NATIONAL HEALTH INSURANCE BILL

NATIONAL HEALTH INSURANCE BILL: PARLIAMENTARY PROCESS, 2022/23

7 December 2023

Parliamentary papers have confirmed that the Bill's 'B' version was passed by the NCOP on 6 December 2023 and sent to the President for signature. According to Health Minister Joe Phaahla's speech at the time, government's intention 'has always been to have a rational, structured and phased approach implementation'. This is noting that 'without the accompanying regulations, directives, and operational procedures', the 'transformative impact' of the Bill once enacted 'cannot be realised'. With that in mind, different dates are expected to be announced for the commencement of specific provisions.

22 November 2023

The NCOP Committee on Health & Social Services has completed its work on the National Health Insurance Bill's 'B' version and has tabled a report in the House recommending that the Bill be adopted with no further amendments.

16 November 2023
The NCOP Committee on Health & Social Services has received a response from the Department of Health on proposals in negotiating mandates submitted by the provincial legislatures, as well as on recommendations made by industry stakeholders during the lengthy broader public participation process. Should the committee see merit in any of these proposals, they will inform the contents of a revised Bill - which will be sent to the provincial legislatures so that they can prepare their final mandates.

27 July 2023

The KwaZulu-Natal Legislature began conducting public hearings on the Bill on 18 July 2023 in Mpophomeni. According to a parliamentary website page on the status of section 76 Bills before the NCOP, Mpumalanga Legislature members and officials have been briefed on the Bill in anticipation of hearings in that province.

13 June 2023

The National Assembly has passed a ‘B’ version of the National Health Insurance Bill, which will be sent to the NCOP for concurrence. This is noting that this proposed new piece of legislation seeks to establish a national health insurance fund that, once fully operationalised, is expected to:

provide ‘universal protection against financial risk’
equitably distribute the financial burden entailed, and
facilitate equitable access to quality health care services that are efficiently administered in a well governed health care system.

The Bill now reflects amendments made by the National Assembly’s Health Committee after deliberations that began in August 2019 and continued intermittently until the end of May 2023.

Opening a second reading debate on the Bill, Health Minister Joe Phaahla said its overarching objective is to ‘pool (the) resources of those who can only contribute to the fiscus through indirect means such as VAT and … and those of us who are able (to make) and are already making fragmented contributions into 81 different schemes’. The intention is that, over time, these pooled resources will be used to purchase services for every level of healthcare available at state facilities and from private providers.

29 May 2023

A report on the process followed by the National Assembly’s Health Committee in determining the constitutionality of the National Health Insurance Bill has been tabled in the House. This is in anticipation of a second reading on the Bill and its transmission to the NCOP for concurrence.

The report includes a minority view in the form of a legal opinion tabled by the committee’s Freedom Front Plus representative, Phillippus van Staden. This opinion was sought in the light of apparently conflicting views on the Bill’s constitutionality provided by the Office of the State Law Adviser and Parliamentary Legal Services.

A ‘B’ version of the Bill was tabled with the report. It incorporates amendments reflected in an ‘A’ list adopted by majority vote. Both documents were rejected by committee members representing the Democratic Alliance, Economic Freedom Fighters and Freedom Front Plus.

Introduced in August 2019, the Bill seeks to establish a national health insurance fund that, once operationalised, is expected to:

provide ‘universal protection against financial risk’
equitably distribute the financial burden entailed, and
facilitate equitable access to quality health care services that are efficiently administered in a well governed health care system.

8 May 2023

The National Health Insurance Bill is finally nearing the end of the first leg of its passage through Parliament. According to a media statement on committee meeting highlights for the week ending Friday 12 May 2023, the National Assembly’s Health Committee is scheduled to meet:

on 10 May 2023 to:
- consider legal opinions on the Bill from the Office of the State Law Adviser and a parliamentary legal adviser, and
- deliberate on the Bill clause by clause, and
again on 12 May 2023 to deliberate on an ‘A-List’ of proposed amendments to the Bill.

Tabled in August 2019, the Bill seeks to establish a national health insurance fund as the next step in moving towards ‘universal coverage’, allowing government to serve as ‘a strategic and active purchaser of personal health care services’. According to a memorandum on the Bill’s objects, this will enable all South Africans to access ‘high quality health care’.

The intention is that, over time, additional services will be added to the list of those initially covered by NHI and financed from the proposed new fund. This is expected to reduce the extent to which patients are required to make direct, out-of-pocket payments for health services.

The Bill has been the focus of a long public participation process that began in May 2021 and included public hearings in the provinces – eventually ending in February 2022.

In March 2023, Deputy Chief State Law Adviser, Ayesha Johaar, and parliamentary legal adviser, Sueanne Isaac, briefed the committee on contentious clauses in the Bill with the potential to give rise to a Constitutional Court challenge. According to Parliamentary Monitoring Group reports on these meetings, disparities in the views expressed in reports submitted by the two legal advisers prompted the committee to call for clarity on certain matters. This delayed the process by a further six weeks.

28 November 2022

Most members of the National Assembly's Health Committee appear to have been disappointed with amendments proposed in a document prepared by parliamentary support staff with the intention of addressing concerns raised during recent clause-by-clause deliberations. Presented during a meeting on 22 November the document was criticised by opposition party representatives in the committee for lacking solutions to problems identified during public hearings and widely expected to render national health insurance unworkable. Ruling party representatives simply noted the document without commenting on its contents. Clearly floundering, the committee process was supposed to have continued during the remainder of last week with yet another briefing from the Department of Health - this time recommending improvements to clauses flagged by the committee. However, no further meetings took place - and none are scheduled for the remainder of Parliament's fourth term. As a result, it seems unlikely that the Bill will be passed by the House before its festive season recess, which is due to begin on 7 December. According to a parliamentary media statement issued in December 2021, the Bill was one of three prioritised by the National Assembly for transmission to the NCOP this year for concurrence. The others were the Expropriation Bill (referred to the NCOP in September) and the Electoral Amendment Bill, on which the NCOP committee has just tabled a report recommending further changes.

8 November 2022

Clause-by-clause deliberations on the Bill could well be concluded tomorrow, when the National Assembly's Health Committee is scheduled to meet to consider clauses 57 (transitional arrangements) and 58 (the repeal and/or amendment of existing laws).

Outlining a two-phase national health insurance (NHI) implementation process, the lengthy clause 57 envisages a five-year period of 'health system strengthening initiatives'. When the Bill was being drafted, this phase was expected to end last year (2021) and included:

aligning existing human resource capacity with anticipated NHI fund user requirements
developing new NHI legislation and amending the laws already in place (as specified in the schedule to clause 58)
establishing the institutions necessary for a fully functional NHI fund, and
'purchasing ... personal health care services for vulnerable groups such as children, women, people with disabilities and the elderly'.

According to clause 57 as it now stands, phase two of the process should have begun this year (2022) and, by the end of 2026, is expected to have completed 'the selective contracting of health care services from private providers' among other things.

At this stage, it is not clear how far the Department of Health has progressed with these plans. Nevertheless, once the committee has concluded its clause-by-clause deliberations on the Bill, the next step will be to prepare an 'A list' reflecting any changes envisaged. Once these have been agreed and adopted, a revised Bill will be prepared for adoption with a report for tabling in the House and a second reading.

16 August 2022

Clause-by-clause deliberations on the Bill began on 1 June, followed a week later by a briefing from Health Deputy Minister Sibongiseni Dhlomo and Department of Health Director General Nicholas Crisp. According to the latest parliamentary meetings schedule, deliberations are expected to resume on 23 August and to continue the next day. During these proceedings and the many meetings likely to follow, committee members will probably consider any amendments they believe necessary - possibly informed by input received during public hearings on the Bill. For an indication of the amount of time it has taken to process this piece of legislation to date, readers are referred to the Parliamentary Monitoring Group website, which provides a list of all meetings on the Bill since it was tabled - including public and parliamentary hearings. Only PMG subscribers have access to records of these meetings.

19 May 2022

The National Assembly's Health Committee has issued a media statement confirming that it has decided to proceed with processing the National Health Insurance Bill. This follows yesterday's 'motion of desirability' vote - a routine procedure required for every Bill tabled in Parliament. The committee will now begin formal deliberations on the Bill, which has been the focus of public hearings since October 2019. They ended in February.

Interestingly, the NCOP committee (to which the Bill will be sent once it has been passed by the National Assembly) is scheduled to be briefed on the Bill on 7 and 21 June. This tends to suggest that the National Assembly committee is about to complete its work on the Bill and that it could be tabled in the House for a second reading before its two-month winter recess begins on 20 June. The Bill is one of several being prioritised this year, according to a media statement Iissued in December 2021.

DEPARTMENT OF HEALTH'S RESPONSE TO INPUT RECEIVED DURING PUBLIC HEARINGS

Speaking during a presentation on concerns regularly expressed throughout the long, recently concluded public participation process, Acting Director-General Nicholas Crisp reminded Nationa Assembly Health Committee members that the 'bulk' of finances needed to run NHI 'are already in the system'. It's 'just a matter of channelling existing resources differently'.

Only when the Office of Health Standards Compliance has completed the process of accrediting public and private healthcare service providers will the system be ready for operalisation, which will be phased in over time.

'Ultimately', it will no longer be necessary to purchase most services through medical schemes, which will play a 'complimentary' role.

A framework is in place for building human resource capacity, but this 'will take time' and needs 'commitments' from various stakeholders to making the necessary investments.

In Crisp's view, concerns about the Bill's potential to undermine the constitutionally enshrined right to choose a healthcare service provider may well be unfounded.

NATIONAL HEALTH INSURANCE (NHI) FUNDING

The National Health Insurance (NHI) Bill (developed by the national Department of Health and tabled by its Minister) does not propose a funding model. This will be dealt with separately by National Treasury in what we call a 'money Bill'.

The Bill simply seeks to create a fund from which payment for certain services will be drawn to cover the treatment of South Africans registered according to certain procedures and criteria spelled out in the Bill.

Sub-paragraph 8.3 of a memorandum on the Bill's objects clearly states that the 'preliminary work' outlined in sub-paragraphs 8.1 and 8.2 'will need to be further developed'. When the Bill was tabled in August 2019, sub-paragraph 8.3 referred to the 2020 Budget. Since then, the picture has changed drastically - mainly because of the Covid-19 epidemic.

This notwithstanding, 'the funding for NHI will be through a combination of various mandatory pre-payment sources, primarily based on general taxes'.

According to a booklet compiled by the Health Systems Trust, 'every person in South Africa will make a contribution to the fund because we will all pay some kind of tax. People with low income will not make any direct payment to the NHI Fund. Every person earning above a set amount will be required by law to contribute'.

'Monthly contributions made by ... employees ..., in almost all cases, will be lower than medical aid tariffs - and the direct NHI payment will be larger for higher-income earners. Employers will assist the NHI Fund by ensuring that their workers' NHI contributions are collected and submitted, in a manner similar to UIF contributions. Employers will match their employees' contributions to NHI.'

The task of the National Assembly's Health Committee in processing the Bill, informed by input during hearings held between October 2019 and February 2022, does not include finalising a suitable funding model.

The time for stakeholder input on this model will come when one is proposed by National Treasury in a draft Bill of its own.

And as Health Minister Enoch Godongwana made clear in his written reply to questions from the DA's Ashor Sarupen, ' The need for and timing of further updates to the model will be determined by practical progress with preparing for the implementation of NHI, spending on the existing NHI allocations, as well as progress with processing the NHI Bill in the two chambers and relevant committees of Parliament'.

THE NATIONAL HEALTH INSURANCE (NHI) BILL provincial public hearings (a timeline)

October 2019: Mpumalanga and the Northern Cape province
November 2019: Limpopo province and KwaZulu-Natal
December 2019: Eastern Cape province
January 2020: Free State and North West provinces
February 2020: Western Cape province and Gauteng
8 May 2021 to 23 February 2022: public hearings on oral representations in support of written submissions

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