National Health Insurance (NHI) Bill: Clause 34 to 36 deliberations, with Deputy Minister

Meeting report

Opening remarks
The Chairperson welcomed Members to the meeting as it was the first Committee meeting at Parliament after two years. He asked Members to introduce themselves, including those on the virtual platform.

Dr S Thembekwayo (EFF) asked that the Members on the virtual platform not be muted because all Members are supposed to be part of the proceeding.

Introduction by the National Department of Health (NDoH)
Mr Joe Kgatla, Parliamentary Liaison Officer, introduced the NDoH delegation which included: Dr Nicholas Crisp, DDG: NHI; Dr Aquina Thulare, Technical Advisor: NHI; Mr Moremi Nkosi, Technical Advisor: NHI; Adv Micro Moabelo, Director: Legal Services; and the Deputy Minister who was logged in on the virtual platform.

Introduction by the State Law Advisors
Adv Ayesha Johaar, State Law Advisor and Mr Theodore Hercules, Principal State Law Advisor, introduced themselves.

Introductions by the Parliamentary Legal Advisor
Ms Sueanne Isaac, Parliamentary Legal Advisor, introduced herself.

The Chairperson said that the purpose of the meeting was to continue with the clause-by-clause deliberations on the NHI Bill. He reminded Members that during the 24 August meeting, a decision was made that all microphones on the virtual platform will be muted so that unnecessary points of order or interjections are managed by the Chairperson; this is in line with Rule 80 of the Rules of the National Assembly. The Members would be recognised to speak or raise a point of order once they have raised their hand.

Ms N Chirwa (EFF) referred to Rule 92(1) of the Rules of the National Assembly, she read “A member may raise a point of order at any time during the proceedings of the House, in terms of the procedure prescribed in Rule 66, by stating that he or she is rising on a point of order.” She said that when the Chairperson mutes Members and only unmutes them when they are recognised, it then takes away their right to be able to raise a point of order. A point of order should be vocalised as it is done in Parliament. It is very unfair for the Chairperson to overrule and overlook the rule book, because of convenience. Members on the virtual platform should have the liberty to unmute themselves and to raise a point of order at any point during the proceedings of the meeting.

The Chairperson replied that Ms Chirwa’s interpretation of the rule is wrong. When Members raise their hand, then they would be recognised to raise any point of order.

Ms Chirwa said that she will raise a point of order in the way that she raises a point of order in the House of Parliament. She reminded the Chairperson that he had said whatever rules apply in Parliament would apply in the Committee meeting as well. She asked that the Chairperson be fair to the Members on the virtual platform. She recalled that she was on the virtual platform last week and the Chairperson had not taken her points of order, which she is entitled to as a Member of Parliament. The Chairperson cannot take away the right of raising a point of order from Members of Parliament.

The Chairperson replied that he had made a ruling and it was based precisely upon the rules. Ms Chirwa was the reason he had implemented this particular decision. He was happy that she was physically present in the meeting so he could see whenever she wanted to raise her hand for a point of order.

Dr Thembekwayo said that she noticed that when the Chairperson had asked a question to Members on the virtual platform that not all Members were muted, which means that certain Members were selected to be unmuted while others were still muted. She asked that the Chairperson apply the rules fairly, and that the Members be allowed to mute or unmute themselves to assist with the timing of their responses.

The Chairperson replied that the Members were unmuted when they were asked to introduce themselves. He asked that Members try to follow the decision to see if it will assist the Committee as it moves forward.

Mr N Xaba (ANC) said that he supported the Chairpersons decision, because it was confined to Rule 80. He suggested that if there was a problem, Members on the virtual platform could notify the Chairperson by typing in the message box. He agreed that the rule was implemented in the last meeting because there was a point when the meeting needed to be controlled; it was then advised that Members should raise their hands.

Ms A Gela (ANC) agreed with Mr Xaba’s remark.

Dr Thembekwayo asked that her microphone be unmuted indefinitely.

The Chairperson reiterated that Members may raise their hand and speak when recognised to speak.

Ms Chirwa asked the Chairperson which rule said that the Members would first have to raise their hand. A point of order may be raised verbally at any moment. It was not fair that the Members who are physically present in the meeting could unmute their own microphone but the Members on the virtual platform had their microphones muted.

The Chairperson asked that the meeting not be disrupted again. He would continue the meeting as decided and according to the rules.

Dr Thembekwayo said that a point of order should be allowed at any moment, without the need to raise a hand.

Mr T Munyai (ANC) said that the Chairperson had made a decision. Rule 92(12)(a) indicates that when a Chairperson has made a decision, then the Committee has to move forward; if a Member is not happy, then the Member knows what to do in terms of the rules. This is further clarified by Rule 142. He explained that endless point of orders may be regarded as disruption to a meeting, especially after the Chairperson had already made a decision.

Clause-by-clause deliberations
The Chairperson read through a clause followed by a discussion on the clause:

Clause 34: National Health Information System
Ms M Clarke (DA) said that if one looks at Section 74 of the National Health Act, it does state that there should be a coordinated implementation by provincial departments, district health councils, municipalities and the private health sector of health information systems at national, provincial and local levels in order to create a comprehensive national health information system. This is well stipulated in the Act but it is not happening within the environment. Many hospitals do not have access to internet, phones or working computers. She asked what the Department would put in place to ensure that it changes these environments before the implementation of the Bill.

Mr E Siwela (ANC) said that the ANC supported Clause 34(1); for the NHI to be successfully implemented in a sustainable manner, an information system that can generate valid and reliable information at the right time and in the correct format for planning and decision making at all levels of management is required. For the NHI Fund to carry out its functions effectively, it must be able to know what is happening administratively, financially, clinically and productivity or performance wise in real time and with easily accessible and useful information. Furthermore, the country needs to access readily available, quality data and information for policy development, informed decision making for health resources planning and allocation, and monitoring and evaluating service delivery access; without this it will not be easy to access the population's health needs and how best it can be addressed. One common interoperable platform for data management planning and decision making was established during the management of the Covid-19 pandemic. The patient or user must always be placed at the centre of the information platform to support portable health records, that will improve access and reduce waste when there is duplication of investigations, including laboratory tests and lack of transparency.

Mr Xaba (ANC) agreed with Mr Siwela’s remarks. The ANC supported Clause 34(2); this clause allows health workers and those needing to know, access to information without jeopardising the confidentiality of patient or user records. Security and privacy must be enhanced to eliminate system risk, but more specifically to ensure that data is secure, that designated authorities can only access it and that there are appropriate backup and storage systems. The Protection of Personal Information (POPI) Act must be strictly adhered to, to protect the patients’ privacy and to ensure that the users are managed in a dignified manner without the risk of harassment from those that may gain access to this information. The Promotion of Access to Information Act (PAIA) must be adhered to, by ensuring that the provided information is de-personalised, this will ensure accountability and transparency without compromising and prejudicing confidentiality of users. This information should be kept for 30 years, in line with the National Archives and Record Services of South Africa.

Ms H Ismail (DA) said that she is concerned about Clause 34, because the health sector currently has a problem with data on its system. She has been approached by so many people who have tried to get information from hospitals or clinics in order to apply for their children’s birth certificates or Identity Documents; they were either told that the hospitals have lost the information or that files were moved from one hospital to another and got lost, and that they cannot be assisted with any records. Home Affairs also do not have all the documented records, as necessary. She asked how the national health information system would be developed and maintained as stipulated in Section 74 of the National Health Act and NHI Bill, considering the amount of recorded data that is already lost, and how long would it take for the present data to be collated and updated timeously.

Record keeping processes for continuity of care are essential. There are currently numerous challenges with data collation, patient record keeping and transfer of information between the different tiers of the health system. She does not know how long it would take for all of this to be correlated, considering that there are so many issues on the health system. Health care workers, including therapists, have limited access to computers at the district or rural level, therefore it is unclear how the national health information system would be implemented without the required infrastructure and human resources to enable the system to be functionable and ensure that all of the data are on the system. The system that is developed should be an intelligent digital health care system that is compatible with the various platforms in current use by practitioners. She emphasised that it is very important to note whether this national health information system will be developed by the time that this NHI Bill is envisioned to be implemented.

Ms M Hlengwa (IFP) asked whether there was a timeframe for the development of the national health information system. She questioned whether the Fund would be able to maintain such a system considering the current state of the public health care system in South Africa.

Ms Gela agreed with Mr Siwela and Mr Xaba’s remarks. The ANC supported Clause 34(3); because there is a need for consistency between the National Health Act and the NHI Bill. The health care workers in the health establishments must ensure that they comply with the National Health Act by reporting de-personalised and aggregated data that will inform that national health information system. Clause 34(3) is in line with Section 15(1) of the National Health Act which states “A health worker or any health care provider that has access to the health records of a user may disclose such personal information to any other person, health care provider or health establishment as is necessary for any legitimate purpose within the ordinary course and scope of his or her duties where such access or disclosure is in the interests of the user.” The ANC therefore supported this clause.

Dr Thembekwayo said that the EFF did not support Clause 34. There are a lot of challenges as opposed to advantages that made the EFF disagree with this clause, specifically regarding data collection. The current file system is corrupt, has no backup and might not even be correctly captured. She mentioned the example of some patients who arrive at clinics and hospitals and are told that their files are lost. She therefore said that the national health information system cannot be supported at this present format, because there is a lot of data that has not been managed accordingly. She advised that there should first be a development of a proper national health system that is accessible, especially to users in the rural areas.

Ms E Wilson (DA) said that she had a lot of issues with Clause 34, mainly because of the current state of the national health information system. The Limpopo DoH has spent R1 billion over 60 months to scan old documents, which are historical records on patients and this might be problematic because there are confidentiality clauses that the company who is scanning those documents would have to adhere to. Section 12 of the National Health Act states that “The national department and every provincial department, district health council and municipality must ensure that appropriate, adequate and comprehensive information is disseminated on the health services for which they are responsible...”; Section 13 further states that “Subject to National Archives of South Africa Act, 1996 (Act No. 43 of 1996), and the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), the person in charge of a health establishment must ensure that a health record containing such information as may be prescribed is created and maintained at that health establishment for every user of health services.”

The instructions as per the National Health Act are very clear, yet she has been at hospitals and clinics where she saw mountains of boxes stored in toilets, showers, cleaning rooms et cetera; the records in those boxes are so accessible that it is frightening and that there is absolutely no confidentiality maintained at all. Some of the boxes have been there for so long that the boxes have collapsed such that the information is in disarray and the patients’ records are laying everywhere. She explained that all of such health establishments are in breach of the confidentiality clause which is Section 14 of the National Health Act, and in particular Section 17 that deals with the protection of health records. She reiterated that many hospitals and clinics, particularly in the rural areas do not have access to internet, phones or working computers. She does not know how the Fund would pull of Clause 34 given the current state of medical records in this country. There have been Acts and Bills that have been turned away because of cost and the ability to actually ensure that it can happen; she does not see how this aspect of the NHI Bill would happen.

Ms Chirwa said that the national health information system is a contentious issue; because the Members are aware of the current situation in the country. For the past 30 years, the ANC government has not developed an information system that is working and thorough; yet the NHI Bill proposes that within the coming six years there will be a working national health information system. It is not just for the National DoH but across all departments, the ANC government has not developed a working information system in the past 30 years. In the instance where there is a 10% effort that is put in to developing an information system, then it is riddled by fraud, corruption, incorrect information and people being able to buy identities; which are all contentious issues within the country as it is. Clause 34 does not make room to decipher to the nation what will be the modus operandi of ensuring that a national health information system will be developed, despite the fact that the nation knows that it will not happen in the coming five years since it has failed for the past 30 years.

She asked what the default system would be for those that are not registered with the NHI Fund, whether this is a user or a service provider. There is no clear indication of what the health system would look like for those that are not registered under the NHI. Clause 34 would need to be very clear what it is working with, because there is no indication if this would be an internalised system or outsourced. She asked how the transfer of information of the current database would take place, while noting the current situation of information systems in the National DoH across the country, which is particularly worse in remote areas, township areas or informal settlements. She asked whether capacity will be increased internally, because the Bill merely states that a national health information system will be developed and maintained. She noted that there is a current backlog and issues with generally building state capacity under the ANC government. She emphasised that Clause 34 is not doable and it is merely raising hope for something that is not going to happen, especially through the ANC government. It is a high aspiration that the ANC government will not be able to reach.

Ms X Harvard (ANC) agreed with Mr Siwela, Mr Xaba and Ms Gela’s remarks.

Mr Munyai said that there is no clinic or hospital in South Africa that does not have a computer.

[Several Members from the DA and EFF interjected]

Mr Munyai asked that he may continue.

The Chairperson said that Mr Munyai should continue.

Mr Munyai said that what he had stated was a fact. In terms of telecommunications, as of 2020, Vodacom has 44.3 million subscribers, MTN has 28.6 million subscribers, Telkom has 14.9 million subscribers and Cell C has 9.3 million subscribers. In case the Members did not know, phones can work as computer systems; this is the ABC of information systems. An information system is an enabler and the backbone of the health care service delivery; for example, in the United Kingdom, the delivery of the service of the National Health Laboratory Service (NHLS) is being done through a company called Babylon ICT to support the health information system.

Ms Chirwa raised a point of order to correct the statement that Mr Munyai had made, that there is no clinic without a computer. In Cape Town, there is a clinic called Kuyasa Clinic and in Pretoria there is a clinic called Gazankulu Clinic that do not have computers. Mr Munyai said that it is a fact that there are no clinics without computers. The Members should not lie to the public.

Mr Munyai replied that he is not in a contestation and that he would continue with the facts.

Ms Chirwa interjected and said that Mr Munyai should withdraw the lie.

The Chairperson said that it is unparliamentary for Ms Chirwa to say that Mr Munyai was lying.

Ms Chirwa explained that Mr Munyai is a Member of Parliament who is sending mistruths to the public that all clinics have computers. She had given two examples of clinics that do not have computers.

The Chairperson referred to the rules and asked that Ms Chirwa give him an opportunity to speak. When the Chairperson speaks then the Members need to show respect and refrain from speaking until they are given the opportunity to speak. He informed Ms Chirwa that the Members had heard her say that what Mr Munyai had said is incorrect, but Mr Munyai does not have to withdraw his statement because it is his contention that every single clinic has a computer, whether it is rightfully or wrongfully so. Ms Chirwa would also need to apologise for saying that Mr Munyai was lying. He asked that the Members move forward amicably.

Ms Chirwa asked the Chairperson why she should apologise to Mr Munyai.

The Chairperson replied that she should apologise for saying that he had lied.

Ms Chirwa said that Mr Munyai was not telling the truth and he was misleading the country in Parliament.

The Chairperson replied that it is not the same as saying it is untruthful. He asked Ms Chirwa that the Committee not move down the wrong road.

Mr Munyai asked that he may proceed because he will not benefit from any apology or withdrawal. He continued and said that the people of South Africa know that the ANC government has developed the Covid-19 data systems and it is very useful for the whole country and it never leaked. The Electronic Vaccination Data System (EVDS) is under full control of the National DoH with 100% compliance of security prescripts and data governance and is aligned to the POPI Act. It is not true that the ANC has not created a data system that is functional. He reiterated that the information system is the backbone of the delivery of health services; he therefore agreed that the ANC supported Clause 34.

Mr P van Staden (FF+) said that he is trying to understand how the national health information system is going to work; he understood that the population register will be integrated into this system. He is similarly concerned as to what the other Members have raised, that there are hundreds of files of data that are piling up in the wards of state clinics and hospitals; he questioned how this data is going to be transferred to electronic systems and how much this is going to cost the taxpayer. He referred to the Department of Transport and said that when the National Transport Information System (eNaTIS) was introduced in 2007/08, it cost the country billions and billions of rands to transfer from the Motor Vehicle Registration system to eNaTIS. The national health information system will not be any different.

He reiterated the problem of the patients’ files that are piling up in clinic and hospital wards; and the other problem of patients' files that are get lost; he asked how would this data be integrated into the new system. He understood that the national health information system would be one integrated system, similar to eNaTIS, where one hospital would be integrated to another hospital on a computer system. He asked how long it would take to get all the files onto an integrated system, how long it would take before an integrated system is launched and what will the cost be on the taxpayers' pocket. Mr Munyai was incorrect, because there are many clinics and hospitals in this country that do not have compatible systems to work with and do not even have data capturers who can do such work. There should be data capturers appointed at each and every state hospital in this country to capture data that has not yet been captured; this will take a long time.

Ms Clarke said that she is broadly covered by Mr van Staden’s remarks. She mentioned the example of Dis-Chem pharmacy and said that one could go to any Dis-Chem in the country, because it has an integrated system that can locate and dispense to their users. She suggested that the Committee should welcome a presentation from the Department of Communications and Digital Technologies (DCDT) to inform the Members how they intend to develop a functionable integrated system. She has done a lot of oversight visits and there are huge hospitals, like Pelonomi Hospital in Bloemfontein, that do not have computers. She explained that these are facts and that the Members are there to rectify the problems and to ensure that every person in this country has universal health care going forward; it does not help that Members in the Committee fight against one another, Members must accept the correct facts.

Ms Wilson agreed with Mr van Staden and Ms Clarke’s remarks. With all due respect, Mr Munyai should be careful when quoting the service provider figures. She made an example and said that in her household alone, which is an urban Polokwane suburb, there are nine Vodacom contracts. If Mr Munyai uses the figures that he had quoted and looked into where those service providers are actually established and how many subscribers there are in one household then Mr Munyai would “come unstuck” on his figures. Most people in the rural areas have very old cell phones, not smart phones. She disagreed with Mr Munyai and said that a phone cannot be used as a computer; if a cell phone is used as a computer, then it instantly breaches the confidentiality clauses that have just been discussed, because the easiest thing to hack is a cell phone.

Ms Gela reminded the Members that they are there to serve the people of South Africa. The ANC has done a lot to change the health system and there has been a huge difference to what it was before. She agreed with Mr Munyai’s statement, because the Department has reported to this Committee that it had distributed computers to all public health care facilities, except for 42 facilities where there are electricity challenges in those areas. The health patient registration system will become the source of the NHI user, which already has more than 60 million records and more than 35 million records linked to identity documents; none of this has been leaked and has been installed in 3150 public health facilities. This has been built into the system solution and is strictly access controlled.

Mr Xaba said that the Department is continuously verifying all processes against the POPI Act, and have also accessed a cyber-security specialist. He agreed with Ms Gela’s remarks, and added that the system was already developed. EVDS and the Department are doing bulk verification with the Home Affairs, National Population Register (NPR). This is not rocket science. He reminded Members that they should refer to each other as “Honourable”, and that the manner in which they conduct themselves should possess respect. He referred to Mr van Staden’s question about how the national health information system is going to work and he said that the Members of Parliament are there to make law and that the matters of implementation are the responsibility of those who would be employed to do such.

Ms Ismail suggested that Members should stop responding to other Members questions, because the Members make their input and expect the legal advisors or the Department to respond. She agreed with Ms Wilson’s remark about the service providers, as well as the issue of some clinics or hospitals not having computers. The Bill would need to be specific on how the national health information system would be implemented, considering that there is insufficient infrastructure and human resources. She noted that the EVDS did not function optimally without any glitches. There is no system that has functioned 100% properly, and the NHI Bill does not provide clear guidance on the new biometric system or coverage required for the IT system to track registration, provide electronic record keeping and manage the transfer of records. There is also a lack of specifications regarding the extent of development of the national health information system, as well as the lack of recognition on the current restraints. The challenges should be specified, including how the challenges will be overcome within timeframes. The national health information system envisioned in Clause 34(3) must be strengthened to ensure that it complies with the requirements of the National Health Act. She recalled that the Office of Health Standards Compliance (OHSC) and the Auditor-General had come before the Committee and shown pictures of the piles of boxes containing records at health establishments; some of the boxes were damaged. She asked how all of these challenges would be overcome and how the national health information system would work.

Mr Siwela said that he was from a rural community and some of the things that Members have mentioned about rural people might not necessarily be correct, the Members should not think that they are not part of South Africa, they are part of South Africa and most of the things that the Department had said it would do has been done within those communities. The Members should be careful of how they speak of people from the rural communities as if they are from somewhere else.

Mr van Staden referred to Mr Xaba’s remark and replied that Members of Parliament are lawmakers but that law cannot be put into the statute book when the Members do not discuss the practicality of it, in terms of how it is going to be rolled out to the communities. This is the problem with most of the work done in South Africa – the law looks fine on paper but it is not practically rolled out in the communities. When discussing a Bill, the Members must discuss the practical side. The problems must first be resolved before a Bill is tabled and turned into law. On Clause 34, he asked what would happen if the data is breached. He recalled that there is a section in the POPI Act, which states that if data is breached at a facility, then the person in charge of that facility or the facility will be liable to a fine up to R10 million.

Ms Clarke agreed with Mr van Staden’s question. The national health information system would need to have really good firewalls in place, in the same way that the banks do, in order to protect the information system. In terms of whatever system this would require, she asked what the licence fee of that system would cost annually.

Dr Thembekwayo said that the NHI Bill is under the administration of the Minister of Health. She emphasised that the Members are deliberating on the Bill clause-by-clause and are not reporting to the ANC, and therefore the Members do not need the ANC Members to respond to their questions or their interpretation of the clauses. She asked that the ANC Members stop reacting to other Members statements, because they do not need their reactions; the Members are responsible, capable and intelligent Members of Parliament who say things from their own political opinions. This is why Members have requested that the Minster should appear before the Committee to address the numerous questions that have been raised.

The Chairperson said that every Member has the opportunity to provide input or clarification on the points that are raised. He is certain that when the Department does come to present, that they would be able to provide the Members with clarity on how far they are with the process of biometric identification. He referred to Ms Wilson’s remarks about the number of service provider subscribers within one household, he asked her if the point she was making was that all of those subscribers within one household are all probably adults, and that each one in his or her own right is counted as a subscriber to a mobile network or a service provider, therefore it is not incorrect what Mr Munyai had said with regard to the number of subscribers for each service provider.

Ms Wilson replied that what she was trying to say is that in an urban, wealthier area there are several subscribers within one household. She explained that if one took the number of subscribers that a service provider has and placed it into relative perspective, then there would probably be more subscribers within one household in the urban areas in comparison to how many subscribers there would be in rural areas; one would find a very different picture to what Mr Munyai had conveyed.

The Chairperson said that he agreed with Mr Siwela, Mr Xaba and Ms Gela on Clause 34.

Clause 35: Purchasing of health care services
Ms Ismail said that Clause 35(1) states that the Fund must purchase health care services “in accordance with need”. She is concerned that this phrase may lead to non-stop litigation to determine what the need is. Clause 35(1) should also specify that it must be in line with the Public Finance Management Act (PFMA). Clause 35(2) is very vague and it does not specify what purchase of services it refers to, whether this refers to the purchase of services at substance abuse facilities, mental health facilities, specialists in private practice et cetera. Clause 35(2) and Clause 35(3) speaks to the transferring of funds, which is confusing because the NHI Bill speaks of a centralised system; she felt as though Clause 35(2) and Clause 35(3) contradicts what is stated in other clauses of the Bill.

Mr Munyai said that the ANC supported Clause 35(1); this clause enables the Fund to fulfil its mandate as a strategic purchaser to meet the population health needs. Strategic purchasing is the active and evidence-based engagement in defining the service-mix and the volume, and selecting the provider-mix in order to maximise societal objectives. It requires information on a range of issues, such as the prioritisation and the cost effectiveness, staff and facilities, price, quality and a projection on the available resources. It is aimed at improving the performance of the health systems and making it progress towards universal health coverage. It is undertaken by an active purchaser that pulls funds on behalf of the population and purchases health services from the accredited and contracted providers, including emergency medical services. In consultation with the Minister, the Fund must determine its own pricing and reimbursement mechanism. The NHI reforms are premised on several key interrelated elements, in the white paper on NHI, it clearly states that “active purchasing by a single strategic purchaser, using explicit contracts that set prices; gate-keeping at a primary health care level; provider-payment reform that move away from a fee-for-service environment to alternate strategies for reimbursement”; which aims to improve the efficiency of the system to increase the value for money spent.

Ms Clarke asked about the guideline that the Fund would use when purchasing health care services, and how would the need be determined in real time. Considering that all functions will be centralised, she asked if this would not result in massive delays in urgent medical treatments, pending the red tape of purchasing health care services. On Clause 35(2), she asked what oversight will be done on such large amounts of money that will be transferred. Since it is based on a global budget, she asked if this inferred that some services may not be purchased due to the budget constraints or that health care providers may not be paid on time. There should be some sort of consequent management process put in place in terms of the oversight of the funding. She asked what oversight will be in place to ensure that amounts paid over will be used for actual health care services to be purchased. On Clause 35(4)(a) she asked how the capped case-based fee would be calculated, and if the private sector has agreed to the capped case-based fee.

Mr van Staden referred to Clause 35(2), which stated “The Fund must transfer funds directly to accredited and contracted central, provincial, regional, specialised and district hospitals based on a global budget or Diagnosis Related Groups.” He asked what would happen if this global budget gets looted by corrupt officials or corrupt politicians, because this would mean that the whole health system in the country would come to a standstill. He asked if there are precautions in place to curb corruption. On Clause 35(4)(a) he asked that clarity be provided on how the capped case-based fee would work.

Mr Siwela said that the ANC supported Clause 35(3) with minor amendments; this clause stipulates that the Contracting Units for primary health care should be established to manage primary health care services, such as prevention, promotion, rehabilitative, ambulatory, mental health care, oral health, home-based care and community care in a demarcated geographical area. They comprise of district hospitals, clinics or community health centres, ward-based outreach teams (WBOTs) and private providers organised in horizontal networks within a specified geographical sub-district area. The ANC is of the view that the Contracting Units for primary health care services should not be established as fund holders but as service planning units at a designated sub-district level. Therefore, the ANC proposed that Clause 35(3) should read as follows “Funds for primary health care services must be transferred to accredited and contracted primary health care providers coordinated through the Contracting Units for Primary Health Care at the sub-district level as outlined in section 37.”; this would assist the Fund to identify health care service needs in terms of demographic and epidemiological profile of a particular sub-district, identify accredited public and private health care service providers at a primary care establishment. The main mechanism that will be used to pay primary health care contracted providers will be a risk adjustment capitation system with an element of performance-based payment, which are best suited for primary health care services and it will take into account the re-engineered primary health care approach. A key issue will be to determine the capitation rate that is the average cost of providing the clinic and community-based service per person, and similarly for community health centre services, and later on appropriately adjusted according to age sex categories.

Mr Xaba agreed with Mr Munyai and Mr Siwela’s remarks. The ANC supported Clause 35(4)(a) with minor amendments; the clause refers to the accredited emergency public and private health care service providers and their reimbursement using a capped case-based fee with adjustments made for case severity where necessary. This would assist to manage and contain costs and payments for facility-based emergency medical services. Payments for contracted mobile emergency medical services will be through a capped case-based reimbursement strategy. The ANC proposed that Clause 35(4)(a) be divided into subsection (i) and (ii). It was proposed that Clause 35(4)(a)(i) should be read as “Facility-based emergency medical services provided by accredited and contracted public and private health care service providers must be reimbursed on a capped case-based fee with adjustments made for case severity, where necessary”; and Clause 35(4)(a)(ii) should read as “Mobile emergency medical services provided by accredited and contracted public and private health care service providers must be reimbursed on a capped case-based fee with adjustments made for case severity, where necessary”

Dr Thembekwayo said that the EFF does not support Clause 35. The purchasing of health care services is remindful of the personal protective equipment (PPE) saga that was characterised by the inflated prices that benefitted those that were directly associated to the DoH; she said that this will forever continue to be the case even with the NHI Fund, she asked how this could be prevented. Clause 35(1) states that the purchasing of health care services should be done in accordance to the need, this should not be done as in the case of the Covid-19 vaccinations, where millions of expired vaccines were purchased an no accountability was taken by those that were in control.

She emphasised that the word “need” is a broad word, with specific reference to health; this can include the minimum amount of resources required to exhaust an individual’s or a specific populations capacity to benefit from an intervention. There is a need to redefine the word “needs” per health and quality of life outcomes. If the goal of the care is optimal health, then the key marker of the success ought to be to ascertain individual patient’s health care needs and tailor the services accordingly. As such, the wide variety in the description of “needs” directly affects the policies and services intended to meet the population health care needs. Thus, the needs specification has to be further deliberated on.

Ms Harvard agreed with Mr Munyai, Mr Siwela and Mr Xaba’s remarks. The ANC supported Clause 35(4)(b); the clause stipulates that the public ambulance services must be reimbursed through the provincial equitable allocation. Payments for mobile public sector emergency medical services ambulances will be through the provincial equitable allocation, this is because ambulance services in the public sector are a provincial competence as contained in Schedule 5 of the Constitution.

Ms Chirwa agreed with Dr Thembekwayo’s remarks. On Clause 35, she reiterated the question she had raised for Clause 34, when she had asked what the default system would be for persons who are not registered under the NHI Fund, whether this is a user or a service provider. The failure of registration with the NHI Fund, could possibly foresee an exclusion from medical intervention. She suggested that this be deliberated upon and that the Members should get proper feedback on how exclusions will be avoided. She would also like to know who purchases the medical devices, medicines and tools et cetera on behalf of persons who are not registered. She explained that if persons are not registered with the NHI Fund and if health facilities are not service providers of the NHI Fund, then there would still be an existence of a two-tier system; and even with the “one-tier” system, there still exists a private sector and a public sector, it is just that the government would outsource from the private sector and pay them through the Fund.

The issue of cost has been a contested issue. If the NHI Fund ran out of funds, which is a possibility, she asked what would become the modus operandi and what the financial projections are of such an instance. She asked for the exact probability of the Fund running out of funds. Clause 35 releases the government from the financial burden, which is unacceptable and will be problematic when the Fund can no longer cater for health needs. Clause 35 will then be quoted in protection of this incapacity, because it makes room for that kind of incapacity. Incapacity to fund or to pay can be caused by various reasons as displayed through Auditor-General reports on how dysfunctional the National DoH is, with mismanagement of funds, corruption, fraud, irregular expenditure et cetera. Clause 35 provides immunity for the state and for the Minister of Health. There would be an existence of a financial threat for the private sector that will be outsourced, because the private sector prioritises profit, where people pay and get health care in return. If the Fund can no longer pay then it will impact how service delivery is done within the private health facilities. In the event that the NHI Fund runs out of funds, then persons will be taken out of private facilities and be placed in public hospitals and clinics as is the case when medical aid funds run out in the current modus operandi. She expressed that this is a concern, because the NHI Fund has no intention of bettering the current infrastructural needs, increasing public capacity in facilities and increasing the workforce in the public health care sector.

She referred to Clause 35(4)(a) and asked what would be the return time of deciding the level of emergency. People would need to know what the waiting period is, it must be clearly deciphered because it poses a threat of permanent and elongated waiting periods, because anything that is run by this state is very dysfunctional. Clause 35(4)(a) states that emergency medical services would be provided based on the severity of the emergency, but it is not clear how long this waiting period could be. Health care is a very sensitive topic, because if someone is in an emergency now then they must be catered for now. This may also result in fatal cases, where private institutions may withhold their services on account that the Fund can no longer carry the financial cost or has been capped; and await the response from the NHI Fund as to whether the emergency is severe enough to be catered for and if it will carry the cost. She asked who would carry the cost, in the event that the Fund decides that it will not carry the cost and it is not considered a severe emergency, but the private sector or private hospital had already delivered on the emergency health service.

On Clause 15(4)(a), she asked who and what determines case severity. She asked what would occur when the private sector can no longer provide health care services and emergency medical services, because the capacity in the public health sector remains stagnant as it is. The Fund will run out of funds, because the amount that is currently spent in the private sector is the same amount that is spent in the public sector, despite the fact that the private sector caters for 10% - 15% of the population. She emphasised that the questions regarding finance are often overlooked but are very important, especially with clauses that state that services are reimbursed on a capped case-based fee and depend on case severity, while knowing the systemic failures of the government. The fundamental questions of how these clauses will work must be answered.

Ms Hlengwa said that it is concerning that the proposed Fund would purchase health care services for the entire nation, but the public has very little proof of the Funds ability to actually achieve this momentous responsibility. Clause 35 limits the provinces' constitutional ability to finance, plan and provide health care services in terms of Schedule 4. The NHI Fund in its proposed format seriously infringes on the provinces ability to provide health care services. The Bill is silent on how the proposed District Health Management Office (DHMO) that is obliged to establish Contracting Units will account to the community. Clause 35 cannot be accepted in its current format.

Ms Wilson said that she found Clause 35 to be very confusing because it is contradictory. Clause 35(1) speaks of the Fund being a single purchaser, which is the bulk of what the NHI Bill is premised, yet if one reads Clause 35(2) all of a sudden it speaks of the transfer of money to provincial, regional, specialised and district hospitals based on a global budget or Diagnosis Related Groups. Clause 35(2) includes no timeframes and no specifications to detail what funds would be transferred for. She referred to Clause 35(1) where it states that the Fund must purchase health care services on behalf of its users “in accordance with need”; she asked who is going to define the “need”, she said that this should be clearly defined.

She referred to a comment by the Competition Commission, particularly on the health market inquiry; she read that “Based on our findings, we recommend a set of interrelated interventions designed to promote systematic change to improve the context within which facilities, funders and practitioners operate; and create a shift towards a pro-competitive environment.”. She explained that if the NHI Fund is the single purchaser then it controls the competitiveness and it controls the economic factors within the health system, which she finds hugely problematic.

On Clause 35(4)(a), she said that in Limpopo, one ambulance when and if it is functional and equipped, has to cover an area of 25 000 kilometres. It is common knowledge, it was proven and an article has been published about it in the past week, that private ambulance facilities are getting to a scene up to 15 to 20 times faster than public ambulances can, that is because there are not enough functional ambulances that are equipped. There is so much that is problematic with this clause. She asked what would come first, the chicken or the egg; she asked whether the public health sector would first get more ambulances that are properly equipped for the clause to become applicable or does the clause first become applicable before the health sector has the services to render emergency medical care.

Ms Ismail said that when she read Clause 35(4)(b) that it contradicted Clause 35(4)(a). Clause 35(4)(a) states that “Emergency medical services provided by accredited and contracted public and private health care service providers must be reimbursed on a capped case-based fee basis with adjustments made for case severity, where necessary”, then Clause 35(4)(b) states that “Public ambulance services must be reimbursed through the provincial equitable allocation”, she said that the two clauses seem to be in conflict with each other, she asked that the Department provide clarity on these clauses. She added that more clarity and specifications are needed on Clause 35(4)(a).

The Chairperson said that the ANC supported Clause 35(2), which requires that funds be transferred directly to accredited and contracted service providers based on a global budget or Diagnosis Related Groups. The measures are meant to increase the efficiency, sustainability and quality of health service provided. Currently funds are given to providers without a means or to health care practitioners without the means to assess whether primary health care and hospital service providers offer quality health services. The intention of the NHI is to address this issue in terms of the provision of quality health care and the assessment of the provision of quality health care or not. As a strategic purchaser, the Fund must establish a purchaser-provider split that enables it to proactively determine and purchase health care services directly from providers; these providers will include public and private providers at different levels of care. At inpatient or hospital levels, alternative reimbursement strategies that have been shown to yield the best value for money must be deployed, including the Diagnostic Related Groups. Information systems must be used to monitor, evaluate and plan for service use under alternative reimbursement strategies. This will assist the Fund in identifying gaps and developing interventions to address cost escalation.

Ms Wilson said that she had misinterpreted Clause 35(2), she read that “The Fund must transfer funds directly to accredited and contracted central, provincial, regional, specialised and district hospitals based on a global budget or Diagnosis Related Groups.”. Her other point still remains, that there are no timeframes and there is no indication of what is classified as a “need”. Her biggest concern is that very few, and in some areas none, of the hospitals, including those that are specialised, can be accredited because they just simply do not meet the standards. Until such time that the hospitals meet the standard, the clause means nothing, because the hospitals are not yet accredited service providers. 

Clause 36: Role of District Health Management Office
Mr Munyai said that the ANC supported Clause 36; the DHMO must be established as part of the DoH for the purposes of planning the service that will be provided at a district level. The DMHO will manage, facilitate, support and coordinate the provision of the personal health care and non-personal health care services at the district level, to comply with the national policy guideline priorities and relevant laws; they will perform functions that are crucial for running primary health care services, including services provided by accredited providers in the public and private sectors. The DHMOs must coordinate how the personal and non-personal services are planned within a district, in compliance with the National Health Act and as part of decentralised planning and decision-making process, this must be affected through the consequential amendments as envisaged in Section 31 of the National Health Act. The DHMO must report to the Department as part of the integrated planning for the entire health sector and therefore a need to establish a government component for this purpose.

Ms Wilson referred to the concerns that she had raised in the previous meeting as it is relevant to Clause 36; she said that the establishment of DHMOs, through amendments to the National Health Act are established as national government components, which effectively strip away the powers of provinces to finance and plan district health services. Amendments to the National Health Act further stipulate that DHMOs must establish Contracting Units which will receive funds determined by a formula from the NHI Fund to contract with primary health care providers. These Contracting Units will be established as part of the DHMOs and will be required to contract with the NHI Fund to receive funds.

She recalled that she had said that a government component, such as a DHMO, can only be established if the prescribed feasibility study is conducted and its findings recommend the establishment of such a component. She emphasised that no feasibility study has been done and there has been no recommendation of the establishment of such a component, therefore Clause 36 is totally null and void. She was concerned that there seemed to be a clash of Acts and Bills, where the constitutionality becomes very imperative. She asked what the functions of the provincial health councils are, and how the provincial health councils would fit into the role of DHMOs.

Ms Ismail said that she is very much concerned with Clause 36. She was concerned that the DHMOs were not efficiently capacitated to oversee mental health care, especially considering the primary health care system’s central role in referrals. The DHMO is established as a national government component, this is to support and coordinate a provision of primary health care services at a district level; this should not be a centralised office but one of a provincial compliant at the very least. Clause 36 will effectively strip away the powers of the provinces to finance and plan district health care services and allocate this power to the Minister of Health; she requested that the legal advisors provide guidance on whether this is constitutional. The proposed DHMOs would be accountable to the communities that they would purchase services for. There is no clarification on what kind of public structure a so-called Contracting Unit is, given that they would have substantial delegated powers to procure health services.

Mr Xaba agreed with Mr Munyai’s remarks. The national government components are intended to provide greater management autonomy, but it works to ensure cohesion across boundaries for continuity of services. The Constitution states that health is a concurrent function and the decision to allocate responsibility was taken when the National Health Act was passed. The ANC would continue to provide clarity when Members have questions.

Dr Thembekwayo said that the EFF did not support Clause 36. Every year, the Auditor-General has highlighted the inability and lack of competencies by the National DoH to run and oversee mental health care. The constraints faced by the district health management team, as they thrive to ensure the delivery of quality public quality health care in a rapidly changing environment is characterised by the following challenges: inadequate delegation of authority to district health management teams, defective budgeting processes, lack of managerial skills and vacancies in key positions and ineffective use of or access to quality management information systems to support decision making. This is an area of strategic importance and has to be attended to with caution. Consultation processes between private sector and relevant stakeholders must take place. The appointment of suitable, qualified management teams should play a critical role and urgent deliberations on these issues need to take place. She reiterated that the Members of the Committee do not need the advice or replies from any Member from the ANC.

Ms Chirwa said that the Minister should come before the Committee and tell its Members about a distinct plan of action to ensure that primary health care becomes the true manifestation and not just something that is written as a “by the way” issue in this Bill. While noting the infrastructural inadequacies, medicinal shortages, lack of health care staff and workforce in the public sector; she asked what would be the systemic method of resolving these barriers to primary health care, when the NHI overtly states no intention of bettering the public health care system with the interest of primary health care, prevention and education. Prevention and education are part and parcel of the mandate and obligation of the National DoH, and are married to primary health care; despite the fact that the ANC government is satisfied with a curative system and not a preventative system.

District-based systems are very necessary in any large project, this was recommended to the former Minister Zweli Mkhize in the early days of the Covid-19 pandemic. It was recommended that the Department should devise district-based information systems that receive Covid-19 information in real time, which was only considered later with minimal investment. The capacity of district-based systems is questionable in South Africa, which was highlighted during the Covid-19 pandemic, because minor issues such as the verification of information had no way of being proven. She raised concern over the way that district-based systems have been presented under the ANC government, which are dysfunctional and lack verification systems. She reiterated that the Minister should come before the Committee to provide a concise explanation of what these DHMOs are envisioned to be. The Minister should also explain the kinds of intervention that are envisioned to see the provisions in Clause 36 being a reality on a technical, scientific and managerial level, and how this would result in the guarantee of accessible and quality primary health care, prevention and education, as is the obligation and mandate of the National DoH, that has never been realised since 1994. She explained that for as long as she has been alive, the realisation of primary health care, prevention and education, has not been a tangible reality for each and every person living in this country.

Mr Siwela agreed with Mr Munyai and Mr Xaba’s remarks. The ANC are cognisant of the fact that the district offices do not currently operate efficiently and are disempowered to implement their mandates, as structures that are to be responsive to the needs of communities at the district level; they have not served the purpose of what they are intended for, so there is a need to improve their accountability. When Members speak about the national government taking responsibility of the provinces, it is clearly articulated in Section 100 of the Constitution; the national government is given the authority to intervene, to ensure fulfilment of that constitutional obligation to provide health care. The health system that is run by the provinces and districts are not good enough; the national government is correcting this through the NHI Fund.

Ms Harvard agreed with Mr Munyai, Mr Xaba and Mr Siwela’s remarks.

Ms Clarke referred to Clause 36 and said that a DHMO is established as a national government component to support and coordinate the provision of primary health care services at a district level, this should not be a centralised office but one of a provincial compliant at the very least. These structures effectively strip away the powers of provinces to finance and plan district health services and allocate these powers to the Minister of Health. The DHMO will be a government component, this can only be established if a prescribed feasibility study has been conducted, and if its findings recommend the establishment of such a component. There has been no evidence of such feasible study, however, apart from the appraisal of the 11 NHI pilots, which did not test health authorities designs or the implications of wide delegations allocated to public entities, no framework is established that makes the proposed DHMOs accountable to the communities that they will be purchasing services for. There is no clarification on what kind of public structure a so-called Contracting Unit is, given that they would have substantial delegated powers to procure health services.

The Chairperson recalled that he had previously referred to the Alma Ata Declaration and the Astana Declaration, which places a primary health care approach at the centre to ensure that no one is left behind. Clause 36 speaks to the strengthening of the district as a platform to coordinate the provisional services at the primary health care level. Therefore, it is imperative that strong DHMOs are implemented. The ANC supported the establishment of these DHMOs to ensure that personal and non-personal health services are planned for, coordinated and monitored so that there is information for proper planning. The national government components should ensure and will ensure that the national sphere has proper oversight over this level of care.

The meeting was adjourned.