Prescribed minimum benefits (PMBs) were introduced into the Medical Schemes Act to ensure that members of medical schemes would not run out of benefits for certain conditions and find themselves forced to go to state hospitals for treatment. What are my rights?

The most basic rights that medical scheme beneficiaries have are the PMBs. Currently the PMBs include:

  • 270 Treatment and Diagnostic Pairs (DTPs), such as so-called “treatable cancers”.
  • Treatment for all emergency conditions defined as “the sudden and, at the time, unexpected onset of a health condition that requires immediate medical or surgical treatment, where failure to provide medical or surgical treatment would result in serious impairment to bodily functions or serious dysfunction of a bodily organ or part, or would place the person’s life in serious jeopardy”.
  • 25 chronic conditions, including epilepsy, Chronic obstructive pulmonary disease, hypertension and diabetes. PMBs must, in terms of regulation 8(1) to the Medical Schemes Act, be funded “in full and without co-payment”. The correct classification of a diagnosis as part of the PMBs is therefore imperative. Schemes are, however, entitled to use the following mechanisms to manage the costs associated with funding the PMBs:
  • The appointment of designated service providers (DSPs) with whom certain agreements have been reached in terms of the manner and cost of treating medical scheme beneficiaries; and/or
  • The application of treatment algorithms, formularies and/or pre-authorisation, aimed at improving the effectiveness and efficiency of healthcare provision. The law places criteria on how medical schemes should apply formularies, treatment algorithms or disease limitations to the PMBs.

These limitations should be set on the basis of evidence-based medicine, i.e. the current best evidence, whereby individual clinical experience is integrated with the best available external clinical evidence from systematic research.

The principles of clinical appropriateness and evidence-based medicine are also found in the Health Professions Council of South Africa (HPCSA’s) ethical rules (in particular rule 23 on the relationship between the pharmaceutical industry and medical practitioners) and Undesirable Business Practices Policy. Formularies and protocols may consider cost-effectiveness and affordability. Cost-effectiveness is not defined in the law, but should, on a plain language interpretation, go beyond price or cost alone. It is interesting that the HPCSA’s new Ethical Rule 23 also refer to cost-effectiveness as an acceptable way of distinguishing between medicines or devices. However, the application of what is cost-effective should not override what would be clinically appropriate for a particular patient. This principle is also entrenched in the law through a stipulation that, if a patient is, or would not be, treated on a formulary medicine or in terms of a scheme protocol, the patient is entitled to alternative treatment without being required to make a co-payment.

The law, as does the HPCSA’s ethical rules, protects the choices of patients. Regulation 8(5) states that a patient may decline a clinically effective product that a scheme will fund in favour of another product, subject to a co-payment. The HPCSA’s Undesirable Business Practices Policy states that “choice should be optimised as it enhances competition”, but that choice may be restricted, provided that “quality of care is not sacrificed”. Designated Service Providers (DSPs) Regulation 8 to the Medical Schemes Act allows medical schemes to require of members to obtain PMB services from DSP’s.

The law provides no further guidance as to how the selection of such DSPs should take place, or the negotiations, discussions and agreements that should frame such appointments. Should practitioners enter into such negotiations collectively, the provisions of the Competition Act have to be borne in mind, i.e. no fees should be agreed by a group that is fully representative of a certain speciality.

Both the Undesirable Business Practices Policy and previous HPCSA Rulings state that doctors may participate in preferred provider networks, but that

  • entry criteria should be based on professional qualifications, competence and quality of care; and
  •  these networks should not be exclusive – all providers must have the option of being included unless compelling reasons for exclusion exists. However, the law distinguishes between patients who “voluntary” visit a doctor who is not a DSP from patients who “involuntarily” visit a non-DSP doctor. In the case of voluntary visits the medical scheme may levy a co-payment, but not when the visit is involuntary. Involuntary visits include cases where:
  • the required service was not available from the DSP or would not be provided without unreasonable delay;
  •  immediate medical or surgical treatment for a PMB condition was required under circumstances or at locations which reasonably preclude the beneficiary from obtaining such treatment from a designated service provider; or
  •  there was no designated service provider within reasonable proximity to the beneficiary’s ordinary place of business or personal residence. This means that where, for example, a patient cannot secure an appointment with a DSP, or where the DSP is difficult to reach for the patient, such a patient can visit a non-DSP without making a co-payment.

Noteworthy decisions by the Council for Medical Schemes (CMS) Appeals Committee In GEMS v Dr Kara and SAMWUMED v Dr Puterman the level of reimbursement to be paid to non-DSPs was at stake, i.e. the doctor fees, or the scheme’s tariff? It was noted that there was no contractual or statutory relationship between the doctor and the scheme and accordingly, there was no basis for the scheme to prescribe what fees the doctor was entitled to charge his patient and that the scheme must pay “the amount which the member has to legitimately pay to acquire the necessary medical services.” However, doctors remain accountable to charge reasonable and fair fees.

The case of DCT v Registrar illustrates the important role practitioners play in ensuring that patients can claim their rights, by providing the information that is needed to establish whether a patient meets the entry qualifying criteria (in this case for hyperlipidaemia treatment).

Whether patients are entitled to treatment is not contained in the CMS treatment algorithms, the case of Traub v Discovery Health Medical Scheme is illustrative. In this case the patient failed on all other therapies, and the only alternative available was a treatment which could only be access through a co-payment. It was found “that there [must] be a rational, justifiable basis for the protocol or the formulary as a whole.

This requirement does not and cannot excuse the scheme from its obligations in terms of section 15H(c) and 15I(c), both of which specifically provide that provision must be made for departures from the protocol or formulary, where necessary without penalty to the beneficiary.” On the manner in which managed care organisations have to act towards patients, the case of MAR v the Registrar led to a finding that “the scheme’s unreasonableness lies not in requiring a second opinion but in the circumstances and the devil-may-care manner in which it sought such second opinion.”

The refusal of the scheme to discuss the matter with the member and the failure of a supervisor, and then the medical advisor, to call the patient also weighed against the scheme.

The good news

All members of a medical aid scheme should be fully aware of the minimum benefits set out by law, and therefore what their scheme is expected to pay for. Medical aid members can rest assured that minimum healthcare will be provided if they need it, regardless of their age, state of health or the medical scheme cover option to which they belong.