The SA Society of Physiotherapy’s (SASP’s) bid to scrap provisions in the Medical Schemes Act that enable schemes to recover claims paid in error will have a devastating effect on the industry if it is upheld by the courts, a legal consultant to the Board of Healthcare Funders (BHF) warned on Wednesday.
The BHF is an industry association representing medical schemes and administrators.
“Reversal of claims is pretty much the norm and there is nothing sinister about it. It would make the administration of medical schemes extremely difficult and perhaps even unworkable if medical schemes were not able to recover amounts paid in error,” said legal consultant Debbie Pearmain.
Section 59(3) of the Act gives medical schemes the power to recover claims paid to a healthcare practitioner that they are not entitled to, including claims sustained due to fraud and those paid out in error. Schemes are obliged to pay claims within 30 days.
“IF S59 (3) is done away with, then schemes would have to take longer than 30 days to process claims, because the level of scrutiny would have to be increased dramatically just for ordinary claims,” said Pearmain.
SASP has asked the Pretoria high court to declare section 59 (3) of the Act unconstitutional and invalid, arguing it gives too much power to schemes and administrators because they both investigate and adjudicate claims suspected to be fraudulent or erroneous. It wants the power to decide on claim disputes between schemes and healthcare providers to be given to an independent party, and a review of six years of contested audits.
Pearmain questioned the “locus standi”, or right, of the SASP to take legal action on behalf of physiotherapists, noting that the courts had previously dismissed the BHF’s legal challenge to Regulation 8 of the Medical Schemes Act, on the grounds that it did not have locus standi to ask for a ruling on the matter.
SASP president Lonese Jacobs said SASP was acting on behalf of its members, and in their best interests, and thus had locus standi.
The sole applicant in SASP’s legal challenge is SASP Commercial Affairs, a company registered on August 12 2021, according to the Companies and Intellectual Property Commission (CIPC).
Its directors include Jacobs and SASP deputy president Rogier Donker. SASP Commercial Affairs has cited the minister of health, the Council for Medical Schemes, medical scheme administrator Discovery Health and more than 70 medical schemes as respondents.
“Our society has attempted, and continues, to engage with the funders to highlight what we consider to be the problems with the processes, but there was very little acknowledgment from their side that there even existed a problem. Going the legal route was the next option in order to protect our members,” said Jacobs.
“We do not dispute the fact that schemes can investigate potential claims that they are concerned about. We are questioning the fairness of the process,” she said.
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