• Lawtons Africa

Extended medical cover during COVID-19

Authors: SJ Thema – Director and Member of the Management Board, Ushir Ahir – Senior Associate & Clinton Mphahlele (CA)


The COVID-19 pandemic is a first for the South African healthcare industry and with testing and treatment for the disease now included under the Prescribed Minimum Benefits (PMBs) that medical schemes must cover, this novel virus could well prove a test of medical schemes’ response to an unpredictable and unprecedented global disease outbreak.


At the outbreak of the pandemic in South Africa in March 2020, medical schemes were not obliged to pay for COVID-19 tests where members had tested negative for COVID-19. Therefore, most schemes only paid for tests and treatment when members had tested positive for COVID-19.

On 7 May 2020, just over two months after the first confirmed case and with data from 6 May showing that there had been a total of 279 379 tests conducted and 7 808 confirmed cases, the Minister of Health published an amendment to the Medical Schemes Act Regulations. The amendment inserted “screening, clinically appropriate diagnostic tests, medication, medical management including hospitalisation and treatment of complications, and rehabilitation of COVID-19” in the list of PMBs in Annexure A to the regulations.

The amendment was made in terms of section 67(3)(b) of the Medical Schemes Act 131 of 1998 which permits the Minister to “make any regulation(s) in respect of which the Minister, after consultation with the Council [for Medical Schemes], is of the opinion that the public interest requires it to be made without delay” without following the normal due process of publishing draft regulations for public comment.

The Council for Medical Schemes had made a submission to the Minister for the inclusion of COVID-19 as a PMB. The scope and level of minimum benefits is prescribed by the Minister from time to time and listed under Annexure A of the Regulations. Therefore, all medical schemes are bound to cover the costs related to the diagnosis, treatment and care of PMBs which include any emergency medical condition, a limited set of 270 medical conditions and 25 chronic conditions.

Simply put, PMBs are benefits which any option that is offered by the medical scheme must pay in full, without co-payment from the member and/or dependant. This position was confirmed by the Supreme Court of Appeal in The Council for Medical Schemes v Genesis Medical Scheme [2016] 1 All SA 15 (SCA) (16 November 2015). The court in the matter held that the relationship between a medical scheme and its members is not governed solely by the scheme rules but also by the obligations imposed by statute upon medical schemes and thus the law obliges medical schemes to pay the costs of treating PMB conditions in full.

The purpose of PMBs is to ensure that all medical scheme members (and their dependants) have access to certain minimum healthcare services and are not obliged to bear the costs thereof.


On 5 May 2020, the Council published PMB Definition Guidelines for COVID-19 which sought to clarify the PMB entitlements of beneficiaries within the context of the pandemic and to ensure that there is uniform interpretation amongst all stakeholders.

Following the amendment to the regulations published on 7 May, medical schemes are obliged to pay for the following:

Screening

Screening is questionnaire based. Some of the questions that can be asked by the healthcare worker during screening include: recent travel to a high-risk country (in the last 14 days); any contact with anyone with confirmed COVID-19 (in the last 14 days); any history of visiting live animal markets; any history of attending or working at a facility where COVID-19 patients were being treated; any symptoms such as fever, sore throat, cough and difficulty in breathing; any underlying condition (including high blood pressure, diabetes, asthma, respiratory illnesses, systemic illnesses); and any medications being taken (including immunosuppressive therapy). Medical schemes must now cover for both virtual and face-to-face consultations for screening by a healthcare worker (nurses or doctors) for COVID-19.

Clinically Appropriate Diagnostic Tests

Testing for COVID-19 upon referral from a health care worker who has screened a patient, must be covered, irrespective of the test result. It is important to note that according to the latest guidance by the South African Health Products Regulatory Authority (SAHPRA), diagnosis of COVID-19 is ONLY confirmed by the reverse transcriptase polymerase chain reaction (RT-PCR) test. Therefore, it is of paramount importance that members of medical schemes, when referred for testing for COVID-19, ensure that the test conducted is the RT-PCR test. Where a member who is asymptomatic (not showing any symptoms of COVID-19) tests for the virus, the test will be funded according to each medical scheme’s rules – that is, it is not necessarily covered under the PMBs.

Medication

According to the World Health Organisation (WHO) and SAHPRA, there are currently no pharmaceutical products that have been shown to be safe and effective for the treatment of COVID-19. As and when medicines, including vaccines, become available for COVID-19 and listed on the national essential medicines list, they will be included in the PMB level of care.

Medical Management including Hospitalisation and Treatment of Complications

Treatment and care for the management of mild to moderate COVID-19 infection (suspected or confirmed cases, where a member is medically well, or may be managed at home) and severe disease are PMB level of care. Patients with severe disease are generally hospitalised and the cost of their management must be funded as a PMB, including the use of mechanical ventilators where prescribed, for example in intensive care.

Rehabilitation

Members may de-isolate after a period of 14 days as recommended by the National Institute for Communicable Diseases depending on the severity of the disease, without further testing. Asymptomatic members may de-isolate 14 days after an initial positive test; those with mild disease 14 days after the onset of symptoms; and with severe disease 14 days after clinical stability is achieved. A repeat RT-PCR test will be funded according to the medical scheme’s rules.

The purpose of the inclusion of COVID-19 as a PMB is to ensure that all medical scheme members and their dependants have access to the abovementioned healthcare services in relation to COVID-19, regardless of the benefit option they have selected. Although medical schemes may still refuse to pay for a negative COVID-19 test for members who test voluntarily, the inclusion of COVID-19 as a PMB will make healthcare services far more affordable for members who were previously at risk of paying for a negative COVID-19 test even if they were referred for testing by a healthcare worker. Such payment would have been over and above their monthly contributions to the medical scheme. These regulations will be valid for the period of the COVID-19 pandemic.

Due to this pandemic being a first for the world in the 21st century and in particular for the South African healthcare industry, we foresee a number of complaints being made against medical schemes and matters being taken to court on this issue, in the event that medical schemes refuse to pay for COVID-19 testing and treatment. We are watching this space.

Lawtons Africa is a South African law firm. With roots that grew out of seeds sown in down-town Johannesburg in 1892, our history features various changes and different names. Our team of approximately 70 lawyers, including directors, consultants, associates and candidate attorneys is highly qualified, market-recognised and skilled. For further information, visit www.lawtonsafrica.com

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