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BIA Questions Legality Of Actions On National Health Insurance

  • “Stop, review and make it right”

The Bahamas Insurance Association (BIA) concurs wholeheartedly with the position stated by new Health Minister, Dr. Duane Sands, during the recent budget debate. The BIA concurs that the nation now has an opportunity to make right the structure of the Universal Health Care Program to ensure best outcomes for our nation and welcomes the opportunity to meaningfully engage in the process for the good of all.  The BIA therefore feels it necessary to question in the first instance, the legality of actions taken in the haste to implement National Health Insurance (NHI) prior to the 2017 general elections.

On April 5, 2017, the government enforced Parts I, II and Section 45 of the National Health Insurance Act (see attached National Health Insurance Act, 2016 (Appointed Day) Notice, 2017).  These parts of the NHI Act provide for the establishment, functions and powers of the NHI Authority, the establishment of the NHI Fund and other financial provisions.  All other aspects of the NHI Act have not yet been given the force of law including the parts that establish the NHI plan, outline the eligibility for NHI, provide for enrolment for NHI and establish the framework as well as functions of regulated health administrators (or health insurers) and health care providers.

The fact that NHI was implemented without key elements of the relevant Act enacted, brings into question the actions that were undertaken prior to the general elections.  We were advised by the NHI Secretariat that the Minister responsible for National Health Insurance had delegated specific authorities to the Permanent Secretary for NHI.  It was stated that the PS under the aforesaid delegation could cause the National Health Insurance Authority to enter into contracts with medical providers, begin enrollment for NHI and perform other functions.  We have examined this and find it to be questionable and potentially lacking in legal basis under the empowering legislation. As far as we understand, the Board of the NHIA which pursuant to Section 4(3) of the NHI Act is the governing body of the NHI Authority, has not been appointed. Further, Section 8 of the NHI Act empowers the Board to appoint the Managing Director; hence, in the absence of a board, the recruitment process for the appointment of a Managing Director could not have commenced. This calls into question all acts taken in the name of the NHI Authority in an effort to implement the scheme as they may have been carried out ultra vires of the law.

We also note that the NHI Act anticipated that regulated health administrators manage and administer NHI benefits under the NHI Act.  Such Administrators are required by the NHI Act to be companies duly licensed under the Insurance Act (Ch. 347). It appears that no such company was contracted with to administer NHI benefits and that the government via the NHI Secretariat has taken on these responsibilities.

NiceEven if the NHI Authority Board had been properly established and a Managing Director appointed, the management and administration of benefits under the NHI Plan by an entity not duly licensed by the Insurance Commission of The Bahamas and in accordance with Part IV of the NHI Act would be unlawful and possibly a violation of both the NHI Act and the Insurance Act.

During April 2017, the government began enrolment and offering NHI benefits to the general public under the National Health Insurance plan.  Extensive and costly advertisement, including endorsements by physicians who had “signed up” to provide services under the NHI plan, encouraged Bahamians to enroll in the NHI plan.  Since that time we’ve been told that about 25,000 persons have enrolled in the plan, services are being rendered and physicians being paid.  It should be of much concern to all Bahamians that actions to enroll persons, enter into contracts with medical providers and compensate them for their services may have been done in contravention of the law.

We believe that the NHI Authority Board when formally constituted, will be placed in a difficult position considering what has transpired with the NHI scheme to date. The dilemma that will be faced by the Board will require in-depth analysis and legal consideration to ensure that the rule of law is upheld. Specifically, the NHIA Board may be called upon to ratify past and ongoing actions that were potentially done in contravention of the law. This will presumably include executed contracts which may be null and void or voidable. The Government will also be under much pressure to ensure that a dangerous precedent is not set vis-à-vis disregard for applicable legislation while proceeding with the expansion of UHC in The Bahamas. In this regard, the Minister of Health and Attorney General may wish to investigate this matter in the interest of the Bahamian people.

The BIA reiterates its agreement with the concept of Universal Health Care and is committed to working with the Minister of Health and the NHI Authority (when formally constituted) to ensure that a sustainable NHI plan is implemented and administered successfully for The Bahamas.  We wholeheartedly agree with the Minister that this is the time to stop, review and get it right.