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DRAFT TERMS OF REFERENCE FOR MARKET INQUIRY: Private Healthcare Sector

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DRAFT TERMS OF REFERENCE FOR MARKET INQUIRY: Private Healthcare

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1. Introduction

The Competition Commission (“the Commission”) will conduct a market inquiry into the private

healthcare sector in terms of Chapter 4A of the Competition Act, 89 of 1998 (as amended) (“the Act”)

and in keeping with the purpose and functions of the Commission set out in the Act.1

Section 2 of the Competition Act defines the purpose of the Commission as, inter alia, “to promote the

efficiency, adaptability and development of the economy”;2 and “to provide consumers with

competitive prices and product choices”.3 The functions of the Commission, set out in Section 21 of

the Competition Act, call on the Commission to “implement measures to increase market

transparency”. In order to fulfill the stated purpose and functions of the Commission, Chapter 4A of

the Competition Act enables the Commission to conduct formal market inquiries in respect of the

“general state of competition in a market for particular goods or services without necessarily

identifying conduct or activities by a particular named firm”. A market inquiry is thus a general

investigation into the state, nature and form of competition in a market, rather than a narrow

investigation of specific conduct by any particular firm.

Section 43B sets out the grounds for initiating a market inquiry, stating that the Commission may

initiate an inquiry where it has “reason to believe that any feature or combination of features of a

market for any goods or services prevents, distorts or restricts competition within that market”.4 The

Act further stipulates that the Commission must develop terms of reference for the inquiry that

include, “at a minimum, a statement of the scope of the inquiry and the time within which it is

expected to be completed”. In accordance with these provisions, these terms of reference set out the

scope of the market inquiry, it identifies the factors that give the Commission reason to believe that

there are features of the private healthcare market that may prevent, distort or restrict competition,

and sets out the expected timelines for the inquiry.

The terms of reference start with a broad overview of the peculiarities of competition in healthcare

markets and the historical regulatory and policy changes that affect competition in the South African

1 Chapter 4A of the Act, which introduces the powers to conduct ‘Market Inquiries’, came into effect on 01 April

2013 2 Section 2(a) of the Act

3 Section 2(a) of the Act

4 Section 43B(1)(i)


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private healthcare market. This provides the necessary background to understand which features of

the private healthcare market may restrict, prevent or distort competition. The terms of reference

then sets out the type of information the Commission may seek, or questions it may ask; to evaluate

whether the features identified may have an adverse impact on competition and what form that

adverse impact may take. Procedural and administrative aspects of the inquiry are set out in the final

section of the terms of reference.

While these terms of reference do delimit the scope of the inquiry on the basis of preliminary

research, attendant matters not identified here may arise during the course of the inquiry. If the

Commission believes that the terms of reference should be amended in any way; either through the

addition of new matters or exclusion of matters currently identified herein, the terms of reference may

be amended in terms of section 43B(5) of the Act.

Note: This document is solely intended for the purposes of conducting consultations with

stakeholders.

2. Overview of the private healthcare market

This section provides an overview of the private healthcare sector, identifying the key segments of the

market and mapping the interface between these segments. This is followed by an overview of

regulatory and policy changes that have taken place in the healthcare market since the early 1990s.

These legislative amendments changed bargaining mechanisms and tariff determination in the private

healthcare sector. The impact of these changes on price determination and healthcare expenditure

will be carefully evaluated during the inquiry as part of a broader review of the regulatory framework

wherein private healthcare players operate.

2.1. Structure of the Private Healthcare Market

The private healthcare market refers to that portion of healthcare services that are paid for by private

patients themselves, either through medical scheme (insurance) payments or through out-of-pocket


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payments. Key segments of the private healthcare market include healthcare providers; financing,

administration and managed care services; and consumables (as depicted in the diagram below).

Figure 1: Illustration of the private healthcare market5

2.1.1. Healthcare services

According to a recent survey there are approximately 27 641 doctors practicing in South Africa6. This

includes general practitioners and specialists. It is estimated that 10% of all private healthcare

expenditure goes to General Practitioners (“GPs”) and dentists; and 20% to specialists. 7

5 Hodge, J. Fianderio, F. Lynch, S. Mohammed, R. ‘Genesis Analytics Healthcare Background Paper’ (2012),

pg. 2, Paper commissioned by the Competition Commission of SA 6 “Doctor Shortage to hit NHI”, The Sunday Independent, 25 September 2011

7 Council for Medical Schemes Research Brief No. 2 of 2008, Trends in Medical Schemes Contributions,

Membership and Benefits 2002-2006, page 51.


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Primary care providers (specifically GPs and dentists) are independent agents who work for

themselves. They play a vital role in directing patients along the healthcare “chain of care”. In theory,

primary care providers act as “gatekeepers” responsible for making referrals to the right specialists;

ordering further medical tests, or prescribing consumables. However, it has been observed that, for a

variety of reasons, many patients bypass GPs and obtain direct access to specialists even for minor

ailments. This could place upward pressure on healthcare expenditure.

A further feature that complicates the evaluation of costs and expenditure in healthcare markets is

that healthcare providers’ prices are not regulated and are largely determined on a “fee-for-service”

basis.8 Since the demise of the “National Health Reference Price List” process (more on which later),

industry associations or third parties have tried to compile reference price lists for healthcare

services. Although these reference prices often form the basis of pricing decisions, there is still a

perception that providers differentiate between patients; particularly between patients that have

medical aid and those that do not. Patients with medical aid pay for their doctors’ visits out of their

medical savings accounts and often have to supplement this with an additional amount “out-of-

pocket”9 in cases where doctors charge above predetermined medical aid reimbursement rates. 10

Patients are often unaware of the range and difference in tariffs charged by medical practitioners.

This situation may be compounded by certain rules of the Health Professions Council of SA

(“HPCSA”) that prohibit promotional activities by healthcare providers on the basis that it may mislead

consumers or lead to excessive treatment. These restrictions may exacerbate the pre-existing

information asymmetry between consumers and providers.

2.1.2. Hospitals

It is estimated that hospitals account for over 36% of total private healthcare expenditure. The largest

hospital groups, by number of beds, are Netcare Limited, Life Healthcare Limited and Medi-Clinic

Southern Africa. There is no price regulation for hospitals; tariffs are negotiated between the hospital

groups and medical schemes.

8 In healthcare, ‘fee-for-service’ is a payment model where providers receive a fee for each service they offer

(e.g. a separate fee is levied on a doctor’s visit, for prescription medication, and for tests ordered etc.) 9 The phrase “Out-of-pocket” payment is used to denote cash payments made by patients either in addition to

their medical cover, or in cases where patients have no medical insurance. 10

“Reimbursement rates” are the tariffs that medical aid schemes would pay to providers and are colloquially referred to as “medical aid rates”


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There are instances of joint ownership in smaller independent hospitals. Where there is joint control

of independent hospitals, the corporate group tends to take over the management of the independent

hospitals, including the negotiation of tariffs and other arrangements, resulting in independents

implementing the corporate group’s tariffs.

2.1.3. Financing, administration and managed care services

It is estimated that there are approximately 97 registered medical schemes representing both open

(26) and (71) restricted schemes.11 The Board of Healthcare Funders (“BHF”) is an industry

representative body of more than 85% of the medical schemes in South Africa.12 Medical schemes

and administrators are subject to oversight by the Council for Medical Schemes.

The three largest players in the administration sector; Discovery Health (Pty) Ltd, Metropolitan Health

Corporate (Pty) Ltd, and Medscheme Holdings (Pty) Ltd, account for over 70% of the administrator

market based on number of beneficiaries.13 Medical schemes and administrators act as agents on

behalf of the patient.

Managed care arrangements, which can play a pivotal role in finding innovative ways of reducing

healthcare costs and offering lower prices to the consumers, have not been widely used in South

Africa.14 The inquiry will evaluate the reasons for this and whether managed care arrangements may

be beneficial to competition.

11 Council for Medical Schemes Annual Report 2011 – 2012, Table 11: Number of Schemes by size and type as

at December 2011, page 112. 12

Note that although BHF may represent 85% of schemes, this does not translate to the same proportion of beneficiaries. For example, the largest open medical scheme, Discovery Health Medical Scheme, is not listed as a member of BHF according to the BHF website. Date Accessed: 14 May 2013. 13

Council for Medical Schemes Annual Report 2011 – 2012, Table 11: Number of Schemes by size and type as at December 2011page 152 14

Managed care arrangements refer to a more restrictive type of healthcare plan where medical schemes contract with a select group of healthcare providers and facilities to provide care for patients at reduced cost. The select group of providers and facilities make up the health plan’s network that patients can access for care. Often, there are additional out-of-pocket payments associated with visiting a provider or medical professional who does not form part of the network.


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2.1.4. Consumables

Consumables, mostly pharmaceuticals, operate within a highly regulated sector through the “Single

Exit Pricing”15 regime, as well as efforts that enable effective generic competition. There is some

degree of vertical integration where pharmacies are based at hospitals but there are many

pharmacies not linked to hospitals.

2.2. History of the regulatory and policy changes in the healthcare sector

Before 1993 the private healthcare industry was regulated by government through the National Health

Act (“NHA”) and the Medical Schemes Act of 1967 (now the Medical Schemes Act, 131 of 1998).

The regulations covered many aspects of the private healthcare industry, including tariffs that could

be charged by healthcare providers and reimbursement rates for medical aid schemes.

The regulations allowed and promoted “collective bargaining” and co-operation between the medical

schemes and the healthcare providers through their respective associations. These associations

included the Representative Association of Medical Schemes (“RAMS”) (now called the Board of

Healthcare Funders (“BHF”)), the Medical and Dental Associations (“MDA”) (now called the South

African Medical Association (“SAMA”)), and the Hospital Association of South Africa (“HASA”).

RAMS and the MDA were recognised in the Medical Schemes Act as being bodies with an interest in

determining healthcare tariffs for professional services and reimbursement rates for these services.

These tariffs were then gazetted and were binding on the service providers.

Changes to the Medical Schemes Act in 1993 meant that the tariffs determined by the associations

were no longer binding on service providers – thus effectively removing any explicit regulatory

framework for the determination of tariffs. Despite this, the publication of healthcare tariffs by the

medical schemes and provider associations continued as a standard practice. In particular, the new

Board of Healthcare Funders, South African Medical Association and Hospital Association of South

Africa continued to publish tariffs for healthcare services even after the amendments to the Medical

Schemes Act.

In 2002 this conduct became subject to scrutiny by the Competition Commission. By this time the

determination and publication of tariffs by the various associations had become a well-established

15 The “Single Exit Price” is a regulated, uniform price at which pharmaceutical manufacturers must sell to all

private sector providers, regardless of the volume purchased. Under the single exit pricing regime, the mark-ups added by other players in the value chain are also controlled.


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practice in the industry. Pricing in the insured private healthcare sector had largely stabilised around

the tariffs published by the various professional associations. Specifically, there were generally no

significant discrepancies between the prices charged by providers and the reimbursement rates of

medical schemes. The tariffs were applied nationally across all providers and payers. This conduct

amounted to price fixing, in contravention of Section 4(1)(b)(i) of the Competition Act, as confirmed by

the Competition Tribunal.16 Payers and providers were instructed to cease bargaining collectively

through industry associations. This ushered in an era of bi-lateral negotiation of terms between

individual providers and individual payers.

The new model of independent price determination introduced new challenges. Whereas there was

previously general convergence between the prices charged by providers and the reimbursement

rates of medical schemes, these prices now diverged; sometimes significantly. This resulted in

practices such as “balance billing” where patients became liable for out of pocket co-payments to

cover the cost of treatment that exceeded the medical schemes’ reimbursement rates. This

increased expenditure on private healthcare.

In response to these, and other, challenges; the Council for Medical Schemes, with the blessing of

the Department of Health, developed a National Health Reference Price List (“NHRPL”). The

objective of the NHRPL process was to establish a schedule of prices for healthcare services that

would be based on an independent and objective determination of costs. However, the NHRPL

process was unable to effect a reduction in prices as medical service providers could (and did)

deviate from the NHRPL. Medical schemes were forced to condone balance-billing practices so that

beneficiaries could have adequate cover. The NHRPL process was also successfully challenged in

the High Court by HASA, the South African Private Practitioners Forum and others; and the NHRPL

was set aside.17

Past regulatory and policy changes have clearly impacted the competitive processes and market

outcomes in the private healthcare market. The market inquiry will review the impact of the changes

mentioned here more fully, and will make evidence-based recommendations on regulatory or policy

changes that would encourage a more affordable, accessible and innovate private healthcare sector.

16 BHF Consent Order, case number: 07/CR/Feb05

HASA Consent Order, case number: 24/CR/Apr04 SAMA Consent Order, case number: 23/CR/Apr04 17

Decision of the High Court of South Africa, North Gauteng Division, 28 July 2010, Case Number 37377/09.


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3. The Proposed Market Inquiry

Healthcare markets are complicated; they reflect the intersection of various information and incentive

peculiarities that distinguish them from many other markets. The delivery of healthcare is facilitated

by crucial agency relationships,18 especially those between patient and doctor; and patient and

medical funder.19 The functioning of these relationships, and the nature of the incentives faced by

providers and payers in the medical value chain, will determine the eventual price, quality and

innovation outcomes that patients experience.

Various concerns have been raised about the functioning of private healthcare markets in South

Africa because healthcare expenditure and prices across key segments seem to be rising notably

above headline inflation. Explanations put forward are as varied as the information asymmetries and

distorted incentives inherent in healthcare markets, varying degrees of market power at different

levels of the value chain, and changes in utilisation. Given the large number of possible explanations,

there is a need for a thoroughgoing inquiry into the factors that drive the observed increases in private

healthcare expenditure in South Africa. The market inquiry will help to identify the factors driving

increased expenditure as well as the market dynamics at play.

3.1. Rationale for a Market Inquiry

Access to health care services is enshrined in the Constitution of the Republic of South Africa as a

fundamental human right.20 Further, section 27(2) imposes an obligation on the state to take

reasonable measures to achieve the progressive realisation of this right. Private healthcare provision

takes place within the context of this constitutional commitment to the provision of universal health

care services to all people in South Africa. Though it has been argued that the obligation to provide

universal health care access falls only on the state,21 an affordable, innovative and competitive

18 An “agency relationship” refers to a situation wherein one party (the agent) acts on behalf of another party

(often referred to as the “principal”). In an agency relationship, the principal expects the agent to act in their best interest, but the agent has limited influence and understanding to evaluate whether this is the case. 19

In these examples, the patient is the principal and the medical professional (doctor) and payer (medical scheme) act on his/her behalf as agents of the patient. 20

Section 27(a) of the Constitution states that “everyone has the right to have access to health care services" 21

For this debate, see for example, H Cheadle and D Davis, “The application of the 1996 Constitution in the Private Sphere” (1997) 13 SAJHR 44, 59-60.


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private healthcare system could nonetheless form an important part of the progressive realisation of

universal access to health care services.

The market inquiry will probe various segments of the private healthcare market to determine the

factors that restrict competition and underlie increases in private healthcare expenditure in South

Africa. The segments were selected on the basis of the Commission’s preliminary research, as well

as consideration of areas of inquiry that would make greatest impact within the Commission’s limited

resource constraints. The selected segments thus examine the main features that seem to restrict,

prevent or distort competition in the market.

The objective of the inquiry is to identify the factors that affect competition in the private healthcare

market, and to provide a factual basis upon which relevant recommendations can be made in the

interest of a more affordable, accessible and innovative private healthcare market. If the inquiry

uncovers any concerns, evidence-based recommendations will be developed. The inquiry thus

differs from an investigation in that no specific conduct against any particular firm is under

investigation. Instead, the inquiry asks broader questions about the nature of competition in the

private healthcare sector and, through an inquisitorial process, evaluates the factors that may distort,

prevent or restrict competition. The Commission will then propose recommendations on the basis of

information collected through the overarching inquiry into the sector. Moreover, an inquiry represents

an ideal platform to encourage broad public consultation to ensure that the diverse views of the

relevant stakeholder groupings are taken into account.

3.2. Purpose and Objectives

The purpose of the market inquiry is:

To conduct an analysis into selected segments of the private healthcare market, examining

the contractual relationships and interactions between and within the segments and the

contribution of these dynamics to total private expenditure on healthcare;

An assessment of the impact of Commission’s interventions in the private healthcare market,

through enforcement action and merger regulation; and any impact this has had on bargaining

mechanisms and consolidation in the healthcare market;

To inquire into the nature of price determination in private healthcare market in South Africa;

and


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To establish a factual basis for recommendations that support the achievement of accessible,

affordable and innovative private healthcare

The main objectives of the market inquiry are to:

Evaluate the nature of price determination in the private healthcare market with reference to:

- the extent of competition between different categories of providers and payers;

- the extent of countervailing bargaining power between different categories of providers

and payers; and

- the level and structure of prices of key services, including an assessment of

profitability and costs;

Evaluate and determine what factors have led to observed increases in private healthcare

expenditure in South Africa;

Evaluate how consumers access and assess information about private healthcare providers,

and how they exercise choice,

Make recommendations on appropriate policy and regulatory mechanisms that would support

the goal of achieving accessible, affordable, innovative and quality private healthcare;

Make recommendations on whether price-setting mechanisms may be acceptable within the

competition policy context; and

Make recommendations with regard to the role of competition policy and competition law in

achieving pro-competitive outcomes in healthcare, given the possibly distinctive nature of the

market.

3.3. Subject Matter of the inquiry

The inquiry will examine the topics outlined above, with a focus on the following segments of the

private health care market: healthcare providers, hospitals, medical aid schemes, medical aid

administrators and medical aid brokers. 22 The inquiry will cover, amongst other things, the following

core issues in each sector:

22 The inquiry will not focus on emergency services, consumables and pharmaceuticals.


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3.3.1. Healthcare providers (Primary Care and Specialists)

Tariff Setting Understanding the pricing regime after the Commission’s

decisions in 2003 and the NHRPL process

An assessment of how providers set tariffs and the role of

industry reference price lists

An examination of the extent to which co-payments are

applied in the sector

Referral Process An analysis of the relationships between primary

healthcare providers and specialists

The role of primary care providers as gatekeepers in the

referral process of patients

Relationships with

hospitals

The relationship between hospitals and specialists, how

they operate and access operating rooms and facilities at

hospitals

HPCSA Rules The impact of the HPCSA restrictions, such as the

restrictions on promotional activity and employment of

medical professionals by hospitals

3.3.2. Hospitals

Price setting and cost

analysis

Determine how tariffs are set, i.e. fee-for-service vs.

alternative reimbursement models

The extent of risk sharing between hospitals and funders

in price setting

An analysis of hospital costs

Expenditure on

technology

An analysis of trends in investments and expenditure on

hospital (medical) technology

Review on

concentration and

profitability

An analysis of profitability of hospitals

A review of the trends in consolidation and impact on

profitability

Role of independent

entrants and the

licensing regime

A review of the role of independent entrants

Analysis of the number of hospitals licensed over time

and impact on entry


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3.3.3. Medical Schemes, Administrators, Brokers and Managed Care

Fee and benefit

determination

An assessment of how benefits are determined and the

impact of the Prescribed Minimum Benefit legislation

An assessment of how fees, including contributions and

administration fees, are determined

Relationships between

medical schemes,

brokers, and

administrators

Understanding the nature of incentives in these

relationships and impact on costs i.e. administration cost

Outcomes of Managed

care and cost saving

initiatives such as

Designated Service

Provider arrangement

Evaluating the use and outcomes of managed care and

the overall impact on costs

The extent to which potential efficiencies and savings are

passed on to consumers

3.4. Methodology

The market inquiry will comprise an inquisitorial process of public hearings together with the review of

secondary material. The process of inquiry will be supported by information requests to and

consultations with companies, associations and any other stakeholders that may be required to

provide information on the subject matter of the inquiry.

It is envisaged that a panel of three experts, including an internal chairperson designated by the

Competition Commissioner, will preside over the hearings. The panel will be responsible for presiding

over the hearings, reviewing submissions, examining evidence, and overseeing the drafting of the

inquiry report and recommendations. The panel of experts will be supported by a team of researchers

and analysts who will produce position papers based on their review of secondary materials and

submissions by parties to the inquiry. The support team will also assist the panel with hearings and

the writing of the inquiry report.


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3.5. Stakeholders

Stakeholders in the private healthcare sector include specialists and other practitioners; hospital

groups; independent hospitals, clinics and other private hospitals; medical funder and administrator

groups; government departments; statutory bodies; civil society; contributors to medical schemes and

consumers of healthcare services.23

The main participants in this inquiry will be the providers (hospitals, medical practitioners), third party

payers (medical schemes, administrators and brokers) and their representative industry associations.

These participants will be the primary source of information on the subject matter of the inquiry. It is

also anticipated that the relevant government departments (e.g. Department of Health) and statutory

bodies (e.g. Health Professions Council of SA and the Council for Medical Schemes) will be a useful

source of information. They are important stakeholders as many of the matters arising in the inquiry

may well result in recommendations for their consideration or action. Given the importance of

accessible, affordable and innovative healthcare for the welfare of South Africans the proposed

inquiry will also have significant implications for representatives of civil society and consumers of

healthcare services generally.

3.6. Proposed Market Inquiry Process

The process set out below is merely a high level overview of the phases of the inquiry and is based

on the information currently available to the Commission. It is merely indicative and is likely to go

through a number of iterations of improvement and refinement before being finalised. The

Commission will publish a final administrative calendar and guidelines for the administrative process

to be followed during the inquiry, at least 20 working days prior to the launch of the inquiry.

3.6.1. Launch

It is envisaged that the inquiry will launch in the second quarter of 2013, but before the end of

September 2013. In the run-up to the launch, the terms of reference will be discussed with relevant

stakeholder groupings as identified above.

23 Note that this list may not be exhaustive.


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3.6.2. Public Hearings

The objectives of having public hearings are twofold:

- To allow a wide range of stakeholders the opportunity make submissions and discuss

pertinent issues

- To obtain answers and gain clarity on key issues within a public forum

With the above objectives in mind, it is considered prudent to hold two sets of hearings. The first set

of hearings will be inclusive, allowing a broader group of stakeholders to make public submissions.

The second set of hearings would be more inquisitorial and pointed in nature and would take place

later in the inquiry, when there has been a narrowing of issues to probe by the panel and inquiry

support team. These hearings would be more focused, involving a limited number of identified

stakeholders whose input is required to address the issues identified.

3.6.3. Estimated Timeline of the Market Inquiry

It is estimated that the market will commence in the second quarter of 2013, but by no later than

September 2013 and will issue its draft recommendations in December 2014. Final recommendations

will be issued no later than 30 June 2015.

3.6.4. Human Resources

It is proposed that the inquiry be led by a panel consisting of a chairperson and co-chairs. The

chairperson should be someone within the executive management of the Competition Commission.

The panellists would be experts of high standing. They are likely to be industry experts, such as a

health economist, health policy/health systems expert or a legal expert.

The panel will be supported by an inquiry technical support team led by an inquiry manager reporting

to the Chairperson of the inquiry. The Chairperson of the inquiry reports to the Competition

Commissioner.

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