By NEIL HARTNELL
Tribune Business Editor
The Minister of Health yesterday conceded that the Bahamas Insurance Association (BIA) was "dead on" over its assertion that much of National Health Insurance's (NHI) roll-out and enrollment had no basis in law.
Dr Duane Sands pledged to "clean up the mess" left behind by the former Christie administration, telling Tribune Business that "a series of accounting and legal remedies" to address the scheme's flaws would be underway a month from now.
The Minister was responding after the insurance industry, via the BIA, issued a statement expressing concern that the NHI Authority's first Board "will be placed in a difficult position" by potentially having to ratify illegal acts under the former government.
Dr Sands, in a subsequent interview with Tribune Business, agreed that the concerns raised by the BIA were "a technically touchy issue" because much of NHI's governance structure - including the key bodies responsible for overseeing the scheme - did not exist when the scheme was launched in April 2017.
The BIA also pointed out that key aspects of the NHI Act had not been 'gazzetted' and brought into law by the time the scheme was launched. Among the sections omitted were those giving authority to enroll persons in NHI; the criteria setting out who was eligible to enrol; and the framework detailing the functions of health care providers and insurers.
While agreeing that he "cannot fault" any aspect of the BIA's concerns, Dr Sands effectively responded that there was a 'real world' and an 'ideal world'. He suggested that remedying NHI's faults, rather than folding the scheme and starting again, was the better choice given the latter's likely negative impact for the 25,000 who have already enrolled.
Still, arguing that the Bahamas "now has an opportunity to make right the structure of Universal Health Coverage (UHC)", the BIA challenged "the legality of action" taken by the Christie administration in its haste to launch NHI as an election 'vote-getting' tool.
Its statement pointed out that the Christie administration enforced just Parts 1, II and section 45 of the NHI Act on April 5. These provided for the NHI Authority's creation and powers, the creation of the NHI Fund and other financial infrastructure.
The BIA, though, argued that what was not brought into lawful effect was arguably of more importance.
"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 BIA said.
"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 election. We were advised by the NHI Secretariat that the Minister responsible for National Health Insurance had delegated specific authorities to the Permanent Secretary (PS) for NHI [Peter Deveaux-Isaacs]. 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 NHI Authority,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," the BIA added.
"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."
Dr Sands backed the BIA's conclusion yesterday, saying: "This has been a technically touchy issue because until the Board is appointed and empaneled, technically you don't have a managing director and the NHI Authority doesn't exist.
"However, there have been contracts already entered into, which may or may not be valid. I raised this point in the House of Assembly that we may have to revisit these contracts as they're predicated on financial assumptions that may turn out to be questionable."
The BIA, meanwhile, added that regulated health administrators (RHAs) - namely the public health insurer, BahamaCare, and private health insurers - were supposed to manage and administer NHI's benefit payouts.
It pointed out that the NHI Act required all RHAs to be licensed under the Insurance Act, but no such service provider was contracted to perform this service under the Christie administration.
Instead, the BIA said the NHI Secretariat and the Government appeared to be fulfilling this role, which it argued violated both the NHI Act and the Insurance Act.
"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," the insurance body said.
"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 NHI Authority 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."
While not disputing anything the BIA said, Dr Sands said the Minnis administration was faced with "a chicken and egg scenario" given that NHI had already launched and enrolled 25,000 beneficiaries.
He questioned whether the scheme's administration and benefit payouts should be halted, and "we close up the office and shut everything down until the Board is in place and empaneled", given the effect on existing beneficiaries.
"Part of the clean up work is to regularise this whole thing," Dr Sands told Tribune Business. "We can go and spend a whole inordinate amount of money on the legal wrangling, or acknowledge that this thing was in-artfully rolled-out and seek to clean it up.
"Virtually everything we have met in place creates a similar challenge.... Yes, it's a mess, but we have to clean it up and I suspect one month from now we'll be going through a series of accounting and legal remedies to make right what ought not to have been done in the first place."
Dr Sands expressed hope that the NHI Authority Board would be named and 'Gazzetted' this week so it could begin work, pulling persons from the Prime Minister's Office, Ministry of Health and NHI Secretariat together into the newly-created body.
"I have no issue with the observations of the BIA: I think they're dead on," he told this newspaper. "There's no reason for me to say anything other than I concur."