Consumers placed on hold while SAMA takes on the CMS

OUTCOME OF COMPETITION TRIBUNAL HEARING - 01 DECEMBER 2014

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Consumers placed on hold while South African Medical Association takes on the Council for Medical Schemes

Today the Competition Tribunal granted the South African Medical Association’s (SAMA) request to put on hold a complaint that the Council for Medical Schemes (CMS) brought to the Tribunal, against SAMA and two professional associations, until the Gauteng High Court has decided whether the CMS has the necessary jurisdiction to bring a competition complaint to the Tribunal at all.

Background

In the complaint that the CMS brought to the Tribunal, the CMS alleged that the 2009 medical tariffs determined by SAMA allowed paediatricians to bill an extra 50% above the medical aid rate payable for new born babies requiring intensive care. The CMS also complained about the 2010 billing guidelines of the Society for Cardiothoracic Surgeons of South Africa. In each case the CMS alleged that the application of these tariffs amounted to prohibited conduct under the Competition Act. Although the Competition Commission, which initially investigated the CMS’s complaint, was of the view that the complaints had merit, it decided not to prosecute the matter on the basis that there was an inquiry into the health sector underway which could cover the same ground.

The CMS then decided to pursue the complaints directly in the Tribunal.

It is this decision of the CMS that SAMA has taken on review to the High Court. At the same time SAMA aked the Tribunal to put the matter on hold pending the outcome of that review application and the outcome of the Commission’s health inquiry which will be considering, amongst other things, the issue of tariff guidelines.

The CMS, on the other hand, opposed SAMA’s request to put proceedings on hold on the basis that the Tribunal, and not the High Court, was the correct forum to adjudicate the main dispute between the parties.

Ruling

Having considered the arguments raised by both the CMS and SAMA the Tribunal agreed to put the CMS complaint on hold pending the review application in the High Court but did not make a determination concerning the health inquiry currently underway. In arriving at its decision the Tribunal said this was a matter that warranted “consideration by the High Courts, the outcome of which would have relevance for other regulators who may be faced with similar questions.” The Tribunal concluded that “while the granting of a stay would cause certain delays in the resolution of the referrals by the CMS, it does not follow that the resolution of the substantive complaint need endlessly be delayed.”

Finally the Tribunal observed that if SAMA were to fail in its review application, it did not follow that the Tribunal would again put the CMS complaint on hold pending the outcome of the health care inquiry. This was because the Tribunal believed the Commission’s inquiry into the health sector could take a considerable length of time and that its consideration of tariff guidelines would be of a general nature and not specific to the tariffs which constituted the subject matter of the CMS complaints. To make this decision, the Tribunal said, it would have to consider if beneficiaries of medical schemes and consumers would be harmed by further delaying the hearing of the concerns brought by the CMS.

Issued By:
Nandi Mokoena
Communications: Competition Tribunal
Cell: +27 (0) 82 399 1328
E-mail: NandisileM@live.co.za or NandiM@comptrib.co.za

On Behalf Of:
Lerato Motaung
Registrar: Competition Tribunal
Tel: (012) 394 3355
Cell: +27 (0) 82 556 3221
E-Mail: LeratoM@comptrib.co.za