By Desie Heita
WINDHOEK – The Namibia Competition Commission (NaCC) will approach the court to declare as illegal as well as cease the practice of the Namibia Association of Medical Aid Funds (NAMAF) members benchmarking tariff structures through the association.
The commission says it is convinced that NAMAF and its medical aid fund members are operating like a cartel by annually coming together to agree beforehand on medical aid tariffs to charge consumers in violation of Namibian competition laws.
The decision to take the four-year old dispute to court was published in the Government Gazette of Friday December 12.
The NaCC will ask the court to interdict NAMAF from “publishing tariffs, whether as guidelines, recommendations or otherwise”, as well as to interdict NAMAF members “from participating or engaging in any process whereby such tariffs are determined, recommended or implemented in a manner that infringes on the Competition Act”.
Yesterday NaCC chief executive officer Mihe Gaomab II told New Era that NaCC remains open for further discussion with NAMAF as “it would be in the best interest of all parties concerned if this matter can be resolved amicably as the commission’s doors are open for discussions with the said parties. If it so happens that the court is the only avenue parties seek to resolve this matter, the commission will state its case as required.”
NAMAF chief executive officer Gabriel Mbapaha told New Era that they welcome the court challenge, and in fact NAMAF issued its own High Court application, on 12 December too, for NaCC and an interested party that complained of NAMAF’s tariffs. “The medical aid fund industry does not agree with the Competition Commission. [NAMAF], save for the Government’s Psemas [medical aid fund], maintain that given their nature and function in our society, they are not subject to the Competition Act,” he said, adding: “As long as there is no certainty about whether the medical aid fund industry falls to be regulated under the rules governing competition in the world of commerce and gain, the funds cannot agree to a settlement of the codes and tariffs dispute as this would have far reaching consequences for the way funds are currently operating and their many members and their dependants.”“The evidence is that members of NAMAF applied tariffs in interaction with medical service providers as the rates at which products and services would be reimbursed or paid. The conduct is of the nature of cartel conduct recognised as the most serious and harmful under competition law,” the NaCC says of NAMAF benchmarking tariffs and the usual agreements among NAMAF members.
The court case will be against NAMAF as the first respondent, along with Namibia Medical Care Medical Aid Fund, Namibia Health Plan Medical Aid Fund, Renaissance Health Medical Aid Fund, NAMMED Medical Aid Fund, Bankmed Medical Aid Scheme, Namdeb Medical Aid Scheme, Woermann and Brock Medical Aid Scheme, and Road Contractors Company Medical Aid Scheme.
Gaomab said “after procedural investigations into the complaint laid against NAMAF and its members regarding alleged anti-competitive practices focusing on benchmarking of tariffs, the Commission found that the medical aid fund had indeed infringed the Competition Act 2 of 2003, as benchmarking of tariffs is an anti-competitive practice.”
“As such it intends to institute proceedings in court,” Gaomab II added.
NaCC also rubbished NAMAF objections that medical aid funds are non-profit organisations, saying medical aid funds are described as businesses by the Medical Aid Fund Act, and NAMAF members “provide their services in exchange for money in the form of premiums paid by customers.”
“NAMAF and its members do not need to engage in anti-competitive conduct in contravention of the Competition Act to achieve the objectives of NAMAF under the MAF Act,” NaCC says.