The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

BAHAMIAN insurers yesterday branded the Government's National Health Insurance (NHI) legal opinion as "a kop out", expressing fears it will be used as "cover" for reform inactivity.

The Bahamas Insurance Association (BIA), in a statement released yesterday, warned the Minnis administration that it could be "setting a dangerous precedent" if the NHI Authority Board ratifies previous actions that had no basis in law.

It called on the Government to release the 'legal opinion' from the Attorney General's Office, which found that "a properly constituted" NHI Authority Board could ratify decisions taken under the former Christie administration even though supporting laws were not then in place. The BIA spoke out after Dr Duane Sands, minister of health, disclosed the contents of the 'legal opinion' and suggested this made it more difficult for the Minnis administration and Board to undo what has been done previously.

Dr Sands said the opinion "significantly complicates" the Government's efforts to reform NHI to its liking, and ensure the scheme is economically viable and sustainable, given that there is no compelling legal reason to overturn the existing contracts with healthcare providers who are serving 29,539 beneficiaries.

He suggested that the NHI Board's "hands are tied" by the work of the former administration's NHI Secretariat, and added: "You have a situation where things were not done entirely legally, and yet you're between the devil and the deep blue sea" in not wanting to negatively impact those receiving care via the scheme.

Insurance industry sources, speaking to Tribune Business on condition of anonymity, went further than the BIA statement in branding the Government's 'legal opinion' as "a kop out" and excuse for failing to follow through on pledged NHI reforms.

One contact, speaking on condition of anonymity, said: "I think the general sentiment in the industry is that it seems to be a 'kop out' to avoid making a decision, and avoid getting it right.

"It's about a kop out on behalf of the current administration, and it's becoming a problematic situation. How can you ratify something that has no legal basis? Surely you have to go back to Parliament to change everything in law."

They added: "There's a sentiment in the industry that, when you look at it, it's a 'catch-22'. And in taking the easy way out, a bad precedent may be set. These things remain unaddressed. It's one thing to blame your predecessor, but they've been in office since May. All you're doing is perpetuating something unsustainable."

Tina Cambridge, Generali's regional director, speaking on behalf of the BIA at a recent Bahamas Insurance Brokers Association (BIBA) seminar, reiterated the Association's belief that the NHI scheme was "operating outside the law".

She urged the Government to "go back to the drawing board", given that the Christie administration only brought select parts of the NHI Act into effect when it 'gazzetted' them on April 5, 2017. Crucially, no Board was appointed until July 17, meaning that the NHI Authority did not exist and, as a result, the pre-election contracts entered into with medical providers may have been "ultra vires" and outside the law.

The only parts of the NHI Act given legal effect by the Christie administration were those that repealed the previous legislation; indicated when the new one came into force; and established the NHI Authority.

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.

One insurance industry source, also speaking on condition of anonymity, questioned how the new government and NHI Authority can "ratify something that has no basis in law".

They suggested that the Government was using the 'legal opinion' to "keep the status quo", and as "a cover and way out" from reforming NHI, which might create negative political fall-out.

"The objective should be doing the right thing, and the right thing for the Bahamian people," the source said. "That should be the objective. Based on principle, it's difficult to see how you can tell me it's all fine and dandy. It's not."

The source also reiterated that the NHI Authority was continuing to fill the role of Regulated Health Administrator (RHA) under the NHI scheme, despite not being licensed by the Insurance Commission to act as such.

The BIA, in its statement, blasted: "It is unclear to the BIA how the Board of the NHI Authority could possibly ratify these actions in contravention of the law that created it, and in violation of the Insurance Act.

"We urge the Government to ensure that a dangerous precedent is not set vis-à-vis disregard for applicable laws. The Bahamas has to act in accordance with the rule of law, and public officials cannot knowingly violate duly passed law."

Calling on the Government to disclose its 'legal opinion', the BIA added: "The BIA is not in possession of the legal opinion issued by the Attorney General's Office, and is therefore not in a position to render informed commentary on the opinion.

"In this regard, we implore the Government to release the opinion to stakeholders including the BIA in the spirit of transparency, accountability and good governance. In the interim, and until evidence to the contrary is provided, the BIA maintains its position."