EPASSA would like to thank the Board for this opportunity and for the responsive way in which the Board acted following our last meeting on 16 July 2021, when EPASSA raised concerns about misinterpretations of scope of practice issues. The Board understood and responded to EPASSA’s requests in a manner that we appreciate deeply. However, despite the Board clarifying scope issues, various medical schemes continue to discriminate against educational psychologists. The new Board clarified what had become a messy and untenable situation, but medical schemes have not fallen in line, and their regulatory authority, the Council for Medical Schemes (CMS), is not acting to regulate or remediate the situation.

Discrimination by medical schemes raises moral, legal and constitutional issues. These issues are likely to become major public issues if not addressed. Our appeal today is for the Board to assert its powers and moral obligations to intervene by advising the HPCSA, the CMS and the Minister of Health on issues of discrimination that undermine the public interest – in line with the Board’s goal of promoting the equitable provision of psychological health care services.

EPASSA has sent a comprehensive information pack, drawn up with the assistance of Webber Wenzel attorneys, that we hope you will all peruse. I want to highlight a few points from the information that we sent you, pertaining to how medical schemes discriminate, how the CMS has failed to arrest the discrimination and the authority of the PBP to intervene in the public interest.

The exclusion of claims from educational psychologists and their patients by medical schemes is not lawful. Any categorical exclusion proffered by any medical scheme is unlawful in that the 2008 regulations do not impose restrictions on any category of psychology practice. Medical schemes cannot prescribe rules that contradict the 2008 Regulations – doing so is ultra vires. Medical schemes, however, continue devising rules that exclude claims for services rendered by educational psychologists.

Not all medical schemes discriminate against educational psychologists. For instance, Discovery Health does not discriminate. Amongst the larger medical schemes that discriminate extensively are GEMS, CAMAF, Medihelp, Polmed, Key Health and Profmed, and there are more.

I have chosen three examples for purposes of illustration. These examples demonstrate how medical schemes discriminate against educational psychologists and how in the process they also violate patients’ rights and discriminate based on age and disability – which is unconstitutional.

• In January 2022 an educational psychologist was approached by patients who had experienced an armed robbery. Had the colleague been a clinical psychologist, the treatment of her patients would have been covered by Profmed. A Profmed representative stated that the scheme only covers counselling and clinical psychology services and that educational psychology is a scheme exclusion. Asked for the reason behind the exclusion, the Profmed representative stated that the exclusion is:“due to: Treatment which is not medically necessary or clinically appropriate, and inconsistent with the diagnosis or condition; as per exclusion and scheme protocol.”

  This discrimination based on scope of practice is both discriminatory and arbitrary. If a medical scheme pays out for treatment provided by a clinical psychologist, there is no basis for failing to pay for the same service if provided by an educational psychologist who has the competency to provide such treatment. The discrimination is contrary to the rights of educational psychologists to practice their profession and discriminates against patients’ access to mental health care.

• The next example relates to GEMS, the Government Employee Medical Scheme. In December 2021, GEMS rejected a claim on the basis that the patient was over the age of 25 years. Incidentally, the rules of Bonitas medical scheme also only cover treatment up to the age of 21. This age delimitation is ridiculous, as many people choose to pursue their studies after the ages of 21 and 25, and even more people over these ages face mental health challenges that require treatment that can be provided by educational psychologists. The Constitution of the RSA is clear: no person can be discriminated against based on age. Such discrimination is a direct ground for attack on constitutional grounds.

• The final example demonstrates discrimination based on disability. It involves Medihelp, which confines the services of educational psychologists to learning and development, but, as a double blow, does not cover the costs of learning disabilities. Discrimination on grounds of disability, like discrimination on grounds of age, is a direct ground for attack in terms of the Constitution of South Africa.

A legal statute, the Equality Act, expressly prohibits discrimination on grounds of disability and age. It also prohibits discrimination on other grounds where the discrimination:

• causes or perpetuates systemic disadvantage;
• undermines human dignity; or
• adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a listed ground.

The discrimination faced by educational psychologists has not only compromised members of the public but has also culminated in severe prejudice to practicing professionals. Just some ways in which educational psychologists have been prejudiced is through:

• Non-payment for services rendered
• A lack of referrals
• Restricted employment opportunities
• Exclusion from continuing education opportunities and
• A lack of respect.

The public has an inherent interest in eradicating the discriminatory conduct of medical schemes. It is untenable, for instance, that government workers, police and their vulnerable children cannot access services by educational psychologists. The children of this sector have no say in whether their parents are members of GEMS or Polmed medical schemes, but they pay a heavy price when they need and cannot access the services of educational psychologists. The same may be said of their family members. As a result of GEMS’ discriminatory behaviour towards educational psychologists, government employees’ children needing psycho-educational assessment are forced to consult clinical rather than educational psychologists. The best interests of children, regarded as paramount in our Constitution and in multiple Acts of parliament, are violated, and the participation of children in decision making, stipulated in the Children’s Act as necessary, simply does not happen.

You will read in an annexure that we sent the Board an opinion stating that:

• If a child has an issue that remains untreated for lengthy periods of time, the issue becomes more entrenched and harder to treat.
• Undetected disorders prejudice a child’s ability to develop as a functioning member of society and may decrease that child’s chances of coping with the demands of everyday life.
• In the absence of the work of educational psychologists, the care and protection of the most vulnerable children in our society will be severely prejudiced.

The World Health Organisation declares that all people have the right of access to health care. This is also provided for in the Constitution of the Republic of South Africa, 1996. Health care includes mental health care. The National Mental Health Policy Framework and Strategic Plan (2013 – 2020) (NMHPF) states that mental health care services should have parity with general health services.

The South African Human Rights Commission notes in its report titled Report of the National Investigative Hearing into the Status of Mental Health Care in South Africa that there is currently considerable under-investment in mental health is South Africa. The report emphasises the need for attention to the mental health and well-being of children and adolescents and highlights the need for appropriate mental health services for people with psychological and intellectual disabilities.

Educational psychologists are well placed in terms of their training to address these needs. Moreover, our services are vital given public mental health and educational needs as highlighted in the Report of the National Investigative Hearing into the Status of Mental Health Care in South Africa.

Obviously, the more accessible educational psychologists are, the better this will be for people requiring much needed services. Educational psychologists can play a critical role in the delivery of mental health services due to their skills.

In 2020, EPASSA’s attorney’s sent letters of demand to seven medicals schemes setting out how their scheme rules were unlawfully and unfairly discriminating against educational psychologists and their patients. The letters called on the medical schemes to amend their rules. All the medical schemes, except GEMS, refused to comply with EPASSA’s demands. Instead, these medical schemes indicated that they would defer to the CMS, based on their view that their rules did not amount to discrimination given that their scheme rules had been approved by the CMS.

Upon referral of the issue of discrimination to the CMS by EPASSA, the Registrar of the CMS gave the following reasons for failing to remedy the discrimination faced by educational psychologists and their patients:

• First, that the services rendered by psychologists, although clinical in nature, do not fall within the category of Prescribed Minimum Benefits (PMBs) and the CMS cannot compel medical schemes to cover these services unless the said services were said to be a PMB;
• Second, that the exclusions do not mean that educational psychologists cannot render their services to their patients;
• Third, that while there may be grounds upon which educational psychologists are discriminated against as professionals, the discrimination cannot be challenged by the CMS because the CMS’s mandate is to protect the beneficiaries and not professionals;
• Fourth, a case was not made by EPASSA to substantiate the allegations of unfair discrimination against any protected class of persons; and
• Fifth, if the CMS were to compel medical schemes to cover costs associated with services rendered by educational psychologists, it may be deemed to be ultra vires.

The CMS is wrong:

• There is unfair discrimination against educational psychologists and their patients that is unlawful and unconstitutional.
• There is a legal, mandatory prohibition against discrimination that by law must govern the rules and conduct of medical schemes.
• Conditions treated by educational psychologists sometimes qualify as PMBs.
• Medical scheme exclusions do not only affect professionals. Health care services are rendered to patients. The interests of professionals and patients are inextricably connected.

Despite the CMS’s admission that educational psychologists are permitted to treat conditions listed as PMBs, and despite our continual attempts to clarify that the scope of an educational psychologists’ profession must be viewed in terms of the 2008 Regulations, the CMS approved scheme rules for the current 2022 year that allow medical schemes to make scope of practice determinations contradicting the 2008 Regulations and that fail to reimburse educational psychologists treating PMBs. The Appeal Committee of the CMS must now remedy the position.

EPASSA requests the assistance of the Board in this regard. The PBP, as I probably need not tell you, exists as a statutory entity in terms of the Health Professions Act (HPA). Section15 B (g) of the Health Professions Act, 56 of 1977, (“HPA”) gives the Board for Psychology powers to do all things as the professional board deems necessary or expedient to achieve the objects of HPA in relation to a profession falling within the ambit of the professional board. Two objects of the HPA applicable here and mentioned in sections 3(e) and3(j) are assisting in the promotion of the health of the population of the Republic and serving and protecting the public in matters involving the rendering of health services by persons practising a health profession.

EPASSA is of the opinion that the Board for Psychology has a direct and substantial interest in a dispute where at least seven of the largest medical schemes operating in the country refuse to cover services rendered by educational psychologists. The Board must intervene because the allegations of discrimination are serious. The discrimination is unconstitutional, unlawful and undermines the right to important and necessary psychological services. The vision of the PBP is to “regulate and advocate for responsive, relevant, and equitable psychological health care and wellbeing for all”.

It is common cause that South Africa has severe structural impediments and educational backlogs due to its apartheid history of inferior education and discriminatory healthcare. The refusal by medical schemes to provide cover for patients who have disabilities and the services offered by educational psychologists is a matter of public interest and cannot be ignored by the Board as a regulatory body.

When our members provide care and treatment to their patients, they do so on the basis that they are first and foremost psychologists. It cannot be that other categories of psychologists who provide the same services as educational psychologists are permitted to have their services covered by certain medical schemes, while educational psychologists are barred from doing so. EPASSA requires the assistance of the Board to advocate for the rights of educational psychologists, and the rights of their patients, for equitable treatment by medical schemes.

The Board has the power and the authority to advise the Minister of Health on issues relating to psychologists, and in effect, plays an integral role in standing up for the psychology profession. This is evident from the previous Board’s advice that it played a role in advising the Minister against the promulgation of a revision of the 2011 Regulations. EPASSA believes that the Board is empowered in law to represent the interests of educational psychologists in its future engagements with the CMS and with medical schemes themselves.

EPASSA requests the Board to persuade the CMS to direct medical schemes to stop unlawful conduct and unfair discrimination. As a first step, the Board should request the CMS to direct implicated medical schemes to remove exclusionary rules, to amend their benefit options and to desist from discriminatory conduct. If the medical schemes refuse to comply, the CMS and its Registrar have various powers that can be invoked:

• First, the Registrar of the CMS in terms of the Medical Schemes Act can order a medical scheme to amend its rules or apply its rules in a manner consistent with the provisions of the Act.
• Second, the Registrar has the power under section 33 to approve benefit options.
• Third, the registration of a medical scheme can be suspended or cancelled in terms of section 27 of the Medical Schemes Act. One basis for cancellation is if the medical scheme, after written notice from the Registrar, persists in violating any provision of the Act.

In conclusion, EPASSA requests the PBP to explain to the CMS how scope issues are determined and to persuade the CMS to issue a directive to medical schemes to change discriminatory rules. The PBP is appointed to ensure that the public has a right to health services, and EPASSA needs the Board’s assistance in this regard.

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In response to a query:

EPASSA has included in the information it sent the Board a list of conditions that educational psychologists often deal with. This list derives from the documented work of the Educational Psychology Task Team that was an offshoot of a Consensus Conference, and that included many heads of educational psychology departments at South African universities.