COMPAT by its order dated March 1, 2016 has set-aside the decision of CCI whereby CCI has refused to order investigation against the Director General Health Services (DGHS) for discriminating against National Accreditation Board for Hospitals and healthcare providers (NABH) accredited and non-NABH accredited hospitals under the Central Government Health Scheme (CGHS) for government employees managed by the Union Ministry of Health & Family Welfare. The case has now been referred for re-consideration by the CCI.
In the Information filed by the Wing Cdr. (Retd.) Dr. Biswanath Prasad Singh, It was alleged that the DGHS has issued an office memorandum whereby the letter authorizes an extra 15% payment to NABH accredited hospitals as opposed to the non-NABH hospitals from the contributory health service schemes under the CGHS. It was alleged that DGHS, who is in a dominant position, is abusing its dominance and thereby thwarting competition among hospitals in the manner of empanelment under the CGHS. It is not providing a level playing field and thereby discriminating against non-accredited hospitals.
The CCI held that the activities of DGHS cannot be covered under the definition of 'enterprise' within the Act because it is not directly engaged in any economic and commercial activities. Its role is limited to control and regulation of the healthcare system in the country. Hence, according to CCI, its conduct could not be investigated for any abuse of dominance under the Act and the case was closed forthwith.
The COMPAT considered that the definition of 'enterprise' within Section 2(h) of the Act covers Government Departments and the only exclusion provided is relating to sovereign functions, as well as activities covered by the departments of Central Government dealing with atomic energy, currency, defence and space.
It can be clearly seen that CGHS is not just a facilitative mechanism but it also provides healthcare facilities by itself in the out-patient departments. In cases which require hospitalization or further specialized care, references are made to hospitals which are empanelled for the purpose. It is thus amply clear by its own admission that Respondent No.1 is not just a facilitator for its target group to seek healthcare in empanelled hospitals but itself provides healthcare in its 273 allopathic dispensaries, 19 polyclinics, 73 labs and 85 Ayush hospitals.
Thus, the COMPAT held the DGHS as an 'enterprise' and remitted the matter back to the CCI for re- consideration as to whether a case for investigation is made out or not. (Source: COMPAT Order dated March 01, 2016.For full text see COMPAT website)
(Source: COMPAT Order dated March 1, 2016.For full text see COMPAT website)