On 19th October, 2023, the President appended his seal and signature to the Social Health Insurance Bill, 2023 and consequently overhauled the public health management structure that had been in existence in Kenya since 1998. The enactment of the Social Health Insurance Act, 2023 transferred all functions, funds, assets, property, powers, liabilities and duties of the National Health Insurance Fund to the newly established Social Health Authority.
The Social Health Insurance Act, 2023, was promoted as a legislative framework to ensure Kenyans have access to affordable and comprehensive Universal Health Coverage pursuant to Article 43(1) of the Constitution of Kenya, 2010. The assumption was that under the repealed National Health Insurance Fund Act, 1998, most Kenyans had limited access to quality health services and those who received the services were left with a substantial financial liability after receiving treatment.
Some of the salient features of the new Social Health Insurance Act, 2023 include:
- Establishment of the Social Health Authority
Section 4 (1) of the Act establishes the Social Health Authority to replace the National Health Insurance Fund Board. The Authority shall take over the management, control and administration of the Primary Health Care Fund, Social Health Insurance Fund and Emergency and Chronic Illness Fund, collectively known as the Fund.
- Establishment of various categories of Funds
The Act has established a Primary Health Care Fund, Social Health Insurance Fund and Emergency and Chronic Illness Fund. The Primary Health Care Fund is meant to facilitate and reduce the cost of purchase of essential primary care by individuals. The fund shall be replenished through appropriations by the National Government, donations, grants gifts etc.
Every Kenyan shall be a member of the Social Health Insurance Fund. Section 26 (5) makes it mandatory for the production of proof for registration with the Social Health Insurance Fund in order to access public services offered by the national government, a county government or a national or county entity. Children born after 19th October, 2023 shall be registered as members of the Social Health Insurance Fund at the time of birth. Contributors to the Fund shall be every Kenyan household; a non-Kenyan resident, ordinarily residing in Kenya for a period exceeding twelve months; the national government; county governments; and other employers as defined by the Employment Act, 2007;
The Emergency and Chronic Illness Fund has been established to defray the costs of chronic illness after the depletion of social health insurance cover. The act defines chronic illness as a condition that lasts one year or more and requires ongoing medical attention or limits activities of daily living or both. The fund shall be replenished through appropriations by the National Government, donations, grants gifts among other avenues.
- Establishment of Claims Management Office
It is not disputed that there was laxity by the National Health Insurance Fund in processing claims by health care providers. Consequently, healthcare providers elected to not render their services to individuals on the apprehension that the processing of claims would ordinarily be inordinately delayed or they would not be reimbursed entirely. To address this, the Act has established the Claims Management Office whose duties are listed in Section 35 of the Act. An opportunity to partner with the Office is envisaged in Section 35 (3) and (4) which allows the Office to delegate the duties outlined in Section 35 of the Act to third parties.
- Establishment of a Dispute Resolution Committee
The Act has also created the Dispute Resolution Committee which shall be comprised of five (5) members for purposes of hearing and determining any appeals against the decision made under the provision of the Act.
- Offenses under the Act
The Act has greatly expanded the scope of offences and fines payable some of which include;
a) a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years, or both for failing without lawful excuse to pay to the Social Health Insurance Fund within the period prescribed by the Act any contribution which he or she is liable as a contributing employer.
b) a fine not exceeding one million shillings or imprisonment for a term not exceeding sixty months, or to both for knowingly making an oral or written false statement with the aim of obtaining payment of a benefit.
c) heath care providers or health facilities will receive a fine not exceeding five hundred thousand shillings, suspension; or removal from the register of empanelled and contracted healthcare providers if they knowingly or fraudulently alter or falsify any information with the intent to defraud the Authority.
CONCLUSION
Health as a human right is enshrined in Article 43 of the Constitution of Kenya, 2010. The Government’s hope is that the Social Health Insurance Act, 2023 will actualize Universal Health Coverage and give access to primary care services to all Kenyans.
However, was the problem the law? In order for Universal Health Coverage to become a reality there needs to be a symbiotic relationship between several issues such as staff rationalization to ensure that rural areas and informal settlements are not neglected, motivation of health care workers through better job descriptions, remuneration and professional development opportunities and finally an intentional and concerted effort by both National and County Governments to ensuring that medicine, health products and medical technologies equipment are accessible, available and affordable to all Kenyans.
This write-up is for informational purposes only and should not be construed as a legal opinion. If you have any queries or need clarifications, please do not hesitate to contact Gregory Makambo, Partner, (gmakambo@makambolaw.com), Kelvin Mwaniki, Associate, (kmwaniki@makambolaw.com) or your usual contact at our firm, for legal advice.