President William Ruto’s new health plan has run into headwinds after a committee of the Senate rejected two proposed subsidiary laws.
In a report to the Senate, the Delegated Legislation Committee chaired by Tharaka-Nithi Senator Mwenda Gataya Mo Fire, recommended that the Social Health Insurance (General) Regulations, 2024, and the Social Health Insurance (Tribunal Procedure) Regulations, 2024 be annulled for lack of public participation.
These two pieces of legislation are critical in the implementation of the Social Health Insurance Fund (SHIF).
The Committee accuses Health Cabinet Secretary Susan Nakhumicha of failing to provide a satisfactory explanation on the formula used to come up with the 2.75 per cent annual contribution per household income and safety of data.
The recommendations came just hours before Ms Nakhumicha announced the extension of the rollout of the SHIF from July 1, 2024 to October.
Registration is, however, expected to start from Monday.
But even as Ms Nakhumicha announced the extension, the recommendation by the Senate team means putting SHIF in place could be delayed even further.
“The Ministry of Health was given enough time and opportunity to submit evidence of public participation but that never happened,” the report says.
Vihiga Senator Godfrey Osotsi said registering Kenyans into SHIF before the enacting regulations is against the Constitution.
“The minister should not put the cart before the horse because the new scheme will be swiftly rejected,” Mr Osotsi said.
The rollout of SHIF was initially set for April before being pushed for July 1 following the enactment of the Social Health Insurance Act early in the year.
The Social Health Insurance Act and Regulations envisage fresh registration of Kenyans and people residing in the country.
“In preparation for the rollout of the Social Health Insurance and its benefits, I announce that registration commences on July 1, 2024,” Ms Nakhumicha said.
She added that the exercise would be countrywide through self-registration online or assisted registration by community health promoters, visiting National Health Insurance Fund (NHIF) offices and other points as the Social Health Insurance Board will designate.
The government says the transition to SHIF is a move “towards a more inclusive system that addresses basic healthcare needs and offers a wide range of medical services”.
Section 50 of Social Health Insurance Act mandates the CS, in consultation with the board, to make regulations that improve the carrying out of the provisions of the law.
The ministry prepared the two instruments, which were later published by Ms Nakhumicha on March 8, 2024. They were then forwarded to the Senate for consideration.
The regulations were tabled on March 20 and given to the Committee on Delegated Legislation for processing before reporting to the House.
The committee expected the CS to appear before it and show what the ministry did to incorporate the views and concerns of the public and other stakeholders into the regulations and rules.
When she presented the regulations to the lawmakers, Ms Nakhumicha provided the Regulatory Impact Statement, the Explanatory Memorandum and a matrix detailing public participation.
Under section 16 of the Statutory Instruments Act, the committee invited Ms Nakhumicha and other players to discuss the regulations. The stakeholders invited included the Council of Governors, the Kenya Medical Practitioners and Dentist Union and the Kenya Medical Association. The CS did not, however, show up.
“She did not submit evidence of adequate post-drafting public participation for the regulations and the rules that satisfactorily considered the issues from the public and stakeholders involved,” the committee says in the report to be debated by the House.
“That was contrary to Articles 10 and 118 of the constitution and Section 5 (a) of the Statutory Instruments Act.”
The Senate team says in the report that Ms Nakhumicha did not highlight the financial implications of the regulations and rules despite the two having a huge potential impact on the public.
The Social Health Insurance establishes a three-tier approach to funding healthcare – the Primary Healthcare Fund, SHIF and the Emergency and the Chronic and Critical Illness Fund.
In the explanatory memoranda submitted to the committee, the ministry could not give the rationale of the three tier and the benefit package.
It also never offered an explanation on the transition from one fund to another upon depletion of benefits of one fund.
This method uses an instrument to determine if an individual or household has the ability to pay for the Social Health Insurance premium.
The means-testing instrument was to be used to collect household data. Ms Nakhumicha developed the instrument in partnership with her Social Protection colleague.
“The ministry could not explain the formula used to come up with the 2.75 per cent annual contribution per household income or how the means testing instrument could be challenged,” the report says.
The first schedule of the Social Health Insurance Act envisions a seamless transition from the NHIF. The committee is, however, concerned about holders of NHIF cards being turned away from hospitals.
