The Social Health Insurance Act of 2023 dissolved the National Health Insurance Fund and created the Social Health Insurance Fund, extending the mandate toward universal health access (Republic of Kenya 2023). The ambition was real. The architecture, however, inherited something important from what it replaced: it is structured around curative care. That is not a criticism of the reform. It is a description of the next problem to solve.
The Gap in the Literature
The literature on universal health coverage transition in sub-Saharan Africa has focused substantially on benefit package design, contribution mechanisms, and provider payment reform (Mathauer et al. 2019; Tsofa et al. 2016). Less examined is the specific problem of how UHC benefit schedules interact with private insurance underwriting practices to produce a combined exclusion of persons with pre-existing disabilities — the gap in which a constitutional non-discrimination guarantee exists in principle while the commercial practice that contradicts it continues without challenge. This article identifies that gap and proposes a regulatory architecture to close it.
The Incentive Structure That Resists Prevention
Healthcare systems do not generally pay for outcomes. They pay for procedures. A hospital that admits a patient with a pressure injury is reimbursed for the admission, the wound care, and the extended stay. The months of inadequate home-based support that produced the pressure injury generate no billing event — because they represent a failure to provide care, and the reimbursement system has no mechanism to record absences (Enthoven 1978). This is not a Kenyan idiosyncrasy. It is a structural feature of fee-for-service health financing globally. In Kenya, it has particular consequences for persons with severe disabilities in households with no private health coverage, where a preventable complication is not merely a health event but a financial catastrophe (Kenya National Bureau of Statistics 2019).
The Private Insurance Gap and Its Constitutional Dimension
Most private insurers in Kenya either exclude persons with pre-existing conditions entirely or impose premium loadings that make coverage functionally inaccessible. Article 27 of the Constitution prohibits discrimination on any ground, including disability. The Insurance Act does not yet contain specific anti-discrimination provisions for health insurance underwriting (Republic of Kenya 2010, art. 27; Insurance Act Cap 487). The result is a legal lacuna in which the constitutional protection exists in principle while commercial practice continues without challenge.
What India's Insurance Mandate Got Right — and Where It Failed
In 2016, India's Insurance Regulatory and Development Authority mandated that all non-life insurers offer health coverage to persons with disabilities, ending the practice of blanket exclusion (IRDAI 2016). The mandate succeeded in the narrow sense: insurers had to build disability-inclusive products. It did not succeed in the broader sense: a 2025 national survey by the National Centre for Promotion of Employment for Disabled People found that over 80 percent of Indian persons with disabilities remain uninsured, and more than half of applicants reported rejection without explanation — a decade after the mandate took effect (NCPEDP 2025).
The lesson for Kenya is not that mandates fail. It is that a mandate without an enforcement and disclosure mechanism becomes a regulation insurers can quietly circumvent. India's emerging response — a proposed Disability Inclusion Committee within the insurance regulator, with mandatory digital dashboards tracking rejection rates by disability category — is the missing second half of the reform, and it is the half Kenya can build correctly from the start.
A mandate without measurement is a statement. A mandate with measurement is a standard. Kenya should build the standard from day one.
Three Steps Available Now
First, the Insurance Regulatory Authority can issue a directive prohibiting blanket pre-existing-condition exclusions for disability-related coverage, paired with a mandatory rejection-reporting requirement from day one, rather than added years later as India's experience indicates is necessary.
Second, SHA can establish a reimbursement pathway under which private insurers may claim against the Primary Health Care Fund for prevention-related interventions delivered to SHIF-registered high-risk patients, closing the coordination gap between public and private financing.
Third, the Insurance Regulatory Authority and SHA can jointly publish, on a public dashboard, disability-related rejection and exclusion rates by insurer — a transparency mechanism that costs little to build and that India's experience suggests is the determining factor in whether a non-discrimination mandate is substantive or nominal.