Upholding the right to health insurance last month, the Delhi HC removed ‘genetic conditions’ from the list of exemptions followed by insurance firms.
On 9 March 2018, a historic judgment by a Constitution bench led by Chief Justice of India Dipak Misra legalised passive euthanasia in India. Now that we have secured the ‘right to die’, we should also perhaps strive towards the ‘right to a healthy life’ for persons with disabilities.
India’s insurance companies have expanded in recent years, but still lack an equitable, just framework to address the needs of people with disabilities.
As recently as last month, a Delhi high court bench led by Justice Prathiba Singh was hearing the case of Jai Prakash Tayal, who suffers from hypertrophic obstructive cardiomyopathy (HOCM). The insurance company rejected his mediclaim through a letter that cited the following reason: “TPA (third-party administrator) Vipun Medcorp P Ltd had repudiated your claim. Since genetic diseases are not payable as per the policy, genetic exclusion clauses (sic).”
It was gratifying to see the high court take a stand on the issue, calling out such exclusions as “discriminatory”. Justice Singh added that the “right to avail health insurance is an integral part of the right to healthcare and the right to health, as recognised in Article 21 of the Constitution”.
The court went on to criticise the IRDA (Insurance Regulatory Development Authority) for allowing such discrimination. It stated, “The IRDA had issued guidelines on standardisation in health insurance, dated 20 February 2013, which had a specific exclusion with respect to ‘pregnancy, infertility, congenital and genetic conditions’…”
“Unfortunately, however, the term ‘genetic conditions’ is not defined in the guidelines. Thus… the IRDA itself permitted insurance companies to provide for exclusions based on genetic conditions. These guidelines have now been superseded by guidelines dated 29 July 2016, wherein only ‘congenital anomalies’ have been defined and genetic conditions do not find a mention. Thus, ‘genetic conditions’ can no longer be excluded,” the court said.
The high court’s decision to remove ‘genetic conditions’ from the list of exemptions is going to have an impact on millions of people.
However, the discrimination doesn’t end there. Maitreya Shah, a student at Gujarat National Law University, Gandhinagar, is blind due to retinal detachment. A few years ago, his father was keen he got health insurance, and applied to one of India’s biggest public sector insurance companies. With full disclosures, his form was accepted, and Maitreya invited for a medical test. Unfortunately, he was rejected by the medical officer because “we do not give insurance to persons with visual impairments”.
The condition is worse for those with congenital disabilities. As the court observed, congenital anomalies are ‘defined’ in the 2016 regulations laid down by the IRDA. This implies that both private and public sector insurance companies have the blessings of the IRDA to discriminate against those with congenital disabilities.
Earlier this month, I was rejected insurance by a public sector firm for refusing to follow the broker’s instructions that read:
“I will not claim the treatment cost related to arthrogryposis or any disease related to arthrogryposis.”
Another insurance company made me undergo a ‘medical test’ where it seemed the doctor was confused whether I had a physical or intellectual disability:
Dr: Is your memory OK?
Me: Yes, yes. At least I think so.
Dr: Do you hallucinate/get delusions?
Me: No, no. Not at all
Dr: Do you have an abnormal temper?
Me: Well, that’s for others to judge
However, in many ways, I was lucky. In most cases, there’s not even an explanation given. Avelino De Sa, a 45-year old investment consultant based out of Goa, was born with cerebral palsy. Disability has never held him back from his work, advising clients on investment decisions. Unfortunately for him, it did come in the way of health insurance.
Those with congenital disabilities aren’t the only ones facing discrimination. Saurabh Shuklah, a hedge fund manager based out of Mumbai, suffered a spinal cord injury diving into a swimming pool in 2011. His next few years were filled with visits to hospitals, physiotherapy and rehabilitation, but he soon returned to the world of numbers and finance. Earlier this year, Saurabh decided to apply for health insurance. And what followed was the same old story — rejection. Not to be daunted on being shown the red card, he wrote to the founder of the insurance company. His file moved ahead. Only to be rejected by the underwriter.
I am not against exceptions on insurance per se — especially when health is risked intentionally by an alcoholic, chain smoker or drug addict. But why punish the uncontrollable? Persons with disabilities anyway have higher costs of living, lower access to education, and fewer employment opportunities.
The IRDA’s blind eye has enabled insurance companies to flex their muscles and openly discriminate against those with disabilities.
Vishnu Bhatt (name changed) had taken his wife to a resort in Goa in 2011 to celebrate their wedding anniversary. A dive in to the swimming pool went wrong and he injured his spinal cord (swimming pools are the second most frequent reason for spinal cord injuries worldwide, after road accidents). If his situation wasn’t sad enough, his insurance company made it worse by refusing to reimburse his claim on the flimsiest of grounds. These ranged from “a merchant navy employee knows swimming so shouldn’t face such a problem” to “Vishnu must have been under the influence of alcohol”. Seven years on, a court battle is on. His legal bills are mounting but he’s yet to receive a penny from insurance companies.
One person who seemed unaffected by these challenges was Preeti Singh, Miss India Wheelchair and an aspiring chartered accountant. “After all,” she told me, “If you are the child of an army officer and have a disability, you get free healthcare till you are self-dependent.”
We are quick to bring in the army to justify ‘ultra-nationalism’ and patriotism during TV debates. Perhaps, it’s time our decision-makers learnt something else from the army. Or we’ll continue to call millions of people ‘divyang’, and pay tribute to Stephen Hawking while treating the disabled as second-class citizens.
Nipun Malhotra is CEO, Nipman Foundation, and founder, Wheels For Life. He can be followed on Twitter @nipunmalhotra
All disabled people need to march over IRDA office to sensitize this issue. And write to news reporters
Good Article Nipun! But this is just a beginning. We need a well devised future strategy to dismantle the entire regime of discrimination that is prevailing in the insurance sector and the six immediate challenges are:
(a) The insurance sector still discriminates on the basis of etiology of the disability i.e. from birth and after birth; neurological or physical and rates their lives accordingly which has again no scientific base.
(b) The persons with neurological disabilities are still not allowed any insurance policy and needs to be challenged.
(c) The Actuaries who are in the business of assessing the life risks are not aware of the real challenges and the lives of the persons with disabilities and they continue to live in their own world and decide on their own whims, the risk calculation of the life of a person with disabilities. They need to be sensitized and made aware.
(d) The entire literature on insurance that I have gone through reinforces the stereotypes about persons with disabilities and their proneness to accident. Hence, we need new literature for future actuaries to understand that Disability can not be treated always as a negative health profile. And that living with disability was distinct from suffering from a life threatening disease.
(e) There is a need to raise awareness that a person with visual impairment or with hearing impairment or with neurological impairment also enjoys good health like anybody else.
(f) The rules of Insurance sector needs to be changed in light of the catena of judgements, rights of persons with disabilities Act 2016 and the UNCRPD. All insurance issuing companies – be it private or government have to factor in the principals of CRPD, Court judgements and make amends.
(g) We need to take this awareness to the most marginalized persons with disabilities in rural areas through several means as they are the worst affected lot!
Very well nailed and pened down Nipun. The Gvernment and private both have been equal culprits in the present scenario and had failed to implement equal rights to Persons with Disabilities to access basic services. Infact