It is well-known fact that India enjoys a rich demographic dividend. The population between the age group of 18 and 35 years accounts for almost 65% of the total. This is considered to be one of the key drivers for India’s growth in the near future. While this is an important aspect, the story concerning our country’s old age citizens must not be neglected. Indian population has approximately tripled during the last 50 years, but the number of elderly Indians (aged 60 plus) has increased by more than four times. The 2011 census shows that the population aged 60 and above accounts for 98.3 million. This by now will have crossed the 100-million mark. It took more than 100 years for the aged population to double in most of the countries in the world, but in India it has doubled in just 20-odd years. This is also due to the fact that life expectancy today has also gone up to over 70 years, which was not the case two decades ago. Improved medical facilities, amongst other things, have made the elderly the fastest growing section of Indian society. By 2025, the world will have more elderly than young people. In India, the population of elder persons will cross 18% mark by that year. It is against this backdrop that one realises the need to look into the existing policy regime dealing with care and maintenance of elderly people. Parliament enacted the Maintenance and Welfare of Senior Citizens Act, 2007, for laying down the provisions relating to maintenance of senior citizens, setting up of old-age homes, etc.
The state governments have been entrusted with the rule-making powers under the Act. The enactment of the law was seen as a step in the right direction, keeping in mind the constitutional obligations of the state. This piece tries to look at some of the concerns surrounding regulation of old-age homes under the provisions of the Act. Various states have formulated rules laying down norms for physical facilities and operational standards for old-age homes. Most of these state norms are similar to each other and provide for norms relating to room sizes, provision of basic facilities and basic amenities. While these norms do not mandate or cast a positive obligations on the state government to open residential facilities for senior citizens, they provide a set of norms which should be followed in case the state government takes a step in this direction. These state norms provide for various physical and operational standards, such as requisite floor area ratio of old-age homes, supply of food, arrangements with hospital for provision of medical care, etc, to be as per the guidelines prescribed by the state governments. However, state-run old-age homes are still not a common sight. Identifying a clear vacuum in the space of elder care and assisted living (not to forget the huge opportunity from a commercial point of view), private players have shown some interest.
However, and uniquely so, in India while over-regulation leads to harassment, under-regulation leads to immense business risks. Due to the absence of any specific regulations governing the activities of elder care and assisted living, opening an old-age home remains challenging. For starters, if one wants to operate an old-age home out of rented premises, the department of town and country planning may want to classify such activity as commercial. Accordingly, taking on lease, residential premises for ‘commercial activity’ becomes a difficult proposition. What makes the setup more vulnerable is the fact that not all neighbours want ailing senior citizens living in the neighbourhood, and the threat of a complaint being filed with the authorities always remains a possibility. Most of the old-age homes which are privately owned and operated also have well-equipped medical facilities and staff (such as nurses who specialise in geriatric care). However, these are not nursing homes, and cannot be seen from the same regulatory lens. It appears that all these questions, and more, have not been thought through by the state authorities while formulating the norms and standards. A notable exception to this is the state of Tamil Nadu, which has laid down standards for old-age homes that have tried to address the aforementioned practical challenges. The standards laid down by Tamil Nadu permit setting up of old-age homes in residential as well as commercial areas. Further, an indicative list of various medical facilities, recreational activities, staff requirements, etc, have been put in place by the standards prescribed by Tamil Nadu.
The National Health Policy, 2017, has also affirmed government’s commitment itself to culturally appropriate community centered solutions to meet the health needs of the ageing community in addition to compliance with constitutional obligations as per the Act. The policy recognises the growing need for rehabilitative care for all geriatric illnesses and advocates the continuity of care across all levels. Beyond these statements, the National Health Policy, 2017, has not discussed anything substantive in relation to health problems particularly faced by the old-age population of the country. It appears that National Health Policy has merely paid a lip service to old-age related issues as nothing concrete has been specified in the policy in relation to the issues concerning old age population. It is high time for governments to pull up their socks and take comprehensive steps for regulating old-age homes keeping in mind various challenges that are being faced while setting up and operating the same.
(With inputs from Shantanu, principal associate and CV Srikant, associate, J Sagar Associates, Advocates and Solicitors)