The Health Repayment Scheme was introduced in 2006 to repay people who had been charged illegally for long-stay hospital care. Prior to 2005, there was no legal basis for imposing charges for hospital in-patient services (which included long-stay hospital care) on people with medical cards, that is, on those with “full eligibility” which is the term used in the Health Act 1970 . (The 1970 Health Act provides that health boards (now the HSE) must make in-patient services available to people with full eligibility (holders of medical cards), as well as to those who do not have full eligibility. The Act also provides for the imposition of charges for in-patient services.) In practice, and despite the absence of a legal basis for doing so, health boards had long followed the practice of charging medical card patients for long-stay care. The validity of these charges was questioned over the years not least by the Office of the Ombudsman. In 2004 the Department of Health sought the advice of the Attorney General on the matter. The Attorney General advised that the practice was not legally sound and, in December 2004, charges on people with medical cards were stopped.
Legislation intended to render the charges on medical card holders legal, retrospectively, was found to be unconstitutional by a judgment of the Supreme Court in February 2005. (In the matter of Article 26 of the Constitution and in the matter of the Health (Amendment) (No 2) Bill 2004 [2005] IESC 7 [S.C. No 524 of 2004.) The Health (Repayment Scheme) Act 2006 was then enacted to provide for the repayment of charges which had been levied illegally. The legal authority to charge medical card holders for long-stay hospital care, on a current basis, was provided for in the Health (Amendment) Act 2005.
2.1 What the Health Repayment Scheme Provides
In brief, the Health (Repayment Scheme) Act 2006 provides that medical card holders who have been charged illegally for long-stay hospital care (in-patient services), will be repaid the charges imposed up to December 2004, plus an amount described as interest, based on the Consumer Price Index. In legal terms, the repayment applies to a “recoverable health charge” which is defined in the 2006 Act as follows:
“recoverable health charge” means that amount which has been paid of
(a) a charge imposed on a person with full eligibility under the Health (Charges for In-Patient Services) Regulations 1976 (S.I No.180 of 1976), as in force at any time before 14 July 2005, including as so in force as amended by the Health (Charges for In-Patient Services) (Amendment) Regulations 1987 (S.I. No.300 of 1987), or
(b) a contribution, for in-patient services only, required of a person with full eligibility under the Institutional Assistance Regulations 1954 (S.I. No.103 of 1954), as in force at any time on or after the commencement of the Regulations referred to in paragraph (a), including as so in force as amended by the Institutional Assistance Regulations 1965 (S.I. No 177 of 1965);”
Applications under the HRS had to be submitted before 31 December 2007. At the time of writing this report, the Scheme has effectively been wound up with the exception of a small number of outstanding applications and some appeal cases.
2.2 Types of case where repayment was due under the HRS
Health boards had relied on the Health (Charges for In-Patient Services) Regulations 1976 (S.I No.180 of 1976) (as amended) as the legal basis for charging long-stay patients with medical cards. This was problematic in that these regulations explicitly stated that the charging regime did not apply to people with medical cards (full eligibility). Health boards got around this difficulty by deeming people who had full eligibility on entering long-stay care as no longer having full eligibility once they were admitted to long-stay care. The Ombudsman’s Office had drawn attention to the illegality of this practice on many occasions. It was finally accepted as illegal by the Department in late 2004 and charges on people with medical cards were stopped.
Medical card holders who fell to be repaid these illegally imposed charges fell mainly into two groups. The first and biggest group was those medical card holders who were cared for in long-stay facilities managed directly by the health boards themselves. The second and smaller group was those who, while actually cared for in private or voluntary nursing homes, were public patients who had been placed in a private or voluntary home by a health board, that is, those who were in what were referred to as “contract beds” as described in section 1.1 the previous chapter.
2.3 Types of case where repayment was not due under the HRS
Due to the shortage of public long-stay beds in Ireland, many people with medical cards were forced to take up places as private patients in private nursing homes. In many cases, such patients would have preferred to have been provided for by their health board – not least because the charges applicable would have been affordable and there would not have been a need to borrow or to be subsidised by the wider family.
Many of these people received a subvention from their health board under the Nursing Home Subvention Scheme. That scheme was means-assessed and had a maximum rate payable, the balance being payable by the patient or his or her family. The health board could pay a discretionary “enhanced subvention” in certain circumstances if the person, a family member, or other authorised person applied for it. Although the health board contributed to the cost of the care of people in receipt of a subvention, this did not alter their status as private patients who had a direct contractual relationship with the nursing home in question. Thus, while the health board was making a contribution towards nursing home costs, the patient was legally responsible for the nursing home fees. The subventions paid were, by definition, only a contribution to the overall fees and in all such cases the patient (or the patient’s family) had to pay the balance of the fees. These patients did not pay charges to their health boards and thus they were excluded from the Health Repayment Scheme.
The Ombudsman, in her report entitled WHO CARES? An Investigation into the Right to Nursing Home Care in Ireland has investigated the plight of older people who, in effect, were forced into expensive private nursing home care because of the inability of their health board (more recently, the HSE) to place them in a public nursing home.