Background
My complainant was a resident in a private nursing home on an on-and-off basis. The nursing home advised the HSE of the dates when she was admitted and the dates when she was discharged. However, due to a clerical error, it failed to notify the HSE about one re-admission in January, 2007 until months later. As a result, the HSE refused to pay a nursing home subvention to the home for this period. The HSE advised the nursing home that it had no liability to pay the subvention as the error was not made by the HSE.
Investigation
It was clear that at the time of re-admission the patient had an entitlement to a subvention from the HSE under the Health (Nursing Homes) Act, 1990 and the Nursing Home (Subvention) Regulations, 1993 (S.I. No. 227 of 1993). The issue in dispute was that the nursing home failed to re-activate the resident's subvention claim when she was re-admitted on that one occasion in question.
Strictly speaking, a subvention application should be made in advance of admission but the then regulations did give discretion to the Health Board (now HSE) to pay a subvention in the case of a late application.
Notably, in this case, the resident was re-admitted to the nursing home on the direction of her GP following a stroke. As such, it could be argued that the exemption at Article 4.4 of the Nursing Home (Subvention) Regulations, 1993 may apply - namely that the resident was admitted in an emergency.
Having reviewed the case, I felt that the nursing home had a reasonable complaint against the HSE's decision to refuse the payment of the entire retrospective subvention on the basis that:
The resident had a history of attending the nursing home intermittently since 2005, and subvention was paid by the HSE on all those occasions, (some seven admissions in a 19-month period).Except for this particular occasion, it was clear that the nursing home had a history of being prompt in notifying the HSE of admissions and discharges of this resident.It was clear from the records that the resident was in the nursing home for the 17-month period, andThe only reason the HSE appeared to be refusing to pay the retrospective subvention was that the nursing home failed, on this one occasion to notify the HSE in writing that the resident had been re-admitted in January, 2007
I took the view that the penalty which the HSE imposed on the nursing home, in this instance, was out of proportion to the clerical error which the nursing home made. I therefore asked the HSE to review its earlier decision having regard to the facts of the case, the question of proportionality and in particular, the Ombudsman's Guide to Standards of Best Practice for Public Servants.
Outcome
The HSE recognised the unusual circumstances of the case and it offered, on a once-off basis, an ex gratia payment in the sum of €10,760 - which represents 50% of the subvention fee - in full and final settlement of the case.