An investigation by the Ombudsman into the administration by the Health Service Executive of schemes that fund necessary medical treatment in the EU/EEA or UK
The executive summary with key findings and recommendations is presented below, and the full report can also be downloaded from this website.Download the Report as a PDF document
People should be able to access necessary health care, in a timely manner and as close to home as possible. This is the vision for the future of our healthcare system in Sláintecare. However, this is not the reality for many today. This investigation is about those who cannot access that necessary healthcare at home, who have had to travel abroad for their healthcare, and then found themselves caught in an administrative impasse when seeking reimbursement from the HSE under three schemes: the Treatment Abroad Scheme, the EU Cross Border Directive scheme and the Northern Ireland Planned Healthcare Scheme.
Ultimately, these patients replaced their fight to get treatment with a fight to be reimbursed by the HSE. Those that had borrowed money for their treatment also faced a fight against falling into debt. Unfortunately, many of the complaints that I received as Ombudsman were from patients that now face such debt.
I am pleased that both the HSE and the Department of Health have accepted the recommendations made in this report and I look forward to our engagement as those recommendations are implemented. I am hopeful that their implementation will bring positive change to the administration of all three schemes and ensure that patients are at the centre of all future decisions.
Healthcare is of such importance that it is considered a human right under Article 12 of the United Nations International Covenant on Economic, Social and Cultural Rights, which recognises the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. On the other hand, when we are unwell we have to deal with not just the pain and related symptoms of an ongoing illness but also the immense worry and anxiety that can accompany it. This can affect our ability to engage in day-to-day living, to hold down a job, to interact with our family and loved ones, and to enjoy hobbies and activities. During this time, when we can be at our most vulnerable, we turn to the State to provide us with access to the care and treatment that we need.
I would want to access this care as close to home as possible where I can count on the support of friends, family and being in familiar surroundings to recuperate. I would surmise that this is also the case for many other people, including those who had to travel to receive necessary medical treatment. I would also want my treatment to happen as soon as possible. Given current waiting lists, this is not a possibility for everyone. In these circumstances, some people have no option but to travel abroad for their care. To do so they engage with the following schemes administered by the HSE - the Treatment Abroad Scheme (TAS), the Cross Border Directive (CBD) scheme and the Northern Ireland Planned Healthcare Scheme (NIPHS).
With this in mind, my purpose in commencing this investigation was to bring improvement to the administration by the HSE of schemes designed to allow patients in Ireland to travel to other jurisdictions in the EU/EEA and UK for treatment. In particular, I sought to identify if any barriers exist for patients seeking access to the schemes, to propose possible improvements in the administration of the schemes and identify ways to bring additional clarity for patients.
I believe a major contribution to our success in achieving this was the unwavering commitment of the Investigation Team which carried out the work on behalf of this office. I want to thank them for their dedication, persistence and professionalism in completing this very important investigation.
The TAS and the CBD are both schemes set up nationally to provide for people wishing to exercise their rights to access treatment abroad within the context of the EU Directive and related legislation. At EU level, in acknowledgement of the complexity of the governing legislation and the imperative to support people to access their rights to treatment abroad, it was deemed necessary to designate a National Contact Point (NCP) in each member state. The HSE is the NCP for Ireland and I am therefore conscious throughout this report of its statutory role and specifically its duty to provide information to patients on their rights under the EU Directive and related legislation.
In the main part, this investigation will focus on the CBD scheme. However, following Brexit, in 2021 the NIPHS was put in place for those who are required to travel to Northern Ireland for treatment and this scheme has now become the predominant scheme for patients seeking treatment abroad. Although currently only an administrative scheme and not governed by legislation, NIPHS is being run by the HSE as directed by the Department of Health and is administered using analogous criteria and processes to the CBD scheme. Therefore, I am of the view that all recommendations identified in this report for the CBD scheme should be applicable to the NIPHS.
This is not the first time my Office has looked at issues related to accessing treatment abroad. In 2018, my predecessor, Peter Tyndall, published an investigation into the Treatment Abroad Scheme. All the recommendations in that report were accepted by the HSE at the time. However, given the additional challenges faced by the HSE and the country, during the recent pandemic, there has not been the level of monitoring of these recommendations that would usually take place. Therefore, this investigation was an opportunity for me to follow up this work and my findings on this matter are set out in Chapter 4.
While having to travel abroad for care is no doubt stressful, it is important to note that the people who contacted my Office were relieved to have finally had their treatment despite having had to travel abroad. This was a lifeline for many that changed their lives for the better. For this reason, I want to make it very clear that I welcome the fact that such schemes are in place and that in the main they work well. However, this investigation report identifies when the schemes do not work well.
I want to consider, pay tribute to and thank the people who have contacted my Office to make a complaint and who, in bringing their complaint to us, played a part in prompting this investigation. Often they were elderly and their everyday quality of life was severely impacted by their condition. Many of the complaints we received were from patients who needed access to common treatments such as hip replacements or cataracts. These were treatments that if received in a timely manner would have a life changing impact on their day-to-day living. However, they were unable to access their treatment at home in a timely fashion. As we constantly see in the media, the demand for healthcare services in this country consistently outstrips supply. In December 2022 there were 690,223 people on active hospital waiting lists for acute scheduled care with many waiting over 12 months.
Some of the complaints my Office received were from patients who were on a fixed income such as the statutory old age pension. In addition, one of the reasons they sought out these schemes was because they could not pay privately for treatment, as many others who have private health insurance may be able to do in similar circumstances. Therefore, in many of the cases I saw, people had borrowed significant amounts of money from family, friends or financial institutions to pay for their treatment with the expectation that they would be able to pay them back when reimbursed by the State.
When a refund was subsequently refused these patients effectively exchanged the anxiety and worry associated with their illness for a new stress of dealing with a debt incurred while accessing a treatment which they were entitled to receive, but could not access, within the State. They expressed absolute dismay that a scheme they had understood was designed to allow them to access their necessary healthcare abroad could prove to be absolutely unforgiving and lacking in empathy when it came to administrative or pathway errors. Many felt a sense of being misled or that the information provided did not warn them clearly about eligibility or administrative issues they may encounter when seeking reimbursement of the money they spent on their treatment. These patients entered the process in good faith but found themselves without recourse when the HSE declined their applications for reimbursement.
I am also conscious of the important and challenging time that our frontline healthcare workers have faced over the last few years as they spearheaded the fight against Covid 19. I am conscious that throughout this time frontline staff have retained a strong focus on patients and engaging with patients in a manner that meets the HSE core values of Care, Compassion, Trust and Learning. These values should also be apparent in how administrative staff in the HSE deal with applicants to all three treatment abroad schemes. The fact that patients, through no fault of their own, have been forced to access treatment abroad, does not negate the need for the HSE to treat those individuals in a manner that is both patient focused and caring.
Under the Waiting List Action Plan for 2023 the Government is putting considerable effort and planning into tackling the significant waiting lists patients face to access care nationally. However, as that work is ongoing, it is unfair that patients who find themselves with no option but to travel abroad for necessary treatment should have to bear the brunt of organising their own treatment abroad while often facing the prospect of living in poverty or debt if they cannot successfully navigate their way through the appropriate reimbursement scheme.
The recommendations in this report are designed to bring positive changes to the lives of those who need to access treatment abroad through improving the administration of the treatment abroad schemes and encouraging decisions that are patient focused, empathetic and caring. Therefore, I welcome the fact that both the HSE and Department of Health have accepted the recommendations and I look forward to working with them to ensure the timely and considered implementation of these recommendations.
I do not underestimate the life-changing impact of accessing treatment under these schemes for these patients and I want to acknowledge the work of the HSE to date in implementing these schemes. Notwithstanding this, my Office has received complaints from those who have not benefited from being able to access the schemes. Although the number of complaints to my Office has been low in the context of the overall schemes, as I mentioned earlier in my Foreword, I was struck by the impact on the physical, mental and financial well-being that the process had on those complainants. This also rings true for those that have not complained to my Office but may have been similarly refused and impacted.
Therefore, the recommendations I make in this report are focused on improving the administration of the Cross Border Directive (CBD) scheme, the Northern Ireland Planned Healthcare Scheme (NIPHS), and the Treatment Abroad Scheme (TAS), both moving forward and in the investigation of complaints that are currently with my Office.
All recommendations are made in circumstances where I consider that the actions of the HSE amount to maladministration under section 4(2)(b) of the Ombudsman Act 1980 (as amended).
Some people who complained to my Office were refused reimbursement for the cost of their treatment abroad as they were in receipt of a State benefit from another EU/EEA country. It is clear that the legislation surrounding patients in receipt of State benefits from another EU/EEA country is complex. Both my Office and the HSE have examined the legislation on the issue and have both felt the need to seek further guidance from the European Commission to ensure we properly understood it.
Faced with that level of complex legislation it is both unrealistic and contrary to fair and sound administration to expect that patients would be able to navigate this issue by themselves. The HSE is the National Contact Point for Ireland and under the EU legislation has a responsibility to provide information to patients. It is my belief that the HSE is not fulfilling its duty in relation to this issue.
The HSE should examine its communications on this issue and, by the end of Quarter 3 of 2023, should amend both its website and the Cross Border Directive scheme application form to highlight the complexity of the legislation, the possible effect being in receipt of EU/EEA state benefits may have on a patient, and who in the HSE they may contact to discuss the matter.
In the context of the CBD scheme, a first charge relates to an amount of money that has been reimbursed to an applicant which the HSE later sought to recoup. When, following engagement with my Office the HSE agreed not to recoup that money, the HSE instead decided to apply that amount as a charge which would be applied if the patient sought to apply for a further reimbursement in the future.
The information available to patients regarding EU/EEA pensions and the effect it may have on an application is in my opinion insufficient. These patients applied for reimbursement in good faith. The application was approved and paid, and the patients moved on with their lives post-treatment. I am not satisfied that the decision to implement a first charge, or the process followed by the HSE (which was in the complete absence of a corporate policy around those decisions), was fair and reasonable. I do not believe that the HSE should be applying a first charge against patients with UK pensions who applied for and received a reimbursement under the Cross Border Directive scheme.
The HSE should reverse its decision to apply a first charge against patients with UK pensions who applied for and received a reimbursement under the Cross Border Directive scheme. By the end of Quarter 3 of 2023 the HSE should write to each patient affected and explain clearly that the decision has been reversed and the patient is free to engage with the Northern Ireland Planned Healthcare Scheme without penalisation as any other patient would.
I accept that an outpatient consultation is an important part of both the domestic and Cross Border Directive pathways. However, I do not believe there is any basis on which the HSE can insist that a patient making an application for reimbursement under CBD must have had their outpatient consultation on a DATE prior to their admission/treatment as opposed to, for example, a consultation on the same day but prior to their admission/treatment.
An outpatient appointment that takes place at any time PRIOR to admission/treatment should be acceptable for the purposes of receiving a reimbursement under the Cross Border Directive scheme. The HSE should review cases where reimbursement was refused only on the basis that the outpatient appointment was on the same day as admission/treatment with a view to reimbursing those patients.
I believe it is unfair that patients are not being reimbursed for telemedicine consultations (that is, consultation by phone or video). I appreciate that the Cross Border Directive Office is dependent on the Health Pricing Office to produce a telemedicine specific rate but these are two arms of the HSE which need to show some joined-up thinking and resolve the situation. Patients should not suffer for this.
The HSE should identify a specific telemedicine reimbursement rate by the end of Quarter 3 of 2023. In the absence of this, the HSE should apply the same reimbursement rate that applies to in-person outpatient consultations for telemedicine consultations.
Many patients engaging with the Cross Border Directive scheme may be older, more vulnerable and not have access to, or be comfortable accessing information online. For this reason, they often access the application forms in hard copy only. The CBD scheme application form does not sufficiently explain the purpose or impact of some of the questions asked, particularly around the pensions issue and this can lead to patients not fully understanding that they need to consider their entitlement, or possibly lack of entitlement, under the CBD.
By the end of Quarter 3 of 2023, the HSE should re-design the Cross Border Directive scheme application form to ensure that questions with significant impacts, such as the pensions issue, have those impacts highlighted next to the questions, rather than only being explained deep in the terms and conditions, or on the HSE website, where some patients may not become aware of them.
When errors with referral letters, which are beyond the patient’s control, arise with Cross Border Directive scheme applications, the patient has no mechanism to rectify the error and their application is refused. This contrasts with the situation where errors arise in the process for receiving similar treatment in Ireland, where issues with referral letters are resolved between the hospital and the GP without any adverse effect on the patient.
The HSE is penalising patients for errors which are entirely beyond patients’ control and is not affording them an opportunity to explain or remedy those errors.
The HSE should put in place a mechanism whereby the Source of Referral can explain a mistake in a referral letter, specifically date and signature, at the time the application is being processed. The HSE may wish to consider a mechanism whereby the GP certifies the explanation of the error or omission. If the HSE is concerned about the content or accuracy of any GP explanations, it has the option to bring these concerns to the attention of the Medical Council. However, the HSE cannot continue to punish patients for errors which are entirely outside of the patient’s control.
The HSE has raised issues with reimbursement applications on the basis that a referral letter from a GP has been addressed to a speciality, for example Orthopaedic, as opposed to a named individual. The Irish College of General Practitioners/Health Information and Quality Authority guidelines clearly envisage a place for letters addressed to a speciality. I believe such letters are appropriate for the purposes of the Cross Border Directive scheme.
The HSE should not refuse applications because referral letters are addressed to a speciality rather than to an individual consultant.
It is my opinion that the HSE is seeking excessive documentation from patients in order to satisfy its proof of payment requirement. This practice is proving an unnecessary obstacle for patients who are seeking reimbursement under the Cross Border Directive scheme.
A patient who provides any of the five examples of proof of payment that are listed on the HSE website should be deemed to have satisfied the proof of payment criteria that the HSE requires for reimbursement.
In addition to evidence that the treatment took place, the HSE often seeks further proof of travel such as plane tickets, toll receipts or petrol receipts when processing CBD applications. The HSE’s position is that by requesting these documents it is simply asking for evidence that a patient actually travelled abroad for their treatment. The HSE policy of asking all patients for proof of travel is excessive in the circumstances and in my opinion creates an obstacle for patients seeking to apply for reimbursement under the Cross Border Directive scheme.
The HSE should discontinue its practice of asking all patients seeking reimbursement under the Cross Border Directive scheme to provide documents such as “flight/ferry tickets, accommodation receipts in patients/applicants name, toll/parking charges or a till receipt from a shop in the locality” in order to prove they travelled for treatment. The HSE should also amend its website and application form to reflect this change.
The current 10-day time frame to appeal a decision of the Cross Border Directive Office is inappropriately short and may deter patients from appealing decisions.
The time to appeal a decision of the CBD Office should be extended to at least 21 days and patients should be informed in the decision letter of how they can request an extension of time to appeal if appropriate. This change should take place as soon as possible and by the end of Quarter 2 of 2023 at the latest.
In Ireland the amount of reimbursement a patient may be entitled to is either the price paid for the treatment abroad or the cost of providing that treatment in Ireland, whichever is the lesser. The cost of providing the treatment in Ireland is identified using what are known as Diagnosis Related Grouping (DRG) Codes. The appropriate DRG code is identified by the Health Pricing Office (HPO) of the HSE when an application for reimbursement is received. Appeals related to DRG codes do not provide for the HPO to recode or check the original assigned code. In my opinion such appeals are not meaningful if the treatment is not sent to have the coding checked and confirmed by the Health Pricing Office.
All Diagnosis Related Grouping appeals should be sent to the Health Pricing Office to be checked and confirmed. This change should take place as soon as possible and by the end of Quarter 3 of 2023 at the latest.
The CBD Appeals Officer has direct line management responsibility for the CBD Office. Therefore, I do not believe the appeals process as currently constructed is truly independent of the Cross Border Directive Office.
The appeals process should be entirely separate from the CBD Office and not within the remit of the management of the CBD Office. The HSE should move the entire appeals process to its National Appeals Service by the end of 2023.
The decision letters from the Appeals Officer contain limited information regarding a complainant’s right to bring a complaint to my Office and how they may do so.
The HSE should amend its appeal decision letters to include the following paragraph.
“If you remain unhappy with our response then you can refer your complaint to the Office of the Ombudsman.
The Ombudsman is fair, independent, and free to use. The Ombudsman will ask you for details of your complaint and a copy of this letter/email (our final response to your complaint). The best way to contact the Ombudsman is by:
Clicking on the ‘Make A Complaint’ link at www.ombudsman.ie
Writing to: Office of the Ombudsman, 6 Earlsfort Terrace, Dublin 2, D02 W773
Calling the Ombudsman on 01 639 5600 if you have any queries.”
This change should take place as soon as possible and by the end of Quarter 3 of 2023 at the latest.
National Contact Points have a responsibility to assist patients resident in the State who are seeking to understand their rights and entitlements to receive healthcare in another Member State. I do not believe the HSE’s position that it only provides information for “eligible” patients is in keeping with the role of a National Contact Point in particular, or the role of a public body in general, when it interacts with members of the public.
The HSE should expand the level of provision of information to patients about their rights and entitlements under CBD. The HSE must change its approach of limiting itself to providing information exclusively to “eligible people” and should assist all patients who are seeking assistance establishing their entitlements.
The HSE’s website contains several instances of inaccurate, outdated and vague information. It is also lacking in information in relation to crucial issues, such as patients who are in receipt of income from other EU/EEA countries. There are similar issues with the CBD application form albeit to a lesser extent.
By the end of Quarter 3 of 2023 the HSE should review the content of its website and application form to remove all inaccurate information related to the scheme. It should seek to ensure the website and application form provide all the information patients need to make an informed decision about engaging with CBD. All information related to CBD should be centralised and not spread out over several different webpages which provide inconsistent versions of the same information.
The HSE, as National Contact Point in Ireland, is not fulfilling its role in relation to the provision of information to healthcare providers. The HSE appears to engage with healthcare providers in a reactive rather than a proactive manner.
The HSE needs to put in place a plan to proactively engage with clinicians and their representative bodies, specifically GPs given their importance to the CBD pathway, in order to ensure they are fully aware of patients’ rights under CBD and the issues that may affect those rights.
The “Guidance on the NI Planned Healthcare Scheme for HSE” lacks detail and is not a complete set of terms and conditions. Decisions in relation to the Scheme appear to be based on incomplete information.
The Northern Ireland Planned Healthcare Scheme should be put on a legislative footing as soon as possible. In the meantime, there should be clear terms and conditions of the scheme that are publicly accessible. All recommendations made in this report in relation to the administration of the Cross Border Directive scheme should also be applied to the Northern Ireland Planned Healthcare Scheme.
Under the Cross Border Directive, Prior Authorisation and Prior Notification are separate and distinct processes which provide separate and distinct approvals. Previously the CBD Office used the term Prior Authorisation to describe both. In mid-2022 the CBD Office amended its terminology to reflect the difference between the two. However the Northern Ireland Planned Healthcare Scheme only uses the term Prior Authorisation. The Prior Authorisation aspect of the Northern Ireland Planned Healthcare Scheme is poorly explained and the failure to change the terminology in the Northern Ireland Planned Healthcare Scheme when the terminology was changed in Cross Border Directive scheme will inevitably cause confusion for patients.
In order to ensure a consistency for patients, the Department of Health should consider bringing the Prior Authorisation procedure in the Northern Ireland Planned Healthcare Scheme in line with the Prior Notification and Prior Authorisation procedure in the Cross Border Directive scheme when the Northern Ireland Planned Healthcare Scheme legislation is being drafted.
The eligibility requirement for the Northern Ireland Planned Healthcare Scheme that a person simply be ordinarily resident in the State is clear and removes a layer of difficulty that patients seeking reimbursement under the Cross Border Directive scheme are faced with.
The impact of patients being in receipt of EU/EEA pensions on the CBD and the benefit of its exclusion from NIPHS should be noted by the Department of Health and borne in mind when the Northern Ireland Planned Healthcare Scheme legislation is being drafted.
The NIPHS Appeals Officer has direct line management responsibility for the NIPHS Office. Therefore, I do not believe the appeals process as currently constructed is truly independent of the Northern Ireland Planned Healthcare Scheme Office.
The appeals process should be entirely separate from the NIPHS Office and not within the remit of the management of the Northern Ireland Planned Healthcare Scheme Office. The HSE should move the entire appeals process to its National Appeals Service. This change should take place as soon as possible and by the end of 2023 at the latest.
The TAS Appeals Officer has direct line management responsibility for the TAS Office. Therefore, I do not believe the appeals process as currently constructed is truly independent of the Treatment Abroad Scheme Office.
The appeals process for TAS should be entirely separate from the TAS Office and not within the remit of the management of the TAS Office. The HSE should move the entire appeals process to its National Appeals Service. This change should take place as soon as possible and by the end of 2023 at the latest.
In Ireland the amount of reimbursement a patient may be entitled to is either the price paid for the treatment abroad or the cost of providing that treatment in Ireland, whichever is the lesser. The cost of providing the treatment in Ireland is identified using what are known as Diagnosis Related Grouping (DRG) Codes. Countries throughout the world use different formats of coding and costing for the purpose of healthcare costing. Healthcare is recognised as a national competency and is not required to conform to a single international coding mechanism. As such each country uses a system which best reflects the mechanisms of healthcare provision in that country.
Annex 3 to Regulation (EC) No 987/2009 lists Ireland as one of the Member States that provides reimbursement on the basis of fixed amounts. This is due to the fact that Ireland is not in a position to provide individual patient costs in the same way that countries which operate insurance model healthcare can.
Irish hospitals are funded through direct taxation with a statutory charge that patients are liable to pay. Hospitals are not funded by individual treatments or procedures. Hospitals receive block funding in the form of annual budgets from which all services provided in the hospital are funded. The HSE does not have the ability to cost healthcare on an individual basis and, like many other countries, uses Hospital In-Patient Enquiry (HIPE) coding for average costing.
HIPE coding is used internationally by public hospitals as a mechanism of costing the provision of treatment. HIPE collects activity data on Inpatient and Day cases in all Acute Public Hospitals in Ireland based on the information available in a patient’s healthcare record. From the information collected a HIPE record is created when a patient is discharged from hospital. Each HIPE record contains administrative, demographic and clinical information. The information from all the hospitals is collated by the Health Pricing Office (HPO) and from the collated information the average DRG costs are determined. These are the DRG costs, which are used by each country to determine the cost of healthcare in the public acute hospital setting. Different countries use different versions of DRG coding.
A DRG code is arrived at by inputting personal and medical data into the ICD 10 Coding System which runs that information through an algorithm to identify the correct DRG code. In CBD and NIPHS cases, if the hospital abroad wishes to ensure it is identifying the correct code for an Irish patient then that Hospital would be required to have access to the ICD 10 Coding system operated by a trained coder. Without this facility the reality is that the hospital is simply making, as the HSE puts it, a “best guess”. So in these situations, while the hospital is simply seeking to assist the patient, the fact that it does not have access to the coding system can, and does, lead to situations where a patient has unrealistic expectations of the value of reimbursement they may be entitled to.
The DRG coding system is the costing mechanism used in the Irish public system. The HSE is required to use the same mechanism of costing for a CBD patient as it does for a public patient. On that basis the HSE correctly uses DRG codes for CBD and NIPHS applications too.