Published  July 2012

Submission From The Office Of The Ombudsman to the Nursing Home Support Scheme Review

16 July 2012

Contents

This review is taking place at a time of unprecedented pressure on health funding, at a time when the structures for delivering health care are in the process of being dismantled and replaced, and at a time when a new and radically different model of health provision (Universal Health Insurance) is proposed to be put in place over a period of years. Much of the detail of the proposed new structures and of the model itself remains to be provided.

The Nursing Home Support Scheme (NHSS) was introduced in 2009 in response to a decades old gap in provisions to meet the needs of elderly people requiring long-term residential care. The NHSS was introduced into a health system characterised by a lack of overall coherence and clarity and by the absence of a clear model. The Ombudsman has in the past characterised our health services as being half-in and half-out of a statutory framework; certain services are required by law to be provided, while other services lack any specific legal basis.

The role of the State in healthcare has not, in recent times, been articulated in an unequivocal way. What we have for the most part is a fused public/private system with the private, commercial element enjoying very considerable support and subsidisation – in the form of tax concessions, training of medical personnel, use of facilities and other public infrastructure – from the public purse.

Healthcare remains one of the key ideological battle grounds of our time and it is arguable that an ideology of private, market-based provision has been promoted almost by stealth. In the meantime, many fundamental aspects of our healthcare arrangements remain uncertain and, perhaps, deliberately so.

For example, what responsibility (if any) has the State either to provide healthcare or, alternatively, to ensure its provision? Are our arrangements intended to be rights-based (reflected in legislation), or entirely discretionary, or a mix of the two?  Are our services intended to be delivered within a public service ethos (by public bodies and/or publicly–funded bodies), or within a private market ethos, or some mixture of the two?

The Ombudsman has in the past drawn attention to the fact that, in an area as important as healthcare, the manner and extent of the State’s involvement is both a reflection, and a determinant, of the kind of society we are and want to be:

"It seems to me that a state's public health service should amount to far more than arrangements to ensure services are provided. Though of course it is essential that services are provided - after the first five hours waiting on a trolley in A&E one rapidly looses interest in the philosophy underlying the public health service! The context in which services are provided, the institutions providing them, the financing of the services, the governance arrangements for those services, the extent to which one is entitled to services - these are all factors which both reflect and support the maintenance of the kind of society we want to be. Health services made available on the basis of the exercise of consumer choice within a purely commercial private market do nothing to promote social solidarity or good citizenship. On the other hand, services provided through state agencies which are dysfunctional are not the answer either." (Health Care in Ireland - An Ombudsman Perspective  - Doolin Memorial Lecture 2011)

In summary, therefore, the NHSS is a stand-alone set of arrangements for a particular (and very pressing) area of need. The NHSS was not developed as the expression, in a particular area, of an existing model of public healthcare which has been well articulated and widely understood and accepted. In fact, as described below, the NHSS reflects a model which is at odds with what appeared to be the model hitherto (in so far as one can discern) of the State’s involvement in healthcare.

Presumably, the shape of the State’s future involvement in the area of long-term residential care for the elderly will be determined ultimately within the context of the new healthcare model and structures proposed by the Government. Thus, conducting a meaningful review of the NHSS at this particular point, when the details of the proposed new healthcare model and related structures are not fully available, is problematic.

In chapter 7 of her investigation report of November 2010, Who Cares? An Investigation into the Right to Nursing Home Care in Ireland, the Ombudsman dealt at considerable length with the NHSS. The Ombudsman summarised what she understood to be the Department’s understanding of the NHSS:

  1. The NHSS Act creates a new legal category of service known as "long-term residential care services" (LTRCS).
  2. The NHSS Act defines LTRCS as meaning "maintenance, health or personal care services, or any combination thereof"; according to the Department "the definition seeks to capture what is commonly understood as long-term nursing home care ...”
  3. The intention of the NHSS Act (according to the Department) is to draw a clear distinction between LTRCS and "the broad range of services which may come within the term 'in-patient services'"; LTRCS "is now a stand-alone concept rather than a sub-set of in-patient services".
  4. There is no legal right to be provided with LTRCS and there is no obligation on the State to provide such a service; but the State will, subject to the availability of resources and other conditions, contribute to the cost of the service. The Department stresses in particular that responsibility for providing nursing home care rests clearly with the individual: "In summary, then, each individual is liable to meet the full costs of their long-term residential care, although they can apply to the HSE for financial support ... in accordance with the terms of the Nursing Homes Support Scheme."
  5. The HSE is both the administrator of the NHSS as well as being a LTRCS provider. From the individual’s perspective, the financial arrangements will be the same whether he or she is in a private or public nursing home.

The most striking aspect of the NHSS, as explained to the Ombudsman by the Department, was that it represents a new model of provision. For decades, the Department and successive Ministers supported a model based on State provision of long-term care where the State took responsibility for providing the service but sought a contribution from the individual or the family towards the costs (see Note 1 below).   The NHSS model is quite different. The model now is based on the principle that responsibility for long-term care rests primarily with the patient and/or family; the State may support the patient/family financially but this is subject to the availability of resources and to the individual satisfying a means test. Support under the NHSS is not guaranteed and the Scheme is not demand-led. If demand outstrips the availability of resources then the applicant may be placed on a waiting list until such time as resources become available (see Note 2 below). There is no legal entitlement to financial support.

The Ombudsman, in the Who Cares? Report, summarised her conclusions regarding the NHSS Act as follows:

  • in practical terms, it represents an improvement for many older people and their families;
  • it appears not to take reasonable account of the needs of families where there is a mortgage to be paid and ordinary household expenses to be met (see point 3 in next chapter of this submission);
  • it is not at all apparent that the creation of the new category of service (LTRCS) modifies the existing definition of in-patient services; if the Oireachtas had intended to change the definition of in-patient services, it would have done so explicitly;
  • it does not affect the right to in-patient services of those requiring long-stay care whose needs are greater than those captured in the definition of LTRCS;
  • it does not deal, one way or the other, with the issue of whether the right to in-patient services is a legally enforceable right;
  • it is a poorly drafted Act which fails to meet any reasonable standard of clarity and is unlikely to be comprehensible to the average citizen or, indeed, even to the "reasonably well-educated layperson";
  • after less than a year of its operation, there are worrying indications that the NHSS Act is being applied in a minimalist manner which may, ultimately, be found to be incorrect;
  • in the longer term, given both its drafting and the manner of its implementation to date, it may well lead to additional litigation;
  • it does not resolve the issues at the heart of the Who Cares? Report (that is, whether there is an enforceable obligation on the HSE to provide in-patient services).

 

The Ombudsman also drew attention to the fact that, if the Department is correct in its analysis of the legislation, the HSE could choose not to provide nursing home services at all and leave this area of service to the private and voluntary providers. Indeed, since the publication of the Who Cares? Report in November 2010, there has been a continuation of the trend whereby the involvement of the HSE in providing long-stay care places has been in decline in favour of increasing provision by the private, commercial sector (see Note 3 below).

The Ombudsman takes the view that, whatever arrangements are made to provide long-term residential care for elderly people, these arrangements should reflect a policy which has been enunciated clearly in public. As matters stand, in the case of the NHSS it is more a case of inferring a policy from the Scheme rather than the Scheme reflecting an established policy.

Note 1

The State also paid subventions to those who chose private nursing home care and to those who had no option but to avail of private care because of the scarcity of public nursing home beds

Note 2

This has already happened, most significantly in the first half of 2011.

Note 3

The HSE National Service Plan 2012 envisages the closure of “a minimum of 555 public beds” in Community Nursing Units during 2012

1. Administration Process

It is vital that there is consistency in the assessment of older people and the processing of applications.  The Ombudsman is also concerned to ensure that there are no undue delays in processing applications under the Scheme.  This has taken on an added importance since the change in date of provision of financial assistance from the date of application to the date of approval under the Scheme.  There is a danger that pressure will increase on acute hospitals as patients wait for approval before entering a nursing home. 

It is also uncertain whether clear and accessible information is being provided to residents and/or families regarding their options under the NHSS.  At the commencement of the Scheme, the Department and the then Minister emphasised the concept of a “minimum retained income threshold” – where the spouse or partner remaining at home is left with 50% of the couple’s income or the maximum rate of the State Pension (Non-Contributory) whichever is the greater.   However, we have confirmed with the Department that the “minimum retained income threshold”, applies only if the applicant has applied for ancillary state support.  Many complainants to the Ombudsman do not seem to be aware of this. 

2. Provision of ancillary services

It is important that there is, at the very least, clarity on the issue of the provision of ancillary services and, in particular, as to what is and is not covered under the NHSS.   There is a perception that “add-on” charges (and therefore the shortfall to be paid by residents and their families)  are increasing to cover the costs of therapies and other services provided to residents, irrespective of whether they hold a Medical Card or not.   The Ombudsman has received a significant number of complaints regarding the refusal of services, such as therapies, to medical card holders based purely on the applicant’s residence in a private nursing home.  While some of these complaints were ultimately resolved, it is not clear if there is equitable and needs based access to such services across the country.   It is hoped that the HSE Working Group on the Provision of Ancillary Services has addressed this and will publish its report shortly on this matter.

In this regard, the definition of long term residential care services as constituting “maintenance, health or personal care services appropriate to the level of care needs of the person” is inadequate.  There is no interpretation of what this actually means.  While the Department is of the view that it is not possible to be prescriptive in legislation, as each resident may have different care needs, in practice it is being interpreted quite narrowly to include bed and board, basic aids and appliances and nursing care only.  The reality is that many of those in need of long-term care require more than this.   If the Department is considering further expanding the Scheme into the mental health and disability sectors (where there is often a great need for therapies and other supports) and if the same interpretation is applied, it is anticipated that the additional costs for those availing of such services would increase even further.

3. Suitability of scheme for those aged under 65

The Ombudsman has concerns about the suitability of the Scheme for those aged under 65 or “young chronic sick” as they are sometimes categorised.  It must be remembered that for those aged under 65 and their families, there  may be costs associated with ordinary daily living such as travel costs to work, that those over 65 do not, as a whole, have to contend with.  In addition, many of those aged over 65 have the benefit of the Household Benefits Package awarded by the Department of Social Protection and other supports which are often not available to those aged under 65 who instead have to pay household bills without any subsidy.  While the Ombudsman welcomes the  regulation that allowed mortgage payments to be deducted in the means assessment, we are concerned that, aside from a provision relating to an asset transferred prior to October 2008,  there remains no discretion to allow for an applicant’s (and their families’) financial and other circumstances in life to be taken into account. 

It is also a reality that many of the younger applicants, some with acquired brain injuries or neurodegenerative disorders, require much more than bed and board, basic appliances and nursing care. Like some older people, they require rehabilitation services, sometimes at intensive levels.  The NHSS was designed for elderly residents with similar needs that can mostly be provided by nursing and care staff. The NHSS envisaged that other services would be accessed via primary or community care services, but this is not what has routinely transpired.   The NHSS model does not fit the needs of all persons requiring long-stay care.  In many respects, the Scheme is not appropriate for the needs and requirements of high-dependency residents with significant medical, nursing and therapy requirements.  Instead, many of the applicants and their families are reliant on the discretion of the local HSE Disability services or other services on the ground to provide “top-up” funding to meet the costs of nursing home care.  This is an uncertain and unsustainable situation. 

The Ombudsman is of the view that there should be a greater emphasis on allowing persons to remain at home for as long as possible.   Home Help hours, Care Assistant hours, Home Care Grants and other supports should be viable alternatives to entering long-term care.  These services should be available nationally under a transparent, objective and equitable process that is highly responsive to emerging needs. Indeed where possible, there should be greater planning for the needs of vulnerable older people living in the community, thus limiting sudden and reactionary admissions to Hospitals and Nursing Homes when a situation deteriorates. There is also a need to develop further rehabilitation services at in-patient, day patient and community level, once again using a national, equitable and needs based model.   According to a recent report, it is likely that 80% of people assessed for long-stay care had not been considered for or offered home care alternatives (“Still no way out for discharged delayed”, Irish Times, 26 June 2012).  

The NHSS does not appear to be appropriate for an intermediate service facilitating patients to step-down to care in their own home.  (Any such step-down provision is provided outside the terms of the Scheme and consists of short-term programmes on the initiative of the Minister of the day, for example the Transitional Care Initiative which is currently being funded from money diverted from the NHSS and the National Treatment Purchase Fund.   The Ombudsman is aware of one case where an applicant was refused assistance under the Scheme as it was his wish to return home – which he did after a short stay in a nursing home.  However, his family was refused financial assistance under the Scheme for this very reason leaving them to pay the full amount of nursing home fees for the stay.)  As the Scheme currently operates, there would appear to be little incentive for a patient to aim towards returning to their own home.

 

Emily O’Reilly
Ombudsman
16 July 2012