5.1 Assessed as needing long-term care
5.2 The Public Representative and the Subvention Application
5.3 Nursing Home Provider’s Approach to the NAHB
5.4 Beds at the Roscommon Nursing Home
5.5 The Arrangement with the NAHB
5.6 HSE’s View of the Arrangement made with the Nursing Home Provider
5.7 The Family’s Understanding of the Placement in Roscommon
5.8 How Payment to the Roscommon Nursing Home was Arranged at the NAHB
5.9 Exclusion of the Roscommon nursing home from list provided to Scheme Administrator and Appeals Officer
5.1 Assessed as needing long-term care
Prior to her admission to long-term care, the late Mrs. Jean Coffey was an elderly woman living in Dublin. She suffered from Parkinson’s disease and dementia. She died in February 2011 having lived, since March 2003, in a nursing home in Roscommon. In 2002, Mrs. Coffey was assessed by a Consultant Geriatrician at Beaumont Hospital as requiring long-term in-patient care due to her deteriorating condition. The Consultant informed the Nursing Home Section of the NAHB that Mrs. Coffey’s care needs were at the maximum dependency level.
5.2 The Public Representative and the Subvention Application
Also in 2002, Mrs. Collette Byrne made enquiries about her mother’s entitlement from her local public representative. While at his office she completed a Nursing Home Subvention application form. In a letter from the NAHB in September 2002, Mrs. Byrne was notified that a subvention of €2.79 per day had been approved for her mother and that payment would be made directly to the nursing home on her behalf whenever her mother was admitted to a home. This offer of a subvention was never accepted by the family. In fact, Mrs. Byrne said that she considered the level of subvention inadequate and continued to pursue the matter with the public representative. Her wish was that her mother would be admitted to a public nursing home in Dublin, where she and her family lived.
5.3 Nursing Home Provider’s Approach to the NAHB
Meanwhile, during 2002, the NAHB had been approached by a private provider of nursing home care, which offered to accommodate 20 people in its Roscommon Nursing Home at a preferential rate. This was in the context of a severe shortage of public nursing home places in Dublin, particularly for people of maximum dependency. The approach to the NAHB was made by EM, then Manager of the nursing home, who was on leave of absence from the NAHB where he had worked as Director of Services for Older Persons prior to taking up the position. EM returned to work at the NAHB in 2004. He is now retired.
5.4 Beds at the Roscommon Nursing Home
EM had been employed at the NAHB (or its predecessor) since 1970. He took up his position at the nursing home in early 2002. In his interview with Ombudsman Investigators, he described his role there as promoting the nursing home in Roscommon, which was near completion, as well as promoting nursing homes planned for Kerry and Dublin. He was tasked with selling beds in the homes, particularly in Roscommon. He described a campaign whereby he advertised in the media, as well as canvassing all health boards. He said that he had responses from the Western Health Board (in whose area the Roscommon Nursing Home was located) as well as from the Northern Area Health Board. He agreed that his access to the NAHB was probably facilitated by the fact that he was known to NAHB staff, having worked there previously.
5.5 The Arrangement with the NAHB
EM approached the NAHB and offered long-stay beds at preferential rates. As he put it, the nursing home provider operated a system of room sales similar to that practiced by hotels, offering rooms at 'rack' or very low rates. He said that there was an understanding that anyone from Dublin who took up a bed in the Roscommon nursing home could be transferred to Dublin when the proposed Dublin home was built. In the event, the home planned for Dublin was never built.
When asked how the arrangement with the NAHB was made, EM said that he may have met Michael Walsh, Assistant Chief Executive NAHB, Patricia McDermott, Nursing Homes Section, and Angela Walsh, Director of Services for the Elderly, at some point but could not remember details. He said that the nursing home provider and the NAHB agreed a per capita rate in respect of each patient and said that he believed that this amount was not to exceed the maximum subvention payable under the Nursing Home Subvention Scheme, plus the amount of the patient's social welfare pension. He said that a fee of €312 per week had been agreed with the NAHB for the specific group of people identified for this arrangement while a higher rate of €480 per week applied to other residents. At the time, nursing homes in Dublin typically cost about €650 per week. He stated that his understanding of the arrangement with the NAHB was that the fee could not be increased for one year and, furthermore, that this fee level would apply in relation to the places to be offered in the Dublin homes when they were built.
EM said that he was not concerned at the time with whether these were contract beds or whether the resident would be in receipt of a nursing home subvention; but he was clear that the arrangement was that the NAHB would pay the agreed charge, in full, directly to the Roscommon home. He agreed that the arrangement differed from the usual arrangements where a subvention is paid. He agreed that the Roscommon nursing home had other patients in receipt of subvention where the normal subvention arrangements applied. In these cases the subvention was paid by the relevant health board, with the resident or next of kin having overall responsibility for the charges, including meeting any shortfall. He agreed that the arrangements for the NAHB patients gave the impression that these were health board-funded beds and in fact were contract beds. EM agreed that, at the time the arrangement with the NAHB was made, he believed that he had contracted with the NAHB for the placement by the NAHB of some of its patients in Roscommon. He himself did not have any records of the arrangement. EM said that at the time the NAHB would almost certainly have documented all of these arrangements and that the relevant records should be held on file at the Health Service Executive.
5.6 HSE’s View of the Arrangement made with the Nursing Home Provider
The HSE said that, for the most part, it could not find documentation dealing with the NAHB’s arrangements with the home, although it did provide the Ombudsman with some relevant documentation. Relevant HSE personnel also participated in interviews with Ombudsman staff.
The HSE agreed that the private provider had approached the NAHB and offered it 20 beds at a preferential rate in Roscommon. It agreed also that the rate was decided with reference to the maximum nursing home subvention payable at the time. In the case of these beds, the HSE agreed that an arrangement had been made between the NAHB and the home whereby the NAHB would pay the nursing home fees, in full, directly to the home.
To date the HSE has not identified any contemporaneous records of this arrangement. No records have been found of whom within the NAHB made the decision to respond to the offer, or of how the fees were negotiated, accepted and payment authorised. No records have been identified to show how the arrangement was communicated internally within the health board. One NAHB official interviewed thought that the arrangement might have been approved by the office of the Deputy CEO and communicated to social workers from the Office of the Manager of Services for the Elderly. In any event, the fact that these beds were available to the NAHB, and could be offered to people within its area, appears to have been well known.
A NAHB record shows that it intended to place Mrs. Coffey on a waiting list for long term care and that she would “be placed in an appropriate bed” (presumably a public bed) in turn. It also noted that if she were “eligible for full subvention, she could be considered for a bed in Roscommon”. The Consultant Geriatrician at Beaumont had noted, in late March 2003, when he wrote to the NAHB reiterating Mrs. Coffey’s need for long-term care, that Mrs. Coffey’s case was one “we would consider for the nursing home in Roscommon”. In his recommendation he stated: “the family are aware of the offer of a bed in Roscommon and are liaising with the Public Health Nurse about this”. The evidence is that the beds in the Roscommon nursing home were being offered as an option to people, by the NAHB, in the absence of availability of public beds in the Dublin area.
5.7 The Family’s Understanding of the Placement in Roscommon
Mrs. Byrne says that she assumed that her mother was a public patient. She told Ombudsman investigators that she was told by the Public Health Nurse, who proposed the home in Roscommon to them, that the bed being offered there was one of 20 beds held by the NAHB in Roscommon. Mrs. Byrne says she was not consulted about the location of the nursing home and did not select it for her mother. When she pointed out that her mother lived in Dublin, and the location of the home would make visiting extremely difficult, she was told that a bed would be available in Dublin within a year. Mrs. Byrne says that the NAHB, and not the family, placed Mrs. Coffey in Roscommon.
Furthermore she says that the NAHB took responsibility for paying the entire cost of care to the nursing home and that the family was invoiced for hospital in-patient charges by the NAHB, which it paid. Neither Mrs. Coffey nor her family paid the nursing home for her care. This payment of the entire fee by the NAHB, and the invoicing of the patient or family for in-patient charges, was the arrangement which applied to public patients in contract beds in private or voluntary homes. The family’s view was, and always had been, that their mother was in a contract bed. Because Mrs. Coffey was a person with a medical card, their view was that the charges imposed were wrongfully charged and that a repayment of these charges under the HRS was due.
The HSE did not provide evidence of any written communication with Mrs. Byrne setting out the reasons for the choice of nursing home or the basis on which Mrs. Coffey's care costs were to be met. Mrs. Coffey became a resident of the Roscommon home on 29 March 2003. The admission form completed on that occasion was the form to be used for contract beds.
Mrs. Coffey’s family provided the Ombudsman with a copy of the Contract of Care which the Roscommon nursing home had provided to them. The Contract of Care expressly provides for the fees to be invoiced directly to the Northern Area Health Board. The Contract shows that the normal arrangements in the case of a private patient regarding liability for, and payment of, fees did not apply. The cover letter accompanying the Contract, sent to Mrs. Byrne by the nursing home provider on 7 April 2003, states: “Pages 9 and 10 [dealing with payment of fees and guarantor for fees in the event that fees not recoverable from Social Welfare/Health Board] of the document are not applicable to you as payment is arranged through the Northern Area Health Board’’. The contract is not signed by Mrs. Coffey (as she did not have capacity to do so at the time) nor is it signed by anyone on her behalf. There is a blank space where the signature of the resident should be, and Mrs. Byrne has signed beside the part of the form which reads “signature of witness”.
The Contract states that the rate per week will be “maximum subvention plus the resident’s pension less comforts”; it goes on to state “on transfer to the Finglas Home, the fee is to be agreed upon”. It also states “the question of the supply of items such as incontinence pads will be agreed between management and the appropriate officer in the Northern Area Health Board”. Mrs. Byrne was specifically asked by the Roscommon nursing home to fill out the form which was “required by the Health Board” and to sign the last page (setting out fee arrangement with the Health Board) “to show that you are aware of this arrangement and the extra to be charged outside this arrangement”.
When it became clear that the nursing home provider would not be in a position to transfer Mrs. Coffey to the proposed home in North Dublin (as building plans were abandoned), and when it announced its intention to raise its fees, the NAHB offered Mrs. Coffey the option of moving to a nursing home in Dublin. Ms Patricia Mc Dermott of the NAHB’s Nursing Home Section asked the then manager of the Roscommon nursing home to see if any of the NAHB residents wished to return to Dublin. The family states that the manager mentioned St. Mary’s Hospital in the Phoenix Park as the proposed alternative. In her interview, Ms. McDermott denied that St. Mary’s was mentioned as a possible alternative; when asked, she did say that one of the NAHB residents of the Roscommon nursing home had opted to return to Dublin. She explained that that person was moved from Roscommon and placed in a NAHB contract bed in a private nursing home.
During the period December 2004 - December 2005 Mrs. Byrne did not receive any invoices for in-patient charges. This was the period during which charges for public long-stay patients generally were suspended pending resolution of the illegal charges issue. In January 2006 she began to receive invoices again from the HSE Patient Accounts. Between January 2006 and May 2008 she was invoiced at the contract bed rate of €17.14 per day or €120 per week. (The charge for long-stay care is provided for in Regulations made by the Minister for Health and Children. The rate in 2005 was €120 per week, or the weekly income of the person less €35; in January 2009 this was increased to €153.25 per week, or the weekly income of the patient less €44.70.
In May 2008 (following rejection of her appeal by the Appeals Officer) the daily charge increased to €26.98. When Mrs. Byrne queried the increase, HSE Patient Accounts wrote to her in June 2008 stating that her mother was not in a contract bed but was on “enhanced subvention“ and, “there was a special arrangement with Patricia McDermott, Manager, Nursing Home Section”. The response went on to state that, “It is unusual for us to be invoicing patients other than those that are in a contract bed, but as I mentioned earlier there appears to be a special arrangement made for us to invoice you in this way”. Five years after her mother’s admission, therefore, Mrs. Byrne was told that her mother was not in a public (contract) bed but rather that she was in receipt of an enhanced subvention. Mrs. Byrne had not applied for an enhanced subvention for her mother and believed her mother to have been placed in a contract bed.
5.8 How Payment to the Roscommon Nursing Home was Arranged at the NAHB
Where the NAHB contracted a bed for a person with a medical card, it paid the private nursing home in full and applied in-patient charges to the patient. These in-patient charges were invoiced to the patient or his/her family by the NAHB’s in-patient accounts system based at St. Mary’s Hospital, Phoenix Park, Dublin. These arrangements made it clear (a) that the contractual relationship was between the NAHB and the private nursing home and (b) that the patient was being treated the same as if he or she was in one of the NAHB’s own long-stay hospitals, that is, in both cases the patient was liable for in-patient charges to be paid to the Health Board. When it was accepted in late 2004 that there was no legal basis for the charging of medical card holders, whether in public or in contract beds, these charging arrangements were suspended until a proper legal basis for the charges was provided.
In Mrs. Coffey’s case the NAHB agreed with the Roscommon nursing home that it would pay the full fee, at a rate agreed between them, directly to it. The NAHB then levied in-patient charges on Mrs. Coffey through its in-patient accounts system. The NAHB invoices sent to Mrs. Byrne, in relation to her mother, and provided to the Ombudsman, state clearly that the charges in question are hospital in-patient charges. Thus, the family paid charges to the NAHB but made no payments to the nursing home. The Admission Form completed within the NAHB for Mrs. Coffey when she was admitted is a form it used in the case of a contract bed. When this was put to the HSE in the course of this investigation, the HSE said that the form had been used in error, that the person setting up the charges had used the procedures followed for a contract bed “in error”.
The HSE was asked to explain why, if it regarded Mrs. Coffey as a private patient receiving a subvention, the NAHB charged on the basis of her availing of in-patient services. The HSE said that its Nursing Homes Section gave a direction to Patient Accounts to make the appropriate arrangements on the form used to collect in-patient charges because no other form was available.
When the Roscommon nursing home sought to increase its fees in late 2004, it was the NAHB rather than the family which dealt with the matter. Ultimately it was the NAHB, in a letter dated 1 January 2005, which agreed to pay the revised nursing home fee.
In dealing with the fees issue, in a letter of 11 November 2004 to the home in Roscommon, Ms. Mc Dermott of the NAHB referred to it as having placed “clients” at and that it had been agreed that “the fee” would be the basic subvention rate plus the client’s pension less their personal allowance. Ms. McDermott stated: “our first clients were admitted … early in 2003”, that the NAHB was disappointed that the Dublin nursing home had not been built and that “at this stage our clients should be given the opportunity to return to Dublin if they so wish”. She referred to the fact that the Roscommon nursing home had sought “an increased subvention in respect of the nine NAHB residents in accordance with the revised enhanced subvention scheme” and commented that “this is outside the original agreement between (the nursing home) and the NAHB”. She went on to say that the fee increase was being accepted by the NAHB as a “discretionary decision … as to move our clients (our emphasis) … would be detrimental to their well being”. She also stated, in granting the increase: “This decision will apply to existing residents only. Should any additional clients from the NAHB choose to admit to [----- Roscommon] the normal rules of subvention will apply”.
When the Roscommon nursing home increased the fee again in October 2006, it was the NAHB, and not the family, which dealt with the issue. The family was not even made aware of the fee increase.
Documentation on the NAHB file related to its agreement to pay increased fees in 2005 and 2006 shows that Mrs. Coffey was assessed as being entitled to an “Enhanced Subvention”. There is a form on file, dated 18 October 2006, which is entitled “Application for Increased Funding under the Health Nursing Home (Amendment) Regulations 1996”. The application was not made by the family. Mrs. Byrne says that she was not contacted about increased charges, did not make any application for an increased subvention, and was not made aware of this application on her mother’s behalf. No documentary evidence has been provided by the HSE to show that Mrs. Byrne had applied for an enhanced subvention for her mother’s care.
Under the NAHB Subvention Scheme Guidelines revised in November 2003, it is stated that the enhanced subvention is a top-up payment which may be approved by the Health Board subject to budgetary constraints. It says that to apply: “The Health Board must be advised in writing that the person in receipt of subvention is experiencing difficulties in meeting fees. The letter can be submitted by the person residing in the nursing home, next of kin, nursing home provider or social worker. The letter must outline the financial reason for the application and nursing home fees applicable”. The guidelines go on to say that “An ‘enhanced’ subvention payment will not be considered if an individual owns property or has savings/assets in excess of the disregard outlined in the Nursing Home (Subvention) Regulations 1993”. There is no evidence of an assessment of savings or assets having been done in Mrs. Coffey’s case. A further form on the file shows a calculation for in-patient charges for Mrs. Coffey. The form is the one used to calculate charges for people in public and contract beds.
As stated above, when in-patient charges for medical card holders were stopped in 2004, charges in respect of Mrs. Coffey were stopped also. The HSE maintains that this fact does not undermine its argument that what Mrs. Coffey was getting was a subvention (as a private patient) rather than being charged in-patient charges as a public or contract bed patient. The HSE’s position is that it paid the fees of a private patient (Mrs. Coffey) directly to the Roscommon nursing home and then reclaimed these fees (less subvention due) from the patient by means of invoices for hospital in-patient charges. The HSE has sought to explain this unusual arrangement on the basis that it was done to facilitate the Roscommon home: “as the proprietors were new to Ireland and not familiar to the Social Welfare system, it was agreed that HSE would pay them the agreed amount and collect the charge from the client/family”. It went on to say that the only method the NAHB had to do this was to recoup the fees by way of charges issued through its own patient accounts system.
The fact that the NAHB ceased to collect in-patient charges from Mrs. Coffey in December 2004 should not, according to the HSE, be taken as evidence that she was in a contract bed. The HSE has said that, during the period when in-patient charges were not levied (December 2004 – December 2005) Mrs. Coffey remained liable for charges (as she would have been had she been in a subvention bed) but they were stopped because “Our IT system unfortunately could not generate invoices for these clients (five at the time), therefore no charges were applied until the long stay charges were re-instated.” The NAHB did not tell Mrs. Byrne at the time that her mother remained liable for the charges. It was not until June 2008, when for the first time the HSE sought to pass on increased fees at the Roscommon nursing home to the family, that the HSE stated that it regarded Mrs. Coffey as being on an enhanced subvention, as a private patient, rather than occupying a contract bed.
However, it is apparent that the HSE itself continued to have great difficulty in seeing Mrs. Coffey as anything other than a public patient in a contract bed in respect of whom in-patient charges should be levied. As recently as 28 January 2011, Mrs. Byrne received a letter from HSE Patient Accounts stating: “Our records show that you were nominated as the person responsible for handling Mrs. Jean Coffey’s affairs after their [sic] admission to a HSE Contract Bed ...”. The letter went on to request payment “for the in-patient services provided to Mrs. Coffey”.
5.9 Exclusion of the Roscommon nursing home from list provided to Scheme Administrator and Appeals Officer
The HSE contracted with a consortium comprising KPMG and McCann Fitzgerald to administer the Health Repayment Scheme. This consortium, referred to hereafter as the Scheme Administrator, acted as the agents of the HSE for the purposes of the Scheme. A central feature of the working arrangements of the Scheme Administrator was that the HSE provided it (and also the Appeals Officer) with a list of private nursing homes in which the former health boards had contract beds. A medical card holder, placed in a contract bed in a private nursing home and who had paid in-patient charges to the health board, would be entitled to repayment of these charges under the Scheme. During this investigation it emerged that, in compiling its list of private nursing homes with contract beds, the HSE omitted the Roscommon nursing home from the list. This meant that, at first glance, Mrs. Coffey’s application under the Scheme would fall to be rejected as it appeared as if there had never been contract beds in the Roscommon home.
It is, however, reasonable to expect that the Scheme Administrator and the Appeals Officer would not rely solely on this list provided by the HSE and that it would assess whatever evidence was provided in cases such as that of Mrs. Coffey. This, unfortunately, did not happen in the case of Mrs. Coffey or of other patients of the Roscommon nursing home.