8.1 Appeals Officer
8.2 Appeal on behalf of the late Mrs. Coffey
8.3 Ombudsman’s Preliminary Examination
8.4 View of the Appeals Officer
8.5 Oral Appeal Hearing
8.6 Basis for Appeals Officer’s Decision
8.1 Appeals Officer
The Health (Repayment Scheme) Act 2006 provided for a right of appeal against the decision of the HSE/ Scheme Administrator. The Act provided for the appointment of a barrister or solicitor (of not less than 5 years’ standing) to act as Appeals Officer. The Act also required the Scheme Administrator and the HSE to provide the Appeals Officer with assistance and information as he or she “may reasonably require” to determine the appeal.
The Act provides further that the Appeals Officer must be independent in the performance of his or her functions but is obliged to comply with guidelines, prepared and issued by the Minister, on the procedure to be followed for consideration of appeals. (Section 16 of the Health (Repayment Scheme) Act 2006.) Furthermore, the Act requires that the Appeals Officer must consider any written or oral submission made by or on behalf of the appellant, the Scheme Administrator and/or the Executive. The Appeals Officer is required to provide a decision, in writing, determining the appeal and to give reasons for the decision made.
8.2 Appeal on behalf of the late Mrs. Coffey
Mrs. Byrne appealed the decision of the Scheme Administrator on 3 December 2007 using the official form provided for the purpose. On 12 March 2008, she attended an oral hearing with Mr. Kent, Appeals Officer, and on 19 March 2008 she wrote to him providing him with further information about her mother’s case. On 25 April 2008, she received a letter from the Appeals Officer stating that he had “carefully considered” the appeal and that he had reviewed the “regime of charges incurred”. He stated that, having done so, he was satisfied that the charges were not recoverable charges under the scheme. He upheld the decision of the Scheme Administrator to reject the claim.
8.3 Ombudsman’s Preliminary Examination
Having carried out a preliminary examination of case, the Ombudsman investigator involved wrote to the Appeals Officer, on 25 March 2009, setting out her preliminary view on the issues. It was put to the Appeals Officer that the circumstances of Mrs. Coffey’s placement, the nature of the charging regime and the conduct of the NAHB with regard to its offer to return Mrs. Coffey to a Dublin location, supported the view that she had been placed in the bed in the Roscommon nursing home as a public patient, under a contractual agreement. The investigator noted that the unusual arrangements between the Roscommon nursing home and the NAHB did not change the fact that this was a contract between the nursing home and the health board. The Appeals Officer was provided with sample copies of invoices for hospital in-patient charges which had been issued to Mrs. Byrne. The preliminary view of the investigator was that Mrs. Coffey had been provided with in-patient services during 2003-2004 and, as a consequence, that she was entitled to a repayment under the Scheme. The investigator asked the Appeals Officer to review his earlier determination in the light of these views.
8.4 View of the Appeals Officer
The Appeals Officer, Mr. Kent, did not reply to those preliminary views. The Director General of this Office then wrote to Mr. Kent on 28 July 2009 requesting certain information. In a reply, dated 11 August 2009, Mr. Kent outlined the facts of the case as he saw them and explained his consideration of the facts and his decision.
In this letter the Appeals Officer accepted that the claimant was a person with full eligibility and said that it remained for him to decide if the charges paid were in fact recoverable under the Scheme. It would appear that his decision was strongly influenced by the fact that an application for subvention had been made in June 2002 – nine months prior to Mrs. Coffey’s admission to the Roscommon home. He stated:
“the subvention was paid (the establishment of a private contract of care is a necessary pre-condition to that payment) indicating that a private contract of care was put in place whereby the owner of the nursing home committed to provide the care the patient needed and someone on behalf of the patient committed to pay the fees due (the file indicates that those fees were discharged out of the patient’s own income from two pensions).”
The fact that an application for nursing home subvention had been made in 2002, along with information from the HSE file that a subvention, and subsequently an enhanced subvention, had been paid, was taken as evidence that the arrangement was a private one. This meant that Mrs. Coffey had not been in a contract bed during 2003 - 2004 and that, accordingly, the charges were not recoverable.
In an interview with Ombudsman investigators on 23 October 2009, Mr. Kent provided an account of the administrative processes operated by him, the records examined by him and his contacts with the HSE and the Scheme Administrator for the purposes of dealing with appeals under the Scheme. In considering an appeal the Appeals Officer stated that he takes account of a number of matters including the provisions of the legislation and the information supplied to him, this includes the appellant’s file, provided to him by the Scheme Administrator, as well as any new information provided in the course of the appeal. The Appeals Officer said also he has regard to the lists of institutions provided by the Health Service Executive. He explained that the appeal decision is recorded by way of the determination letter issued to the appellant. He said that no internal records or memos are made by him, or his staff, recording the basis for a determination. The Appeals Officer said that he had not kept any record of the oral hearing attended by Mrs. Byrne and her brother Gerard Coffey on 12 March 2008.
The Appeals Officer did acknowledge that there were problems in administering the Scheme due to the lack of records available at the Health Service Executive. In his interview at the Office of the Ombudsman on 23 October 2009, the Appeals Officer remarked:
“Unfortunately, the scheme administrator can only administer the claim based on the records provided to them by the HSE. What we have found is that those records aren’t always of the best. It is I suppose neither the current HSE’s fault nor the scheme administrator’s fault that in many instances the offer did not comprise the full amount because the records weren’t there to support the full amount. It is only when the appellant comes forward with the necessary additional records that the scheme administrator can review it in the light of those records.”
8.5 Oral Appeal Hearing
Mrs. Byrne, in her interview with Ombudsman investigators, recalled attending the oral hearing with the Appeals Officer. Her recollection of it was that it was short (about 20 minutes), that the Appeals Officer took no notes, asked few if any questions, and repeatedly told her, and her brother, that their mother was in receipt of subvention and was not entitled to repayment. The Appeals Officer said that he did not recall the oral hearing and that he had not made any notes of it.
Mrs. Byrne said that she recalled asking the Appeals Officer if he was aware that they had received invoices directly from the NAHB, had paid the NAHB directly, and had no contract with the Roscommon nursing home in relation to fees. She recalled that, on hearing this, the Appeals Officer said that he might have to get further information or files from the HSE and said that theirs appeared to be an unusual arrangement. Copies of invoices or receipts for in-patient charges were not provided to the Appeals Officer in the course of the hearing, or with a subsequent letter, as the family believed that the Appeals Officer would have access to all records when he sought further information from the HSE on the case, along with the files.
Following the hearing, Mrs. Byrne wrote to the Appeals Officer setting out again the nature of the relationship between her mother and the NAHB in regard to charges, and the nature of the NAHB's responsibility to her mother, as she understood it. The Appeals Officer issued his determination letter a month later, confirming the rejection of the claim. It was not clear from the letter whether the Appeals Officer had sought or reviewed files or additional information from the HSE or whether he had considered the invoices and receipts.
8.6 Basis for Appeals Officer’s Decision
At interview, the Appeals Officer stated that the overriding consideration in making his decision in the case of Mrs. Coffey was the evidence that a subvention had been applied for and paid by the Health Board. He stated that payment of subvention was contingent upon the patient making a contract of care with the nursing home and was evidence of the patient residing in the home under a private contract of care. He stated that if subvention had been paid in this case, in the absence of such a contract, the NAHB would have been in breach of The Nursing Homes (Care and Welfare) Regulations 1993. He relied also on the list of institutions supplied by the HSE and referred to the fact that the Roscommon nursing home was not listed as a home with contract beds.
The Appeals Officer contended that the points raised by the appellants, including their claim that they had no financial dealings with the Roscommon nursing home about fees and that the fees were paid directly by the NAHB, were not relevant. His experience was that many different payment arrangements had applied and he repeated that the crucial issue was that subvention had been paid indicating the existence of a private contract of care.
In his interview he said that there were limitations to the Scheme:
“… it doesn’t, for example provide for the fact that their mum had no option but to go into a private nursing home … we all know … there weren’t sufficient public contracted beds available to provide long-term care facilities for public patients … the scheme doesn’t provide for the fact that there was no option for her … it doesn’t provide for the fact that there was nowhere else that that care could be provided … unfortunately in terms of whether there is an entitlement under this scheme, this is not relevant ”.
There is no record that any query was raised with the HSE either by the Scheme Administrator or by the Appeals Officer about the status of the bed occupied by Mrs. Coffey during the claim administration process or in the course of the appeal. However, another Appeals Officer, in dealing with an appeal by another resident of the Roscommon nursing home who was in similar circumstances to those of Mrs. Coffey, did raise questions.
A second Appeals Officer – Ms Ciara McGoldrick - raised doubts about the decision of the Scheme Administrator to reject a claim on the basis that the patient was the subject of a private contract between her and the home. In an email addressed to the HSE in January 2009, she noted: “the claimant has furnished invoices and receipts from St Mary’s Phoenix Park (Patient Accounts at the time)”. She went on to note: “interestingly she (patient) was also granted subvention on 19/5/03” and went on to say “it seems that these charges are recoverable even though the institution is listed as outside the Scheme. Could you confirm that this is the case”.
The response from the HSE to this query was that the patient was in receipt of subvention, that the provider had “offered the Northern Area Health Board beds” and that the subvention plus the person’s pension was to cover the cost of care. The response said that it had been agreed that the health board would collect the pension as “they [providers] were new to the Irish market and not familiar with the social welfare system”.
On 1 May 2009, following an oral hearing in this case, Ms McGoldrick wrote to the HSE saying: “This is very unusual. The patient was invoiced by the HSE and this suggests that the payments were recoverable. However I understand ... that this was a private bed but the HSE administered the pension deductions on behalf of the nursing home. I would therefore expect to see corresponding payments to the nursing home from the HSE. Please forward me all financial documentation in relation to this patient’s maintenance at the nursing home.” In the event, the HSE provided the file of another unnamed patient from the Home in error, which the Appeals Officer described as “illustrating the issues very well”. She told the HSE “While it may have been the intention that this patient (Mr. L) had a subvented bed the case is hard to distinguish from a contracted bed. Very basically the patient paid pension to health board towards cost of (the) bed and the HSE made up (the) balance. There are no written agreements to support any arrangement with the home whereby the HB was to collect pension on behalf of the home”.
The implication is that if the NAHB had no formal arrangement to state that it was collecting money on behalf of the Roscommon nursing home, then, in circumstances where it is paying the home in full, the invoices to the patient are charges by the HSE directly to the patient in respect of in-patient care.
No records have been provided to explain how this matter was resolved. The Appeals Officer dealing with the case left and the case was taken over by Mr. Kent. His determination was to confirm the rejection of the claim by the Scheme Administrator.