The complaint:
The complaint arose from the refusal of the HSE to repay long-stay nursing home charges to Mrs. Coffey (not her real name) under the Health Repayment Scheme (HRS). Mrs. Coffey was a resident in a private nursing home from March 2003 until her death in February 2011. Her family maintained that she was a public patient in the private nursing home as she had been placed there by the Northern Area Health Board (NAHB). On this basis, according to the family, she was entitled under the HRS to be repaid charges levied by the NAHB during the period 2003 - 2004. However, her HRS application was rejected by the HSE's scheme administrator and, subsequently, on appeal by the HRS Appeals Officer. Mrs. Coffey’s family complained that both decisions were incorrect.
The HRS is a statutory scheme introduced in 2006 to repay medical card holders who had been charged illegally for long-stay care. Prior to 2005, there was no legal basis for charging medical card holders in long-stay care. In practice, and despite the absence of a legal basis, health boards had long followed the practice of charging medical card patients for long-stay care. It was not until 2004 that it was accepted by the Department of Health that the charges were illegal.
Following the Ombudsman's investigation, the HSE (into which the NAHB was subsumed) accepted the Ombudsman's finding that Mrs. Coffey was entitled to a refund under the HRS and agreed to repay charges amounting to about €24,000.
The Case
In 2002 Mrs. Coffey, who lived in North Dublin, was assessed as needing long-term nursing home care. She suffered from Parkinson's Disease and dementia. At the time, the NAHB was unable to place her in a public nursing home due to a scarcity of public nursing home beds. Her family applied to the NAHB under the Nursing Home Subvention Scheme for assistance towards the costs of private care; but the family regarded the amount of subvention approved (€2.79 per day) as inadequate and did not avail of that scheme. It continued to seek a public nursing home place for her. In March 2003, the NAHB offered Mrs. Coffey a bed in a private nursing home in Roscommon. The family was told that the operator of the Roscommon nursing home was planning to build a home in North Dublin within 12 months at which time Mrs. Coffey could move back to Dublin. Despite the obvious problem with the location, which would make visiting difficult, the family accepted the bed. The NAHB invoiced Mrs. Coffey with long-stay ("in-patient") charges and the family paid the NAHB on her behalf.
The HRS is a scheme to refund medical card holders who, in the period up to late 2004, had been charged illegally for public nursing home care. Mrs Coffey's HRS application was rejected by the HSE's scheme administrator, and subsequently by the HRS Appeals Officer, on the grounds that she was a private patient in a private nursing home. Under the HRS, it is possible in some instances that a refund can be made to a patient placed in a private nursing home. This arises in the case of patients placed by a health board in a private home under a contract arrangement between the health board and the home. Such patients were public patients whom the health board had chosen to place in a private home; the status of such patients was identical with that of patients placed in public nursing homes. In the case of Mrs Coffey, her entitlement to a HRS refund depended on whether or not she was in a bed contracted by the NAHB from the Roscommon nursing home.
The Ombudsman looked in detail at the circumstances in which Mrs Coffey was placed in the Roscommon home. Her placement there came about following an arrangement entered into between the NAHB and the Roscommon home which, at the relevant time in 2003, was being managed by a former NAHB Director of Services for Older Persons who was on leave of absence. He had offered the NAHB 20 beds in the home at a preferential rate. The NAHB placed Dublin people (including Mrs Coffey) in the Roscommon nursing home and agreed to pay the home, in full, for each patient covered by the arrangement. The NAHB then collected charges from the patients and/or their families. This arrangement differed from that applying to other patients in the home who were being assisted under the Nursing Home Subvention Scheme; subvented patients, as private patients, were responsible for paying the fees due directly to the nursing home.
The HSE's position was that Mrs Coffey, and other Dublin patients in the Roscommon home, were private patients benefitting from the Nursing Home Subvention Scheme. The Ombudsman asked the HSE to explain why, if Mrs Coffey was a private patient, the NAHB had paid the full nursing home fee to the Roscommon home and had sent out invoices to Mrs Coffey for in-patient charges. The HSE's reply was that, in the case of Mrs Coffey (and some other Dublin patients), the NAHB was merely collecting fees on behalf of the Roscommon private nursing home; and that it was doing this as the nursing home company was new to the Irish market. The Ombudsman found that this was not a credible position in circumstances where the nursing home Manager was a senior NAHB employee on leave of absence.
Furthermore the inference from this HSE position, as the Ombudsman observes in her report, was that " the NAHB took on the role of promoting the services of one particular private company by way of introducing its own patients to the company and encouraging them to avail of the services of that company. It further supported that private company by taking on the role of collector of the fees due to the company by some of its private patients. And all of this is in the context that the Manager of the company was a senior NAHB official on leave of absence."
Findings:
Having concluded her investigation, the Ombudsman found that:
- the NAHB had contracted with the Roscommon home to care for Mrs Coffey;
- the contract of care excluded the family from any financial liability for fees;
- Mrs Coffey was charged by the NAHB for in-patient services;
- Mrs Coffey was a public patient placed at the Roscommon home under a contract arrangement between the NAHB and the home.
Following its consideration of a draft of the Ombudsman's investigation report, the HSE accepted the Ombudsman's findings and accepted that Mrs Coffey was entitled to a refund under the Health Repayment Scheme. The HSE acknowledged that the information it had provided regarding the Roscommon home to the HRS scheme administrator, and to the HRS Appeals Officer, was incorrect. It had told both parties, incorrectly, that there had not been any "contract beds" in the Roscommon home. In addition to refunding the charges incurred by the late Mrs. Coffey, the Ombudsman expects the HSE to review the refund entitlement of other Dublin patients placed by the NAHB in the Roscommon home.
The Ombudsman's report deals also with the actions in this case of the HRS Appeals Officer. While the Appeals Officer was given incorrect information by the HSE, the Ombudsman is critical of the Appeals Officer for a failure to take proper account of information provided by Mrs Coffey's family which suggested very strongly that their mother was, in fact, a public patient placed by the NAHB in a "contract bed". The Ombudsman found also that the failure of the Appeals Officer to keep any record of an oral hearing, attended by the Coffey family, reflected undesirable administrative practice and was contrary to fair or sound administration.