Report on Nursing Home Subventions

The Subvention Regulations

The 1990 Act was commenced on 1 September 1993. The commencement was accompanied by the making of a series of regulations under the Act, one of which - the Nursing Homes (Subvention) Regulations, 1993 (SI No. 227 of 1993) - is the main focus of this report. These regulations are referred to throughout the rest of this report as "the Regulations".

In its general thrust, the new subvention regime had much to recommend it. Subventions, to be paid by the health boards, would be based on an assessment of the degree of dependency of the patient with three levels of dependency ("medium", "high" and "maximum") being defined. Different upper levels of subvention would apply to the three levels of dependency; a limit of �70 per week for medium dependency, �95 per week for high dependency and �120 per week for maximum dependency. In this way, the higher costs associated with higher levels of dependency would be recognised. Subventions would be payable in all registered nursing homes and not just, as previously, in the one third or so approved homes. Whereas the payment of a subvention would be subject to a means test (standardised for all health boards), the Regulations contained a provision which seemed to ensure that all subvention recipients would be able to retain some pocket money for their personal needs. (This was to be achieved by excluding from the means test an amount equivalent to one fifth of the prevailing rate of the Non-Contributory Old Age Pension viz. �11.84 per week in 1993.) Furthermore, the Regulations permitted the payment of higher than standard levels of subvention where the patient's assessed means amounted to less than the Non-Contributory Old Age Pension.

Because all nursing homes were now required to be registered, to be subject to inspection and to meet minimum standards, patients and their families could be assured that the level of care would be satisfactory. The Regulations provided for regular reviews of the assessment of dependency thus ensuring that a person whose degree of dependency increased would become entitled to the higher level of subvention associated with the increased dependency. Means assessments were also to be regularly reviewed and the Regulations provided for a right of appeal in relation to the means assessment.

At the same time, the Regulations contained a number of disquieting features. They contained provisions which, in effect, appeared to enable health boards take account of the income of adult sons and daughters of the patient in deciding what level of subvention should be paid. The Regulations appeared to penalise patients who entered a nursing home prior to claiming and being assessed for a subvention; such patients could be debarred from claiming a subvention for two years following admission to the nursing home. And when a claim from such a patient was eventually accepted, which might be two years following admission, any contribution to the nursing home costs already being made by the patient's family might be included in the means assessment. This would be in addition to the means assessed under the standard approach which would already have taken account of the income of sons and daughters. This seemed to amount to a double penalty. Children might be supporting an elderly parent in a nursing home because no subvention was available; but when a subvention claim was eventually accepted by the health board, the existence of this support could be included, in effect, as an item of means resulting in no subvention or a very reduced subvention.

The Regulations seemed also to allow for a similar approach to be taken in relation to patients already in private nursing homes prior to 1 September 1993. If such a patient was already receiving financial help from family - because no subvention existed when the patient entered the home - then this level of family assistance might be assumed to be still available and might, in effect, be included in the means test.

Another surprising feature was a provision that a person, otherwise qualified for a subvention, could be offered instead a place in one of the health board's own homes. The inference is that, in the event of such an "offer" being refused, a subvention in the private home would not be payable. This amounted to a reversal of the thinking behind Section 54 of the Health Act, 1970. Under Section 54, a person entitled to in-patient services under the public system could cho0se instead to go for a private service and be subsidised. It is true that Section 54 was repealed by the Oireachtas in the context of the commencement of the 1990 Act. Part of that context was the provision of subventions to patients who opt for private nursing home care as opposed to public in-patient services. To this extent, Section 54 was replaced by a somewhat similar provision. However, under the Regulations, a person entitled to a subvention in a private nursing home could have the choice of private care removed - insofar as the person would need the subvention to take up the private place - and be given public care instead.

Yet another disquieting development was the making of separate regulations, the Health (In-Patient Services) Regulations, 1993 (SI No. 224 of 1993), which effectively amend Section 52 of the Health Act, 1970. (Section 52 requires health boards to make in-patient services available both to medical card holders and to people with "limited eligibility" - to the entire population, in effect.) The purpose of this regulation is to enable a health board to place a public patient in a private nursing home, which placement to be subject to the regime created by the 1990 Act and the regulations made under it. The charging arrangements applying under the 1990 Act and regulations are considerably more onerous than those arising under the Health Acts (described in Chapter Two). The effect of SI No. 224 of 1993 is to create a two tier charging regime for public patients with one tier being considerably more punitive than the other. Furthermore, the patient would not be choosing as between the two arrangements as it would be for the health board to allocate a place to the patient.

The question of the legal validity of some of these regulatory provisions is considered later in this report (see Chapter Seven).

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Complaints Predicted

It was both predictable and predicted that certain features of the new subvention arrangements would give rise to complaints. On a broad level, the Ombudsman had already drawn attention to the "general lack of clarity regarding the health boards' obligations in respect of .. long-stay patients" (Annual Report, 1992). In effect, people were not being told that they had a statutory right to long-stay care.1 It was clear to the Ombudsman, from complaints received, that it was being implied that no such right existed. In a context where neither the Department nor the health boards were informing people of these existing entitlements, the subvention provisions were presented as amounting to a substantial improvement on existing arrangements. This was true only in the sense that many people were not having their existing statutory rights vindicated. In this context, people who required nursing home care and who hitherto had been unable to have this service provided by the health board, might now at least get some contribution towards private care. It is worth repeating that the 1990 Act made no substantive alteration to the existing entitlement to in-patient services. Accordingly, giving financial assistance towards the costs of private care can hardly be seen as an ideal response to the on-going failure to meet people's statutory entitlement to public care.

On a more specific level, a number of commentators drew attention to the provisions which related to the inclusion of family members in the subvention means test. Technically, what the Regulations provided for was the taking into account of the "capacity of a son and/or daughter, aged twenty one years and over residing in the jurisdiction ...to contribute towards the cost of nursing home care of his or her parent". For all practical purposes, this constituted part of the overall means test.

On 6 September 1993, speaking on the Liveline programme on RTÉ Radio One, a representative of the Irish Association of Social Workers (IASW) drew particular attention to the problems which would be created by the inclusion of the wider family in the subvention means test. Anne O'Loughlin of the IASW felt that this provision would prove controversial and, in effect, amounted to families "being forced in a quasi-judicial way ... to contribute" towards a parent's nursing home costs. The IASW felt that this approach was likely to promote conflict and divisiveness within families and that, in any event, "many old people do not wish, very strongly do not wish, to be forced into any level of dependency on their adult children."

Writing in the Sunday Press on 19 September 1993, columnist (and former Government Minister) the late John Boland expressed somewhat similar views. He saw the Regulations as having far-reaching consequences as they appeared to provide for a regime which required adult children to support their elderly parents. Mr. Boland read the Regulations to mean that such children would be required to support their elderly parents in nursing homes and that a health board would be able to tell adult children precisely how much they were required to contribute. Furthermore, he understood the Regulations to mean that health boards were being given draconian powers to enquire into the financial circumstances of adult children. He felt that health boards were being given the "right to demand more information than is required by the Revenue Commissioners for income tax purposes"; and, if that information is not provided by the adult children, the "Regulations allow the Health Board to refuse to consider the application any further - even if this means the unfortunate parent, who otherwise qualifies on the basis of medical need and lack of income, cannot avail of the nursing home care." In fact, a close reading of the Regulations does not support the conclusion that an adult son or daughter is required to co-operate by giving income details; nor do the Regulations provide that a son or daughter's failure to co-operate results in the parent being penalised. But the Regulations were in fact interpreted in this way and the late Mr. Boland's predictions as to their application were quite accurate - see Chapter Four.

The Regulations also came under close academic scrutiny within a few months of being made. Writing in The Gazette (the journal of the Irish Law Society) of January/February 1994, Mel Cousins identified a number of features of the new subvention arrangements which were legally doubtful and liable to prove contentious. Included in this list of doubtful provisions was that in relation to the capacity of sons and/or daughters to contribute to a parent's nursing home costs.

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Complaints to the Ombudsman

Between 1993 and 1999 the Ombudsman dealt with approximately 150 complaints in relation to nursing home subventions. The majority of these complaints related to just two issues:(1) disputes arising from health boards' insistence on assessing the capacity of sons/daughters to contribute and (2) the manner in which health boards were operating the means test provision which should have allowed subvention claimants to retain a small amount of personal income or "pocket money". One complaint, where a health board had refused a subvention because the patient had entered a nursing home prior to claiming and being assessed by the board, involved a major investment of time and effort by the Ombudsman. The Ombudsman ultimately upheld this particular complaint. Other issues to arise in complaints included: failure of health boards to pay subventions in excess of the fixed levels; payment of a subvention from a date later than the date of claim; the decision of a health board to place a patient in one of its own homes where the patient wished to be paid a subvention to stay in a private nursing home.

At the time of writing (January 2001), only a small number of complaints regarding nursing homes is being received by the Ombudsman. The current complaint issues, in the main, relate to the investigation by health boards of complaints against individual nursing homes, the refusal of "top-up" subvention payments and the timing and conduct of dependency reviews. Mostly, these are what might almost be termed "normal" complaints, involving issues which are always likely to provoke some amount of dissatisfaction. Unlike the majority of nursing home complaints received in the period 1993 - 1999, the current complaints generally do not particularly reflect problems of a sectoral nature. An exception to this general observation is the issue of "top-up" subvention payments which are provided for at Articles 10.6 and 22.4 of the Regulations. It appears some of the health boards are simply refusing to implement this provision notwithstanding advice from the Department that they should do so. The Ombudsman is currently pursuing this issue with the health boards concerned.

The Ombudsman's experience of dealing with complaints during the period 1993 - 1999 suggests that the underlying problems of complainants, which first surfaced in the period prior to September 1993, continued to manifest themselves under the new regime. These included:

" confusion and lack of hard information regarding legal entitlement to nursing home type care; " failure of health boards and of the Department to inform patients and their families of a statutory entitlement to this type of care; " promotion by the official bodies, whether directly or indirectly, of the view that health boards do not have any statutory obligation to provide nursing home type care; " encouragement to patients and their families, by the official bodies, to take up places in private nursing homes.

A detailed account of the issues raised by these complaints, and of the practices which they revealed, is given in Chapters Four and Five

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