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							     Long Stay Charges

            Walter Freyne
             on behalf of
National Federation of Voluntary Bodies
Background and current
       situation
              Background
Following legal advice in 2004 the DOHC issued a
direction to cease all such charges

While the context in which it was originally raised was
around nursing home care and possession of
pension books etc when the direction was issued, it
covered all long stay residential situations
Quote from letter issued to all Health Board
       and Chief Executive Officers
Categories of Institution
  the Secretary general of the DOHC – in a letter of 9 Dec 2004
  stated: “With effect from the date of this letter Health Boards should
   cease to impose any financial charge on fully eligible persons who
   are in receipt of inpatient care”
This resulted in some queries for clarification and that clarification
   came in a letter from the Assistant Secretary on 23 Dec as follows:
“All long term residential facilities run by Health Boards or by voluntary
   agencies on behalf of Health Boards.. and it goes on to specify ..
“those with an intellectual disability in independent settings,
   community group homes, residential centres …in summary – any
   long term residential facility where a charge has been imposed..
   including respite”
Impact for service providers
Loss of income that had been a normal part of annual revenue required to
deliver services.
                     Result?
Legislation brought forward to make these charges legal
and an attempt was made to make such charges legal for
the future but also to make them retrospectively legal.

This Bill failed having been referred to the supreme court -
the bill failed on the retrospection element and
consequently it failed in its totality
Consequently- What happened?
  New legislation brought forward [Health (Amendment) Act
  2005, which made these charges legal and also made
  provision for the relevant minister to make regulation regard
  the implementation of such charges.



  These regulations came in the form of S.I. 276/2005
                      Expert Group
In July 2005 a decision was made to set up an expert group under an
  Independent Chairman to develop a set of national guidelines to
  deal with the implementation of the legislation and the regulations.
  The terms of reference for the expert group are as follows:

     a Phase I
       To develop guidelines within a two week period sufficient to meet the
       immediate requirements in implementing the regulations from the
       14th July 2005.
     This Phase was completed rapidly and Interim Guidelines were issued
     a Phase II
       To develop a more comprehensive set of guidelines in line with best
       practice, having considered legal opinion and its implications.

Phase II was completed 20 Aug 2006 and the revised guidelines were
 issued. These guidelines were approved by Director of Primary
 Community and Continuing Care.
          Charges set out are as follows:

Class 1

Class 1 refers to people in receipt of in-patient services on premises
where nursing care is provided on a 24 hour basis on those
premises. In this case, a weekly charge of €120 can be levied or the
total weekly income of that person less €35, whichever is the lesser.

Class 2

Class 2 refers to people in receipt of in-patient services on premises
where nursing care is not provided on a 24 hour basis on those
premises. In this situation, a weekly charge of €90 can be levied, the
total weekly income of that person less €55 or 60% of the weekly
income of that person, whichever is the lesser.
                       Charges
The regulations instruct that charges should now be
raised with effect from 1st July 2006 based on a financial
assessment of each client.

Arrears should be calculated from 14th July 2005 and
advised to the client. Each client should be given the
following options:

  Pay any arrears in full or
  in installments or
  Deduct the arrears from any monies due under the
   repayment scheme, if applicable.
   Patient’s Private Property Accounts
The HSE, in the expectation that some patients/service users
would now have substantial amounts of money due to them in
refunds, set about providing for the management of these funds
in some standardised way, through setting out guidelines.

These guidelines set out some do’s and don’ts and and
generally stipulates what these private funds may be used for.

Each service provider is obliged to put in place control systems
for the management of individual accounts and these provided
for receipted expenditure of all monies

The reality is that many service providers were already handling
service user’s funds and had systems in place albeit that they
may have needed some minor adjustment to align them with
procedures / protocols set out in the new guidelines.
  Provision of Disability Allowance to all
There had been ongoing issue about inequality
within the system in that not all residents were in
receipt of the full Disability Allowance.

From Jan 05 those who had no allowance were
granted the pocket money allowance of €35 per week

For years the case for equality was made and
eventually in Jan 06 the playing pitch was levelled
and all residents were granted Disability Allowance.
                Legal Position
HSE empowered to make charges under the Act

Section 38 agencies who, deliver services for and on behalf of the
HSE, derive their authority from that section of the act as
interpreted by Senior Counsel to expert group

This is new income ( i.e. income relating to residents who were not
charged prior to Dec 2004) is a matter for the HSE to direct
agencies as to they want it used. Service providers are merely
agents of the HSE in collecting this charge. In some cases
agencies have been directed to use it on specific projects relating
to enhancement of older services

Disability Allowance belongs to the person with the disability and
there needs to be clarity between the service provider and the
family regarding the charge and the management of the remainder
which in most cases is the full extent of the Patient’s Private
Property Account.
        Legal Opinion (S McNulty slide)
    Is nursing care a pre-condition to the
    right to charge under the
    regulations?
   “On balance, the regulations did not
    envisage the imposition of charges where
    no nursing care was provided”
    Legal Opinion (S McNulty slide)
“The Health Acts have consistently recognised
that services to be provided by health boards/HSE
may be provided by other bodies”
“If such bodies are providing services on behalf
of HSE, they cannot impose charges for that
service if the HSE could not impose charges
(Section 38)”
“If they are not providing services on behalf of
HSE, they are entitled to impose such charges as
they see fit (Section 39)”
“Voluntary Agencies are free to impose whatever
charges they wish unless they are carrying out
functions for and on behalf of HSE”
   For service providers
There may be new inequalities now being
created relating to various types of group
homes
It is the opinion of the National Federation
of Voluntary Bodies that amending
legislation that gets us away from the
nursing home definitions is required to
address this
This matter has been put to the Minister
back in Feb of 2007
    Eligibility under the National refund Scheme
If charges were being made in accordance with Sec
26 of the Health Act 1970

If the service delivered was similar to the service
delivered to those who did not pay a charge

This is ongoing work and where above situation
pertained it is my interpretation that a refund
entitlement exits.
However, the task of the Service provider is to
make the application – it is the task of the company
employed the Department of Health and Children to
administer the scheme to make the determination.
Questions??

Thank you