Unfair & unwanted additional fees, the blame game continues between private Nursing Homes and the HSE.

May 07, 2019

As private nursing homes have been repeatedly criticized for charging “top-up” fees of up to €100 monthly, the finger is being pointed at the Health Service Executive for not funding care packages under the Fair Deal scheme sufficiently to allow for such services to be covered, and so the blame game continues.
 

We at, John M Shanahan & Co, Chartered Accountants, Tullamore, Co Offaly have taken a look at the punitive top-up fees within the monthly bills presented to Family members / those in the Charge of residents within the Care system and the recommendations to deal with them.

What are these Additional fees.

In many cases the Competition and Consumer Protection Commission (CCPC) found fees being charged for social and occupational therapy programs, personal hygiene programs, wound dressings, prescription painkillers, incontinent pads and bedsore creams.

Some nursing home residents are being charged for social activities they are physically unable to take part in due to their health status, while others have to pay for a doctor service despite having a medical card. Other instances are charging excessive interest on fees; catch-all clauses on terminating the contract; transferring financial obligations to others; and changes to contracts.

In many cases older people who rely on the State pension often cannot afford these charges meaning their choice of nursing home is extremely limited or they have to go on a waiting list for a public nursing home bed.

Nursing Homes Ireland

Nursing Homes Ireland (NHI), which represents private nursing homes, has said facilities are obliged to provide certain services to residents which are not covered by Fair Deal and that they have little choice but to pass the costs on.
They go on to re-iterate that nursing home charges are for services provided to residents for services explicitly excluded under the Nursing Home Support Scheme and agreed with all residents in the Contract for Care.

That is fair enough as long as the resident has the choice and the contract is fully transparent. The law is there to protect consumers from standard form contracts which are imbalanced in favour of a business to the disadvantage of a consumer.

Fair Deal Scheme

Under the Government’s Nursing Home Support Scheme, otherwise known as Fair Deal, nursing home residents pay 80 per cent of their income in return for a bed in the facility of their choice.
They must also pay an annual level of 7.5 per cent on their assets, excluding the first €36,000. If they have a home they must pay 7.5 percent of its value for the first three years of care.

In relation to additional fees, the CCPC have indicated that all fees should ideally be included in the upfront fee for the services to be provided, and where this is not possible, information on all fees, whether mandatory or optional, should be provided to any prospective resident.

They have further stated where the additional fee is genuinely optional then this has to be communicated clearly to the resident and the resident should be afforded the opportunity to either agree or otherwise to availing of the service concerned.  
The commission’s review found the language used in contracts was often technical and difficult to understand. In some cases, important information was not provided.

New Recommendations.

What the CCPC are now recommending is as follows:-

• Plain, simple language must be used;
• Important terms should be given prominence and not hidden in small print;
• In the case of a guarantor,  all details must be provided. No “catch all” term on passing on obligations;
• Any term which limits or restricts the liability of a nursing home in the event of negligence or failure to address a hazard is illegal;
• If there is a breach of contract, the nursing home is entitled to recover what is owed. But the resident should not be asked for a sum that is disproportionate and unfair;
• The contract should not unreasonably restrict a resident from receiving visitors. Restrictions should be set out in the contract;
• A nursing home cannot terminate the contract with immediate effect;
• The contract should outline what should happen during a nursing home resident’s extended period of absence;
• Where a nursing home makes financial savings during a resident’s period of absence the contract should provide for a fee reduction;
• The balance of fees should be refunded after death;
• There can be legitimate reasons for changes to a contract of care, but this must be agreed with the resident in advance and not done in a unilateral manner;
• All additional out-of-pocket fees should ideally be included in the upfront fee for the services provided. Where this is not possible the resident has to be told what fees are mandatory or optional;
• The contract can’t simply say “fees are subject to review and can be increased”;
• Terms which give nursing home owners an out clause such as “use best endeavours” are not allowed.

These guidelines have legal standing and apply to both public and private homes, but the commission cannot force individual homes to alter unfair contract terms.

Related item - Tax relief on Nursing Home Fees

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