The Health Service Executive (HSE) has had to refund 51 families a total of €131,000 after it was found to have illegally overcharged patients in long-stay public facilities by incorrectly taking into account the income of their spouses.
The move follows an investigation by the Office of the Ombudsman, Emily O'Reilly, which found that the executive's own national guidelines on long-stay charges of July 2005 had misinterpreted the governing legislation.
The legislation that was misinterpreted had been introduced following a previous Supreme Court ruling regarding the illegality of nursing home charges.
The guidelines, which have since been revised, erroneously stated that in respect of married couples, the income of the spouse should be taken into account in calculating the charges levied.
"This provision was not in harmony with the parent legislation," according to the annual report of the ombudsman, released in Dublin yesterday.
Commenting on the case, Ms O'Reilly told reporters she was "quite astonished" by the fact that the patients in question had been overcharged, in view of the high profile of the previous nursing home "debacle" and the huge costs involved in rectifying it.
"When this was sorted out at the level of the Supreme Court, and it was clear to everybody that the costs involved in rectifying this for all the people who had been affected was huge, one would have thought that the same mistake was not going to be made again. But in fact it was," she said.
"The guidelines that were drafted from the regulations and the law were quite simply out of kilter with them. And again people were being overcharged. So I don't know how that happened."
According to Ms O'Reilly's annual report, her office was contacted by a woman who felt her husband was being overcharged by the HSE West for inpatient services in a nursing home.
"It appeared that, in calculating the fee for her husband, the HSE took the wife's income into account also. The complainant indicated that her husband's sole income was €96.10 per week but that he was being charged €120 per week for inpatient services.This was €23.90 in excess of his weekly income," it states.
"She felt that the HSE should only have assessed her husband's income and it should not have taken her income into account."
The report states that the relevant legislation is the Health (Amendment) Act, 2005 and the Health (Charges for In-Patient Services) Regulations, 2005. Ms O'Reilly's office also examined the national guidelines on long-stay charges which were issued by the HSE in July 2005. "I found no provision in the parent legislation permitting the income of the wife to be taken into account when calculating the fees for the husband," the report states.
As a result, a total refund of €1,126 was made to the complainant. Given the systemic issue which the complaint highlighted, Ms O'Reilly also asked the HSE to review all other individuals who were assessed in similar circumstances.
A spokeswoman for the HSE yesterday confirmed that its legal advice had concurred with the view of the ombudsman.
"The HSE immediately commenced the task of rectifying this anomaly and 51 patients were deemed to have been incorrectly charged at a cost of €0.131 million. All of these overpayments have been refunded to all 51 patients," she said. The guidelines and subsequent overcharging occurred only between July 2005 and July 2006, she added, as the revised guidelines were introduced on August 1st, 2006.