Thursday 22 August 2019

Nursing homes face a new clampdown on top-up fees

Nursing home. Stock photo
Nursing home. Stock photo
Revealed: How the ‘Sunday Independent’ first carried the story in June 2017

Eilish O’Regan

Nursing homes face a clampdown on confusing contracts and punitive top-up fees, after a watchdog investigation revealed elderly residents are being taken advantage of.

There will be new rules on how and when nursing homes can introduce the extra fees, which have added hugely to some families’ costs.

They included paying for social activities, therapies and other services not covered by the Fair Deal scheme.

The Competition and Consumer Protection Commission (CCPC) is today launching the first legally binding guidelines for contracts of care in nursing homes.

The contract “in plain language” with no hidden “small print” must tell the resident what charges are mandatory and which are optional.

It follows a ‘Sunday Independent’ investigation that first revealed the hefty top-up fees being charged to residents in certain nursing homes. The consumer watchdog looked at the same topic and found that some homes took unfair advantage of elderly residents. They signed complex contracts relating to their care which they could not understand.

In some cases, documents left out important information – and this meant the resident was unable to make an informed decision about areas of their care, including these out-of-pocket fees.

An investigation by the ‘Sunday Independent’ previously revealed that more than 300 private nursing homes raised in excess of €16m per year in “extras fees”.

It uncovered charges ranging from €1 a day to €100 a week for social activities, games and therapies.

Nursing homes in response said they are forced to charge additional fees for social programmes and activities.

The funding they get under Fair Deal does not cover the extra activities, even though nursing homes are required by the health watchdog to provide them.

But the CCPC review found that contracts might be changed with no prior consultation with the resident or their representative.

It comes in the wake of demands for more safeguards for thousands of vulnerable elderly residents who are paying to cover a range of "extras" in private nursing homes.

It was revealed they may be paying exorbitant additional fees of up to €100 a week - on top of their Fair Deal payment.

They include fees for services such as social activities, incontinence wear and therapies which private nursing home owners say are not covered by the Fair Deal scheme.

The new guidelines do not outlaw these fees or set a price on the charge.

But they are clear that the resident, their family or guarantor must be informed of these itemised costs in a simply worded contract before they enter the home.

If the nursing home owner later wants to change a resident's charges, they cannot do so unilaterally. They are legally obliged to inform them in advance and obtain agreement to new terms.

The changes must be reasonable, taking the resident's interests into account, and be clearly communicated.

The guidelines also cover other areas such as visiting rights, the obligations of a nursing home in event of an accident, and refunds after the death.

Wording such as "in accordance with all legislative and regulatory requirements" are too vague and uncertain, leaving residents confused, according to the guidelines.

Isolde Goggin, chair of the CCPC, said: "The decision to move into residential care is usually taken in stressful circumstances. For many people, there are limited options to choose from and moving to another nursing home, if you are not happy, is not feasible.

"Residents are particularly vulnerable and if there is a lack of transparency in contracts of care, they run the risk of being tied into terms and conditions that they don't understand or that they would never knowingly agree to.

"It is vital that nursing homes are fair and transparent in how they draw up residents' contracts. We have developed these guidelines to help service providers understand and comply with their obligations and in doing so set a standard for contracts of care into the future.

"Over the coming days, nursing homes across Ireland will be receiving a copy of the guidelines. It is now up to each nursing home provider to review their standard form contracts of care to ensure that they are in compliance with consumer protection law. After a period of time to allow for any changes to be made, the CCPC plans to again assess compliance in the sector."

The CCPC website provides an information booklet for consumers on the guidelines and a template letter for residents or relatives who want to raise concerns with their nursing home provider.

"The law protects consumers from standard form contracts which are imbalanced in favour of a business to the disadvantage of a consumer," it says.

What the new recommendations want brought in

:: 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.

Irish Independent

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