Nursing Homes Support Scheme Act 2009

PART 1 Preliminary and General

1. Short title.

1.— This Act may be cited as the Nursing Homes Support Scheme Act 2009.

2. Commencement.

2.— This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and different provisions.

3. Interpretation.

3.— (1) In this Act, unless the context otherwise requires—

F1["Act of 2021" means the Nursing Homes Support Scheme (Amendment) Act 2021;]

F2["Act of 2022" means the Regulation of Providers of Building Works and Miscellaneous Provisions Act 2022;]

“ancillary State support” has the meaning assigned to it by section 15;

“application for State support” means an application for State support under section 9 (1);

“approved nursing home”—

(a) means, before the date on which section 104 of the Health Act 2007 is commenced in so far as that section relates to the repeal of those sections of the Health (Nursing Homes) Act 1990 referred to in Part 1 of Schedule 1 to the Health Act 2007, a nursing home—

(i) which is registered under the Health (Nursing Homes) Act 1990,

(ii) in respect of which there is in force an agreement in writing, between the proprietor of the nursing home and a designated person, as to the maximum amount that will be charged for the provision in the nursing home of such care services as are specified in the agreement which fall within paragraph (a)(ii) of the definition of “long-term residential care services” (or classes of such care services) to those persons who are maintained in the nursing home and who have made an application for State support, and

(iii) in respect of the registered proprietor of which a certificate under section 1095 (as substituted by section 127(b) of the Finance Act 2002) of the Taxes Consolidation Act 1997 is in force,

(b) means, on and after the date referred to in paragraph (a), a nursing home—

(i) which is registered under the Health Act 2007 as a designated centre within the meaning of that Act or in respect of which a person is carrying on the business of the nursing home pursuant to section 69(2), (3) and (4) of that Act,

(ii) in respect of which there is in force an agreement in writing, between the proprietor of the nursing home and a designated person, as to the maximum amount that will be charged for the provision in the nursing home of such care services as are specified in the agreement which fall within paragraph (a)(ii) of the definition of “long-term residential care services” (or classes of such care services) to those persons who are maintained in the nursing home and who have made an application for State support, and

(iii) in respect of the registered provider of which a certificate under section 1095 (as substituted by section 127(b) of the Finance Act 2002) of the Taxes Consolidation Act 1997 is in force;

“approved nursing home agreement”, in relation to care services provided by an approved nursing home, means the agreement referred to in paragraph (a)(ii) or (b)(ii) of the definition of “approved nursing home” which is in force in respect of that nursing home;

“assessed weekly means” has the same meaning as it has in Schedule 1;

“authorised person” has the same meaning as it has in section 17;

“care needs assessment”, in relation to a person, means an assessment of the care needs of the person carried out under section 7;

“care needs assessment report”, in relation to a person, means the report under section 7 (4) in respect of the care needs assessment of the person;

“care representative” means a person appointed to be a care representative pursuant to section 21;

“care services” means long-term residential care services;

“charge” includes a mortgage;

F1["chargeable land" has the meaning assigned to it bysection 14B;]

“child” includes a step-child;

“cost”—

(a) in relation to care services provided by the Executive, means the cost, determined by the Executive in accordance with section 33(3) and (4), of such care services,

(b) in relation to care services provided on behalf of the Executive, means the cost of such care services as referred to in section 33 (5),

(c) in relation to care services provided by an approved nursing home, means the amount charged by the proprietor of that nursing home as respects the provision of care services, being an amount not greater than the maximum amount specified in relation to the provision of care services specified in the approved nursing home agreement entered into by the proprietor of that nursing home;

“couple” has the meaning assigned to it by section 4;

“deferred relevant event” has the meaning assigned to it by section 20;

“designated person” means the person designated under section 40;

F2["eligible rental income" has the meaning assigned to it bySchedule 1;]

“estimated market value” has the meaning assigned to it by Schedule 1;

“Executive” means the Health Service Executive;

F1["family successor" has the meaning assigned to it bySchedule 1;]

F1["farm" has the meaning assigned to it bySchedule 1;]

F1["farming" has the meaning assigned to it bySchedule 1;]

“financial assessment” means an assessment carried out under section 10;

“ financial assessment report” means the report prepared in accordance with section 10;

“financial support” means—

(a) State support,

(b) ancillary State support, or

(c) where applicable, both State support and ancillary State support;

“information” includes—

(a) documents,

(b) without prejudice to the generality of paragraph (a), instruments, certificates and statutory declarations, and

(c) duplicates of any form;

“long-term residential care services”—

(a) subject to paragraph (b), means—

(i) maintenance, health or personal care services, or any combination thereof, provided by or on behalf of the Executive to a person—

(I) whilst the person resides in and is maintained in a facility—

(A) that is publicly designated in writing by the Executive as a facility predominantly for the care of older people, which designation shall, subject to section 33(2), specify the health or personal care services to be provided at that facility, and

(B) in which nursing care is provided on the basis that at no time should there be less than one registered nurse present in the facility who is available to provide nursing care for the persons maintained in the facility, and

(II) subject to subsection (2), for—

(A) a period of not less than 30 consecutive days, or

(B) periods in the aggregate amounting to not less than 30 days within a period of 12 consecutive months, or

(ii) maintenance, health or personal care services, or any combination thereof, provided to a person whilst the person resides in and is maintained in an approved nursing home—

(I) in which nursing care is provided on the basis that at no time should there be less than one registered nurse present in the approved nursing home who is available to provide nursing care for the persons maintained in the approved nursing home, and

(II) subject to subsection (2), for—

(A) a period of not less than 30 consecutive days, or

(B) periods in the aggregate amounting to not less than 30 days within a period of 12 consecutive months,

(b) does not include—

(i) medically acute care and treatment in an acute hospital,

(ii) respite care,

(iii) rehabilitative care for—

(I) a period of less than 12 consecutive months, or

(II) periods in the aggregate amounting to less than 12 months within a period of 24 consecutive months, or

(iv) out-patient services made available pursuant to section 56 of the Health Act 1970;

“Minister” means the Minister for Health and Children;

“mortgage” includes a charge;

“nursing home” has the meaning assigned to it by section 2 of the Health (Nursing Homes) Act 1990 and includes an institution referred to in section 2(1)(h) of that Act;

F1["particular family asset", in relation to a family successor, means the asset or assets in relation to which the family successor was appointed undersection 14A,14F,14G,14H,14Kor14L;]

“partner”, in relation to a person who is a member of a couple, means the person who is the other member of the couple;

“principal residence” has the meaning assigned to it by Schedule 1;

“proprietor”—

(a) in relation to a facility referred to in paragraph (a)(i) of the definition of “long-term residential care services”, means the person who has agreed in writing with the Executive to be the proprietor of the facility for the purposes of the performance of the functions imposed under this Act on the proprietor of such a facility,

F3[(b) in relation to an approved nursing home, means the registered provider, within the meaning ofsection 2of theHealth Act 2007, of the nursing home or the person who is carrying on the business of the nursing home pursuant to section 69 of that Act;]

“registered medical practitioner” means a registered medical practitioner within the meaning of the Medical Practitioners Act 2007;

“registered nurse” means a person whose name is entered in the register of nurses maintained under section 27 of the Nurses Act 1985;

“relative”, in relation to a person, means a parent, step-parent, child, grandchild, brother, step-brother, sister, step-sister, uncle, aunt, nephew or niece of the person;

“relevant assets” has the meaning assigned to it by Schedule 1;

F1["relevant business" has the meaning assigned to it bySchedule 1;]

“relevant event” has the meaning assigned to it by section 19;

“relevant facility” means a facility which falls within paragraph (a)(i)(I) of the definition of “long-term residential care services ”;

“relevant subvention” has the meaning assigned to it by section 7 (inserted by section 3 of the Health (Nursing Homes) (Amendment) Act 2007) of the Health (Nursing Homes) Act 1990;

F1["repayment event" has the meaning assigned to it bysection 14I;]

F1["revoked", in relation to a determination of the Executive undersection 14C(2) (a), means revoked undersection 14G(12)or14I(3);]

F1["running the family asset", in relation to a specified asset or a particular family asset, means—

(a) where the specified asset or the particular family asset is a farm, farming the farm, and

(b) where the specified asset or the particular family asset is a relevant business, carrying on the relevant business;]

“Scheme” means the Nursing Homes Support Scheme established under section 5;

“social insurance contribution” means any contribution which falls within section 6(1)(a), (b), (c) or (d) of the Social Welfare Consolidation Act 2005;

“specified”, in relation to a form, means a form specified under section 44;

F1["specified asset" has the meaning assigned to it bysection 14A;]

“State support” means a payment made by the Executive in accordance with the Scheme following an application for such support to assist a person in meeting the cost of care services;

“suitable”, in relation to a person (who may be an employee of the Executive) and a function to be performed under this Act, means that, in the opinion of the Executive, the person has the necessary qualifications, training or experience, or combination thereof, to perform that function;

“transfer”, in relation to an asset or income, means the transfer by sale or gift of that asset or income and references to “ transferred” shall be construed accordingly;

“transferred asset” has the meaning assigned to it by Schedule 1;

“transferred income” has the meaning assigned to it by Schedule 1.

(2) Where the Executive is satisfied that a person who is or is to be provided with care services is unlikely to ever cease to require care services during the person’s lifetime, then paragraph (a)(i)(II) or (a)(ii)(II), as the case may be, of the definition of “long-term residential care services” shall not apply in the case of that person.

4. Couples.

4.— (1) In this Act, “couple” means—

(a) two persons married to each other,

(b) a man and woman who are not married to each other but are cohabiting as husband and wife, or

(c) two persons of the same sex who are cohabiting in domestic circumstances comparable to that of a man and woman who are not married to each other but are cohabiting as husband and wife,

who are habitually living together at the date of the making of an application for State support by either or both of them or at the date of the commencement of the provision of care services to either or both of them.

(2) For the purposes of this section—

(a) a couple referred to in paragraph (b) of subsection (1) shall not be considered as habitually living together unless they have been cohabiting in the manner referred to in that paragraph,

(b) a couple referred to in paragraph (c) of subsection (1) shall not be considered as habitually living together unless they have been cohabiting in the manner referred to in that paragraph,

for a period of not less than 3 years immediately preceding the date of the making of an application for State support by either or both of them or at the date of the commencement of the provision of care services to either or both of them.

(3) Notwithstanding subsection (2), a person shall be considered as habitually living together with the other member of the couple where—

(a) either of them resides in or enters a relevant facility or approved nursing home for the purposes of being provided with care services,

(b) both of them reside in or enter a relevant facility or approved nursing home for the purposes of being provided with care services,

(c) either of them resides in or enters an institution (of whatever kind) for purposes related to—

(i) a physical or mental condition of the person concerned, or

(ii) the imprisonment, or the taking into lawful custody, of the person concerned, or

(d) both of them reside in or enter an institution (of whatever kind) for purposes related to—

(i) a physical or mental condition of the person concerned, or

(ii) the imprisonment, or the taking into lawful custody, of the person concerned.

PART 2 Establishment of Scheme and Application for State Support

5. Establishment of Scheme.

5.— (1) On the coming into operation of this section there is established a scheme to be known as the Nursing Homes Support Scheme to be operated under and in accordance with this Act.

(2) The Scheme is established for the purpose of giving financial support under this Act in respect of care services in accordance with this Act out of the resources allocated to the Scheme in each year in accordance with subsection (4) and shall consist of the provision of financial support in respect of care services for the purposes of and in accordance with the provisions of this Act and any guidelines issued under section 35.

(3) It shall be a function of the Executive to operate and administer the Scheme.

(4) In the financial year 2009 and in each subsequent financial year the Executive shall, out of such monies as are available to it for that financial year from monies provided by the Oireachtas, allocate such amount as the Minister determines, with the consent of the Minister for Finance, for the provision of financial support under this Scheme in that financial year.

(5) The Scheme established by this Act shall be operated subject to the principles that—

(a) applicants who are determined by the Executive to need care services in accordance with section 7(8)shall be informed of the names and addresses of all relevant facilities and approved nursing homes, and

(b) subject to section 12(2) and subject to the availability of a long-term residential care bed, the applicant may select the relevant facility or approved nursing home in which to receive care services.

6. Persons who may apply for State support under Scheme.

6.— (1) This section applies to a person ordinarily resident in the State—

(a) in respect of whom an application for a care needs assessment has been made,

(b) in respect of whom the Executive has determined under section 7(8)(a) that the person needs care services,

(c) who, on the coming into operation of this paragraph, is being provided with care services by the Executive or on behalf of the Executive, or

(d) who, on the coming into operation of this paragraph, is being provided with care services by an approved nursing home.

(2) A person may not make an application for, or receive, State support unless the person is a person to whom this section applies.

7. Care needs assessment.

7.— (1) (a) A person ordinarily resident in the State, other than a person referred to in paragraph (c) or (d) of subsection (1) of section 6, who wishes to make an application for State support shall apply for a care needs assessment.

(b) A person ordinarily resident in the State, who is a person referred to in paragraph (c) or (d) of subsection (1) of section 6, who wishes to make an application for State support may apply for a care needs assessment.

(2) Where it appears to a specified person that—

(a) a person ordinarily resident in the State may need care services, and

(b) that person, by reason of ill-health, a physical disability or a mental condition, is unable to make an application for a care needs assessment,

the specified person may apply to the Executive for a care needs assessment on behalf of that person.

(3) An application for a care needs assessment shall be made to the Executive in the specified form.

(4) Upon receipt of an application for a care needs assessment, the Executive shall, as soon as reasonably possible, make arrangements for a care needs assessment to be carried out and a report on that assessment to be provided to the Executive.