Róisín Shortall (Dublin North West, Labour)
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Question 165: To ask the Tánaiste and Minister for Health and Children the legal entitlement to nursing home care of a person with a medical card; and the legal basis on which health authorities may refuse a subvention in cases in which a medical card holder has an asset such as a home. [9755/05]

Seán Power (Kildare South, Fianna Fail)
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The legal position surrounding long-stay charges in health board institutions is based on a succession of provisions in the Health Acts 1947-2001, various sets of regulations made under those Acts and interpretation of those provisions arising from judgments on particular cases in the courts. Under the current system of eligibility as set down in section 45 of the Health Act 1970, anyone ordinarily resident in the State has either full eligibility, that is, a medical card holder, or limited eligibility regardless of means or financial contribution to the exchequer. Other than for persons over the age of 70 who have full eligibility automatically regardless of means since 1 July 2001, full eligibility is granted on hardship grounds — usually on the basis of low income but sometimes for medical reasons.

The Department has long held the view, based on legal advice, that the Health Act 1970, as amended, distinguished between eligibility and entitlement although the two terms are often used interchangeably. To be eligible means that a person qualifies to avail of services, either without charge — full eligibility — or subject to prescribed charges — limited eligibility. Section 52 of the 1970 Act requires health boards to make available inpatient services for persons with full eligibility and persons with limited eligibility; however the manner and extent to which inpatient services are to be made available and the nature and extent of the inpatient services to be provided are not specified.

The placing of a person in a private nursing home is a private matter between the person or his or her representatives and the nursing home proprietor, as are the fees charged in these facilities. The Health (Nursing Homes) Act 1990 allows for the payment of a subvention towards the cost of such care based on a medical and means assessment. The process used in determining a person's eligibility for subvention is set out in the nursing homes regulations 1993.

Under the regulations the Health Service Executive when considering an application for subvention carries out a means test which takes into account the means of the applicant and his or her spouse-cohabiting partner, where appropriate and the assets of the applicant. The means test is usually carried out by the local community welfare officer and involves looking at the applicant's income for the previous 12 months. Income from all sources is taken into account, including wages, salary, pension, allowances, payments for part-time and seasonal work, income from rentals, investments and savings and all contributions from all sources. Income is assessed net of PRSI, income tax and the health contribution and the income of a married or cohabiting person is taken to be half the total income of the couple. In assessing an applicant's assets the first €7,618 of such assets is disregarded and if their assets, excluding their principal residence exceed €25,740, an application may be refused.

An application for subvention may be refused under section 22 of the Second Schedule of the Nursing Homes (Subvention) Regulations 1993 if the value of the applicant's principal residence is in excess of €95,230 and the residence is not occupied by a spouse, a son or daughter aged less than twenty one years or in full time education or a relative in receipt of the disabled person's maintenance allowance, blind person's pension, disability benefit, invalidity pension, or old age non-contributory pension and the person's income is greater than €6,350 per annum. If the house is not occupied by one of the above listed, then the HSE may impute an annual income equivalent to 5% of the estimated market value of the principal residence. If an applicant's spouse is still resident in their home at the time of application, then that house may not be assessed for subvention purposes.

In the case of the HSE eastern area the practice is to carry out a full financial assessment on the applicant and to assess the value of the property as part of this assessment. If an adult son or daughter aged 21 years or more and not in full-time education only is resident in the house at the time of application and is not in receipt of one of the above listed payments from the Department of Social and Family Affairs, then the house may be assessed for subvention purposes. The HSE may assess the value of any asset or assets transferred from the ownership of the person in the five years prior to the application in assessing the means of the person.