A dispute over the payment for patients staying in public hospitals while being treated in a private capacity by consultants saw some hospitals threaten that patients would have to be pursued individually for the contested amounts, the High Court heard on Tuesday.
An insurers' waiver form – saying a person wants to be treated privately while in a public hospital – became the focus of a dispute which is now at the centre of an action by the HSE against the second largest health insurer in the State, Laya Healthcare.
The HSE sued after Laya said it would withhold payments and offset them against any future amounts due under a new regime that involved the cost of a hospital bed night jumping from €80 per night to €800 for a private consultant's patient being treated in a public hospital, the court heard.
The HSE claims that, once a private patient avails of the public facilities – usually the date of admission – they become liable for the charges and not, as Laya claimed, from the date the patient signs a waiver or within 24 hours of admission if through the emergency department.
The HSE argues its position is provided for in the 2013 Health Amendment Act This law, the court heard, was described by then health minister James Reilly as a move to end an effective €200 million annual state subsidy to the insurers.
Laya denies the claims. Irish Life Health is a notice party in the case.
Opening the case, Eileen Barrington SC, for the HSE said the new charging regime brought in under the 2013 Act came in the wake of the financial crisis and the need to achieve better recovery of monies from the treating of private patients in public hospitals.
Under the new law, a person could not be regarded as both a public and a private patient for the purposes of paying for the costs involved, she said.
The insurers were unhappy with this and introduced a waiver form which a private patient was required to sign to say whether they wished to be treated as a private or public patient.
However, by 2016, Laya began raising issues with the minister for health and the HSE, saying they had experienced a significant increase in billing from hospitals and consultants since 2013. The insurers continued paying the consultants their full fees, counsel said.
Laya was also concerned about the way in which the waiver was being presented to patients by the hospitals whereby patients were asked to sign or “would you like to pay it yourself”, counsel said. The insurer said the forms should be signed with “informed consent”.
Despite initially being happy with the form, the insurers then said it was not clear and wanted additional information to be provided before signing, counsel said.
A meeting in November 2016 between the HSE and insurers did not achieve a resolution of the dispute. Hospitals were also saying there was a more aggressive approach from the insurers.
Saolta, an umbrella organization for seven public hospitals in the west and northwest, wrote saying if Laya did not cease withholding money it would have to pursue individual patients.
The case continues before Mr Justice Denis McDonald.
