New legislation is altering the regulatory landscape in the nursing home sector. In this article, we break down the key amendments to the Health Act 2007 and the Nursing Home Support Scheme, outlining crucial compliance measures that nursing home providers must now navigate. With enhanced oversight powers for HIQA and adjustments to the Fair Deal scheme, these changes are set to impact day-to-day operations for nursing home operators. Our Healthcare team explains how the new requirements will affect your business and how you can ensure your organisation stays ahead of evolving regulations.
The evolving regulation of the nursing home sector takes a step forward with the introduction of the new Health (Miscellaneous Provisions) (No. 2) Act 2024. This legislation, which came into force in September 2024, amends the Health Act 2007 as well as the Nursing Home Support Scheme Act 2009. In this article, we review the 2024 Act and outline the biggest changes that nursing home providers should be aware of.
Changes to the Health Act 2007
The 2024 Act introduces additional powers for the Chief Inspector of Health Information and Quality Authority (HIQA). In some instances, it also extends the scope of her powers as follows:
1. Power to request and collect additional information on nursing homes
Under a new Section 65A and 65B of the Health Act 2007, the Chief Inspector of HIQA now has the authority to request additional information from nursing home providers if she reasonably believes that previously submitted information is incomplete. This additional information can then be used to fulfil the Chief Inspector's regulatory functions. In addition, the new legislation provides that where the Chief Inspector makes a request for additional information, the nursing home provider is required to comply with it and a nursing home provider shall not submit information which it knows, or should reasonably know, to be false or misleading.
Under new Section 101B of the Health Act 2007, the Minister for Health has the power to introduce new regulations determining:
- The types of information to be provided by nursing home operators. This includes details of the number of beds, the types of services offered, and charges imposed on residents
- The information to be provided by the Chief Inspector to the Minister for Health, HIQA and the Health Service Executive (HSE)
- The frequency at which information is required to be submitted
- The public bodies to which the information is to be provided, and
- The information which can be published
2. Power to share and publish key operational data on nursing homes
Under the new Section 65A of the Health Act 2007, there is also an obligation on the Chief Inspector to establish and maintain a record of the information provided to it by the nursing home providers. In addition, the Chief Inspector can now also share this information with the Minister for Health, HIQA and the HSE and specified public bodies. However, the data must be anonymised, or certain details excluded, to ensure that no individual can be identified from the shared information.
The Chief Inspector can publish certain information about the nursing home for the purpose of informing residents and prospective residents, and/or their family members, regarding decisions which they might wish to make in connection with that nursing home
3. Power to issue compliance notices to nursing home providers
The most notable change is under the new Section 78(A). This provision now allows HIQA to issue compliance notices on nursing home providers where the Chief Inspector is satisfied the nursing home has contravened or is contravening, the Health Act 2007. To date the Chief Inspector was limited to applying conditions/restrictions or, in extreme cases, cancelling a registration. Now, however, she can consider compliance notices as an enforcement tool in the same way as other regulated sectors.
The notice shall specify:
- The circumstances that constitute the breach
- What the nursing home provider is required to do, or refrain from doing, to comply with the legislation, and
- How to appeal against the notice
A nursing home provider that has been served a compliance notice can appeal the notice to the District Court. An appeal must be lodged with the Court no later than 14 days after the notice was served. The District Court may then, having considered the grounds for the appeal, confirm the compliance notice in whole or in part, with or without amendment of the notice, or direct the Chief Inspector to withdraw the compliance notice. If a nursing home provider fails to comply with the notice, it shall be guilty of an offence and shall be liable:
- On summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
- On conviction on indictment, to a fine not exceeding €70,000 or imprisonment for a term not exceeding 2 years or both.
4. Increased scope for investigation – power to investigate unregistered premises
Under the new Section 73A, the power to investigate breaches of the standards of nursing home providers has been expanded. It now includes investigations of unregistered premises, even if that premise is not breaching any of the standards. The Chief Inspector has the power to obtain a warrant from the District Court to search a premises where she has reasonable grounds to believe it is an unregistered nursing home.
5. Changes to the timelines for the current enforcement process
The 2024 Act provides that the time period for responding to a notice of any decision of the Chief Inspector or appealing a decision to the District Court regarding registration, e.g. to cancel or refuse registration, has been reduced from 28 days to 14 days.
Changes to the Nursing Homes Support Scheme Act 2009 (Fair Deal Scheme)
An amendment to the Fair Deal Scheme was introduced through the Nursing Homes Support Scheme (Amendment) Act 2021. The amendment extended the three-year cap that applies to the applicant's principal private residence to family farms and business assets, where a family successor is appointed. This family successor was required to:
- Continue to run the farm or business for at least a period of six years, and
- Have at least consistently applied to running the family asset for at least three of the last five years
While the amendment was welcomed, some individuals without close relatives are unable to benefit from this relief as they do not have anyone who meets the eligibility criteria for a family successor. The New Act addresses this issue and the safeguards for family farms and businesses now apply to the extended family, including cousins, great-nieces, great-nephews and great-grandchildren.
It has long been acknowledged that the Fair Deal Scheme requires a review and we hope to see further changes.
Comment
The amendments to the Health Act 2007 enhance the existing regulatory framework for nursing homes, strengthening the Chief Inspector’s powers, and improving current provisions to ensure a more robust system of regulation. The changes to the Fair Deal Scheme are of central importance for those individuals who do not have immediate family relatives.
If you have any questions regarding the 2004 Act, or how the newly introduced changes will materially impact your business operations, please contact a member of our Healthcare team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
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