A dispute over the payment for accommodation for private-consultants' patients in public hospitals led to a threat from some hospitals that patients would have to be individually pursued for contested amounts, the High Court has heard.
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 a hearing of an action by the HSE against the second largest health insurer, Laya Healthcare.
The HSE sued after Laya told the HSE it would withhold payments and offset them against any future payments for payments it had to make under the new regime which involved an increase from €80 per night for a bed to €800 for a private consultant's patient who was being treated in a public hospital, the court heard.
The HSE claims that once a private patient avails of the public facilities, which is usually the date of admission to the hospital, the patient becomes liable for the charges and not, as Laya claimed, from the date a patient signs a waiver or within 24 hours of admission if it is through the emergency department.
The HSE argues this 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 per year subsidy to the insurers.
Laya denies the claims. Irish Life Health is a notice party in the case.
Opening the case on Tuesday, 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, counsel said.
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 as a result 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.
Consultants began complaining that the waivers forms were confusing and distressing to patients who were vulnerable and felt it was designed to inhibit them from getting private care, counsel said. The insurers disputed this, said the waiver was designed to provide clarity and said they had no complaints about the complexity of the form, she said.
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 were now saying it was not clear and wanted additional information to be provided before signing, counsel said.
By September 2016, counsel said, the HSE was receiving information that Laya was withholding payments to hospitals based on the date on which a patient signed the waiver form and it was resulting in significant shortfalls, in the case of one hospital of nearly €1 million.
Despite a meeting in November 2016 between the HSE and insurers, it did not achieve a resolution of the dispute. Hospitals were also saying there was a more aggressive approach from the insurers.
Counsel said while the dispute affects elective patients to some degree it largely impacts on admissions through the emergency department.
By March 2017, Laya took the more radical step of saying the signing of the waiver constituted prima facie evidence that a person was waiving the right to be treated as a public patient. It said it would be setting off amounts owed for this against future charges and pre-legal action correspondence followed, counsel said.
Saolta, an umbrella organisation for seven public hospitals in the west and north-west, wrote saying if Laya did not cease withholding money it would have to pursue individual patients.
The Mater Hospital in Dublin complained it suffered losses of €222,000 since 2014 as a result of Laya's failure to discharge accounts due by its policyholders for the acute healthcare service they received.
The case continues before Mr Justice Denis McDonald.