Recovery of Unjust Profits of Private Hospitals CIC’s recent direction to the Directorate of Health Services

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Recovery of Unjust Profits of Private Hospitals CIC’s recent direction to the Directorate of Health Services

Madabhushi Sridhar | January 2015

Private Hospitals in India care more for money than the direction of the court. Are they Profiteering throwing rule book out of the window? Find out more

The Central Information Commissioner, recently, has directed the Directorate of Health Services to disclose the action taken against private hospitals which breached the conditions of serving EWS patients free of cost and recover the ‘unjust enrichment’ made by them. Responding to a complaint made by Rakesh Kumar Gupta, on his RTI application dated October 30, 2013, for information about compliance of Delhi High Court order of 2007 for recovery of unjust money made by the private hospitals, in his order on December 31 2014, Sridhar Acharyulu said public have a great interest in checking the manipulative tactics of some private hospitals in depriving the people of their treatment facilities and maximizing the profits by taking the undue advantage of concessions given by the government. Even after seven years, the judgment was not implemented.

LAND GIVEN ON CONCESSION TO BUILD HOSPITALS UNDER STIPULATED CONDITIONS

As DDA and Land & Development Office of Govt of India had allotted land to the registered societies and trust on concessional rates (predetermined and zonal variant rates) for establishment of hospitals, it stipulated the conditions that the hospitals would provide certain percentage of beds in the hospitals free for the poor/indigent category patients. Similarly in the OPD, it was stipulated that free treatment was to be provided to the patients belonging to the indigent category. These hospitals came into functional stages during different times on the conditions varying from 10% of free beds in the IPD to 70% IPD beds in some of the cases. However in most of the cases it was 25% free IPD beds.

A high power committee under the chairmanship of Justice AS Qureshi was also constituted in the year 2000 which recommended that 10% free beds in the IPD and 25% of the patients in the OPD should be provided free treatment. It was also recommended that the conditions should be uniform and applicable to all the allottees with or without having conditions and the free treatment should be totally free. Delhi Govt found these recommendations reasonable and accepted the same and intimated the concerned land allotting agencies, to solve this whole gamut of problems.

Delhi High Court in Civil Writ 2866/2002 delivered judgment on 22.3.2007 pointing out, how 20 private hospitals and nursing homes are unjustly profiteering by enjoying conditional concessions given by the state without fulfilling those conditions such as providing free treatment to patients belonging to economically weaker sections. The court also observed that only poorer and poorer categories of patients go to general public hospitals, and they do not go to the private hospitals due to which the earmarked beds in the private hospitals remain unoccupied. Therefore the govt. hospitals should refer the poor patients to the private hospitals where the requisite facilities are available.

GUIDELINES FOR PROVISIONS OF FREE TREATMENT FACILITIES TO PATIENTS OF EWS CATEGORY IN PRIVATE HOSPITALS IN PURSUANCE OF DIRECTIONS ISSUED BY THE DELHI HIGH COURT

The conditions of free patient treatment shall be 25% of patients for OPD and 10% of beds in the IPD for free treatment. This percentage of patients will not be liable to pay any expenses in the hospital for admission, bed, medication, treatment, surgery facility, nursing facility, consumables and non-consumables, etc.
The hospital charging any money shall be liable for action under the law and it would be treated as violation of the orders of the court. The Director/M.S./member of the trust or the society running the hospital shall be personally liable in the event of breach /default.
The hospital shall maintain the records which would reflect the name of the patient, father’s/husband’s name, residence, name of the disease suffering from, details of expenses incurred on treatment , the facilities provided, identification of the patient as poor and its verification done by the hospital .
The hospital shall also maintain details of reference from govt. hospital and the reports submitted by the private hospital to govt. hospital in the form of feedback of treatment provided to the patient.
The records so maintained shall have to be produced to the Inspection Team consisting of Sh Ashok Aggarwal, Ms Maninder Acharya and the MS of Dr RML Hospital , as and when required for its verification and quarterly details should have to be sent to DHS after expiry of three months within first week of 4th month.
The details shall have also to be made available to the monitoring committee constituted by Delhi Government also as and when required.
Every private hospital shall have to establish a referral centre desk functional round the clock, where the patients referred from Govt. hospital would be able to report. The referral desk shall be managed by a nodal responsible person whose name, telephone, e-mail address and fax number is to be sent to the Govt. hospitals, DHS and should be prominently displayed. The hospital shall also display the facilities available at the hospital and the daily position of availability of free beds quota, so that the patients’ coming directly to the hospital would know the position in advance.
In case of any change in the nodal person, the same should also be intimated within 24 hours to Government Hospitals and DHS, the list of which shall be provided shortly.
The establishment of referral desk should be ensured within two weeks of pronouncement of judgment and the Director of the Hospital shall be personally liable in the event of default.
The hospital shall send daily information of availability of free beds to this directorate twice a day between 9 AM – 9.30 AM and at 5PM -5.30PM on all working days and also to the concerned nearby Government hospital to which the private hospital is proposed to be linked for general and for specialized purposes. The details of geographical linkage, the telephone numbers/fax numbers and the name of the nodal officer of the Government hospitals shall be intimated shortly. In case no information is received with in the stipulate time from the private hospitals then it shall be presumed that the beds are available in private hospitals and the patient referred shall be accommodated.
The patient referred by Govt. hospitals/or directly reporting to the private hospital shall be admitted if required, and treat him totally free. As per court’s directions, these patients shall not incur any expenditure for their entire treatment in the hospital.
After the discharge of such patients provided with the treatment, the hospital shall submit a report to the referring hospital with a copy to the DHS indicating therein the complete details of treatment provided and the expenditure incurred thereon.
The criteria of providing free treatment would be such person who has no income or has income below Rs 5000/- per month for the time being.
Besides admission of the patient referred from Govt. hospitals , the hospital shall also provide OPD/IPD/Casualty treatment free to the patients directly reporting to the private hospitals and would inform the nearest govt hospital and to the DHS within two days of his/her admission
The patients admitted in any other manner, not covered by the above guidelines shall not be entitled for claiming compliance of the conditions imposed.
Those hospitals which have the land allotted from the Government on concessional rates and have not yet completed the construction after taking possession shall be liable for not complying with the conditions and might be asked to repay to the authorities by a special committee constituted for this purpose.
The special committee referred above consists of Chief Secretary GNCT Delhi, the Finance Secretary GNCT Delhi and DHS GNCT Delhi and Medical superintendent of the Government hospital of that area, where the private hospital is situated and the said committee would work out the details of recovery of unwarranted profits.
As per directions of the court, all the 20 hospitals stated in the judgment and/or all other hospitals identically situated shall strictly comply with the term of free patient treatment to indigent/poor persons.
No benefits shall be applicable to such hospitals that had provided free treatment fully or partially in the past with the higher conditions as applicable for that time with regard to any set off of the expenses or otherwise on that ground.
The above revised conditions i.e., 25% free OPD patients and 10% free IPD beds and treatment on these beds shall be prospective from the date of pronouncement of judgment in question.
Such hospitals which have not complied with the conditions at all and persist with the default, for them the conditions shall operate from the date their hospitals have become functional.
An Inspection Committee now constituted by the High Court consisting of Ms Maninder Acharya, advocate, Mr Ashok Aggarwal, Advocate of Delhi High Court, and Medical Superintendent of Dr RML Hospital would also inspect any of the private hospitals. The Inspection Committee shall have to be entertained and would be facilitated to carry out physical inspection of the hospital where the free treatment has been provided and would also be shown the records of having provided free treatment. The said committee has been given the liberty to revive the petition or for issuance of any directions from the court and wherever necessary for action against defaulters under the provision of Contempt of Court act read with Article 215 of the constitution of India.

EXERCISING POWER OF CIC

Thus exercising its powers under Section 19(8)(a) Commission requires all the private hospitals/nursing homes to furnish the information through the public authority, i.e., the respondent authority and if not, the Commission will exercise the powers under Section 18(3) to summon the heads of those hospitals and nursing homes with documents/files/records which they are supposed to maintain about the free treatment to EWS sections and payment of money fixed by the committee as unjust enrichment.

The Commission directs Dr. R. N. Das, who is in custody of information about nursing homes in his capacity as Medical Superintendent, who also supposed to implement the judgment, etc., to show cause why maximum penalty cannot be imposed against him for not giving information to CPIO in order that he communicate the same to the appellant, by way of complying with orders of First Appellate Authority and Commission also directs Dr. Lily Gangmei the CPIO, to explain why maximum penalty cannot be imposed against for not collecting the information as per the orders of the First Appellate Authority from Medical Superintendent Nursing Homes and for not furnishing it to the appellant.

About Author

Madabhushi Sridhar

Madabhushi Sridhar is Professor and Coordinator, Center for Media Law & Public Policy, NALSAR University of Law, Hyderabad.