The Functioning of Nursing Homes in Polish Law in the Context of Aging Societies

The goal of this study is to analyse the Polish regulation of nursing homes from the perspective of an aging society. The respective chapters present the structure of nursing homes, the principles of referring people thereto and the payment for the stay therein. In the last chapter, all considerations are summarized. The de lege ferenda postulates concerning the subject matter are also presented.


Introduction
Polish society has been aging increasingly for many years. This phenomenon is caused by various factors. On the one hand, fewer and fewer children are born despite financial incentives 1 intended to increase fertility rates, which results in a negative natural increase 2 . On the other hand, economic development and the focus of man and women on professional development and career do not encourage them to enter into marriages 3 or partnerships or having children. Another reason may be the reluctance to have children due to related inconveniences or the high cost of raising a child. The above-mentioned circumstances result in the fact that Polish society is aging increasingly and more rapidly. Since 1990, the number of people aged 65 and over has doubled and continues to grow dynamically (Table 1).
In the light of the Table 1 data, it should be assumed that Polish society will continue to age in the coming years. In relation to this phenomenon, the issue of functioning of, referral to, and payment for stays in nursing homes, is becoming increasingly practical. Due to the aging of the population, it will also be necessary to increase the number of places available in nursing homes. 1 Among the latest benefits aimed at encouraging people to have children is a childcare allowance for parents in the amount of PLN 500 (approximately €110) per each child up to the age of 18 (see the Act of 11 February 2016 on State aid in bringing up children). An additional benefit, Family Care Capital, was introduced in 2021. It is granted to parents in the total amount of PLN 12,000 (approximately €2,660) for the second and subsequent children aged 12 to 36 months (see the Act of 17 November 2021 on Family Care Capital). 2 A negative natural increase occurred in Poland as early as in 2002. Since 2013, this country has consistently had a negative natural increase rate of ranging from several to tens of thousands. The largest negative natural increase so far was recorded in 2020, i.e. 120 thousand more deaths than births, but this number was already overestimated because of the pandemic (Demographic Yearbook of Poland, p. 28). It should be clarified that there is yet no data available for 2021. 3 The number of marriages in Poland is also consistently decreasing (Demographic Yearbook of Poland, p. 28). It should hereby be noted that pursuant to Article 67, paragraph 1 of the Constitution of the Republic of Poland, a Polish citizen is entitled to social security in the event of inability to work due to illness or disability and after they reach retirement age. In connection with this constitutional provision, under the citizens' right to social security, remains provided for in the Act of 12 March 2004 on Social Assistance, hereinafter also referred to as "u.p.s.", the obligation of local government units to establish and maintain nursing homes (see Article 17, paragraph 1, point 16 of the u.p.s., Article 17, paragraph 2, point 3 of the u.p.s, Article 19, point 10 of the u.p.s and Article 21, point 5 of the u.p.s.).
To conclude this chapter, it should be pointed out that as per the current legal status, the basic regulation on nursing homes is contained in the Act on social assistance (Article 54 et seq. of the u.p.s.) and the Regulation of the Minister of Labour and Social Policy of 31 May 2012 on Familybased assistance houses 4 . Apart from the above-mentioned legal acts, the acts of local law, which in Polish legislation, also constitute sources of universally binding law, also have some significance regarding the functioning of nursing homes (see Article 87, paragraph 2 of the Constitution).
It should also be noted that the matter under consideration has undergone significant changes in the last three years. In 2019, an amendment to the Act on Social Assistance was adopted (see the Act of 19 July 2019 amending the Act on social assistance and the Act on mental health protection), which, among other things, improved the issue of setting the payment for stays in nursing homes and introduced the possibility to limit the possibility of leaving nursing homes individually. In turn, in 2020, a number of changes were introduced in connection with the COVID-19 pandemic (see the Act of 2 March 2020 on special solutions related to the prevention, counteraction and combating of COVID-19, other infectious diseases and the emergencies caused thereby). These were primarily aimed at protecting elderly people living in nursing homes. Further integration of the matter under study was introduced by the amendment of 15 April 2021 (see the Act of 15 April 2021 amending the Act on social assistance and the Act amending the Act on social assistance and the Act on mental health protection). As part of this amendment, a new solution was added, consisting in the possibility of referring married persons or a parent and their adult child together to one nursing home, even if these suffer from different diseases.

Objectives and research methodology
This article aims to present and analyse the provisions of the Act on social assistance and other legal acts regulating the referral to, payment for stays in, and the functioning of nursing homes under Polish law, especially with regard to aging Polish society. Understanding these regulations and applying them correctly is particularly important for the addressees of these standards, i.e. primarily for social assistance centres, people who may be residents of such homes, as well as people who may be required to pay a fee for their relative's stay in a nursing home. The latest changes to the regulations pertaining to the matter in question will also be presented.
A further aim of this study is to assess whether the current regulations are sufficient in the context of aging Polish society, or whether changes are required, in which case, of what particular type. Concerning the latter, an attempt will be made to formulate de lege ferenda postulates.
In order to conclude this part of the article, the question of the research methods used also requires some comments. As the focus of this study are current legal solutions, the dogmatic and legal method, consisting in a juridical analysis of relevant legal provisions, in particular the provisions of the Act on social assistance and the Regulation on nursing homes, has been selected as the basic method for conducting research. This method consists in clarifying the correct meaning of the rule of law encoded in the legal provisions under analysis using various methods of interpretation, in particular with the use of linguistic interpretation. Furthermore, the study of legal texts has been enriched to a relevant scope by presenting the views of the science of law and judicature. In addition, the historical-legal, theoretical-legal and statistical methods are also used to a lesser extent. The former consists in analyzing a given legal institution in retrospect while the latter is based on comparing legal institutions. The statistical method analyzes specific legal institutions from the numerical point of view.

Results and discussion
Structure and classification of nursing homes in Poland. Nursing homes are organizational units of social assistance (Article 6, point of the u.p.s.). These are specific units which often replace the family home for their residents. The main task of these institutions is to create living conditions that are similar to family life and to satisfy the living and spiritual needs of the residents.
Pursuant to the Act on social assistance, nursing homes provide living, caring, supportive and educational services at the level of the applicable standard, in the scope and forms resulting from the individual needs of the residents. The organization of a nursing home and the scope and level of services provided, in particular, take into account, the freedom, intimacy, dignity and sense of security of its residents as well as the degree of their physical and mental fitness.
Nursing homes may be run at a commune, poviat or voivodeship level. These are classified into the following types, depending on who they are intended for: • elderly people, • chronically somatically ill people, • chronically mentally ill people, • adults with intellectual disabilities, • intellectually disabled children and adolescents, • people with physical disabilities, • people addicted to alcohol. Even in literature, it is emphasized that "the right to be placed at a nursing home is not properly implemented if the person referred to a nursing home is placed in an institution whose profile of services does not correspond, or only partially corresponds to this person's disability (...)" (Maciejko, Zaborniak, p. 266).
Exceptionally, nursing homes for the following groups may be run in one building, • elderly and chronically somatically ill people, • chronically somatically ill and physically disabled people, • elderly people and people with physically disabled people, • intellectually disabled adults and intellectually disabled children and adolescents. Types of nursing homes may also be interconnected in a different way than specified above, provided that each of them is located in a separate building. Such a nursing home complex provides services at the level of the applicable standard, for each type of nursing home respectively.
The types of nursing homes are of great practical importance. According to Article 54, paragraph 2 of the u.p.s., a person who will receive the benefit of a stay in a nursing home should be referred to one that is appropriate for their illness. A significant exception from this rule has recently been introduced namely, the possibility to refer married persons or a parent with an adult child to a nursing home, despite the fact that these persons qualify for different types of nursing homes (Article 54a, paragraph 1 of the u.p.s).
From a practical point of view, the classification of nursing homes into those run by public (local government units) and non-public entities is also important. The functioning of public and non-public nursing homes is based on different principles, however, there are common elements to their activities. Regardless of the entity type, each nursing home operates on the basis of a permit, is subject to registration and required to comply with certain standards. Non-public institutions include nursing homes run by the Catholic Church, other churches and religious associations, social organizations, foundations, associations, natural and legal persons.
The operation of non-public nursing homes is determined by the principles and activities that are typical of civil and not administrative law. As a rule, these homes do not perform public tasks, but provide private services. The ground for the stay in such a facility is a civil law contract with the resident or their legal representative. Entities running a non-public organizational unit are not required to set and publish the average living cost per resident. They are not bound by the rules of burdening the relatives of the resident financially, the requirements regarding the fee payment method and applying exemptions. Admissions to such an institution, as well as the rules applicable during a stay, are specified in the contract. These homes operate on a commercial basis, unless they begin to provide services as part of delegated assignments.
Therefore, it is possible to point out the different legal situation of nursing homes run by nonpublic entities and such homes run upon local government assignment. The former resemble institutions run by local governments and perform public tasks as a substitute for local government units. All provisions of the Act on Social assistance regarding nursing homes apply to such institutions (including referral to an institution and payment of fees). In the case of performing delegated assignments, non-public nursing homes are subject to the same rigors as public institutions (Sierpowska, pp. 304-305).
To conclude this part of the article, from the statistical point of view, it should be noted that as of 31 December 2020, there were 826 registered nursing homes in Poland, 605 of which were run by local government units and 221 by non-public entities (Report 05 of the Ministry of Family and Social Policy, p. 6). As of 31 December 2020, the number of nursing homes by type was as follows: • 101 nursing homes for elderly people, • 138 nursing homes for chronically somatically ill people, • 173 nursing homes for chronically mentally ill people, Referral and payment for stays in nursing homes. A stay in a nursing home is one of the benefits provided for in the Act on social assistance. This benefit is granted to a person who requires 24-hour care due to age, illness or disability that is unable to function independently and cannot be provided with the necessary assistance in the form of care services (Article 54, paragraph 1 of the u.p.s). Placing a person in a nursing home is a last resort and should be preceded by an assessment of the possibility of providing help to the person in need at their place of residence and an examination of their family situation (Sierpowska,p. 258).
Referral to a nursing home requires, as a rule, the consent of the person concerned. Only exceptionally, such consent will not be necessary (see Krajewski,p. 97), in particular, if the person referred to a nursing home is completely incapacitated. In this case, such consent may be expressed by their legal representative. Moreover, if a person in absolute need of assistance or their statutory representative do not agree to place them in a nursing home or withdraw their consent, compulsory placement in a nursing home may be ordered by a court.
A given person is referred to a nursing home of an appropriate type, located as close as possible to their place of residence, unless the circumstances of the case indicate otherwise. However, if the expected waiting time for placement in a nursing home of a given type located closest to the place of residence of the person referred is more than 3 months, the person shall, upon their request, be referred to a nursing home of the same type, located as close as possible to their place of residence, where the expected waiting time is shorter than 3 months.
The latest solution in the field of referral to nursing homes (see the Act of 15 April 2021 amending the Act on social assistance and the Act amending the Act on social assistance and the Act on mental health protection) is the possibility of referring certain relatives to one nursing home, even if it is inappropriate for one of them (Article 54a of the u.p.s.). Thus, it constitutes an exception to the principle of single management of a social welfare home, as well as an exception to the principle of referral to a proper type of nursing home. This exceptional solution may be applied in particularly justified cases when the conditions for referral to a nursing home are also met by married persons or parents with adult children (Article 54a, paragraph of the u.p.s.). The ratio legis of this new solution is "to enable the maintenance of family ties despite referring the abovementioned persons to a facility that provides 24-hour support" (see Justification for the draft Act amending the Act on social assistance, form no. 969, Sejm of the 9 th term of office).
Then, it should be pointed out that stays in nursing homes are subject to payment. The total monthly fee is set every year by the body running the nursing home. Currently, such a monthly fee usually ranges from PLN 4,000 to 5,000 (approximately €880-1,110). The question of who, however, and in what order, is obliged to pay this fee, is specified in Article 61 of the u.p.s. Pursuant to this provision, the following persons are required to pay for a stay in a nursing home: 1) a nursing home resident and in the case of minors, a statutory representative out of the child's income, 2) a spouse, descendants before ascendants, 3) the commune from which the person is referred to the nursing home, whereas the persons and the commune specified in points 2 and 3 are not obliged to pay the fees if the resident of the nursing home bears full payment.
A resident is obliged to pay a fee of up to 70% of their monthly income. In fact, a spouse, descendants or ascendants are required to pay a fee if their monthly income exceeds the amount of PLN 2,328 per single-person household or PLN 1,800 per persons in families (300% of the income threshold set in Article 8, paragraph 1 of the u.p.s.). If a resident, spouse, descendants and ascendants they do not have sufficient income to cover the full fee, the remaining part of the fee is to be paid by the commune that refers the resident to the nursing home.
It should also be added that if a fee for staying in a nursing home could, in certain cases, constitute an excessive financial burden for a resident or their family or when otherwise justified, it is possible to submit an application for exemption from payment. This may occur, in particular, in the following cases: • the person obligated to pay is already a payer of a fee for a stay of other family members in a nursing home, support centre or other facility, • in justified circumstances, especially in the case of a long-term illness, unemployment, disability, death of a family member or material losses resulting from a natural disaster or other fortuitous events, • spouses, descendants, ascendants living on one benefit or remuneration, • the person obliged to pay the fee is pregnant or is raising a child alone, • the person obliged to pay the fee or their parent stayed in a foster family, family orphanage or institution of emergency care and education, on the basis of a court decision limiting parental authority of a person referred to a nursing home or a nursing home resident, • the person obliged to pay the fee presents a court judgment dismissing the claim for maintenance for the person referred to a nursing home or a nursing home resident, • the person obliged to pay the fee proves, in particular on the basis of the documents attached to the application, a gross breach of the maintenance obligation or other family obligations by the person referred to the nursing home or a nursing home resident towards the person obliged to pay the fee.
Additional grounds for exemption from payment are provided for in Article 64a of the u.p.s. According to this provision, the person obliged to pay the fee for a stay of the nursing home resident in a nursing home is completely exempt from this fee, upon their request, provided that they present a valid court decision on deprivation of this resident of parental authority over the person and declare that the parental authority has not been restored or the final court decision on the conviction of the resident for an intentional crime prosecuted by public indictment committed to the detriment of the person obliged to pay the fee, his descendant, minor or adult incapacitated due to age, mental or physical condition of a sibling or their parent, unless the conviction has expunged. Moreover, it should also be added that if, after setting the payment, the resident or other person is exempt from the payment, the amount exempted may not be transferred to other obligated persons.

Сonclusions
First of all, it should be pointed out that Polish society will continue to age in the coming years. For several years now, the natural increase rate has been negative (there are fewer births than deaths in a given year) also the number of people aged 65 and over has doubled since the 1990s and continues to grow dynamically. It is true that measures are taken to boost the natural increase (e.g. child benefit, family care capital or lowering the fee for a child's stay in a nursery), but these may produce a result in the long term (i.e. a few to several years), and the outcome of these activities is uncertain. Therefore, it should be assumed that these circumstances will make it necessary to increase the number of places in nursing homes.
It should be noted that at the end of 2020, there were approximately 5,000 vacancies in Polish nursing homes. Therefore, it should be assumed that the Polish regulation is sufficient at the moment. Nevertheless, it appears that in the coming years it will be necessary to invest in new nursing homes. The rate at which new places are created may be considered alerting. In 2020, the number of places in nursing homes decreased by 95 and only 5 new places are planned to be created in 2021 (Report 05 of the Ministry of Family and Social Policy, p. 3).
It should also be added at this point that in connection with the Russia-Ukraine war, the Polish government has decided not only to accept all refugees from Ukraine, but also grant them all social assistance benefits including the possibility of applying for a referral to a nursing home. This may also be an additional factor causing the necessity to quickly increase the number of vacancies in nursing homes (Article 29 of the Act of 12 March 2022 on assistance to Ukrainian citizens in connection with an armed conflict in the territory of that country).
The structure and types of nursing homes seem to be correctly defined by Polish law. On the one hand, they are adapted to the administrative territorial division of the country (nursing homes at commune, poviat and voivodeship level). On the other hand, types of nursing homes correspond to illnesses most common among the people referred to such homes Therefore, nursing homes are set up as close as possible to the place of residence of persons interested and, due to specialization, provide a high standard of care. In order to optimize the costs, the possibility to interconnect nursing homes was introduced, but it may only be applied in the case of similar illnesses.
On the part of the legislator, a tendency may be observed in recent years to extend the grounds for exempting a nursing home resident and their spouse, descendants and ascendants from paying for a stay. In 2019, two such reasons were added (Article 64, paragraphs 5 and 6 of the u.p.s.). On the other hand, the most recent circumstance added in 2022 is a gross breach by a person referred to a nursing home or a resident of thereof of the maintenance obligation or other family obligations towards the person obliged to pay the fee (Article 64, paragraphs 5 and 6 of the u.p.s.). As a side note, it should be added that in the case of exemption from Article 64 of the u.p.s. it was not necessary to add new grounds for exemption as the calculation in this provision is only an example. Therefore, also in the previous legal state, these could be taken into account when exempting from paying a fee.
The above-mentioned phenomenon related to the addition of new grounds for exemption from payment should generally be assessed positively. In exceptional situations, especially when a resident failed to treat properly their relative obliged to pay, it is not morally justified to pay for such resident's maintenance in a nursing home. This phenomenon also has a negative side. Namely, the more often a resident of a nursing home or their relatives are exempted from paying the fee, the more participation is required from communes. All the more so as the costs of living in nursing homes are increasing, both due to the recent high inflation rates and military operations on the territory of Ukraine.
A tendency for improving the rules governing referral to nursing homes may be observed. This framework includes, among other things, a new institution of joint referral to a nursing home. This solution is necessary, although in its current wording it seems that this provision is too narrowly defined from the subjective point of view. De lege ferenda, it should be postulated that not only spouses and parents with adult children, but also people in partnerships and siblings should jointly be referred to a nursing home.