The Council of State meets tomorrow to discuss the constitutionality of the nursing homes legislation that was rushed through the Oireachtas last week.
The new law, which has been much criticised, is to enable the authorities to charge residents in long-term state care for their keep.
The Ombudsman, Emily O'Reilly, has said that it is the opinion of her office that long-stay care in a nursing home amounted to in-patient care and that medical card holders should not be charged for these services.
In a statement this evening, Ms O'Reilly also said that current legislation did not address the responsibility of the Department of Health to non-medical card holders who were being directed into private nursing home care.
Earlier, the decision of the President, Mary McAleese, to convene the Council of State was welcomed by Fine Gael.
The party's health spokesman, Dr Liam Twomey, said it was seeking legal advice on the retrospective nature of the bill and more time was needed to assess it properly.
Meanwhile, it has emerged that a proposal to change the law on eligibility for nursing home care was discussed in 2001 by two Cabinet members.
If implemented, it would have removed the duty on health boards to provide nursing home beds for elderly people in private nursing homes if there were not enough public beds, and to pay some or all of the cost.
Correspondence on the matter between the then Minister for Finance, Charlie McCreevy, and his colleague at the Department of Health, Micheál Martin, has been seen by RTÉ News.
