With the unprecedented onset of coronavirus pandemic, the Government has recently had to introduce some immediate measures to be able to cope with the dramatic influx of hospital admissions and the need for prompt and efficient discharge.
NHS Continuing Healthcare Departments are being depleted as they redeploy more qualified staff away from the current roles in order to utilise their skills to help the NHS cope in key areas, such as hospital discharge and care planning. In the current challenging circumstances, we expect most NHS Continuing Healthcare Departments will be operating services at a very basic level, whilst they free up staff and divert nurse assessors to support NHS hospitals, and particularly discharging patients from hospital.
We applaud the NHS and all their brave staff, workers and many volunteers in these difficult and most challenging times. We pray for their safety and well-being.
In the meantime, the knock-on effects of coronavirus on CHC assessments, reviews and appeals can be felt right across the country. But what does this mean from a practical perspective, for your relative who may be in the process of being discharged from hospital into a care facility, or awaiting an assessment for NHS Continuing Healthcare Funding, or else waiting an appeal to a Local Resolution Panel Meeting or to an NHS England Independent Review Panel?
Inevitably, with some other more pressing priorities during these times of national crisis, there is already a noticeable difference as to how Clinical Commissioning Groups (CCGs) are dealing with CHC assessments and appeals. Nationwide, CCGs are adopting a more relaxed approach in their adherence to their own National Framework for NHS Continuing Healthcare Funding and NHS-funded Nursing Care. Understandably, their immediate priorities lie elsewhere in the current state of emergency. But, then again, when did Clinical Commissioning Groups ever follow their own guidance to the letter, save where it suited them!
However, with the perpetuation of coronavirus, there has been a dramatic slow down in CHC assessments and huge backlogs are being created – estimated to be in the thousands per month. This will only serve to add enormous pressure on CCGs, who are already stretched beyond their elastic limit and can’t meet the National Framework deadlines for their existing workload of pending assessments and appeals. So, naturally, we are very concerned as to how they will manage to cope with the additional backlogs now created in the post-COVID-19 environment. The consequences of the log-jam of assessments and appeals will surely be felt for many months, even after life returns to ‘normal’ again.
We thought it would be helpful at this point to mention the Coronavirus Act 2000, which came into force on 25 March 2020.
This recent legislation covers many areas, but Section 14 is of particular relevance to CHC Funding.
Section 14 of the Coronavirus Act deals specifically with NHS Continuing Healthcare assessments. In short, it states that a ‘relevant body’ (ie the NHS or CCG) does NOT have to comply with various existing duties, including the duties imposed by regulation 21 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (S.I. 2012/2996) with regards to its duty to:
(1) undertaking assessments of eligibility for the provision of CHC where it appears that either (a) there may be a need for such care or (b) an individual who is receiving CHC may no longer be eligible for such care;
(2) having regard to National Framework for NHS Continuing Healthcare in so far as relating to its duties to carry out those CHC assessments referred to above;
(3) carrying out an assessment of a resident who may be in need of nursing care (see NHS Funded Nursing Care (FNC) below);
(4) comply with the Section 2 or 10 of Delayed Discharges (Continuing Care) Directions 2013 – ie the need to carry out CHC assessments or comply with the National Framework when carrying out assessments.
So, in effect in order to free up staff and vital resources, the Coronavirus Act 2020 relaxes the rules by relieving CCGs of many important duties regarding their obligation to carry out CHC assessments or FNC assessments, or even the need to comply with the National Framework in relation to such assessments.
Since our previous blog on the subject, NHS Continuing Healthcare Funding Put On Hold, there have been more developments. Here are some salient key areas that might affect your relative.
As most areas of CHC Funding are on hold at present, we have added some links to previous blogs for additional reading around the subject, which you might find helpful. Don’t forget – we have lots more free resources and information available on all aspects of CHC on our website.
1. Discharge from hospital
The most severe cases will receive priority admission to hospital.
Hospitals are mandated to speed up patient discharge, by prioritising those patients who are considered no longer in need of hospital care, and releasing them with minimum administrative paperwork and formality.
This will result in many elderly and vulnerable patients being ejected from hospital and being discharged into a care facility – perhaps not of their own choosing or preference, due to the rush to get them out of hospital and free up beds.
Some individuals whom the CCG considers may be eligible for CHC funding will be directed towards NHS-funding routes – but only once the COVID-19 emergency recovery period has passed.
2. Interim funding
To encourage prompt discharge from hospital during the COVID-19 crisis period, CCGs have been given emergency funds to support individuals who may be waiting for an initial Checklist assessment for CHC Funding, plus an enhancement to those with existing packages of care, post 19th March 2020. But beware! These interim measures may only be temporary and you need to be giving thought as to what will happen if CHC Funding is removed and how your relative will continue to fund their ongoing healthcare needs. If your relative already had a package of care in place before this date, then that is expected to continue.
3. NHS Funded Nursing Care (FNC)
If your relative has been found ineligible for CHC Funding, then they should automatically be considered for FNC, according to Section 28 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (S.I. 2012/2996). However, the CHC assessment must always take place first. That hasn’t changed.
FNC is a weekly sum (currently £165.56) paid by the Clinical Commissioning Group directly to the care home, as a contribution towards the cost of your relative’s nursing care needs that are provided by a registered nurse, employed by the care home.
However, pursuant to Section 14 of the Coronavirus, CCGs do NOT have to carry out assessments for FNC where an individual has or develops a nursing need, and so, these too, are currently on hold.
But, if a CCG does decide to carry out an assessment for FNC eligibility, then it must first carry out a CHC assessment in compliance with the National Framework.
Read our blog: Have you considered NHS-Funded Nursing Care (FNC)?
4. CHC Checklist Assessments and Multi-Disciplinary Team Assessments
The usual starting point to assess whether your relative may be eligible for CHC, is to undergo an initial Checklist. This is a simple screening tool used by the NHS to determine whether the individual should pass on to the next stage – a full assessment – which is carried out by a Multi-Disciplinary Team (MDT) using the Decision Support Tool. The Checklist is not the actual assessment for funding itself, but merely the first rung on the ladder to see if the individual can move forward to a full MDT assessment.
Upon discharge from hospital, your relative is still entitled to ask the NHS for an initial screening Checklist assessment to be carried out to determine if they are eligible for CHC Funding.
However, as above, CCGs are currently NOT obligated to carry out any new assessments in the current COVID-19 climate and these will cease temporarily during the emergency period whilst CCGs redeploy staff to help with hospital discharge and other key areas.
In the meantime, any existing Checklists in the pipeline will continue to be accepted and held in abeyance for future consideration when circumstances improve.
However, if your CCG is willing to do an assessment, rather than being the usual face-to-face visit, it may have to be carried out remotely by video-call or over the telephone. Neither is ideal, but in the circumstance, it may be the only option available.
We recommend that you speak to your CCG to find out what arrangements, if any, they are putting in place to carry out CHC assessments in your area, and to make a diary note to follow matters up.
Read our blogs:
5. Three and twelve monthly reviews post-CHC award.
Ordinarily, once CHC Funding is awarded, a CCG is obliged to carry out an initial review at 3 months, and thereafter every 12 months, to check that the current package of care in place remains adequate to meet your relative’s ongoing needs.
However, in the current climate, and with reduced staffing levels, we expect that the frequency of these reviews will diminish considerably (if not cease entirely) and current packages of care will remain in place, unchecked and unchanged.
This has advantages and gives certainty and comfort to those already receiving CHC Funding, but it may be inadequate for those who need more funding to meet their increasing healthcare needs. The onus is going to be on you to push the CCG to carry out a review if you believe that the current package of care is insufficient to meet your relative’s needs. However, as above, we expect that such reviews will also remain on hold during the emergency crisis period.
Read our blogs:
6. Fast Track Pathway Tool
The Fast Track Pathway Tool is designed to identify those individuals who have a “rapidly deteriorating condition that may be entering a terminal phase in their life” and shortcut the standard assessment process and provide immediate NHS Continuing Healthcare Funding within 48 hours of assessment.
The Fast Track tool is still being used for clinical assessments in urgent cases and has become a means of discharging individuals from hospital quickly with a package of care in place to meet their immediate needs. But beware! When the emergency phase is over, your relative may be re-assessed and have their CHC Funding withdrawn if their needs do not in fact meet the eligibility criteria for CHC.
Read our blogs:
7. Appeals to a Local Resolution Meeting (LRM)
The LRM is the first level of appeal if your relative has been turned down for CHC Funding by the MDT or has had their existing package of care withdrawn upon review (see 5 above).
Some CCGs have advised that they will continue to process the appeals at local level, but rather than them taking place face-to-face, they will now be conducted by video-conferencing or by telephone instead, as with assessments (see above). Indeed, many LRMs were already being conducted by telephone even before COVID-19 and this saves both time and unnecessary travelling expenses. However, some CCGs have made it clear that all appeals – whether existing or newly referred – are being suspended until further notice.
Whilst CCGs are not currently obliged to comply with timescales set out in the National Framework, the normal 6 month timeframe to lodge your appeal for an LRM remains in place. It is yet to be seen post-COVID recovery phase, whether CCGs will adopt a more relaxed attitude if you’ve missed the appeal deadline. So, for the time being, we recommend that you get your appeal in on time regardless, just in case the CCG decides to take issue later down the line and refuses to allow your appeal. There may well, of course, be extenuating circumstances, but why encounter this scenario if entirely avoidable. So, lodge your appeal in time. The fact that the CCG won’t be able to action it for many months afterwards cannot be helped, but at least you can demonstrate that you have complied with the National Framework, even if they can’t!
We would, however, hope that CCGs will adopt a more reasonable and flexible stance in the aftermath of COVID – especially as they have been forced to adjourn, suspend and postpone most appeals due to staff redeployment.
In the meantime, we recommend that you get your evidence together and start preparing your appeal submissions as there will inevitably be delays in obtaining vital care home records, GP and hospital notes.
Read our blogs:
8. Appeals to an Independent Review Panel (IRP)
IRPs are in reality the ‘last chance saloon’ for making your appeal for CHC Funding.
Appeals to an IRP are carried out by NHS England (NHSE).
NHSE are still conducting some existing IRPs that were arranged pre-COVID, but the appeals are now taking place by telephone rather than at a round-table meeting, and require the patient’s consent. Much really depends on the particular area, as most IRPs are suspended until further notice.
In the current hiatus, use your time wisely to prepare your appeal so that you are ready to proceed when current lockdown restrictions are released and appeal panels are ready to reconvene.
Read our blogs:
9. Appeals to the PHSO
The Parliamentary and Health Service Ombudsman have also put all new and existing CHC complaints on hold for the time being where they involve contact with the NHS or clinical advisors, in order not to be a burden on the NHS.
However, over recent years, the PHSO has come to be regarded a ‘toothless tiger’ and hence, why the IRP is considered your last real opportunity of maintaining a successful appeal for CHC Funding.
As expected in these challenging times, the NHS are reprioritising their obligations, understandably putting those most vulnerable and sick at the top of the list and effectively much CHC services on ‘the back burner’ until the current emergency crisis is over.
It is inevitable that CHC assessments and appeals will now be delayed considerably whilst the NHS reallocate their valuable resources to cope with the current pandemic.
As and when life returns to ‘normal’ again, there will be a huge backlog of CHC assessments and appeals in the pipeline waiting review and an outcome decision. This will present a huge administrative challenge for the NHS and CCGs. In the meantime, without CHC assessments taking place, we worry that many families will be left to source alternative funding to pay their relative’s care – which is equally going to be problematic in the current financial climate, where jobs and finances are being stretched in all directions.
Sadly, for some individuals who are currently waiting CHC assessments, they will be waiting for so long, that their claims will transpose into retrospective claims instead.
We also worry whether the measures and resources that become available to CCGs to help them cope with the backlogs and deluge of withheld assessments and postponed appeals, will be sufficient to help those families in need.
We wonder whether the CHC Funding process will look any different when we emerge from the other side of this pandemic? Will it be the same as before, complicated, slow and frustrating, but now with even more added delays; or will a fresh and more streamlined fairer assessment process emerge to help CCGs catch up for lost time on the back of COVID? Only time will tell…
Here are some useful blogs and links for further reading: