Essential Preparation and Planning As CCGs Restart Assessments and Appeals From 01/09/2020

September 1st 2020 marks the date for the reintroduction of assessments, reviews and appeals for NHS Continuing Healthcare Funding (CHC) which had been on hold for many months due to COVID restrictions and NHS key staff being redeployed to help hospitals discharge patients. But since last week, the Government has given Clinical Commissioning Groups (CCGs) the green light to resume their CHC work, whilst the NHS realigned its resources to fight the coronavirus pandemic.

How does the 1^st September affect you?

Your relative may be awaiting a review or assessment for CHC Funding if they:

• received COVID emergency funding for a new or enhanced package of care between 19th March 2020 and 31^st August 2020 following discharge from hospital
• requested an assessment during the period 19th March 2020 and 31^st August 2020
• are given NHS funding for the first 6 weeks following discharge from hospital, starting from 1st September 2020
• were previously awaiting for assessment prior to 19th March 2020 which was deferred due to COVID
• were previously given a CHC package of care prior to 19th March 2020 which was awaiting a 3 monthly or annual review
• were scheduled for a CHC assessment which had to be postponed

Given the huge backlog of reviews (for those already in receipt of CHC Funding) and pending assessments (for those awaiting CHC Funding), it is going to be a massive logistical problem for CCGs to catch up. In the meantime, more people are joining the queue every day as the demand for new assessments resumes.

Here are 4 key areas where CCGs are likely to focus their efforts post 1st September 2020:

Focus: Checklist Assessments

The Checklist assessment is the starting point for obtaining NHS Continuing Healthcare Funding (or ‘CHC’) – free funded care provided by the NHS for your relative’s clinically assessed healthcare needs, including social needs and accommodation.

Unless they fall into one of the exceptional categories where a Checklist is not required (see the National Framework for NHS Continuing Healthcare Funding – paragraph 91), an initial assessment should ordinarily be carried out within 6 weeks following discharge from hospital and a decision communicated to you within the same period.

The Checklist is not the assessment itself, but a screening tool to see whether your relative should pass onto the second stage, being a Full Assessment.

It is at the Full Assessment, undertaken by a multidisciplinary team of health professionals, where the decision to ‘recommend’ eligibility for CHC Funding is made, and referred to the CCG for formal ratification.

If the assessment takes longer than 6 weeks, the NHS, not your relative, should continue to pay until the Checklist has taken place and they have been notified of the outcome decision.

If your relative received emergency COVID-funding following discharge from hospital, then that existing funding should also continue until formal assessment has taken place.

It is assumed that the NHS will instigate these assessments promptly, not only because they are mandated by the Government to reintroduce assessments expeditiously with effect from 1st September 2020, but also due to financial consequences, as the NHS may be responsible for funding care beyond 6 weeks and until such time as the assessment for eligibility is carried out. Therefore, there is enormous pressure on NHS resources and budgets to get these many thousands of outstanding assessments undertaken as soon as possible.

Tip: Make sure you are notified of the date when the assessment is going to take place as it is vital that you attend to oversee matters, support your relative and give your input.

For more information, read: Understanding the Checklist Assessment

Focus: Full Assessments

If your relative receives a positive Checklist outcome, they will be referred to a Full Assessment which is carried out by a Multi-Disciplinary Team (MDT) consisting of at least 2 different healthcare professionals. This is the first detailed assessment of your relative’s healthcare needs and the CCG’s appointed panel of assessors should consider their relevant care records when completing the Decision Support Tool and making their recommendation to the CCG for CHC Funding.

As the appointed representative, you will need to debate with the CCG’s assessors any areas of need which you disagree with and give cogent reasons why. Don’t forget that the CCG’s assessor may not be too familiar with your relative or their daily needs (and indeed the assessment process itself!). So, it is important that you are there to set out your case and fill in any missing gaps in their knowledge or material details which they may have overlooked when conducting their MDT assessment.

Our Top Tips:

1. It is absolutely vital that you prepare for this meeting in great detail in advance.
2. Get hold of your relative’s care records as soon as possible. Make a careful note of key entries that would support their increased healthcare needs.
3. Have your arguments ready to support the level of need in each of the 12 Care Domains.
4. Think about your relative’s daily needs, who is involved in their care, how long it takes, and what skills are needed to assist them? Are their needs intense, complex and unpredictable, and if so, when did the needs change and what impact does it have on other needs?
5. Be ready! Familiarise yourself in advance with the National Framework, the assessment process, how the MDT works, the DST and its guidance notes.

There is lots of information to help you on our website, but for more general information read these blogs:

Attending an Assessment or Independent Review Appeal?

Preparing for the Multi-Disciplinary Team Assessment

Focus: 3 and 12 Monthly Reviews

Due to COVID, nearly all reviews that were scheduled to take place either at 3 months or 12 months, following receipt of CHC Funding, were postponed.

Since 1^st September 2020, it is now expected that these reviews will resume with all haste. Of course, with inherent backlogs, it is likely that many of these reviews will continue to be delayed, which will be a relief to some already in receipt of CHC Funding, secure in the knowledge that it is likely to continue for the foreseeable future.

However, if the package of existing care is currently insufficient to meet your relative’s increased healthcare needs, then you should push your local CCG for an early review. It is vital that the package of care meets their increasing needs.

Our Tip:

Beware, however, as these reviews can cause families great anxiety. There is always the underlying fear that the CCG may disagree with your views about your relative’s ongoing or increased healthcare needs, and instead recommend that funding is withdrawn.

Focus: Appeals

If you’ve been refused CHC funding at a Full Assessment or have previously had funding which has been removed, you have the right to appeal that decision within 6 months of it being notified to you.

There are 2 levels of appeal: Firstly to the CCG, at local level – which includes a more formal review by a Local Resolution Panel, conducted by the CCG. A negative outcome will entitle you to appeal to an Independent Review Panel which is held by NHS England.

As with retrospective review claims seeking to recover care home fees that were wrongly paid, it is vital to prepare your written submissions in advance and think carefully about the nature, intensity, complexity and unpredictability of your relative’s care needs – understanding the application of the 4 Key Indicators is paramount to success.

Our Tip: We strongly recommend that, if you do not already have a full set of GP, Hospital and Care Home records, you apply for them as soon as you receive notification of your right to appeal. This task can often take more time than anticipated, and especially so in the current COVID climate, where inevitably most of these organisations are still understaffed.

Once records have been received, you then need to sit down and laboriously spend hours looking in fine detail at the entries in each line of every set of records to build a picture of your relative’s healthcare needs by direct reference to the DST (or Needs Portrayal Document in a retrospective claim). Depending on the volume of records, it can often take several weeks to compile your written submissions in support of your appeal. Therefore, the key is early preparation and planning. If you want specialist help, visit our one-to-one page.

Our Tip: The sooner you can lodge your appeal, the higher up it will rank in the queue, and hopefully, the quicker it will reach an outcome – minimising your outlay for care fees in the meantime.

For more reading around the subject, look at these blogs:

An exclusive Q & A interview with an IRP Chair – a rare insight into conducting your appeal and knowing what to expect on the day 

PART 1 – Looking At The 4 Key Indicators: Unlocking the Basics
PART 2 – Looking At The 4 Key Indicators: Gathering pieces of evidence
PART 3 – Looking At The Four Key Indicators: Completing the Jigsaw
PART 4 – Looking At The Four Key Indicators: Drafting Your Conclusions

How to access your notes and records

Pursuant to the General Data Protection Regulations (GDPR), everyone is entitled to access to their own medical notes and records. The request for this data is made by a Subject Access Request (SAR).

There is no set format for making your SAR, but it is preferable to do so in writing eg email, so you can keep a copy and track progress. A SARs request can be made verbally, too.

Your SARs request does not have to include the phrase ‘Subject Access Request’ or refer specifically to Article 15 of the GDPR, as long as it is clear that the individual is asking for their own personal data.

The records should be provided to you promptly and within 1 calendar month of the receipt of your SAR. For example, if your GP’s surgery receives a request on 1st September, the time limit will start from the same day, allowing them until 1st October to comply with your request. If the end date is a weekend, the date is extended to the next working day – Monday. Similar rules apply for public bank holidays.

If there is a delay, you are entitled to make a formal complaint to the Information Commissioner’s Office (ICO). This is a draconian step but it will get results, if your gentle reminder fails to get their attention!

The records provider can extend the time to respond by a further 2 months if the request is complex or you have made a number of requests, provided that they have explained why the extension is necessary within 1 month of receiving your SAR request.

You may be asked for ID to check your legitimate entitlement to the records or for clarification to help identity the documents requested, but the provider must still respond to your request within 1 month to your SAR request.

Remember to keep proof of the date your SAR request was made so you can chase progress and timely compliance (hence email or Recorded Delivery are recommended).

Can the Records Holder charge a fee?

The records holder is generally not entitled to charge you a fee for providing records under GDPR, unless the request is ‘manifestly unfounded’ (eg “malicious in intent and is being used to harass an organisation with no real purposes other than to cause disruption”) or ‘excessive’ (such as repeated SARs requests for copies of the same information in a short period of time, or overlapping requests relating to a completely separate set of information; or previously submitted requests which have been manifestly unfounded or excessive).

In either case, they can charge a ‘reasonable’ fee for administrative costs or even refuse the request outright. But, charging should be on a case-by-case basis and is considered to be more the exception than the rule.

Do you have consent and authority?

Before releasing any records, the records holder should be satisfied that the person making the request has sufficient authority to do so, otherwise they are perfectly entitled to reject the SAR’s request.

• If you are acting for yourself, you can, of course, give direct consent for your own records to be released to you.

• If you are acting on behalf of another person who lacks mental capacity, you will need formal authority to make a request for access to their records.

• If your relative is living, then a Lasting Power of Attorney will suffice. Usually an LPA for Health an Welfare is required, but often an LPA for Property and Financial Affairs will do the job, either because the records holder doesn’t spot or know the difference between the two types of LPA, or because the records are claimed to be for financial purposes (ie the outcome as to whether your relative is awarded CHC Funding or has to self-fund their care – is clearly a financial matter). However, the fact that you have either LPA should give the records holder sufficient comfort that you are duly authorised to obtain these records. Read:  Self-defence–Protect yourself and make a Lasting Power of Attorney.

• Where no attorney has been appointed under an LPA, information can be released where there is both a legitimate need for the information and releasing the information would be in the ‘best interests’ of the individual. Read these helpful blogs: Do you need legal capacity to assist your relative’s claim for NHS funding? Arguing “BEST INTERESTS” and  Tackling consent: Keeping control if your relative lacks mental capacity

• If seeking records to carry out a retrospective claim on behalf of a deceased relative, their personal representative will need to provide authority to act under their Will or provide a suitable Grant of Probate.

Pre-GDPR, record holders were able to charge for providing such records under the Access to Health Records Act 1990, but now under GDPR these records should be provided free of charge.

Postage costs for SARs should not be charged for, unless they are ‘unfounded or excessive’.

Early planning and thorough preparation are essential ingredients for a successful application for CHC Funding. However, families often tell us that they find CHC assessments and appeals overwhelming, daunting, stressful and emotionally draining. If you need professional help or advocacy support with your assessment or appeal, visit our one-to-one page. 

For more information:

There are plenty more useful blogs on all these subjects on our Care To Be Different website. Use the search bar to find what you are looking for.

Information Commissioners Office: https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/individual-rights/right-of-access/

British Medical Association: https://www.bma.org.uk/media/1788/bma-access-to-medical-reports-oct-19.pdf

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