The Coronavirus crisis has drastically affected the procedures around health and social care funding. Under the Coronavirus Act 2020 and the “COVID-19 Hospital Discharge Service Requirements”, the Government has suspended many of the NHS’ and local authorities’ duties to assess care needs. For the duration of the emergency period, which could last up to two years, there will be significant changes to virtually every aspect of NHS Continuing Healthcare (NHS CHC) funding. Here is what you need to know if you (or more likely a family member) is receiving care, or may require it in the near future.
Under the Act, NHS Clinical Commissioning Groups and trusts no longer have a duty to ensure an NHS CHC assessment is carried out in cases where it appears that the patient may have continuing healthcare needs and care requirements that could be funded by the NHS.
Under emergency changes to the Care Act 2014, it will no longer be necessary to consider NHS CHC prior to any assessment notice being given to local authority social services with regard to patients not safe to discharge until care and support are in place.
What happens if my family member is ready to leave hospital but needs care?
The discharge process from hospital normally includes talking to you and your family member about their future care needs. If they were not able to return home, even with domiciliary care, they would be able to express a preference on where they wished to go into residential care. You would probably want to visit some homes before you made a decision. There would be discussions about the package of care your family member required, and whether this arose from a “primary health need”. A multi-disciplinary health and social care team would make an assessment for NHS Continuing Healthcare (NHS CHC) to establish whether the NHS should meet the full cost of their care. If the answer was no, only then should means testing for local authority care come into the equation.
This has all changed due to the Coronavirus crisis. During the emergency period, discharge will happen much faster – usually within hours. Your family member will not be able to stay in hospital until you have discussed on the best way of meeting their care needs. Instead, hospital staff will discharge them as soon as they are medically fit to a safe and appropriate place. It is suggested in all but about 95% of cases this is likely to be home. Where that is impossible, it will be to a residential or nursing care facility that the discharge team will locate from a national bed tracker.
Your family member should be contacted shortly after discharge (either the same or the following day) by health and/or social care professionals who will put a care package in place. It is important to prepare for this as quickly and as comprehensively as possible so that you can ensure the support meets their needs and preferences.
Who will pay for care during the Coronavirus crisis?
Individuals who the CCG considers “may be eligible” for CHC funding will be directed towards new NHS-funded discharge routes until they can be assessed for NHS Continuing Healthcare funding. This will probably be following the conclusion of the emergency provisions. The NHS should fund new or enhanced care packages arranged after March 19th 2020 for the duration of the emergency period. However, your family member may need to start paying for their care once the emergency period is over – unless they qualify for NHS CHC or local authority funding.
Your family member may not receive a full assessment of eligibility for NHS Continuing Healthcare funding during the emergency period. However, the CCG must identify and log individuals who are likely to need an NHS CHC assessment after it ends. If you think your family member may qualify, request this from the professionals arranging your family member’s care package immediately, putting it in writing in a dated email. Resources permitting, the CCG might decide to carry out an NHS CHC checklist, the first stage in deciding if someone is eligible for NHS CHC funding. If they do this without your presence due to social distancing measures, insist you receive a copy of the checklist as soon as possible. Do your best to query anything that you believe is not in line with your own knowledge of your family member’s needs, by telephone or email. If the checklist has a negative outcome, you can request another one after the emergency period is over and/or make a formal complaint. Please ensure you comply with any deadlines. If no checklist is done, make sure you put a formal request in writing to the CCG for one immediately after the emergency period.
Those who were self-funding their care before March 19th 2020 will undoubtedly have to continue to do so until the emergency period is over. But if you believe they should now be receiving NHS CHC funding due to a change in circumstances, it is important to record this in writing to the CCG as soon as possible so that any eventual funding is backdated. Request an assessment as soon as possible, explaining why you believe they are eligible.
What do we do if we cannot get an NHS CHC assessment during the Coronavirus crisis?
As always, my advice is to document, document, document. Swot up on the domains used to decide on eligibility for NHS CHC and write down your family members’ needs in as much detail as possible under these headings. We understand, however, this could be difficult to do if you are unable to visit during the emergency period. We know also that carers are under tremendous pressure. Nevertheless you must insist that all care records are kept up to date in adequate detail as these will be key to any eligibility assessment. Perhaps you could keep a care diary (dates, times and details) of your family member’s physical, mental and emotional state based on any telephone conversations with their carers. Ask the carers if they can help you Facetime your family member if appropriate. Look out during these interactions for clues as to their psychological, physical and emotional condition and their level of alertness and awareness. Do you notice anything new or unusual? Do they seem to be deteriorating?
What if I had an NHS CHC review pending before the emergency period?
It is impossible to say for sure whether this will take place – it will depend on resources and priorities within your local CCG and the pressures it is under due to the effects of Coronavirus. Discharge guidance says CCGs should take a proportionate view to carrying out the three- and 12-month reviews of individuals who are currently receiving NHS CHC funding. In line with the National Framework, reviews should still focus on whether the current care package meets their needs, rather than on whether they remain eligible for existing CHC funding to pay for their care. So while a lack of reviews lessens the risk of losing your family member’s NHS CHC funding, it may also mean that their care package is more likely to be inadequate to meet their needs.
What if I want to appeal an NHS CHC eligibility decision from before the Coronavirus crisis?
You can still request an appeal of any decision and the normal deadlines for doing so remain in place. This means you should still have up to six months to request local resolution from the date on the eligibility decision letter (please carefully check the decision outcome letter and any deadlines imposed). And you have six months to request an Independent Review, but must submit all your written evidence and supporting statements within six weeks of that request.
However, under the Discharge Guidance the expectations on CCGs regarding maximum response times to requests will be relaxed.
Given the current constraints of the Coronavirus crisis, and the requirement for social distancing, we think it realistic to suppose that appeal meetings and panels will generally be postponed until after the emergency period.
What about local authority social care assessments during the Coronavirus crisis?
The Coronavirus Act also suspends the duties on local authorities under the Care Act 2014 to assess the needs of adults, adult carers, disabled children in transition and their carers and young carers who appear to have needs for care and support, and to determine whether such needs are eligible for funding. The provisions also weaken the authorities’ duty under section 18 of the Care Act to establish an entitlement to public care and support for adults who need care. But this is still required if it is necessary to prevent a breach of the person’s rights under the European Convention on Human Rights and they are still required to respond to unmet care needs.
What will happen once the Coronavirus crisis is over?
The Coronavirus crisis will undoubtedly create a backlog of NHS CHC assessments and delayed appeals. The government says CCGs will need to develop a handling plan to enable the system to return to ‘normal’ following the emergency period. But as we know from experience, ‘normal’ was all too often not good enough anyway.
My advice? Register your request for an NHS CHC assessment sooner rather than later. Start documenting as much as you can, and insist that your family member’s carers do the same. Start preparing your arguments for the assessment/appeal process. Make sure these are as comprehensive and robustly worded as they can be. You can find some pointers here to help you. Or you can contact Just Caring Legal by telephone or email for more detailed guidance. For us, it’s business as usual. So stay safe and please call if you need help – we are still here to advise you.