This guidance is aimed at CCGs and Trusts involved in Continuing Healthcare (“CHC”) commissioning. The Coronavirus Act 2020 implements changes which effectively suspend CCG’s and NHS Trust’s duties to carry out assessments under Regulations 21 and 28 of the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, and the CHC Framework. Further guidance on the temporary CHC arrangements is also found in the Covid-19 Hospital Discharge Service Requirements.

The purpose of these changes is to support the urgent discharge of patients who are not required to remain in hospital, and to ease the burden of CHC assessments in and out of hospital settings, and free up clinical and support staff to manage the COVID-19 outbreak.

CHC assessments – Coronavirus Act

The Coronavirus Act sets out the following changes to the CHC eligibility assessment process which are now in force:

CCGs and Trusts:

• are no longer required to ensure that CHC eligibility assessments are carried out where it appears that someone is in need of such care; and
• do not need to have regard to the Framework on the issue of eligibility assessments; nevertheless
• such bodies are still free to carry out eligibility assessments if they wish

However, if a Trust or CCG decides to proceed with an eligibility assessment regardless, the following factors will apply:

• CCGs will only need to comply with the duty to carry out a funded nursing care (FNC) assessment, if the CCG choses to carry out a CHC assessment. In this case, the CHC assessment should take place before the FNC assessment in the normal way
• If an NHS Trust choses to proceed with a CHC eligibility assessment, that assessment must be carried out before the Trust gives notice of a patient’s case to a social services authority.

Funding 

Under the ”Discharge to Assess” model patients will receive NHS funding following discharge until an assessment is carried out.

Temporary arrangements under the Discharge Service Requirements

The following temporary arrangements under the COVID-19 Hospital Discharge Service Requirements ("Discharge Service Requirements") will only apply for the duration of the COVID-19 emergency period: 

What if a patient requests a review of an eligibility decision? 

Patients can still request a review of a CHC eligibility decision (i.e. local resolution, or IRP), but the time frame for response is relaxed. CCGs will not be held to account on timeframes for dealing with CHC eligibility reviews. 

Do CCGs still need to carry out regular CHC reviews? 

CCGs are expected to take a proportionate view to undertaking 3 month and 12 monthly reviews to ensure care packages are meeting the individual’s needs and any concerns raised are addressed as appropriate. 

What will happen to all of these cases once the pandemic ends?

There is expected to be a large backlog of CHC assessments, so CCGs should develop a handling plan to ‘normalise’ systems following the COVID-19 emergency period. Local systems should implement a method of monitoring actions taken during the COVID-19 emergency measures, for example using the NHS CHC Checklist, so that individuals are assessed correctly once business as usual resumes.

What about those most vulnerable patients in need of care?

CHC assessments involve assessing the specific needs of highly vulnerable individuals to commission care. Therefore it is still important to ensure that care packages are commissioned to meet the needs of these individuals. The government has agreed to provide the funding required to fund these packages of care.

What happens when the increased government funding for care runs out after the pandemic ends?

Where care has been provided free at the point of delivery for the emergency period having relied on increased government funding, individuals expectations will need to be managed as these funding arrangements may not continue after the emergency period

Conclusion

The Discharge Service Requirements make clear that it is still important to commission packages of care to meet individuals’ assessed needs. However the Requirements and Coronavirus Act also make clear that the priority is increasing bed capacity and freeing up clinical and support staff to assist with the COVID-19 emergency. CCGs and Trusts are now lawfully entitled to not carry out CHC eligibility assessments during this period, which should provide protection from risk of legal challenges by patients. However, it should be remembered that, while the timescales for CHC reviews have been relaxed, the requirement for review has not been withdrawn, and CCGs should remain mindful of this.

In addition, CCGs and Trusts should be mindful of the messages which are communicated to patients regarding NHS funding for packages of care, and establishing systems to monitor the provision of packages of care during this period, so appropriate steps can be taken at the end of the COVID-19 emergency period.

How Capsticks can help

If you have any queries around what's discussed in this article, and the impact on your  organisation, please speak to Charlotte Radcliffe or Francis Lyons to find out more about how Capsticks can help.

For urgent out-of-hours queries please contact our emergency line on 0208 780 4860 and you will be put in touch with a solicitor who will be able to assist you.