Should the NHS be paying care and treatment costs?

Should the NHS be paying care and treatment costs, and how can you question a decision?

The way to argue the point is to request a review of the decision of the NHS body which has  declined care under the NHS. If no decision was ever made, and it looks like the NHS should have paid the cost then a review will sort out the question.

This review system has not been well publicised but through the good work of those who know about the procedure the NHS have had to make payments to reimburse care and treatment costs. Of course it would have been much better to have the correct decision in the first place, but the review procedure has picked up the financial pieces for many.

The NHS has to be paid for, and it needs to budget for the future. The problem with these reviews is they can go back many years, and a high rate of interest is payable on any award made, so they can be expensive. The NHS are therefore imposing guidelines to restrict the time available for reviews to be requested. This makes sense for the NHS but is very hard on those whose treatment should have been paid for by the NHS, and now need to have the issue reviewed.

The NHS have promised to publicise the issue, but have you read or heard about it?

So stop for a moment and take the time to understand how these changes impact on you and family members. We are talking here about reviewing decisions of the NHS, so the time limits relate to decisions made rather than dates of treatment. The first change is for decisions made after 1 April 2012, and the second is for decisions between April 2004 and March 2012.

The first issue is for NHS decisions made after 1 April 2012.

“Eligibility for NHS Continuing Healthcare Funding guidance

15 March, 2012

The Department has published guidance on the time limits starting from 1 April 2012 for individuals or their families and representatives to request a review of an eligibility decision for NHS Continuing Healthcare funding by the local PCT or responsible NHS body at a local level.

These limits will only apply to eligibility decisions notified after 1 April 2012 and not before. Individuals will be informed of these timeframes. Guidance should be provided locally on how individuals need to be informed of their rights in order to seek a review of an eligibility decision.”

The words above are taken from an NHS website at http://www.dh.gov.uk/health/2012/03/continuing-healthcare-funding/

So what are the time limits and deadlines?

The Government has imposed time limits for your right to seek a review as to whether the cost of care or treatment ought to be funded by the NHS, your local authority, or by you. Don’t be confused by terminology as the care is most commonly called continuing NHS health care, continuing care, or fully funded NHS care.

In simple terms if your need for care is due to medical reasons the NHS should pay. If your need for care is for social reasons, for instance you need to be looked after but no one is available, then you will fall under the local authority. The difference is the NHS cannot charge or means-test, but the local authority can

This is not just about care, it is also about treatment. I have dealt with a case where the NHS treatment was not helping so private care was put in place. On review it was accepted the NHS should have provided the care so they paid the cost.

A useful guide to fully funded NHS care was produced in 2006 by Age Concern, Alzheimer’s Society, Help the Aged, and the Royal College of Nursing at

http://www.rcn.org.uk/__data/assets/pdf_file/0006/78693/003031.pdf

Although not bang up top date it provides a very useful guide as to the law and guidelines.

Under the heading Guidance for Strategic Health Authorities and Primary Care Trusts on the time limits for individuals to request a review of an eligibility decision for NHS Continuing Healthcare Funding the Department of Health sets out how the question of care should be handled. The “… document supports the introduction of best practice guidance on the time limits which will apply from 1st April 2012 for individuals or their familes and representatives to request a review of an eligibility decision for NHS Continuing Healthcare Funding.”

Time limits are being introduced for current cases from 1st April 2012. The guidance says the practice will not be retrospective, and they will apply only to eligibility decisions notified after the date of introduction .

The Department of Health guidance for Strategic health Authorities and primary Care trusts is at http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_133056.pdf and the frequently asked questions can be found at http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_133057.pdf

 So what about decisions which pre-date the new deadline?

This is the second issue which relates to decisions between April 2004 and March 2012.

This question is dealt with in a  letter by the office of Sir David Nicholson KCB CBE Chief Executive of the NHS in England to the Department of Health dated 15th March. It tells of the intention to introduce deadlines for families and individuals requesting an assessment of eligibility for NHS Continuing Healthcare for cases during April 2004 and March 2012.

“We are asking that individuals or their representatives notify the relevant PCT in respect of previously un-assessed periods of time where there is evidence that the individual should have been assessed for eligibility for NHS CHC funding with respect to that care. The time periods and deadlines for notification are set out below:

Time Period                                                                                       Deadline

1st April 2004 – 30th September 2007                                 30th September 2012

1st October 2007 – 31st March 2011                                     30th September 2012

1st April 2011 – 31st March 2012                                           31st March 2013”

The letter goes on to say:

“It is very important that this be communicated effectively and as quickly as possible to your local population through whatever means necessary. This could include local press, noticeboards in hospitals and community centres and through local advocacy groups and nursing homes. Nationally, SHA NHS Continuing Healthcare Leads are in the process of preparing advice on the communications process and will also co-ordinate the preparation and distribution of appropriate advertising materials for use by PCTs.

We recognise that there may be exceptional circumstances that mean that some cases may still need to be accepted after the dates outlined above, but in the absence of such circumstances, cases notified to PCTs after the dates outlined should be returned to the claimant with an explanation of why the case is not eligible for assessment.”

You can see guidance on the Department of Health website at http://www.dh.gov.uk/health/2012/03/closing-nhs-continuing-healthcare-assessment-process/

This page publicised the letter from the Chief Executive and includes a frequently asked questions section which are I set out in full below for your convenience:

1. What are the deadlines?We are asking individuals or their representatives to notify the relevant Primary Care Trust (PCT) in respect of previously un-assessed periods of time where there is evidence that the individual should have been assessed for eligibility for NHS Continuing Healthcare (NHS CHC) funding with respect to that care. The time periods and deadlines for notification are set out below:Time Period                                                               Deadline1st April 2004 – 30th September 2007                   30th September 20121st October 2007 – 31st March 2011                       30th September 20121st April 2011 – 31st March 2012                             31st March 2013
2. Why are these deadlines being introduced?
The National Framework for NHS CHC was introduced in 2007 (and revised in 2009) to ensure a nationally consistent process for consideration of NHS CHC eligibility, including the identification of individuals who might require an assessment for eligibility. This announcement introduces a process which will enable any individuals who should have been assessed from 1st April 2004 to 31st March 2012 to be identified and considered as soon as possible.A similar process was conducted in 2007 to ensure that cases which occurred before 1st April 2004 were dealt with in a timely manner.It is important that PCTs are notified as soon as possible about people that should have been assessed for NHS CHC in the past because as time passes, detailed recorded evidence of the individual’s needs for the period of time in question may no longer be available.
3. Why are there two different deadlines?
The setting of two different deadlines, ensures that in all instances, individuals and their families or representatives have a minimum of 12 months to request an assessment of eligibility from the date that their period of care occurred. This is line with the NHS complaints process and also the process to bring complaints to the Parliamentary and Health Service Ombudsman.
4. How are people going to know about these deadlines?
Strategic Health Authorities (SHAs) and PCTs will undertake a local communications exercise to publicise these arrangements. The Department of Health is working with SHAs to agree clear and consistent information to ensure that individuals who may be affected, their families, representatives and relevant organisations are aware of, and understand, the arrangements that are being put in place.
5. What happens if I miss the deadline?
In the absence of exceptional circumstances (to be determined locally by the responsible PCT), late applications will not be considered if the deadline has passed.
6. Do these deadlines impact upon cases that Primary Care Trusts are currently considering for assessment of eligibility?
No.
7. What happens if the period of eligible care need covers more than one of the time periods advertised?
For a period of care occurring within one of the timeframes to be considered, then unless there areexceptional circumstances, notification must be given by the relevant deadline for that time period.Therefore, for any period of care up until the end of March 2011 to be considered, notificationwould have to be given by 30th September 2012. Any notification given after 30th September 2012will only consider care provided from 1st April 2011 even if the care period started before this date.Where the period of care runs between the specified time periods, for example between October 2010 and March 2012, notification would need to be received by 30th September 2012 for the whole period of care to be considered. In this instance, any notification given after 30th September 2012 would only consider the care provided from 1st April 2011.Where a period of care relates to a time period which covers both pre and post introduction of the National Framework for NHS CHC, for example, a period of care which falls within April 2007 to March 2011:• from April 2007 to 30th September 2007, the assessment would be subject to the local processes and eligibility criteria in place at that time (and must be Coughlan and Grogan compliant); and• from 1st October 2007 to March 2011, the assessment would be subject to the guidance set out in the National Framework for NHS CHC (published in 2007 and revised in 2009).
8. What happens when clinical commissioning groups take over from Primary Care Trusts?
From 1st April 2013, subject to the passage of the Health and Social Care Bill, clinical commissioning groups (CCGs) will take over the statutory responsibilities for NHS CHC from PCTs. The introduction of these deadlines will not affect the eligibility criteria for NHS CHC set out in the National Framework, or the statutory responsibilities of CCGs from 1st April 2013.
9. Will the proposed changes in the NHS affect current eligibility for NHS Continuing Healthcare?
No.
10. I didn’t see any of the communications about these deadlines and I want an assessment
The Department of Health has worked closely with the NHS to develop robust handling plans to ensure that local organisations and populations are aware of the introduction of these deadlines. Unless there are exceptional circumstances (to be determined locally by the responsible PCT), late applications will not be considered if the deadline has passed.
11. How do I request consideration for NHS Continuing Healthcare before the deadline for the relevant period of care need?
Individuals wishing to submit notification of a request for an assessment of care needs for eligibility for NHS CHC funding should contact the PCT Continuing Healthcare team locally. Local communications will set out the relevant contacts in relation to the introduction of these deadlines.
12. Who has been involved in the decision to introduce these cut-offs?
The Department of Health has worked very closely with the NHS about the introduction of these deadlines. In addition, we have had detailed discussions with members of the NHS Continuing Healthcare Stakeholder Group. The Group includes a range of stakeholder organisations including the Association of Directors of Adult Social Services (ADASS), Age UK, the Alzheimer’s Society, the Spinal Injuries Association, Parkinson’s UK and Marie Curie Care.

Warning

The review process is not difficult. It is a matter of completing a form, and making sure you include the right information. The review body will see the medical records and carry out a detailed assessment of the treatment and care, and decide what should have been carried out under the NHS responsibilities.

Take care if you ask for help. Some organisations will take a significant slice of any payment you receive from this process, so be aware when asking for help. If you need help I would suggest you agree a fixed fee with a solicitor rather than a percentage of the amount you recover.

About Mark Thompson

Personal injury and accident specialist solicitor

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