Arden and Greater East Midlands Commissioning Support Unit (the CSU) has for some time carried out retrospective reviews and assessments of eligibility for NHS Continuing Healthcare (CHC), on behalf of a number of Clinical Commissioning Groups (CCGs), under the arrangements announced by Sir David Nicholson (NHS Chief Executive on 15 March 2012.
Since that time, the conduct and processing of such cases by this CSU can be said to be unfair, inappropriate and opaque, with the apparent aim of simply reducing or completely eliminating eligibility for CHC, and the rightful refund of care home fees to the care home resident or the family and Estate of deceased/former residents.
The conduct and processing of such cases should be done under the provisions of the 2012 SHA “NHS Continuing Healthcare – Dealing with requests for assessments of previously un – assessed periods of care” and the “National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care.”
Almost without exception this CSU refuses/fails to do so. Contrary to recent public statements, this CSU does NOT “assess an individual’s needs correctly” and does NOT “…carry out each assessment using the national guidelines and make recommendations to an expert CCG panel, and we have never put pressure on our nurse assessors to do anything other than assess each individual’s health care needs correctly.”
This CSU is not fit for purpose.
The following is a summary of examples of such refusals/failures by this CSU.
- Contacting clients/families directly, in breach of formal written authorities, in an attempt to bypass/side – line duly appointed representatives (with experience, knowledge and expertise), causing confusion, distress and delays.
- Requests for documents to be provided that were originally supplied at the outset of cases (now 5 years ago)
- Assessments and decisions made without resident/client/family/representative input or involvement.
- Refusal/failure to consider evidence, records, Detailed Medical Assessments and Written Submissions provided by or on behalf of the resident/client/family.
- Refusal/failure to obtain all relevant, essential and available care home, GP/medical and other records.
- Assessments and decisions already made, prior to the pretence of sending out “Needs Portrayal Documents” to clients/family/representatives, which are supposed to give an opportunity for input and response, with a view to informing the assessment/decision.
- Substantial and unacceptable delays in processing cases.
- Substantial and unacceptable delays of many months and, in one case, over 2 years, in notifying the outcome of assessments/decisions.
- No proper and valid Multi-Disciplinary assessment.
- No Social Services/Local Authority involvement in the assessment.
- No ratification of the CSUs assessment by a CCG, or refusal to provide full details of CCG ratification (the CSU acts as sole investigator, assessor and decision-maker).
- Cursory and inadequate assessments, including domain “scorings” and Four Key Indicator analysis and rationale.
- Assessments in the same case, for the same person, for the exact same period of care, carried out by 2 separate offices of the CSU on separate occasions, with different domain “scorings.”
- Refusals to review certain periods of care, relying on purported previous assessments, but in contravention of the 2012 SHA Guidance provisions, where this CSU refers and relies solely on the fact of such previous assessment(s), without even obtaining or considering the previous assessment(s). This CSU has stated that it “assumes” such previous assessment(s) comply, when in fact they do not.
- Unilateral alteration of periods of care being reviewed, and decisions made, without reference to or agreement of residents/clients/family/ representatives.
- Failure/refusal to accurately and fully inform applicants of rights of challenge and timescales/deadlines for doing so.
- Institution and application of its own “deadlines” for challenging decisions (30 days) instead of the correct 6 or 12 months (dependent on the type of decision), and then refusal to accept and process such challenges if not made within 30 days, thereby prejudicing an applicant’s proper rights.
- Institution and processing of an inappropriate, unfair and opaque “Local Resolution process” (LRP) (the usual first stage of appeal or challenge to a decision made).
- Insistence upon a “not fit for purpose” “Notice of Dissatisfaction” document at LRP stage.
- Contacting client/families directly and holding telephone LRPs without reference to, knowledge, agreement or involvement of, representatives.
- Refusal to properly consider representations/submissions made at LRP, and statements made at the outset of the token, “tick – box,” LRP meeting that nothing will be changed and the decision will remain the same.
- LRP meetings by telephone limited to a maximum of 30 minutes length, whatever the complexities and issues in a case.
- Refusal/Failure to co-operate with NHS England and the Ombudsman.
- Refusal to adhere even to a NHS England Independent Review Panel decision.
- Failure to comply, not only with Department of Health Guidance on completion of Retrospective Appeals by March 2017, but actual completion of initial assessments, 5 years after initial applications.
The conduct of this CSU over a long period of time now has led to multiple complaints and warnings to CCGs and NHS England that cases conducted by this CSU will almost inevitably lead to requests for NHS England Independent Review Panels and complaints to the Parliamentary and Health Service Ombudsman. This has obvious consequences in terms of even further delays and demands on time, resources and costs of not only the resident/client/family but also the tax-payer.
To add insult to injury, complaints to CCGs about this CSU are almost always passed to the same CSU to investigate, assess and decide on the complaint against itself!
Some of the points made above apply also to other CCGs and outsource organisations/CSUs operating in the field of retrospective reviews.
A Freedom of Information request 12 October 2016 made to this CSU was directed to NHS England, where we asked:
“Since 15 March 2012, in respect of applications made by for current and retrospective assessments of eligibility for NHS Continuing Healthcare, and in respect of all areas and offices of Arden& GEM CSU, Midlands and Lancashire CSU, NEL CSU and PUPoC Shared Services (and its former guises).
1. How many applications/assessments in total have been opened/logged by you on your systems, broken down by CCGs?
2. How many applications/assessments in total have been completed by you, broken down by CCG?
3. How many applications/assessments in total remain to be completed, broken down by CCG?
4. How many applications/assessments in total have been disputed/appealed, broken down by CCG?
5. How many applications/assessments in total resulted in full awards/refunds, broken down by CCG?
6. How many applications/assessments in total resulted in part-awards/refunds, broken down by CCG?
7. How many applications/assessments in total were rejected entirely/no awards/refunds, broken down by CCG?
8. What is the total amount of awards/refunds in £ made, broken down by CCG?
9. What is the average amount of refunds in £ made per case in full and partial awards/refunds, broken down by CCG?
both nationally and in respect of certain representative organisations, was met with the response:
“NHS England does not hold this information.
This information will be held by individual Clinical Commissioning Groups (CCGs) who commission this work from Commissioning Support Units (CSUs). As such, you may wish to redirect your enquiry to individual CCGs.”
In summary, it is suggested that the precise information relating specifically to this CSU is not known and that information can only be obtained by going through each CCG that this CSU works for. This CSU should know its own facts and figures and if it does not, and the CCGs it acts for and the bodies responsible for its ultimate supervision do not, again, this is a reflection of the opaque conduct and dealings of this CSU.
Response from CCGs and other CSUs to the FOI request identified that the rejection rate of applications for retrospective reviews, whilst some areas were better than others, was over 70% and up to 100%.
There is some suggestion that officers of this CSU may have recently been appointed to the NHS CHC Strategic Improvement Programme/CHC Improvement Collaborative, notwithstanding the numerous complaints and deficiencies identified by various representative organisations working in this field.
Attached are anonymised copies of unfortunately all-too-typical representative letters in actual cases, demonstrating the points made above.
Serious concerns have been raised about this CSU for some time, including (for example):
- In May 2014 Leicester West MP Liz Kendall said Greater East Midlands Commissioning Support Unit (GEM) should no longer run NHS continuing healthcare services for patients with complex needs and that the ‘failing’ East Midlands NHS body should be ‘sacked’ (http://www.bbc.co.uk/news/uk-england-27312152)
- In 2015 North Derbyshire CCG commissioned an external review of the Continuing Health Care (CHC) Service (provided by NHS Arden and GEM Commissioning Support Unit (CSU). The overall objective was to review the robustness of the process for NHS CHC as provided by the CSU, ensuring that the current arrangements are fit for purpose. The CCGs in Derbyshire were not confident that an efficient, effective service was being delivered, particularly with regard to the levels of performance in key areas. The report concluded that the service being delivered by Arden and GEM CSU was not fit for purpose (see attached).
(NOTE: all statements, comments and views are entirely those of the author).
‘Medical opinions ignored’ by NHS payment assessor, workers say By Jo Taylor and Nic Rigby BBC East 10 September 2017
“You and Yours” Radio 4 11 September 2017 http://www.bbc.co.uk/programmes/b0930zhh#play
The following letter has been sent to the Equality and Human Rights Commission regarding the decision of West Hampshire CCG not to hold Local Resolution Meetings by telephone.
COMPLAINT ABOUT WEST HAMPSHIRE CLINICAL COMMISSIONING GROUP
We act on behalf of a number of clients, as living Care Home residents, or Attorneys or Court of Protection Deputies of living residents, or Executors/Administrators of the Estate of deceased former residents, in respect of applications to Clinical Commissioning Groups (CCGs) throughout the country for current and retrospective assessments of eligibility for Continuing Healthcare (CHC), under the provisions of the:
- “The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care November 2012 (Revised)”
- “NHS Continuing Healthcare Dealing with requests for assessments of previously un-assessed periods of care (SHA October 2012)”
Successful applications, where eligibility is wholly or partially established, result in the refund of care home fees wrongly paid, often amounting to many thousands of pounds.
Where applications for CHC are wholly or partly refused, such decisions can be disputed and challenged, by way of application for “local resolution” (LRM) at the CCG level, before any further possible appeal to Independent Review Panel of NHS England or the Health Service Ombudsman.
Such “local resolution” takes the form of a face-to-face meeting or telephone meeting between the client/next-of-kin/family member and/or us as representative. (In this whole process, we do not act as Solicitors involved in a legal process, simply as “representative” as any other appointed representative in the process).
Meetings can involve the client etc. physically being present and us taking part by telephone. This is particularly so where the CCG and LRM are some distance away. This process has been followed for many years by all CCGs.
The following provisions are of relevance:
“The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care November 2012 (Revised)”
49. CCGs and the Board should deal promptly with any request to review decisions about eligibility for either NHS continuing healthcare or NHS-funded nursing care.
50. There are two stages involved in dealing with any requests for a review:
a) a local review process at CCG level; and
b) a request to the Board, which may then refer the matter to an independent review panel.
151. Each CCG should agree a local review process. These review processes should include timescales and should be made publicly available, and a copy should be sent to anybody who requests a review of a decision
153. The key principles for resolving disputes regarding NHS continuing healthcare eligibility (including both local procedures and independent review panels) are:
- gathering and scrutiny of all available and appropriate evidence, whether written or oral including that from the GP, hospital (nursing, medical, mental health, therapies, etc.), community nursing services, care home provider, local authority records, assessments, Checklists, Decision Support Tools, records of deliberations of multidisciplinary teams, panels, etc., as well as any information submitted by the individual concerned;
- compilation of a robust and accurate identification of the care needs;
- audit of attempts to gather any records said not to be available;
- involvement of the individual or their representative as far as possible, including the opportunity for them to contribute and to comment on information at all stages;
- a full record of deliberations of the review panel, made available to all parties;
- clear and evidenced written conclusions on the process followed by the NHS body and also on the individual’s eligibility for NHS continuing healthcare, together with appropriate recommendations on actions to be taken. This should include the appropriate rationale related to this guidance.
“NHS Continuing Healthcare Dealing with requests for assessments of previously un-assessed periods of care (SHA October 2012)”
7.1 If the applicant disagrees with the decision made by the PCT [now CCG], the PCT should make it clear in the decision letter how to request a review. The PCT should have a locally agreed review process.
There are two stages involved in dealing with requests for a review.
a) A local review process at PCT level; and
b) A review by an Independent Review Panel (IRP) arranged by the SHA.
7.2 All reasonable attempts should be made to resolve a dispute at local level by the PCT before referring the case to the SHA for independent review. This may include:
- A face to face meeting or telephone conversion (if preferred) with the applicant to discuss the concerns
- Review of the decision if key evidence has been overlooked – the PCT may decide to send to a second panel with different members
- A referral to a neighbouring PCT to review the decision
We have now been informed by West Hampshire CCG, Omega House, 112 Southampton Road, Eastleigh, Hampshire SO50 5PB that it has uniformly, unilaterally and unreasonably decided that it will no longer facilitate telephone meetings and LRMs, stating (without further specification or explanation):
“The CCG is concerned with the potential information governance breaches that can occur with teleconferencing. It was for this reason that the CCG took the regretful decision to no longer offer teleconferencing as an option for local review meetings.
If they you are able to suggest a secure means of holding a remote meeting the CCG would be happy to consider it.”
There is nothing in the West Hampshire CCG Information Governance Policy October 2016 that necessitates such a decision. It is not said what “potential information governance breaches” are involved. There is no explanation as to why West Hampshire has decided that telephone meetings offend any policy, when exactly the same process is followed throughout the rest of the country and no other CCG has deemed telephone meetings to be “potential information governance breaches.”
It has not explained what entitles it to depart from the provisions referred to above, set down on a national level.
We are not aware of any public consultation or public notice regarding the alteration to process. We are not aware of any equality or impact statement on the effects of such a decision and alteration.
The effect of this decision, not followed by any other CCG in the country to date, is to insist and require a physical presence at LRMs or any other sort of meeting. Not only does this prevent us from representing clients by taking part by telephone, it also prevents lay and unrepresented clients from being able to take part in LRMs. It prevents LRMs from taking place and therefore prevents clients from exercising their rights of dispute to decisions made. It takes no account of the physical and mental disabilities of a person who is physically unable to attend a LRM.
We submit that West Hampshire CCG is in breach of its Public Sector Equality Duty, and is in breach of general disability discrimination provisions under the Equality Act 2010.
We request that you take such investigative and enforcement action as is necessary.”
“Care Costs” – a time bomb waiting to explode.
This site is aimed at Lawyers, or anyone with an interest in the area, who wants to keep up to date with developments in the area of Care Costs, particularly relating to”Continuing Health Care,” in the UK.
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