Recently Beacon has become aware of a rise in variation in reimbursement practices following the recommendation of an unsound eligibility decision at Independent Review Panel (IRP). This is occurring after the recommendation from an IRP to NHS England (NHSE) and the Integrated Care Board (ICB), and appears to be taking place on a national level, albeit not in every ICB.
This specifically relates to ‘current’ or ‘live’ cases rather than Previously Unassessed Periods of Care (PUPoC), regardless of how long it has taken for the case to reach the IR stage, and even if the individual concerned has passed away in the intervening period.
The issue
In the past few years we have seen an increasing number of ICBs offer reimbursement for a far shorter period of time than should be the case – in many instances just three months or less.
This means that many people are now finding themselves in the position in which the original eligibility decision has been found to be unsound, having spent in excess of 18 months (and sometimes as long as three years or more) progressing through the appeal process, only to be told by the ICB that they will receive just three months (or less) of reimbursement and will have to start from the beginning of the process with another retrospective assessment for the intervening period.
It is difficult to know exactly what has caused this change but there appear to be two potential drivers:
- Some ICBs feel that if the individual had been found eligible originally, they would have received a review within three months of eligibility, therefore it is reasonable to only reimburse three months of care fees and then to offer a full retrospective assessment for the remainder of the period
- In recent years many ICBs have been asking appellants to specify an ‘appeal period’ or a ‘claim period’ when requesting Local Resolution, rather than a date on which the assessment was completed
The policy
The below policy points are taken from the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care July 2022 (Revised).
The recommendation
A key principle of the local resolution process is that, as far as possible, if the ICB does not change the original decision, the individual or their representative has had a clear and comprehensive explanation of the rationale for the ICB decision [para. 215 (d)].
Where both NHSE and the ICB accept the IR’s recommendation, the Framework states that eligibility should begin from the point in which it would have started if it were not for the maladministration – in most cases the 29th day from receipt of a positive Checklist, through to a point in time at which a further consideration of eligibility (such as a new FNC, Checklist or DST) was completed.
If no such further assessments took place, eligibility should continue until either the present day or the date of death.
This is because once a Primary Health Need has been established, it cannot be ‘de facto removed’ without a further formal consideration of eligibility in accordance with the National Framework.
Reviews
Review periods stating start and end dates should only be relevant in retrospective (PUPoC) scenarios. For ‘current’ cases (regardless of whether or not the individual in question is alive or deceased) appeal panels are required by the National Framework to reconsider the original decision regarding eligibility that was taken following an assessment of needs, not to assess a specific period of time.
Likewise, in making an application to NHSE for an Independent Review, the National Framework stipulates that one of the key tasks of an IRP is to conduct a review of the primary health need decision by an ICB [Annex E, para. 15].
The National Framework goes on to state that where an ICB makes a decision on eligibility, that decision remains in effect until the ICB revises it, and where an ICB accepts an IRP recommendation on eligibility it is in effect revising its previous decision in light of that recommendation [Annex E, para. 15].
In revising its decision (whether as a result of IR or not), this is a recognition that the original decision was incorrect [Annex E, para. 18 (iii)].
Our Advice
Our primary concern here is that individuals in these situations are being penalised several times over. Firstly because of the incorrect eligibility decision that has now been found to be unsound, secondly because most people have not had any follow-up reviews and thirdly because they are now left with little choice but to repeat the entire process again as a retrospective assessment exercise – potentially with several more years of appeals to endure.
In the majority of cases we have looked at, our position has been that eligibility should run from the 29th day after a positive Checklist was completed to the date of the next consideration for CHC (if this was ever carried out), OR to the date in which they died. This was previously the established precedent before recent reimbursement trends changed. A primary health need cannot simply ‘stop’ in live / current cases without reassessment and so there cannot be an arbitrary end point. The ICB lost the right to carry out a reassessment of eligibility at the time because of their original maladministration (the incorrect eligibility decision).
Beacon has been successful in 90% of the cases challenged, resulting in the ICB eventually agreeing to fund a much longer period, usually up to the date of the next review or date of death. We would encourage individuals in similar positions to challenge arbitrarily short reimbursement periods following a successful IRP for live / current cases. This can be done informally in the first instance, and then escalated through the NHS complaint process.
How we can help
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