New Rules for Living with COVID-19

As of 1 April 2022 all previous legally binding obligations in relation to COVID-19 have been lifted.

Since the Government announced that moving forward the policy would be to “live with COVID-19” there has been a significant reduction of restrictions for the public. However, as part of their approach to “live with COVID-19” extra precautions are still being taken in care settings. I will outline the key changes that occurred on 1 April 2021 and what this means for health and social care providers.

Legal Basis

First, it is important to understand how Government guidance is relevant to providers. Regulation 21 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“HSCAR”) states that providers must have regard to statutory guidance issued by the CQC under S.23 of the Health and Social Care Act 2008 (“HSCA”) when it comes to providing a regulated activity. S.23 states that the CQC must issue guidance on compliance with the requirements of the regulations. This can include references to guidance issued by other bodies, such as the Government, and can relate to compliance with other enactments as the CQC thinks fit. This means that current Government guidance has the potential to impose higher level restrictions on care homes than what is required by law when it comes to COVID-19.

Key Changes to Legislation and Guidance

Legislation

To start, The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No.3) Regulations 2022 removed any special requirements made to the HSCAR in relation to COVID-19 specific measures. This came into force officially on 15 March 2022. Effectively, this means that any previous measures in relation to COVID-19, including testing and isolation policies, are no longer a legal requirement. Mainly this applies to vaccination as a condition of deployment and anyone entering a care home, including visitors and residents, needing to show proof of vaccination or a negative COVID-19 test, which has now been scrapped. Since that date, the Government guidance around testing and isolating in care homes for both staff and residents was updated.

Guidance

The most recent Government guidance in relation to admission and isolation of residents was last updated on 22 March 2022, but withdrawn on 1 April 2022. The most recent guidance for COVID-19 testing policies in care homes for staff and residents was last updated 1 April 2022 and then withdrawn on 4 April 2021.

The new guidance, which replaces the old, was published on 31 March 2022. According to this, policies around testing, isolation and admissions have changed in the following ways:

  • COVID-19 Testing
    • Asymptomatic Testing
      • Staff should test two times a week using lateral flow tests (“LFT”) as opposed to everyday. If there is a positive case, remaining staff should test daily for 5 days. This testing is not extended if further positives are found in these 5 days.
      • No testing for residents, whereas before there were once monthly PCRs in place.
    • Symptomatic & Contact Testing
      • Staff with symptoms should take a LFT as soon as symptoms develop and take another 48 hours later. Staff should only come into work if both LFT results are negative. This is in comparison to being referred out for a PCR test, which is no longer required.
      • Symptomatic staff should stay away from work and conduct LFTs at home.
      • Staff should not carry out additional testing or self-isolate if they are a contact of someone with COVID-19, but a risk assessment should be undertaken to determine if it will be safe for them to return to work. Before staff were required to get a PCR test and only if negative could they return to work, where they were required to conduct further daily LFTs for 10 days.
      • Care home residents who have COVID-19 symptoms should isolate and take two LFTs – one as soon as they develop symptoms (day 0); and another 48 hours after the first test (day 2) to confirm their COVID-19 status. Again, this is in contrast to requiring that a PCR test be conducted.
      • Residents who are close contacts of a COVID-19 case also do not need to isolate nor undertake additional testing, unlike before. Prior to this change, residents were required to self-isolate and could only leave isolation if they received three negative LFTs.
      • For those who test positive, staff and residents alike, the guidance on ending self-isolation early through additional testing remains the same – isolate for 10 days and take part in daily LFTs from day 5, self-isolation can end early after receiving two consecutive negative tests 24 hours apart.
    • Outbreak Testing
      • Outbreak consists of 2, or more, positive (or clinically suspected) cases of COVID-19 during a 14-day period. This applies to both staff and residents and includes PCR and LFT results.
      • If the manager suspects an outbreak in their care home, they should contact the local health protection team (“HPT”), who will conduct a risk assessment, including whether the cases are likely to be linked. Following this risk assessment, the HPT may advise whole home outbreak testing.
      • Testing regimes stay the same as before:
        • Conduct PCR tests for all staff and residents, once on day 1 of the outbreak and once between days 4 and 7.
        • When you carry out the outbreak PCR test for residents (day 1 and once again between days 4 to 7), also test the resident with a LFT on the same day. If either test is positive, assume the resident has COVID-19.
        • Test any newly symptomatic residents with a PCR.
        • Isolate in line with guidance – which does not preclude receiving one visitor or going into outdoors spaces where there will be no contact with other residents, unlike the previous guidance.
      • Admission & Isolation of Residents
        • People who test positive prior to discharge from hospital can be admitted to a care home if the home is satisfied that they can be cared for safely. This is in contrast to being discharged to a “designated setting” in the first instance to complete a 10-day isolation period should their test come back positive. Residents will still need to self-isolate for 10 days if they have been discharged from a part of hospital where there is an active outbreak.
        • Residents admitted from the community or another care setting should take a PCR test within the 72 hours before they’re admitted (or a lateral flow test if they have tested positive for COVID-19 in the past 90 days) and a lateral flow test on the day of admission (day 0). These tests should be provided by the care home. If an individual tests positive on either of these tests and continues to be admitted to the care home, they should be isolated on arrival.
      • Outbreak Management
        • Care home residents who have symptoms of COVID-19 should isolate and take two LFTs: one as soon as they develop symptoms (day 0); and another lateral flow test 48 hours after the first test (day 2) to confirm their COVID-19 status. Isolation policies are in line with those above.
        • Movement of staff should be restricted in the home and proper risk assessments in place so as to prevent the spread of COVID-19 throughout the home, but cohorting is no longer required.
        • Previous versions of this guidance had advised that care homes would need to shut their doors to new admissions for at least 10 days when there was a COVID-19 outbreak, however this blanket embargo on admissions appears to be removed from this version. All that is required are proper infection prevention and control (“IPC”) measures and risk assessments to ensure that the resident who tests positive for COVID-19 does not spread it through the home.

Provider Impact

These changes will have a huge impact on how providers run and manage their homes, specifically in relation to their IPC policies.

Financial

To start, as testing frequency is reduced, this will hopefully offset some costs that are now associated with COVID-19 testing because free testing is no longer available in care settings for asymptomatic individuals.

Additionally, the removal of the embargo on admissions where there is a COVID-19 outbreak in a care home should also help alleviate financial pressures providers face. They will still be able to admit residents rather than closing off potential sources of income for two weeks which was the position under the old guidance.

Further, the reduced testing and isolation periods also hopefully mean decreased costs for covering sick pay, since SSP in relation to COIVD-19 has been removed along with the Infection Control Fund (“ICF”), which offered financial assistance to employers who had to pay employees who were off on sick leave due to COVID-19 isolation.

Staffing

Secondly, the reduced testing and isolation periods also hopefully mean more staff availability for providers. This is because staff are able to return to work sooner and stay at work longer provided proper IPC measures are in place.

Further, the requirement to merely restrict movement of staff and allow them to care for all residents with proper risk assessments and IPC measures in place versus cohorting them will hopefully alleviate issues experienced by homes previously in outbreak where staff were unable to work in areas of the home they normally did.

Additionally, the end of vaccination as a condition of deployment should also help with staffing shortages because many potential workers were choosing to leave the sector due to the mandated take-up of COVID-19 vaccines. With this additional requirement for employment gone hopefully more people will come back to the sector.

IPC Policies

Finally, since all legally binding COIVD-19 restrictions have been removed, providers are no longer technically required to have COVID-19 specific measured in place when it comes to IPC polices. However, according to The Care Quality Commission Registration (Regulations) 2009, providers are required to comply with regulations 12-20 of the HSCAR. Regulation 12 of the HSCAR states that IPC measures must be in place by virtue of S.2(h). This would include preventative measures when it comes to COVID-19 as it is an infection. Adult social care providers are obligated to have some type of prevention and control policy in place in relation to COVID-19 as a general rule. This does not necessarily mean that the stringent and onerous COVID-19 measures in place before are still required. What will be required is careful risk assessment planning, management and oversight when it comes to COVID-19.

Conclusion

Regulation 21 of the HSCAR is a legal requirement which providers are bound by, and in some sense it makes the guidance more than a mere suggestion, but again it does not mean that they are legally required to follow Government guidance literally. Given the practicalities of providing service in line with Regulation 12, it would seem that any Government guidance is effectively a legal obligation which the CQC can enforce via Regulation 21 of the HSCAR and S.23 of the HSCA.

It should also be noted that this guidance is updated very frequently and rapidly. The measures and suggestions in place today could be different tomorrow, so it will be important to look at the date at which any policy in question was in place and the relevant guidance and law at that time.

The changes in the guidance have the potential to decrease the scrutiny providers have received over the last two years when it comes to their IPC policies, often with detrimental effects including lowered ratings from the CQC and notices of proposal and/or notices of decision being imposed. However this is not to say that IPC and COVID-19 specific measures are no longer important. In the most recent CQC board meeting on 23 March 2022, Kate Terroni, Chief Inspector of Adult Social Care for the CQC, stated that they still expect providers to have excellent IPC measures in place and will hold providers to account for making sure they are following government guidance based on scientific evidence when it comes to IPC and COVID-19 measures.

Additionally, CQC has previously published as guidance that they will carry out different types of inspection, which can be focussed or targeted specifically for IPC. Further, their IPC guidance for care homes still makes mention of COVID-19 specific measures that they will look for in order to be deemed to be following the regulations. Overall, the onerous obligations in relation to COVID-19 measures when it comes to IPC have been eased, but providers will still need to ensure they are following government guidance if they want to avoid potential regulatory enforcement action.

If you are experiencing regulatory difficulties, Ridouts can help. Our team of highly knowledgeable and qualified solicitors has unparalleled sector expertise that allow us to help you with any regulatory issues you may have. For further information please contact us by email: info@ridout-law.com or phone: 020 7317 0340.

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