On 20 January 2022, the government updated its guidance on Covid-19 care home testing. Further, on 17 January 2022, the government updated guidance on management of staff and exposed patients as well as admission and care of residents in a care home where there has been a positive Covid-19 case. This will have serious implications for providers moving forward, especially in light of the change to isolation rules where there is an outbreak in a home (see my news update on that here). This comes on top of a much more aggressive CQC in the face of the Covid-19 pandemic, particularly with the new highly contagious Omicron variant. In this article I will outline what the changes are, how they compare to the restrictions imposed more generally on society, and the key impact this has on adult social care providers.
Current Guidance
Testing Regime for Care Homes
Care homes are encouraged to conduct regular testing in order to monitor and track any potential exposure and spread of Covid-19 within the homes. The recommended testing regime is slightly different for staff and residents. Staff must take three Lateral Flow Tests (“LFTs”) a week and one PCR on the same day as one of their LFTs while residents need only take one PCR a month.
Outbreak Testing for Care Homes
When an outbreak, which is defined as two or more positive Covid-19 cases within 14 days of each other, occurs, the testing becomes more onerous. For Residents, this means they need to take two PCRs, one on day 1 after exposure and one between days 4 and 7 after exposure or a positive test. Additionally, they must take a LFT test on those days as well. For staff, they will need to take daily LFTs during the isolation period and a PCR on day 1 and between days 4 and 7 in addition to the daily LFT tests.
“Outbreak Recovery Testing” (“ORT”) will begin to take place 14 days after the last member of staff or resident had a positive result or showed symptoms. This would involve all staff and residents who did not test positive in the last 90 days to take a PCR test. If there are no positive PCRs during the ORT, then the local health protection team will be able to lift outbreak restrictions and the normal testing pattern will resume.
Isolation Guidance for Care Homes
Current guidance states that there should be regular testing for both staff and residents as well as, “Residents who are known to have been exposed to a confirmed COVID-19 case should be isolated or cohorted for 14 full days after their last exposure to a COVID-19 case.” If residents are fully vaccinated and asymptomatic, they will not need to self-isolate, but only if there are other additional mitigations in place to prevent spread and exposure of Covid-19 in the home. This may not always be possible due to the physical premises.
General Covid-19 Restrictions
This can be compared with the restrictions which are seen in greater society. There is no requirement generally to test regularly unless you have a known exposure to Covid-19 or develop symptoms. Further, should a test come back positive, the government has now scrapped the requirements to get a confirmatory PCR test and slightly altered isolation rules for those who have been exposed and those who test positive.
If you tested positive, the required isolation period is 10 days, compared to 14 for care homes. Further, it is possible to end isolation early if you receive two negative LFT test results in row taken 24 hours apart from day 5 onwards. Your isolation period will end after the negative result is obtained, so this could be as early as day 6. For care homes there is a minimum of a 14 day isolation with no way to test out early, even though staff may potentially test out of isolation early and return to work.
If you are exposed and fully vaccinated there is no requirement to test, but close contacts are encouraged to conduct daily LFTs for the duration of what would otherwise be a 10 day isolation period. In care homes the movements of residents will be much more restricted, and while they may not need to self-isolate, they may still be restricted in terms of freedom to leave the home and/or receive visitors which can have regulatory implications.
Implications for Providers
General
In their most recent board meeting, the CQC stated that a top priority in adult social care would be Infection Control Prevention (“IPC”) Plus Inspections, which focus on 8 areas, including visiting and testing policies. In these areas, the main issues care homes are facing are backlash from families due to being restricted on when they can visit their loved ones and financial issues caused by the inability to admit new residents for up to two weeks at a time. Recent studies find that as much as 40% of care homes are having to close to new admissions because of outbreaks. While the change in how long they need to close for should help to eliminate some of the pressures faced by them, providers will need to also be very careful in how they manage the monitoring and follow-up of outbreaks within their homes.
Legal & Regulatory
It is possible that if a provider fails to heed the guidance this can be reflected in ratings arising from inspection reports and action taken by the CQC, which can result in onerous conditions imposed on a provider’s registration or even home closure in extreme circumstances. While there is no law which states that providers must follow government guidance, the CQC largely expect providers to treat guidance as such. Where this would come in to play for testing and isolation is developing IPC policies, which should be in line with current guidance.
Further, in implementing the suggested testing regimes, providers could potentially face consequences stemming from Regulation 11 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which requires consent to be obtained whenever care and treatment is provided to service users. It appears that administering Covid-19 testing would fall under care and treatment, and without proper consents the provider will have committed an offence under Regulation 22. This can lead to hefty fines and in some instance criminal prosecution.
What Providers Can Do
The best solution for providers is to keep up to date on all the relevant guidance and continue with regular testing in order to avoid an outbreak and enforcement action from the CQC. However, this often comes at the expense of time and resources which providers generally don’t currently have. Four Seasons CEO, Jeremey Richardson, expresses sentiments that resonate with all social care providers and that is, “We are seeing significant numbers of outbreaks of COVID in our care homes but the vast majority of people are not becoming seriously ill” and “We must adapt our response to reflect the fact that the situation we are now dealing is with significantly less dangerous than what we were dealing with in March 2020.”
The debate has now become if this is the correct approach for care homes and whether or not the correct balance has been struck between maintaining the health and safety of residents while also ensuring that their freedom and mental and emotional health are prioritised. At Four Seasons alone, occupancy is down almost 10% of usual levels and in the last month only 1.5% of deaths were due to Covid-19. This comes on top of rumours that all rules on testing and isolation may be scrapped by the end of next week in the UK. It seems a little unfair that throughout the pandemic adult social care providers have had to abide by much stricter rules than the greater public, often at the expense of the mental and emotional health of their residents.
Striking the correct balance can be difficult for many providers, especially in time when there are extreme staff shortages and tight budgets. Over the last 2 years Ridouts has seen the CQC coming down harsher than ever, particularly when it comes to IPC. This means providers have needed to be extra vigilant on top of facing staffing pressures and lack of funding to provide much needed care.
With the right approach and strategy, Ridouts have been successful supporting clients to secure positive outcomes in spite of the constantly changing guidance and rules. Quality legal advice in the early stages can often save providers unnecessary legal costs later on. If providers would like advice on how to better implement government guidance into their policies and practices or improve their services more generally, the Ridouts team can assist. To speak with one of our specialist lawyers, please contact us on 0207 317 0340 or email info@ridout-law.com.
