Category / Adults, General
Summary / This policy details the approach to be taken in Adult Services when a provider is unable to meet care and support needs due to temporary interruption or permanent business failure.
This policy includes the duties under the Care Act 2014 and other applicable legislation.
Approved by / Care Governance Board
Date Approved / 26th July 2016
Procedures cancelled or amended / “Care Home Short Notice Closure Plan” August 2014–replaced with “Service Provider Short Notice Closure Plan” – July 2016
Author / Jo Lappin, Head of Safeguarding and Governance
Sponsor / Care Governance Board
Contact / Jo Lappin, Head of Safeguarding and Governance
Signed
Designation
Date
Purpose
The purpose of this policy is to outline the actions to be taken in the event of a provider failurewithin the Hampshire County Council area.
Scope
This policy covers allproviders who undertake regulated activities(domiciliary, residential and nursing care)within the Hampshire County Council area or where commissioned for Hampshire residents out of the Hampshire area.
References
Care Act 2014 sections 5,19-20 and 48-57
Care and Support (Business Failure) Regulations 2014
Care and Support (Market Oversight Criteria) Regulations 2014
Care Quality Commission Fundamental Standards (2015)
4LSAB Safeguarding Adults 2015 – Policy, Guidance and Toolkit
Adult Services Large Scale Enquiry Policy 03/15
Adult Services Quality Outcomes Contract Monitoring Policy 04/15
Care and continuity: contingency planning for provider failure, a guide for local authorities, DoH, ADASS, LGA, LGiU 2015
Standing Rules (NHS Commissioning Board and CCGs Responsibilities) Regulations 2012
Managing Care Home Closures
A good practice guide for Local Authorities, Clinical Commissioning Groups, NHS England, CQC, Providers and Partners.
Authority to vary
Care Governance Board
Contents
Purpose
Scope
References
Authority to vary
Section one – introduction
Legal framework
Section two – market knowledge
Section three – preventing failure
Engagement and communication
Commissioning and contracting practice
Responding to changing conditions
Management of quality concerns
Escalation into safeguarding
Section four – responding to provider failure
Temporary service interruptions
Permanent service failure
Business failure
Temporary duty
Section five – managed period
Role of Community Response Team (CRT)
Section six – actions to be taken following the managed period
Section seven – additional Information
Charging
Communication
Media interest
Implementation considerations
Monitoring compliance
Section eight – appendices
Appendix 1 – definitions
Appendix 2 – management checklist/s
Section one –introduction
Local authorities have a responsibility to support vulnerable people in the event of their normal care arrangements failing.
This policy sets outthe approach to be taken by Adult Services, Hampshire County Council to prevent provider failure and the required action if provider failure becomes inevitable. The policy covers the statutory responsibilities and the discretionary powers of local authorities.
This policy seeks to ensure that adults and carers are not left without the care or support they need, in the event that their careprovider becomes unable to carry on providing - whether thatis as a result of atemporary service interruption or permanent business failure.
Service failure and/or interruption can arise from a number of different causes and can be permanent or temporary:
- Business failure – financial closure or commercial difficulties
- Enforcement or compliance action – for example action taken by the Care Quality Commission, Environmental Health, Fire Safety or Health and Safety Executive
- Criminal investigationby the Police
- Management and staffing changes– for example action taken by the Borders Agency or Home Office meaning the service has insufficient staff to operate, sudden illness or death of key staff
- Irretrievable property damage such as fire or flood
- Safeguarding large scale enquiry
- Termination of contract leading to failure
- Temporary or permanent disruption due to severe weather conditions or utility failure
This list is not exhaustive, there may be other situations that can cause disruption to care and support services. Some may impact on the whole business – while others impact on a particular service within that business.
The particular duty of the local authority will vary, depending on the circumstances and it is recognised that every situation is different.
This policy covers all scenarios and Adult Services will use discretion to act within its powers in such cases where urgent action is required.
Legal framework
Care Act 2014
The Care Act 2014 places new duties on local authorities to facilitate and shape their market for adult social care and makes provision for how care and support needs should be met in the event of service interruptions or business failure.
Related regulations are the Care and Support (Market Oversight Criteria) Regulations 2014 and the Care and Support (Business Failure) Regulations 2014.
Civil Contingencies Act 2004
The Civil Contingencies Act 2004 places a duty on local authorities to make business continuity and contingency plans. Whilst short term shelter can be activated for those affected by an emergency, the specific needs and vulnerability of some adults with care and support needs means that more specialised planning is needed.
NHS Continuing Healthcare
Where a failed provider is providing an adult with NHS Continuing Healthcare, commissioned by a CCG, the duty falls to the NHS to meet continuing healthcare needs. The duties of the NHS in such situations are covered in the Standing Rules (NHS Commissioning Board and CCGs Responsibilities and Standing Rules) Regulations 2012 and the National Service Framework for NHS Continuing Healthcare.
The County Council will work with the relevant CCGs and will co-operate in reaching an agreement about how to meet needs.
Section two – market knowledge
Section five of the Care Act 2014 places duties on local authorities in respect of the care market.These include responsibilities to facilitate and shape the market for adult social care and support as a whole, so that it meets the needs of all people in their area who need care and support.
These market shaping responsibilities exist regardless of whether the care is commissioned by the local authority, another commissioner, paid for via a direct payment, paid for by individuals (self funders) or paid for by a combination of these sources.
Specialist services often take their service users from a range of different places. It is not unusual for many of the residents in a specialist provision to be from outside the local authority area and for the usual intelligence through contract management and review visits to be lacking.
Host councils remain responsible in these circumstances so it is essential that the council is aware of all providers in the area in order to have a sound knowledge of the provider market in their area.
Whilst recognising that the role of Adult Services is not to keep providers viable it is in everyone’s interests to ensure a well functioning market and to prevent failure whenever possible.
In order to do this, Adult Services will therefore need to have a good knowledge of the social care market in Hampshire in order to:
- Shape the quality, diversity and sufficiency of care
- Understand how providers are responding to current trading conditions
- Understand which providers may be experiencing trouble and are at risk of business failure or interruption
- Know which providers would be able to take the place in meeting needs if any care provider fails.
The following actions will be taken to ensure Adult Services has a good understanding of the market in the area:
- Develop with providers and stakeholders a published market position statement. This will be linked to the Joint Strategic Needs Assessment and will detail key information on need, demand and trends.
- Gather performance data and financial information on providers and share this with managers and other commissioners as appropriate.
- Maintain a strategic relationship with the Care Quality Commission (CQC) and other commissioners to enable an early warning system where provider compliance issues may lead to CQC enforcement action or threaten the ongoing operation of a regulated service.
- Designated staff will routinely review the information shared by CQC relating to recently published inspection reports in order to prompt action within the department in the event of compliance issues.
- Supporting providers by working with the representative bodies, Hampshire Care and Hampshire Domiciliary Care Provider (HDCP) and as part of the ongoing Hampshire County CouncilPartnership in Care Training (PaCT) engagement, awareness and support activity. This activity will include engagement events, targeted development sessions and provision of resources and templates to enable providers to develop and implement contingency plans. In addition through PaCT and quality networks, links will be made with NHS partner organisations to ensure communication and support resources are aligned. The Adult Services Category Management Process will also ensure a robust understanding of the market.
Commissioning and procurement processes will:
- Publish category plans and market position statements in order to inform the provider market.
- Develop a co-operative outcome focused relationship with providers rather than a strictly contractual and heavily performance managed relationship.
- Ensure arrangements do not have a negative impact on the sustainability, sufficiency, quality, diversity, and value for money of the market as a whole.
- Provide direct and effective links between care management and social work support to ensure the outcomes of service delivery match individual’s care and support needs.
Adult Services will work with CQC in respect of market oversight to maintain the sustainability of the local market. This is undertaken through the Quality Outcomes Contract Monitoring Framework (QOCM).
The CQC has responsibility for a Market Oversight Regime(Care and Support Regulations in relation to Market Oversight) that covers providers who have a large share of the market. CQC is tasked with monitoring the financial health of these larger providers whose failure could have devastating effects on a large number of people.
Adult Services has a responsibility to understand the local market and have oversight of those providers in and outside of the CQC scheme. This includes how they are managing in current trading conditions, how the market shaping is impacting upon them and what the impact of their failure might be on the local market. This oversight role is managed via QOCM framework.
Section three – preventing failure
In most situations there will have been an accrual of warning signs over a period of time. Staff should be alert to the signs of business failure and escalate issues so the implications can be considered and the likelihood of failure assessed.
Adult Services will continually work with providers as part of business as usual practice to support them to deliver good quality outcome focused care and support.
Although there may be separate sources of failure, in reality, provider failure is usually linked between financial failure and poor quality.
Indicators of quality such as the physical environment, staff training or staff ratios may suffer due to financial problems. Similarly, lower quality of provision may lead to a reduction in the occupancy rate or fewer service users, which may in turn lead to revenue or cash flow problems.
Actions taken by Adult Services to prevent market failure will include:
Engagement and communication
- Share contingency plans with providers and offer advice and support regarding the development of these
- strong links with Clinical Commissioning Groups (CCGs), involving them in sharing and testing the contingency plans of providers.
- strategiclinks with CQC toagree arrangements to share intelligence and to critically evaluate plans
- supporting and engaging with networks of local and regional care providers
- encouraging cross provider support to avoid isolation, particularly for specialist services and hard to reach areas. – ask Hampshire Care Association (HCA) to promote
Commissioning and contracting practice
Fair and consistent commissioning practice - clear contract terms, consistency around compliance, quality standards and monitoring arrangements
Requiring comprehensive contingency and business continuity plans as part of tender processes and ensuring mechanisms to test these routinely following contract awards– consider how
- Avoiding spot purchasing which does not support predictability of revenue
- Avoiding poor payment practice and delayed payments to providers
- Appropriate lead in and transition provision for high volume contracts
- Appropriate fees which support the provision of high quality care to ensure hourly rates consistent with minimum and living wage
- Encouraging providers to approach operational, contract and commissioning staff early on and avoiding unforeseen problems ensuring early engagement with providers following the identification of early signs of failure.
Responding to changing conditions
Being alert to Met Office weather warnings and distributing these in line with Winter Resilience Plans.
Being responsive to potential provider failure scenarios affecting other partner agencies.
Management of quality concerns
Quality concerns should be addressed through the effective management of the Quality Outcomes Contract Monitoring framework (QOCM).
The QOCM framework is an integral part of all safeguarding and governance activity within the department. The aim of this framework is:
- to ensure appropriate systems, processes and procedures are in place to allow teams to record information about the services we commission from
- to enable all staff to use the guidance and the tools within it to provide a proactive proportionate response to quality concerns
- to aim to prevent quality issues from escalating to a situation where abuse or harm has taken place.
- to ensure early transparent conversations with providers take place.
Instances of poor practice in a service that have not resulted in harm or abuse should be managed as part of the QOCM framework.
This also allows for a fair and consistent approach to contract compliance action and any restrictions to purchasing status for the minimum time necessary with regular reviews.
The Hampshire Care Provider Quality Steering group brings together partner organisations such as the CCG’s, LA and Health. One of the key aims of this group is to work to develop a single view of quality and reduce duplication.
Escalation into safeguarding
Where individual service users or groups of service users have experienced abuse or neglect the management of these concerns should be addressed through the multi-agency safeguarding policy, guidance and toolkit (4LSAB 2015). This is the agreed multi-agency process issued by the Hampshire Safeguarding Adults Board.
A Large Scale Enquiry (LSE) response is part of the continuum of a whole system’s approach to safeguarding activity that may be an appropriate response to safeguarding concerns in a provider setting.
The LSE policy and associated processes are intended to be used in the most serious of circumstances where there is a high level of risk and complexity.
Circumstances where instigation of the LSE process could be considered appropriate include, but are not limited to:
- safeguarding concerns involving serious organisational abuse with evidence of criminal neglect, ill treatment, network abuse, death
- situations where it is suspected that a number of adults at risk have been abused by the same perpetrator, or by a group of perpetrators or in the same setting
- when there is clear evidence from safeguarding activities relating to an individual adult that other service users are at risk of significant harm
- where a provider has failed to engage with other safeguarding activities to date resulting in continued harm or continued risk of harm to one or more adult at risk
- where there is clear evidence that despite contract monitoring, quality improvement and/ or CQC action planning there is insufficient evidence of improvements within the service. This is resulting in continued harm or continued risk of harm to one or more adult at risk
- if there are significant public protection/community safety concerns.
Through the safeguarding process all attempts possible should be made to maintain the existing service where this is safe to do so.
Section four – responding to provider failure
This section relates to circumstances where provider failure becomes inevitable. It is only applicable where there has either not been the opportunity to manage using existing quality management or safeguarding processes or these processes have not been effective.
Temporary service interruptions
Temporary service interruptions can be variable in impact and duration. But for exceptional circumstances, it remains the provider’s primary responsibility to meet the needs of individuals receiving care and support in line with their contractual liabilities.
As part of their business as usual processes and contractual requirements providers must havebusiness continuity plans to deal with unexpected events and staffing shortage issues. It is essential that these plans consider short term interruptions and make necessary provision to ensure the maintenance of critical activities.
In the event of service interruption the circumstances should be considered and assessed by Adult Services based on risk and urgent need. It is for the department to decide if it will act to meets a person’s needs for care and support which appear to be urgent.
Adult Services will intervene where there is immediate risk of harm and the service is in immediate jeopardy through temporary interruption. This will only apply where there is no likelihood of returning to a ‘business as usual’ situation in the imminent future. For example, asking to cover staffing for a short period of time. The local authority duty in these circumstances is to vulnerable people whose needsappear to be urgent.
Temporary service interruptions can be due to business failure or for other reasons.
Examples may include fire, flood, outbreak of infection, or action by any regulatory body such as environmental health or fire service.
Where the Council considers the needs to be urgent it may exercise its discretionary power (section 19 Care Act 2014) to meet needs without first conducting a needs assessment, financial assessment or eligibility determinationand regardless of whether the relevant adult is ordinarily resident in Hampshire.