National Care Home Contract Update – Detail of Proposed Amendments Additions

The National Care Home Contract (NCHC) requires to be updated to take account of legislative changes, to amalgamate the various quality award conditions and take account of operational experience.

This paper seeks to highlight proposed changes to the National Care Home Contract in the categories of Amendments/Updates which take account of changes in the wider legislative or operational framework where it is hoped these could be agreed easily as well as proposed new clauses which would be additions and might require some discussion.

Furthermore there is a section on “Areas of Question” which take account of operational difficulties (some of which have ongoing workstreams) where it is hoped that progress can be made or at least items kept on the agenda.

Whilst the reshaping agenda might well supersede current models of care, contractual and funding arrangements it is assumed that this work would assist with this direction of travel.

AMENDMENTS/UPDATES

  1. Clause B.14 Protection of Vulnerable Adults Amended to Adult Support and Protection. May require further work. (Agreed with Ranald Mair on behalf ofScottish Care on Thursday 21st January 2010).
  2. Clause A.1.7 Definitions: “and its statutory successor/s” added at the end of definition of Care Commission.(Agreed with Ranald Mair on behalf ofScottish Careon Thursday 21st January 2010).
  3. Clause A.1.7 Definitions: “including where applicable any Quality Award” added to definition of Council's Approved Rate(Agreed with Ranald Mair on behalf ofScottish Care on Thursday 21st January 2010).
  4. Include Definition of Default Rate (move from A.21.10) ((The default rate being determined by applying to the full negotiated national fee rate a percentage reduction of 7.38% for nursing placements and 8.58% for residential placements Making the default rate 510.16 Nursing and 433.48 for residential).(Agreed with Ranald Mair on behalf ofScottish Care on Thursday 21st January 2010 – Insert percentage calculation and leave out actual figures. Need some additional work on the process regarding the decision to impose default rate).
  5. Clause A.1.7 Definitions: Address of Mental Welfare Commission updated(Agreed with Ranald Mair on behalf ofScottish Care on Thursday 21st January 2010).
  6. Clause A.13.1 (Data Protection) Have added H.M. Revenue & Customs (changed from Customs & Excise), and the Scottish Human Rights Commission to the list of examples of external regulators that the Council may share information with.(Agreed with Ranald Mair on behalf ofScottish Care on Thursday 21st January 2010 although questioning inclusion of SHRC to refer to meeting with SHRC Legal Officer on 1/2/10).
  7. Clause A.15 on Human Rights updated to require compliance with Section 145 of the Health and Social Care Act 2008(Agreed with Ranald Mair on behalf ofScottish Care on Thursday 21st January 2010 to check final wording with SHRC Legal Officer on 1/2/10).
  8. Clause A.16.1 on Non Discrimination updated to included references to
  9. the Race Relations Act 1976 (Amendment) Regulations 2003
  10. the Employment Equality (Sex Discrimination) Regulations 2005
  11. the Employment Equality (Age) Regulations 2006; and
  12. the Equal Pay Act 1970 (Amendment) Regulations 2003

PUT THESE INTO DATE ORDER IN FINAL VERSION.(Agreed with Ranald Mair on behalf ofScottish Care on Thursday 21st January 2010)

  1. Clause A.16.2 on Non Discrimination updated to reflect the new body: Scottish Human Rights Commission. (Agreed with Ranald Mair on behalf ofScottish Care on Thursday 21st January 2010 although refer to meeting with SHRC Legal Officer on 1/2/10 to finalise wording and status of Equality and Human Rights Commission)
  2. Clause A.17Racial Discrimination and the Promotion of Racial Equality updated to reflect new body: Scottish Human Rights Commission. (Agreed With Ranald Mair on behalf ofScottish Care on Thursday 21st January 2010 although refer to meeting with SHRC Legal Officer on 1/2/10 to finalise wording and status of Equality and Human Rights Commission)
  3. Clause A.19 on Assignations changed to Assignation/Disposal (Agreed with Ranald Mair on behalf ofScottish Care on Wednesday 27thJanuary 2010)
  4. Clause A.21.10 mention made of amended default rate. (Duplicate – no additional action)
  1. Clause A.22 Previous Appendix on Care,Administrativeand Finance contact of both provider and Council incorporated with clause. Individual names not included in an attempt to future proof (reason: previous experience indicates that the appendix was very often not completed)(Agreed With Ranald Mair on behalf ofScottish Care on Thursday 21st January 2010).
  1. Clause B.2.2 “activities” changed to “meaningful activities” (Discussedwith Ranald Mair on behalf ofScottish Careon Thursday 21stand Wednesday 27thJanuary 2010 – Issue regarding the meaning of meaningful (for whom) agreed: “in keeping with individuals needs assessment and agreed personal plan”).Further agreed with Ranald Mair on behalf ofScottish Care to add “in keeping with current best practice guidelines as issued from time to time by national organisations such as the Care Commission, Mental Welfare Commission and NHS.” Subsequent suggestion by Scottish Human Rights Commission that their organisation be added to list of examples.
  1. Clause B.2.2 Addition of “The Provider shall enable the Resident to live a full and active life.” We are suggesting aspirational activities within physical and social capabilities of each individual. We have struggled with the wording of this. Could Ranald Mair suggest something? (Discussedwith Ranald Mair on Thursday 21st January 2010 – needs further discussion. Further discussed with Ranald Mair on Wednesday 27th January 2010 – suggested amendment not agreed. Agreed issue is adequately covered at 14 above).
  1. Clause B.3.1 ii) Amended to include “The Provider shall have a Participation Strategy (Discussedwith Ranald Mair on Thursday 21st January 2010 – seen as reasonable. Agreed with Ranald Mair on behalf of Scottish Care on Wednesday 27th January 2010: To include “in line with Care Commission expectations and to include services users, relatives, representatives and where appropriate including the use of advocacy”).
  1. Clause B.4.4 needs to reflect local variation as not all councils use individual placement letter for clients eligible for Free Personal and/or Nursing Care.
  2. Clause B.14 changed to Adults at Risk (from Protection of Vulnerable Adults)(Agreed With Ranald Mair on behalf of Scottish Care on Thursday 21st January 2010).
  3. Clause B.14 changed to Adults at Risk (from Vulnerable Adults)(Agreed With Ranald Mair on behalf of Scottish Care on Thursday 21st January 2010).
  1. Clause C.4.2.1(1) change “increase” to “change” (Discussedwith Ranald Mair on behalf of Scottish Care on Thursday 21st January 2010 – not seen as adding anything as, if increase is zero there is none and agreed through national negotiation currently anyway. Agreed to leave as is for 2010/11).
  1. Clause C.5 – to be amended per local arrangements (Invoicing arrangements – agreed to highlight when issuing draft framework contract)
  2. Appendix 1 a & b requires to be re-instated and updated for 2010/11
  1. Appendix 1c required to be updated with new figures and what each means. Also need wording to deal with application of Enhanced Quality Award and when it applies from etc. (Agreed with Ranald Mair on behalf of Scottish Care on Thursday 21st January 2010).
  2. Appendix 2 requires updating for 2010/11 using Barbara Lindsay letter to LA Directors of Social Work of 18 March 2009.

PROPOSED NEW CLAUSES

A.1.7Definition of “COSLA” inserted (Agreed with Ranald Mair on behalf of Scottish Care on Thursday 21st January 2010).

A.1.7Definition of “DWP” inserted(Agreed with Ranald Mair on behalf of Scottish Care on Thursday 21st January 2010).

A.1.7Definition of “Scottish Human Rights Commission” inserted. Make sure in whole contract where there is reference to one there is reference to the Equality and Human Rights Commission)– both are relevant.

A.1.7Definition of “Introductory Pack” inserted(Agreed with Ranald Mair on behalf of Scottish Care on Wednesday 27thJanuary 2010).

A.1.7 Definition of “Participation Strategy” required.

A.1.7 Definition of “Business Continuity Plan” means a plan which ensures the ongoing care of Residents in the event of any business interruption. (Discussed with Ranald Mair on Thursday 21st January 2010 – Suggest checking with Marcia as to Care Commission requirements. Role of LA also seen as essential in this regard. Agreed with Ranald Mair on Wednesday 27th January 2010 that this should include “to include the respective roles of the provider, local authorities and other statutory bodies – Still to check with Marcia Ramsay at Care Commission).
Also agreed to add “The provider shall provide a copy to the Business Continuity Plan to the Council within 14 days, upon request, or as soon as is practicable in the case of an emergency.

A.9.8 Inserted:
For the avoidance of doubt the Provider shall operate a Safer Recruitment Policy in accordance with Standard 5 of the Scottish Government’s National Care Standards. The provider shall provide a copy to the Council, of their Safer Recruitment Policy upon request.

The Service Provider shall ensure that the requirements of any new legislation or method of checking the suitability of a member of staff to work with Adults at Risk are adhered to, this includes but is not limited to the Protecting Vulnerable Groups Scheme (PVG Scheme) proposed by the Scottish Government for implementation in 2010 as amended from time to time.

CHECK FOR ANY UPDATED TERMINOLOGY. (Discussed with Ranald Mair on Thursday 21st January 2010 – relates to current workstream Further discussed with Ranald Mair, Marcia Ramsay and Chris Whelan – agreed to draft form of words to include appropriate checks for workers from or who may have spent some time abroad)

A21.6During the notice period the Council reserves the right to reduce the Council’s Approved Rate to the Default Rate at its sole discretion. (Discussed with Ranald Mair on Wednesday 27th January 2010 – Not agreed)

A.21.23 Under General Provisions - Notwithstanding the requirement in respect of

assignation/disposal (at Section A.19) and termination of the contract (At section A.21) Any material changes to the management and control of the Service shall be communicated to the Council within 4 weeks of the change occurring. (Agreed with Ranald Mair on behalf of Scottish Care on Wednesday 27th January 2010).

A.24BUSINESS CONTINUITY

The Provider will develop, implement, maintain and regularly review a Business Continuity Plan. Thistakes into account, but is not limited to, the occurrence of a flu pandemic. The Provider will make available to the Council a copy of its Business Continuity Plan within 14 days of a written request, or as soon as is practicable in the case of an emergency. (Agreed with Ranald Mairon behalf of Scottish Care on Wednesday 27th January 2010).

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B.11.1 NEW CLAUSE TO BE INSERTED BETWEEN B.11.1 and B.11.2. Where the subject matter of any complaint received by the Provider falls within the auspices of The Adult Support and Protection Act [DATE] the Provider shall immediately notify the Council of the allegations or evidence of abuse in accordance with Clauses B.13.1 and B.14 of this Contract.(Agreed With Ranald Mair on Thursday 21st January 2010. Covered under legislation anyway).

B.14 To be compared with Inverclyde’s style clause to ensure that nothing is missing.

AREAS OF QUESTION

  1. City of Edinburgh Council intend to include a clause requiring providers to obtain criminal record checks for all applicants who have spent more than 3 month abroad within the previous 5 years. Where there is no system or question on the robustness of the checking system within the country in question additional checks and risk assessment to be undertaken. Suggestion that providers when recruiting (from abroad) mention any such requirement to potentially discourage application from people with criminal record.
  2. Short term working group (Teague McFadden, Marcia Ramsay, Ranald Mair & Chris Whelan) to look at issue and decide way forward by the next partnership Reference Group on 3 February.
  3. Marcia & SSSC Meeting with Disclosure Scotland and Criminal Records Bureaux w/b 7/12/09 and agreed to raise
  4. Teague to send CoE Briefing Sheet to Kavita Chetty at Scottish Human Rights Commission to ask view on approach risks and maintenance of Human Rights.
  5. Clause A.1.7 Definitions:
    Additional Charges – issue re definition of “standard care”. Recommend leaving as is
    Additional Care Charge – Review consultation results (Teague)
  6. A.21.10The Council reserves the right to adjust payment to default rate (as defined….) in the event of the provider being in material or persistent breach.Discussed with Ranald Mairon behalf of Scottish Care on Wednesday 27th January 2010 Agreed to leave as is and adjust language)
  7. 21.11 If provider is (No action)
  1. A.21.13 – “The Council shall advise the Care Commission of any material or persistent breach of Contract by the Provider.” Request to extend this to other local authorities to take account of material or persistent breaches where the Care Commission have not as yet taken formal action or where there is a contractual breach which does not refer to Care Standards - which should not happen often) This would formalise and empower the current moratorium on placements issue and is consistent with “Pursuing the Public Pound” and the wider duty of care.Discussed with Ranald Mairon behalf of Scottish Care on Wednesday 27th January 2010 need clarity on way forward)
  2. Clause B.1, B.2 or B.3 (Most Likely B.3 – Principles of the Service) mention of greater emphasis on both personalisation of service and delivering on positive outcomes for the service user (Possibly even through requesting utilising the Talking Points – Personal outcomes approach).
  3. Clause B.9 on Meals & Snacks: suggestion ofsome reference to:
  4. The publication ‘Eating well in Care Homes’,
  5. the use of a recognised assessment tool,
  6. being specific about training and use of ‘nutrition champions’, staff knowledge of fortified diets etc
  7. Clause B.10 on Personal & Health Care: Suggestion that there should there be something about medication management, use of covert medication and the Mental Welfare Commissions care pathways. Also palliative care and the publication ‘Making good care better’ and reference to the document ‘Living and Dying well’.Discussed with Ranald Mairon behalf of Scottish Care on Wednesday 27th January 2010 Agreed that this is covered under changes to B.2.2 (“in keeping with current best practice guidelines as issued from time to time by national organisations such as the Care Commission, Mental Welfare Commission and NHS”)
  8. Clause B.14 Suggestion that there should be reference to The Adult Support and Protection (Scotland) Act within the contract.
  9. Clause B.14.8 – Suggestion of inclusion of, within complaints procedure, compliance with local adult support and protection procedures
  10. B.14.10 Suggestion of, the Provider being required to follow local inter agency guidelines and protocols.
  11. From 09/10 10/11 Settlement letter of 18/3/09:
    “COSLA will amend the national contract (clause C.1.2) to define an appropriate period in which the financial assessment of a care home resident should be completed before an interim notice of contribution level is required to be issued”Discussed with Ranald Mairon behalf of Scottish Care on Wednesday 27th January 2010 Agreed that this needs further work – to take to NCHC Reference Group).
  12. Section C.3 Additional Charges needs greater clarity (unlikely to be able to do this till standard care defined and agreed)
  13. Clause C.5.3 – Suggestion of “insert local procedure for invoicing arrangements”

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CONSISTENCY

Adults at Risk as opposed to Vulnerable Adults and Adult Support and Protection.

THINGS TO CONSIDER WHEN SENDING OUT COMPLETE CONTRACT

C.5 INVOICING needs to be amended to reflect local arrangements.

Highlight bits in the contract where the Councils have to fill parts in before sending out the contract for signing and highlight bits where the providers have to fill in parts before signing.

National Care Home Contract Updates Amendments and Questions