GUIDANCE ON FREE PERSONAL AND NURSING CARE IN SCOTLAND 2003

Annex C: Nationally Consistent Framework for a Route 2 Contract Between Local Authorities and Independent Sector Care Homes

INTRODUCTION

1. This model contract has been developed by the Executive to guide and support both local authorities and care providers as they develop and agree their own Route 2 contracts as part of the implementation of the Executive's policy on free personal and nursing care.

2. As described in Section 4, a service user who chooses to go down Route 2, the mutual route, will use 2 contracts, one private contract between himself and the care home for hotel and living costs, and a second nationally consistent contract for personal and/or nursing care. This second contract will be between the local authority on behalf of the service user and the care provider and will relate solely to the provision of and payments towards personal and/or nursing care.

3. Where appropriate, in the interests of national consistency and equity, core contract conditions should be incorporated into tripartite contracts agreed under Route 3, the integrated route.

Background

4. The Route 2 contract is a contract between a local authority and a care provider for the provision of personal and/or nursing care to a care home resident in return for the flat rate payments set down in regulations of the Scottish Parliament (currently £145 per week for personal care and £65 for nursing care.) It can only be used for those residents who have entered or will enter into a private agreement with the care provider for the other parts of their care package ( i.e. their accommodation/"hotel" costs) but who have asked the local authority to contribute towards their care costs in accordance with the Executive's policy on free personal and nursing care.

5. For further information on Route 2 contracts and on the different contractual options available to existing care home residents and those entering residential care, see Section 4: Contracts.

The Role of the Model Contract

6. This guidance is aimed at ensuring that local authorities and care providers can agree Route 2 contracts which are nationally consistent in time for the 1 July implementation date for the Executive's policy on free personal and nursing care. The model contract has been developed in conjunction with local authorities and the private care sector and should serve as the basis for all Route 2 contracts.

7. In particular, the model contract, together with this circular, seeks to clarify which aspects of a Route 2 contract need to be consistent across Scotland, regardless of which local authority and which service provider are signatories to the contract. For example, the conditions under which the contract can be terminated and the length of time for which payments will continue after the death of the Resident are set out in the model contract and should be replicated in all Route 2 contracts. Similarly the pre-conditions which must be met before a Route 2 contract can be entered into, the length of time for which payments will continue if the resident is temporarily absent from the home and the amount of the contract price should be the same in all Route 2 contracts.

8. Other elements of the model contract are intended as a suggestion or starting point, but may need to be varied to reflect existing local practices, local authority standing orders etc. For example, this is true of parts of those clauses which relate to the monitoring and review of the resident's care needs.

9. It is also possible that local authorities and/or care providers may wish to expand certain parts of the model contract to avoid any room for misunderstanding or ambiguity. For example, the model contract refers to the local authority's "usual payment mechanisms" to reflect the existing variations from authority to authority. However, both local authorities and care providers are likely to see it as desirable that the particular payment mechanisms to be used are described in detail within any Route 2 contract which they are entering into.

Short-Term Placements

10. The model contract has been drafted primarily with long term placements in mind. However, many of the same terms and conditions should apply in the case of a short-term placement which is being established on a Route 2 basis. Indeed, the only obvious change to the Schedule which might be necessary in the case of a short-term placement is to the notice periods in the Termination of Contract clause.

SPECIFIC POINTS ABOUT THE MODEL CONTRACT

The Offer

11. The wording of the offer and information contained may vary slightly from authority to authority. However, for the sake of transparency, it is important that the offer is in respect of a particular resident, that the resident's name is on the front sheet of the offer and that the offer states the level of care which will be provided to the resident under the contract (personal care or nursing care or personal and nursing care.)

THE SCHEDULE

Definition of the Contract Price:

12. The contract price is set in regulations of the Scottish Parliament (The Community Care (Personal Care and Nursing Care) (Scotland) Regulations 2002) and can only be varied through regulations. The definition is worded in such a way that if the contract price is changed in regulations at some future date, then no amendment will be needed to existing contracts.

Pre-Conditions concerning the resident:

13. The third pre-condition concerning the resident ((c) in 2.2) is that the resident must either have been assessed by the local authority as requiring personal and/or nursing care or "is a person referred to in Regulation 2 of the Community Care (Assessment of Needs) (Scotland) Regulations 2002...." This refers to those people who were already in a care home prior to 1 April 2002 and for whom local authorities can arrange the provision of personal and/or nursing care without carrying out a needs assessment under the transitional arrangements for implementation.

Duration of Contract:

14. Section 2 sets out the eligibility criteria. Paragraph 18 notes that local authorities will need to have in place agreed eligibility criteria for assessments of need and priorities for the provision of and access to services based on need. Following a needs assessment, payment towards personal care should commence when the authority is in a position to arrange or provide the required services. At this point, we believe the existence of the model contract should ensure that the individual's contract can be put in place readily.

Payment

15. The local authority must pay the entire contract price to the care provider in return for the services and cannot withhold a part of the payment for any reason or all of the payment except for the reasons contained in Clauses 10, 14, 15 and 18 (loss of registration, temporary absence of the resident from the home for longer than 14 days, death of the resident or termination of the contract.) This is a statutory requirement.

16. It should be clear to individuals that flat rate payments for personal and nursing care will be made by the local authority to the care home. Care home managers will wish to ensure that there is clarity in revised billing arrangements. These arrangements should also reflect the National Care Standards for Care Homes for Older People in relation to clarity of information regarding fees and fee structures.

17. It has been suggested that the contract should state that the entire contract price must be passed on by the care provider to the resident. We do not think that such a clause can be included for legal reasons. However, it is important that the full financial benefit of the personal and nursing care policy is passed on to the individual who should see a consequent reduction in their care home fees. If it becomes evident that this is not happening, it should be reported to the Scottish Executive.

18. It is likely that both local authorities and care providers will want to expand on the phrase "usual payment mechanisms" by clarifying exactly what payment mechanisms will apply. We anticipate that in most cases these will be the same payment mechanisms which apply to existing contracts between particular local authorities and particular care providers. We have not attempted to include such payment mechanisms in the model contract because of the considerable variations from authority to authority. We do not see this variation in payment mechanisms as a problem and are happy for local authorities and care providers to agree payment mechanisms as they see fit.

19. Local authorities may also wish to go into greater detail in their own Route 2 contracts about the arrangements and timing for the provision of receipted invoices to the local authority by the care provider.

Monitoring and Review of Resident's Care Needs: Initial Review

20. Where there is no trial period, an initial review should still be carried out during the first few weeks after the contract has been entered into, in addition to the review after six months.

Monitoring and Review of Resident's Care Needs: Responsibility for Annual Review

21. Arrangements as to who is responsible for the annual review vary from local authority to local authority. The Executive accepts such variations, provided that there is clarity in the contract about who is responsible for the annual review and when it will be carried out.

Complaints

22. In some existing contracts between local authorities and care providers, it is the care provider's responsibility rather than the local authority's to advise the resident of their right to complain to the local authority about any aspect of the care being provided under the contract. The Executive has no objection to this responsibility falling on the provider rather than the council, as long as there is clarity for the resident.

Insurance

23. Insurance is a mandatory requirement of care home registration under the Regulation of Care (Scotland) Act 2001. For this reason, some local authorities may feel that this clause is unnecessary. This is a decision for individual authorities on the basis of the advice they receive.

Statutory Obligations

24. Local authorities may wish to replace this clause with their own standard equivalent clause.

Temporary Absence from the Home: Cessation of Payments

25. The cessation of payments of the contract price after the resident has been temporarily absent from the home for a period of 14 days is an important element of national consistency across all Route 2 contracts. This condition should not be varied in any Route 2 contract.

26. We have heard arguments in favour of a sliding scale of decreasing payments after 14 days (as is sometimes the case in existing contracts between local authorities and care providers) and arguments in favour of a longer period of continued payments in the case of hospitalisation. However, the Executive considers that it cannot justify the provision of personal and nursing care payments beyond 14 days to anyone who is not receiving those services as a result of temporary absence from the home (and who in the case of hospitalisation is also receiving that care elsewhere from public funds).

Death of the Resident

27. The continued payment of the contract price for 3 days after the date of death is an important element of national consistency. This condition should not be varied in any Route 2 contract.

28. For the avoidance of doubt, this clause means that the local authority's financial obligation will end 3 complete days after the resident's death ( i.e. if the resident died on 1 September, the contract price should be paid pro rata up to and including 4 September.)

Assignation and Sub Contracting

29. Provided that the purchaser/intended purchaser is already registered or succeeds in being granted registration, we do not see any reason why the local authority would not consent to an assignation of the contract in favour of the purchaser.

User Agreements

30. The Route 2 contract will run alongside the private agreement between the resident and the care provider. However, one of the signatories to the Route 2 contract, the local authority, may not see the private agreement. This clause is in part intended to protect the local authority in this situation and to ensure that where the private agreement and the Route 2 contract are in conflict, the Route 2 contract takes precedence.

Termination of the Contract: The care being provided is no longer appropriate

31. At the time that a Route 2 contract is entered into, the contract will specify whether personal care or nursing care or personal care and nursing care is to be provided to the resident under the contract. The contract price to be paid by the local authority to the care provider will vary according to the type of care being provided.

32. As a result of a re-assessment (or assessment in the case of a resident who received the care under the transitional arrangements for implementation) of the resident's care needs at a later date, it may become apparent that the care which the resident is receiving under the contract is no longer appropriate. This could be because the resident's care needs have significantly increased and the resident now requires nursing care as well as personal care. Alternatively, a resident's care needs might decrease (during recovery from a stroke for example) to the point where a resident who was being provided with personal care under the contract is assessed as no longer requiring either personal or nursing care.

33. In all of these instances, since the contract was established for the provision of a particular type of care (personal care or nursing care or personal and nursing care), the Executive's view is that it would not be appropriate to continue with or adapt the existing contract. Instead, the existing Route 2 contract would need to be terminated under Clause 18. If the resident has been assessed as no longer having care needs, and is therefore ineligible for a continued contribution towards their care costs, it will not be appropriate to agree a new Route 2 contract. However, if the resident's care needs have changed rather than ceased, then it will be appropriate to agree a new Route 2 contract which reflects these changed needs. This new Route 2 contract would begin the day after the old contract was terminated.

Notices: The person nominated by the council

34. It has been suggested that local authorities may wish to nominate a member of staff more senior than the care manager in this clause.

Variations, 23. Law of Scotland and 24. Exercise of Powers: Standard Clauses

35. Local authorities may choose to substitute their own standard clauses to replace those here. In addition, local authorities may have other standard clauses which it might be appropriate to include within this part of the schedule.