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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.
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