Safety Quality Efficiency Workforce Health Governance

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1 SUMMARY REPORT Health Board ABM University Health Board Date of Meeting: 7 th November 2013 Subject NHS Funded Nursing Care Agenda item: 4 (i) Prepared by Approved by Christine Williams, Assistant Director of Nursing and Paul Gilchrist Assistant Director of Finance Christine Williams, Assistant Director of Nursing, Eifion Williams, Director of Finance and Alexandra Howells, Chief Operating Officer Presented by Alexandra Howells, Chief Operating Officer Purpose 1) To provide Board Members with an update on the current position regarding Funded Nursing Care (FNC) fees, including developments since the papers considered at the ABMU Health Board meeting on 26 th March ) To set out the recommendations from the Chief Executive Officers (CEO) Peer Group following discussion at their meeting on 16th July ) To provide Board Members with all relevant information prior to any decision. 4) To provide assurance to Board Members regarding the process followed. Decision Approval Information Other Safety Quality Efficiency Workforce Health Governance X X Governance This relates to Standards for Healthcare Services Standard 1 in respect of having a robust process for the setting of FNC rates. Governance & Accountability Care home providers deliver nursing care to frail and vulnerable people on behalf of the NHS. Health Boards have a responsibility to ensure that the care delivered complies with NHS values and standards. Equality, Diversity & Human Rights Attached at Appendix 1- ABMU Health Board Equality Impact Assessment (which has been informed by the All Wales Equality Impact Assessment). 1

2 Key Recommendations The Board is requested to consider available evidence, including the recommendations of the Chief Executives Peer Group, the ABMU Health Board Equality Impact Assessment, and the Laing and Buisson report and make an independent decision regarding the following: Whether or not a national procurement system should be considered for the provision of continence pads to nursing homes. Whether or not to reject any uplift of the FNC rate for the financial year 2012/13. Whether or not 50% of the proposed uplift in the direct nursing costs (ie an increase in the FNC rate of 9.03 per resident per week) should be applied for the 2013/14 financial year, backdated to 1 st April 2013 (with payment made as soon as possible). Whether or not the full proposed uplift in the FNC rate of per resident per week for direct nursing salary costs should be applied from 1 st April 2014, and should be linked to a national outcomes-based commissioning framework for FNC and NHS Continuing Healthcare. Whether or not the above decisions of the Board should be made without prejudice to any further discussions between the interested parties (including other Health Boards in Wales), and that the above decisions will be revisited if alternative proposals emanated from this process. 2

3 Corporate Impact Assessment Financial Implications The financial impact on this Health Board of the proposed 50% uplift for direct nursing costs in 2013/14 and backdated to 1 st April 2013 is estimated to be: 0.560m (based on current client weeks to date, 11/9/13, and assuming all current clients will continue to year end) The financial impact of the full uplift for direct nursing costs from April 2014/15 is estimated to be: 1.120m (based on current client numbers) There is also a potential impact upon the cost of our basic CHC packages of c m part year and up to 0.70 m full year. It is anticipated that the impact will be partially offset by the savings made via the national procurement of continence products and system-wide benefits resulting from more robust commissioning practices. Quality and Safety Quality & Safety Care home providers are delivering nursing care on behalf of the NHS. The hypothesis is that by supporting financial stability and by improving commissioning practices, there will be positive impact on quality and safety. Integration & Partnership The implementation of an outcomes-focussed commissioning framework and improved partnership working with providers should impact on emergency admissions for chronic conditions. Awaiting care home of choice is the greatest cause of delayed transfers of care. The proposed uplift in FNC may assist in preventing care home capacity from reducing further. Use of Resource The combination of potential savings via the national procurement of continence products and the system wide benefits in unscheduled care/flow resulting from better commissioning practice, are anticipated to contribute to financial balance. 3

4 Risk The risks to Health Boards are: - financial; and - legal challenge. The FNC rate has, to date, operated on a collective basis. Each Health Board is accountable for its own decision with regard to the FNC rate, taking into consideration the evidence available, including the recommendations of the Chief Executive s Peer Group. There is a risk that the national approach may cease and that this may lead to inconsistency across Wales as a result. Equality Impact Assessment The ABMU Health Board Equality Impact Assessment has been provided with this paper. The Local Health Board is required to demonstrate that due regard has been paid to the public sector equality duty set out in the Equality Act 2010 when considering the evidence available. The All-Wales Equality Impact assessment has informed the Health Board s assessment of the impact and further consideration has been given to the potential impacts on protected groups in the ABMU Health Board area, with relevant information identified where appropriate. 4

5 MAIN REPORT ABM University Health Board Health Board Date 7 th November 2013 Agenda item: 4 (i) Subject Prepared by Approved by Presented by NHS Funded Nursing Care Christine Williams, Assistant Director of Nursing and Paul Gilchrist, Assistant Director of Finance. Christine Williams, Assistant Director of Nursing, Eifion Williams, Director of Finance and Alexandra Howells, Chief Operating Officer Alexandra Howells, Chief Operating Officer PURPOSE To provide Board Members with an update on the current position regarding FNC, including developments since the paper considered at the ABMU Board meeting on 26 March To ensure that Board Members have sight of available evidence prior to making a decision. INTRODUCTION FNC refers to the NHS financial contribution towards the costs of those people assessed as requiring nursing care, provided by a registered nurse, within a care home. In March 2012, Health Board Chief Executives in Wales commissioned a review of Funded Nursing Care to: Confirm the current process in Wales to determine the FNC rate; and Determine whether this process remains valid and appropriate. The review highlighted the absence of a clear rationale and process for fee setting across Wales; it recommended that further work be undertaken to develop the evidence base and understanding of FNC requirements in Wales. Laing and Buisson were awarded the contract to undertake a survey to ascertain typical levels of registered nurse care currently provided to residents in care homes in Wales. The results of the survey were presented to Chief Executives on 16 th July 2013, on the basis of which, they made a number of recommendations. Whilst these recommendations have been agreed on a collective basis, each Health Board is independently accountable for its decision on FNC and should consider all of the evidence available before coming to a decision. The following documents have been provided to assist the Board in their decision making process: 5

6 An Equality Impact Assessment Appendix 1. The full report on the Laing & Buisson Survey - Appendix 2. BACKGROUND FNC refers to the NHS financial contribution towards the costs of those people assessed as requiring nursing care by a registered nurse within a care home. In response to the recommendations of the Royal Commission on Long-Term Care which reported in 2000 the separate administrations in England, Wales and Northern Ireland decided that personal care and other non-health costs of residential care should continue to be paid for by local authorities or by the individual according to their means. They did however agree that the nursing care provided by a registered nurse should be free in all settings. Additionally Scotland decided to make personal care to the over 65s free in residential care settings and later in domestic settings. Along with other UK Countries with the above exception of Scotland - the (then) Welsh Assembly Government (WAG) introduced this policy in late 2001 of an NHS FNC contribution to the total package provided in care homes. Prior to this registered nursing care provided within a care home was potentially chargeable and subject to means testing, with the placement either self-funded or funded via the resident local authority. Partially implemented in 2001 for those self-funding their care within a nursing care home placement, the policy was fully implemented in Initially introduced as a single flat rate of 100 per week the funding was described by WAG as a contribution to the costs of nursing care, and any continence products that were necessary. The rate was uplifted annually by WAG, in line with inflation. In April 2004 the Welsh Government directed Local Health Boards, by means of a formal Directions Order 1 to assume the responsibility for funding Nursing Care as defined in the Health and Social Care Act (2001). The Order makes provision for appropriate assessment to be carried out. In response to that assessment, the legal responsibility is to provide the person who has been assessed as eligible with such nursing care to be provided by a registered nurse as it considers appropriate. This wording means that there is a level of discretion for the appropriate Local Health Board to determine what may be appropriate. The Directions were accompanied by guidance 2 which clarifies the nature of the Local Health Board s obligation. The circular clarifies the scope of the obligation of the Local Health Board to support the provision of nursing care by a registered nurse for any patient who has been assessed as eligible. It also set out Welsh Government expectations that Local Health Boards will work in partnership to make appropriate joint arrangements with Local Authorities. It advised Local Health Boards and Local Authorities to make arrangements by which the Local Health Board contributed to the funding of an appropriate package, and to have 1 The National Health Service (Nursing Care in Residential Accommodation) (Wales) Directions WHC(2004)024: NHS Funded Nursing Care in Care Homes Guidance 6

7 arrangements in place to pay local authorities for the nursing care by a registered nurse of residents from 1 April 2004, or had put in place alternative arrangements agreed with local authorities and care home providers. The Circular provides that Local Health Boards will need to ensure that they are directly involved in the planning for, and implementation of, future arrangements for the provision of NHS Funded Nursing Care. In 2006 the Welsh Assembly Government distributed the funding to Local Health Boards for local management, and included the resource within their overall allocation. Since 2006 Local Health Boards have therefore managed both the assessment and funding process. No specific FNC related uplifts were provided for within the overall NHS financial allocation Local Health Boards were required to determine locally any uplift that should apply. In recent years the FNC fee has been negotiated by Directors of Finance, who have considered and agreed any uplift collectively, seeking to ensure a consistent approach and a single rate to apply across Wales. By 2010, with inflation uplifts, the FNC rate had risen to per week. In 2011/12, 2012/13 and so far in 2013/14, no uplift has been made to the FNC rate, reflecting the zero uplift in the allocation from Welsh Government. Care Home providers questioned this situation on the grounds that the rate applied by Local Health Boards does not properly reflect the actual cost of nursing care and any necessary continence supplies. In March 2012, Health Board Chief Executives in Wales commissioned a review of Funded Nursing Care and established a small FNC Review Group to oversee the project. The Terms of Reference for FNC Review Group were: To confirm the current processes in place in Wales to determine the FNC rate; and To determine whether this process remains valid and appropriate. An Interim Report of Review was presented to the Chief Executives Peer Group Meeting in September 2012, which highlighted the absence of a clear rationale and process for FNC fee setting across Wales. Further scoping work was recommended to develop the evidence base and understanding of FNC requirements in Wales. Consequently, further work was undertaken by the FNC Review Group, with providers, to develop and implement a wider mapping exercise. Laing and Buisson were awarded the contract to undertake a FNC Survey to ascertain the typical levels of registered nurse care currently provided to residents of care homes in Wales. The Laing & Buisson report was presented to the All Wales NHS Chief Executive s Peer Group on 16 th July The full Laing & Buisson report is attached (Appendix 2). The headline findings were as follows: 7

8 The current FNC rate is and is comprised of 2 elements: o for direct salary nursing costs and o 10 for continence products. The survey found that the typical actual costs in 2013 are for direct salary costs (an increase of 18.05) and for continence products (an increase of 1.88), totalling (an increase of 19.93) per resident per week. The Laing & Buisson report argued that the strict definition of nursing applied does not take account of the full range of nursing activity undertaken, the regulatory requirement to have a nurse on standby duty overnight, clinical supervision, paid breaks and general management tasks. If these were added to the calculation the total required uplift (including continence products) would increase by to a total required uplift of per resident per week. The cost to NHS Wales of implementing the uplift per FNC resident per week is estimated as being 6.1m. This will have an additional impact on rates paid for NHS Continuing Health Care, which are usually set at the local authority care home rate plus FNC, as a minimum. The total estimated cost to NHS Wales, taking into account the additional CHC impact, is 10.2m. For information, although the FNC fees in England are lower than Wales (although they are not 100% comparable even after allowing for incontinence products) they have only been up lifted by 1% for 2013/14. The options laid before the Chief Executives by the FNC Review Group are detailed below. Nursing Costs The direct salary cost (including on-costs) element of the current FNC rate is per resident per week. The Laing & Buisson report now calculates the direct salary cost as being per resident per week. Option 1: Do nothing It has been acknowledged that the process adopted for setting FNC rates is not valid or appropriate, and having commissioned field work to provide objective and robust data on the actual costs of care for residents, the status quo would expose Local Health Boards in Wales to legal challenge, reputational damage and potentially risk decreasing capacity and choice in the care home market (see Equality Impact Assessment). Despite the financial constraints NHS Wales currently faces, maintaining the status quo is not a valid option. 8

9 Option 2: Apply rate of inflation This option would be viewed as to at least offer an increased rate for providers, but represents a return to the process operated pre This option also renders Local Health Boards open to the challenge of continuing to apply a process which has already been acknowledged as flawed and ignoring the evidence base collated in the Laing and Buisson report. The legal, reputational and commissioning risk is similar to that in Option 1. Option 3: Apply the report findings as presented The FNC Review Group has worked closely with providers and Laing & Buisson throughout the project and is satisfied that the findings in relation to Nursing Costs are robust and reasonable. The benefits of this option are: 1, NHS Wales will be able to demonstrate that a valid and appropriate process is in place in Wales to determine the FNC rate, based on a robust evidence base in compliance with legal and policy requirements; 2. Potential for improvement in the sustainability of good providers; 3. Enhancement of commissioning with the independent sector potentially including: Standard contracts Quality and performance expectations Collaboration in the delivery of new models of care designed to relieve pressure on secondary care. The key risk associated with this option is: The financial consequences on other areas of the service of this level of spend, given the clear message from Welsh Government that there is no additional funding available. Continence Products The current allowance for continence products within the FNC rate is 10 per person per week. The findings of the Laing and Buisson Report now calculate that the recommended allowance should be This calculation is based on an assumption that all typical nursing home residents are incontinent and utilise an average of 33 pads per week at a cost of 36p per pad. Option 1: retain status quo Same risks as above. Option 2: apply rate of inflation Same risks as above. 9

10 Option 3: Apply the report findings as presented. The benefits of this option are: 1. Potential for improvement in the sustainability of good providers; 2. Enhancement of commissioning with the independent sector. The risks associated with this option are: 1. The assumption that all typical nursing home residents are incontinent with the estimation of 4.7 inco pads per resident per day (33 divided by 36p unit cost may be excessive and requires further scrutiny, as outlined in Option 4 below. 2. The financial consequences on other areas of the service of this level of spend, given the clear message from Welsh Government that there is no additional funding available. The FNC Review Group suggests that the evidence base in relation to continence products requires further scrutiny, as outlined in Option 4 below. Option 4: Retain the current 10 contribution to the provision of continence products, whilst scoping actual numbers and exploring national procurement options. Further savings may be made by procuring incontinence pads nationally on behalf of the Care Home providers (or paying the equivalent rate to those which prefer to buy their more expensive pads). The risks associated with this option centre on the willingness of providers to engage with the further scoping exercise, and potential legal challenge. In view of the requirement to demonstrate probity with public monies, Chief Executives tasked the FNC Review Group to explore the following: The potential to establish a national NHS procurement system for continence pads for residents of care homes, in collaboration with the Shared Services Procurement Hub Justification of the 27% on costs used in the direct salary calculation; The ability to link the FNC uplift to the implementation of an outcomes based commissioning framework. The FNC Review Group reported back on 29 th August Having considered all the options and the Equality Impact Assessment, the Chief Executives made a series of recommendations which are listed below. 10

11 1. A national procurement system should be established for the provision of continence pads to nursing homes. The rationale being that this could potentially save up to 4.86 per resident per week. This system will be developed in collaboration with the Shared Services Procurement Hub. The project team will need to include specialist NHS continence expertise to ensure that products are clinically appropriate, and will require the full engagement of providers in order to address the operational practicalities required to uphold patient safety. It is proposed that implementation of the national system should commence from 1 st April There may however, be some slippage in this timescale due to a delay in the decision making process (some Boards will not consider the recommendations until November 2013). The current allowance of 10 per resident per week will be maintained until the national procurement system is operational if provided viable % of the proposed uplift in the accepted direct nursing costs should be applied for the 2013/14 financial year, backdated to 1 st April This is a pragmatic approach which balances the acknowledgement that some uplift is required with immediate effect, against the statutory responsibility of Health Boards to achieve a financial break-even position in March The full uplift per resident per week for the accepted direct nursing salary costs should be applied from 1 st April 2014, and should be linked to a national outcomes-based commissioning framework for FNC and NHS Continuing Healthcare. The rationale being that the outcomes framework has the potential to derive systemwide benefits, as well as those for individuals in receipt of FNC and CHC. These could include for example, a reduction in unnecessary ambulance calls/conveyances for nursing home residents, and may assist in mitigating the financial impact of the uplift for the NHS as a whole. It is anticipated that template service specifications, terms and conditions and monitoring proforma will be delivered to coincide with the launch of the updated National CHC Framework in Spring This will represent implementation of the first phase of a longer-term project to be undertaken with local authority partners. A Pre-Action Protocol letter of claim dated 8 th September 2013 has been sent to ABMU Health Board on behalf of Barchester Healthcare Limited (the Claimant), a care home provider operating within the Health Board s area. That letter threatens to bring judicial review proceedings against ABMU Health Board for the following alleged failures by the Health Board: failure to determine the FNC rate for the 2012/13 financial year or to decide on backdating; failure to determine, or set a date for determining, the FNC rate (whether interim or otherwise) for the 2013/14 financial year; 11

12 failure to set FNC rates for each financial year between 2007/08 and 2011/12 in accordance with ABMU Health Board s legal obligations and constitution, instead adopting All-Wales decisions made by groups of officers from the 7 Health Boards in Wales; and By reason of the above, a continuing failure by ABMU Health Board to provide appropriate nursing care to qualifying persons under Article 1(12) of the National Health Service (Nursing Care in Residential Accommodation) (Wales) Directions In the absence of agreement otherwise, a formal response is required to that letter. The Claimant has proposed that if ABMU Health Board confirms it will take decisions on an interim basis, the Pre-Action Protocol letter of claim will be withdrawn insofar as it relates to the financial years between 2011/12 and 2014/15. The Claimant s solicitor recently sent a letter to a neighbouring Health Board setting out various arguments as to why decisions taken by the Board at a meeting in September 2013 in relation to FNC rates (based upon a paper similar to this one) were unlawful The Claimant s solicitor has circulated that letter to the solicitors acting for the other Health Boards, including ABMU. Our solicitors are reviewing these arguments. If decisions are taken by the Health Board on an interim basis, it is likely that the Claimant will send a further Pre-Action Protocol letter of claim to the Health Board (no doubt incorporating the arguments set out in the letter described in the above paragraph. However, the Claimant s solicitor has suggested that no further action would be taken on that letter pending final decisions in relation to the FNC rates for appropriate years. RECOMMENDATIONS The Board is requested to consider the evidence provided, including the recommendations of the Chief Executive s Peer Group, the ABMU Health Board Equality Impact Assessment, and the Laing and Buisson report and make an independent decision regarding the following: Whether or not a national procurement system should be established for the provision of continence pads to nursing homes. Whether or not to reject any uplift of the FNC rate for the financial year 2012/13. Whether or not 50% of the proposed uplift in the direct nursing costs (ie an increase in the FNC rate of 9.02 per resident per week) should be applied for the 2013/14 financial year, backdated to 1 st April 2013 (with payment made as soon as possible). Whether or not the full proposed uplift in the FNC rate of per resident per week for direct nursing salary costs should be applied from 1 st April 2014, and should be linked to a national outcomes-based commissioning framework for FNC and NHS Continuing Healthcare. 12

13 Whether or not the above decisions of the Board should be made without prejudice to any further discussions between the interested parties (including other Health Boards in Wales), and that the above decisions will be revisited if alternative proposals emanated from this process. The Board will need to carefully and fully record the rationale for its decisions, including consideration of the Equality Impact Assessment. NEXT STEPS The Board s decision will be communicated to care home providers confirming the FNC Rate for 2013/2014. The Board will continue to ensure that it gives due regard to those aspects highlighted in the ABMU Health Board Equality Impact Assessment as it develops its clinical services delivery plan for ABMU Health Board. ABMU Health Board will contribute to the development of an Outcomes-Based Framework for patients in receipt of Funded Nursing Care and NHS Continuing Health Care. AMBU Health Board will continue to work with other providers and stakeholders in the development of commissioning plans for individuals eligible for Funded Nursing Care and NHS Continuing Health Care across the ABMU Health Board area as part of a broader strengthened approach to commissioning. 13

14 Appendix 1 REVIEW OF FUNDED NURSING CARE ABMU Health Board Equality Impact Assessment ABMU Health Board is required to observe the requirements of the equalities legislation and demonstrate that due regard has been paid to the public sector equality duty set out in the Equality Act 2010 when considering the impact of any decision on individuals affected by the protected characteristics. These characteristics are age disability gender reassignment marriage and civil partnership pregnancy and maternity race religion or belief sex sexual orientation Background and Context of this Equality Impact Assessment Funded Nursing Care (FNC) refers to the NHS financial contribution towards the costs of those people assessed as requiring nursing care by a registered nurse within a care home. In response to the recommendations of the Royal Commission on Long Term Care which reported in 2000 the separate administrations in England, Wales and Northern Ireland decided that personal care and other non-health costs of residential care should continue to be paid for by local authorities or by the individual according to their means. They did however agree that the nursing care provided by a registered nurse should be free in all settings. Additionally Scotland decided to make personal care to the over 65 s free in residential care settings and later in domestic settings. Along with other UK Countries with the exception of Scotland which has a policy of free personal and nursing care the (then) Welsh Assembly Government (WAG) introduced this policy in late 2001 of an NHS Funded Nursing Care Contribution to the total package provided in care homes. Prior to this registered nursing care provided within a care home was potentially chargeable, subject to means

15 testing, with the placement either self funded or funded via the resident local authority. Partially implemented in 2001 for those self funding their care within a nursing care home placement, the policy was fully implemented in Initially introduced as a single flat rate of 100 per week the funding was described by WAG as a contribution to the costs of nursing care, and any continence products that were necessary. The rate was uplifted annually by WAG, in line with inflation. In April 2004 the Welsh Government directed Local Health Boards - by means of a formal Directions Order 1 - to assume the responsibility for funding Nursing Care as defined in the Health and Social Care Act (2001). The Order makes provision for appropriate assessment to be carried out. In response to that assessment, the legal responsibility is to provide the person who has been assessed as eligible with such nursing care to be provided by a registered nurse as it considers appropriate. This wording means that there is a level of discretion for the appropriate Local Health Board to determine what may be appropriate. The Directions were accompanied by guidance 2 which clarifies the nature of the Local Health Board s obligation. The Circular clarifies the scope of the obligation of the LHB to support the provision of nursing care by a registered nurse for any patient who has been assessed as eligible. It also set out Welsh Government expectations that Local Health Board s will work in partnership to make appropriate joint arrangements with Local Authorities. It advised Local Health Board and Local Authorities to make arrangements by which the LHB contributed to the funding of an appropriate package, and to have arrangements in place to pay local authorities for the nursing care by a registered nurse of residents from 1 April 2004, or had put in place alternative arrangements agreed with local authorities and care home providers. The Circular provides that Local Health Boards will need to ensure that they are directly involved in the planning for, and implementation of, future arrangements for the provision of NHS Funded Nursing Care. In 2006 the Welsh Assembly Government distributed the funding to Local Health Boards for local management, and included the resource within their overall allocation. Since 2006 Local Health Boards have therefore managed both the assessment and funding process. No specific FNC related uplifts were provided for within the overall NHS financial allocation Local Health Boards were required to determine locally any uplift that should apply. 1 The National Health Service (Nursing Care in Residential Accommodation) (Wales) Directions WHC(2004)024: NHS Funded Nursing Care in Care Homes Guidance

16 In recent years the FNC fee has been negotiated by Directors of Finance, who have considered and agreed any uplift collectively, seeking to ensure a consistent approach and a single rate to apply across Wales. By 2010, with inflation uplifts, the FNC rate had risen to per week. In 2011/12, 2012/13 and so far in 2013/14, no uplift has been made to the FNC rate, reflecting the zero uplift in the allocation from Welsh Government. Care Home providers have questioned this situation on the grounds that the rate applied by Health Boards does not properly reflect the actual cost of nursing care and any necessary continence supplies. In March 2012, Health Board Chief Executives in Wales commissioned a review of Funded Nursing Care and established a small FNC Review group to oversee the project. The Terms of Reference for FNC Review Group were: To confirm the current processes in place in Wales to determine the FNC rate; and To determine whether this process remains valid and appropriate. An Interim Report of Review was presented to the Chief Executives Peer Group Meeting in September 2012, which highlighted the absence of a clear rationale and process for FNC fee setting across Wales. Further scoping work was recommended to develop the evidence base and understanding of FNC requirements in Wales. Consequently, further work was undertaken by the FNC Review Group, with providers, to develop and implement a wider mapping exercise. Laing and Buisson were awarded the contract to undertake a FNC Survey to ascertain the, typical levels of registered nurse care currently provided to residents of care homes in Wales. The Laing & Buisson report was presented to the All Wales NHS Chief Executives Peer Group on 16 th July 2013 and additional information provided at their subsequent meeting on 20 th August. The Chief Executives agreed a consistent approach and have made a number of recommendations that are set out in the accompanying Board paper as part of the evidence that the Board should consider. These are also summarised on page 7. The purpose of this assessment to is to provide ABMU Health Board with the information required to ensure that, when considering the evidence available including the

17 recommendations made by Chief Executives it takes proper account of its duties under the Equality Act Equality Legislation to be considered in this Assessment Equality Act 2010 The Equality Act 2010 (the Act) replaced previous anti-discrimination laws with a single act intended to make the law simpler and to remove inconsistencies. The Act sets out nine protected characteristics, which cannot be used as a reason to treat people unfairly. Every person has one or more of the protected characteristics, so the act protects everyone against unfair treatment. The protected characteristics are: age disability gender reassignment marriage and civil partnership pregnancy and maternity race religion or belief sex sexual orientation The Public Sector Equality Duty The public sector Equality Duty, known as the duty is designed to support and guide public bodies to address inequalities experienced by their staff and service users with protected characteristics. This includes inequalities experienced by lesbian, gay and bisexual people. It extends previous duties that only covered gender, ethnicity and disability to other groups to create one simple duty. The duty covers all the work of a public body, including the services it contracts out to be delivered by others. There are two parts of the public sector equality duty: the general duty and the specific duties. Put simply, the general duty sets out the goals that public bodies must aim for, whilst the specific duties are the practical things they must do to help them achieve those goals. The general duty says that public bodies, in all of their functions, including the preparing of reports and recommendations, must have due regard to the aims of the public sector equality duty when exercising their functions being: Eliminating discrimination, harassment and victimisation or any other conduct that is prohibited by the Act Advancing equality of opportunity between people who share a

18 protected characteristic and those who do not and Fostering good relations between different groups of people who share protected characteristics and those who do not. The general public sector equality duty covers the protected characteristics of age, disability, gender reassignment, pregnancy and maternity, race (this includes ethnic or national origins, colour or nationality), religion or belief (this includes lack of belief), sex (gender), and sexual orientation. It also applies to marriage and civil partnership but only in respect to the requirement to have due regard to the need to eliminate discrimination. To comply with the requirements of the Act Health Boards (HBs) must: remove or minimise disadvantages experienced by people due to their protected characteristics; take steps to meet the needs of people from protected groups where these are different from the needs of other people; encourage people with protected characteristics to participate in public life or in other activities where their participation is disproportionately low. Specific duties set out in the Equality Act 2010 (Statutory Duties (Wales) Regulations 2011) also apply to listed public bodies in Wales, including the seven Local Health Boards. These describe the steps to be taken to demonstrate that the HBs are paying due regard to the general duty. The Equality Act 2010 sets out the different ways in which it is unlawful to treat someone, such as direct and indirect discrimination, harassment, victimisation and failing to make a reasonable adjustment for a disabled person. The Act prohibits unfair treatment in the workplace, when providing goods, facilities and services, when exercising public functions and in the disposal and management of premises. It is important to note that all procurement, service provision and delivery will take account of the FREDA principles that support the Human Rights Act These principles are Fairness, Respect, Equality, Dignity and Autonomy. Description of Proposals being Assessed Laing and Buisson have provided a detailed report, which calculates the FNC rate using the strict definition of nursing care set out in section 49 of the Health and Social Care Act 2001, the National Health Service (Nursing Care in Residential Accommodation) (Wales) Directions 2004 and WHC (2004) 024 which the FNC Review group understands to have been applied in 2004.

19 However the Laing & Buisson report indicates that this interpretation of the criteria potentially creates a gap in funding which WHC (2004) 024 states that the NHS and Local Authorities must work to avoid. The adoption of a broader definition of what the NHS FNC contribution to the care home package should cover requires further policy debate. Whilst this Equality Impact Assessment therefore focuses on the brief set out in the Terms of Reference for the FNC Review group and the findings of the Laing and Buisson FNC Survey report, dated 24 June 2013, it does however consider the broader impacts of funding NHS nursing care provided by a registered nurse in care homes and financial impacts on the protected groups, and older people in particular. The definition upon which the FNC rate was originally calculated originates in Section 49 of the Health and Social Care Act Section 49 defines nursing care by a registered nurse as meaning any services provided by a registered nurse and involving- (a) the provision of care, or (b) the planning, supervision or delegation of the provision of care, other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse. FNC does not include any time spent by any other personnel such as care assistants, who may be involved in providing care, although it would include any nurse time spent in monitoring or supervising the care that is delegated to others. This is further developed through the guidance included in the Welsh Health Circular 2004, which inter alia affirmed that NHS Funded Nursing Care should also include payment for continence products. In this literal interpretation nursing care is made up of direct nursing care time (e.g. carrying our specific registered nurse tasks) and indirect nursing care time (e.g. preparing, mentoring and supervising care staff to undertake delegated tasks; care planning and managing medication). The formula for this calculation is: Direct salary costs + on-costs + continence products = per resident per week. Having considered the Laing & Buisson Report, the initial Equality Impact Assessment and the further information provided in August, the Chief Executives are recommending that Health Boards agree the following:

20 1. The current allowance for continence products should be extracted from the FNC rate and replaced with a system of national NHS procurement of incontinence products via the Shared Services Procurement Hub. The current allowance of 10 per resident per week will continue to be paid until the new system becomes operational in Spring 2014; 2. Health Boards should pay 50% of the minimum uplift for direct Nursing salary costs recommended in the Laing & Buisson Report for the financial year 2013/14. This amounts to 9.03 per resident per week and should be backdated to 1 st April 2013; 3. The full uplift for direct nursing salary costs of should be paid from 1 st April This should be linked to the implementation of an outcomes-based commissioning framework for Funded Nursing Care NHS Continuing Health Care. The rationale for each of these recommendations is set out in the accompanying Board Paper.

21 Care Home Population Information Sources of information: Welsh Government Health Statistics and Analysis Unit Residential care for older people in Wales: National Assembly e- socialcareonline.org.uk/profile.asp?guid=e91e7949-a27f-4ff0-87cd- Laing & Buisson FNC Survey Report June 2013 The case for tomorrow: joint discussion document on the future of services for older people. Institute of Public Health Care/ADASS, Oxford Brookes University, March Persistent challenges to providing quality care: an RCN report on the views and experiences of frontline nursing staff in care homes in England. Royal College of Nursing, fd Care home sweet home: care home of the future. Mason Mark, b8-9be3-bf16ef2affa9 Care Pathway Study for Older People admitted to Care Institute of Public Health Care, Oxford Brookes University, March 2010 Committee Update Report Template version The Changing Role of Care Homes: Centre for Policy on Ageing, Numbers of people living in care homes in Wales The Laing & Buisson FNC survey was sent to the 263 care homes recorded as registered with CSSIW. However, 7 had closed or changed registration status leaving a revised total of 256. The Welsh Government Health Statistics and Analysis Unit estimates that approximately 11,200 older people are currently living in care homes in Wales. Stats Wales only collects data on those people who are funded by

22 Local Authorities. The National Assembly report detailed above estimates that more than a third of care home residents are self-funding the personal care and accommodation elements of their package, which could take the national total of older people living in care homes to circa 14,000. In considering the position within ABMU Health Board, there are 1597 residents in 61 Nursing Homes within ABMU Health Board were in receipt of Funded Nursing Care and 411 in receipt of Continuing Health Care. ABMU Health Board Wales 83% of all care homes (nursing and residential) in Wales are owned by the private sector, 15% by local authorities and 2% by the voluntary sector. Within ABMU Health Board, although the percentages vary slightly to the above, a similar market profile exists with a higher percentage of care homes owned by the private sector. The National Assembly report asserts that the number of care homes is falling, but the average size is increasing. Whilst this appears to be the case elsewhere in the UK, Laing & Buisson noted that the average size of the care homes which responded to the survey was 28 beds. This is far smaller than the 60 bed+ homes they use to benchmark efficiency/economies of scale in England. In ABMU Health Board it is estimated that the average number of beds within the 61 Nursing homes in the area is 48 bedshowever it is important to note that the CSSIW note that in their view, there are very few large companies involved in care home provision in Wales. They observe that services here tend to be provided by small independents, many of whom are reaching the point where they will leave the market, either as a result of unsustainable business or reaching retirement age. One of the few large companies with a presence in Wales has however observed that as Wales pays more in terms of fees and has a lower cost base, it is being seen as an attractive option for business expansion. If this is a more general perception then Wales may well see a move to larger, more efficient homes owned by Corporate Organisations. Whilst this may provide more competition and positive benefits from the cost perspective, it could reduce choice in a country where local roots and close community ties are often perceived to be part of the national psyche. Both Care Forum Wales (CFW) and the Care & Social Services Inspectorate for Wales (CSSIW) confirmed that they perceive increasing fragility in the market, with some small homes in particular surviving on small profit margins. We are aware that Linc Care who operate on a not-for-profit basis also highlighted that the complexity and intensity of the current care home population (see section below) require staffing and skill levels which may challenge sustainability in future if fee levels remain the same. They did however highlight the potential of different models of working and collaboration with the NHS which may mitigate some of the risk. These

23 included improved community intervention earlier in the pathway, joint workforce planning and access to training and advance care planning. CSSIW suggests that some care homes are only surviving because they have no debt, whereas those who have made capital investment may struggle with repayment. It is argued that this may be skewing the market in terms of quality e.g. those who borrow to maintain or improve accommodation standards may experience the most negative impact in return on investment. It is noted however, that while there appears to be consensus amongst providers and regulators, no hard data was available to support these views. It is suggested that further work is required to: Fully understand the current market; Understand the business impact of current and proposed future models of complex care delivery; Provide greater strategic clarity on exactly what type of provision NHS & Local Authority partners need to commission to meet the needs and wants of citizens in Wales. Care home population. The average age of care home residents is rising; 60% are currently over 85 years of age. There is no evidence to indicate that this population trend differs in the ABMU Health Board area. Two thirds of care home residents have dementia; one third of care homes have EMI beds. For most residents dementia/cognitive impairment is a comorbidity with other chronic conditions and care is effectively delivered in general nursing settings. CSSIW advise that only a small proportion of residents require specialist dementia care and regulation is looking to move away from boxing people into narrow categories. Likewise it is asserted that commissioning should be to need rather than to task or category, and such need is increasingly presenting as frailty and end of life care. The average length of stay in a nursing home is less than 2 years, with residents presenting with higher levels of frailty, co-morbidity and dependency. However in the ABMU Health Board area the evidence indicates that length of stay is between 18 months to 2 years. Care homes seem to be changing from being an alternative form of housing for older people in need of assistance with activities of daily living, to a final home for residents in need of intensive levels of potentially expensive medical, physical and psychological support.

24 Care Home Sweet Care Home, 2012 The National Assembly report asserts that this average length of stay is likely to fall further in Wales as increasing numbers of older people are cared for longer in the community. This can be challenged the other literature. Mark (2012) quotes projections of a short-term decrease, but a medium-term increase in response to demographic change. For example, the number of people over the age of 65 years in Wales is expected to increase by 55% to 306,000 by The National Assembly projections are primarily based on the timely development and uptake of community-based alternative models of care. The ADSS and RCN reports indicate that such models in England are some way off being able to adequately meet the demand of an older population, surviving longer but with more chronic conditions and dementia. There is no evidence to suggest that Wales is currently any further forward in this respect than England. It is argued therefore that decision makers in Wales cannot at present rely on demand for care home places reducing significantly in the short-term; though this must of course remain an aspiration for the medium to longer-term. It is noted that, in September 2013, the greatest cause (in terms of number and bed days) of delayed transfers of care from hospital settings is awaiting care home of choice, which indicates that the Health Boards decisions will be taken in the context of demand outstripping supply in most regions. The Institute of Public Health Care has identified the following as key tipping points for admission to care homes: Incontinence Dementia Depression Stroke Falls Social isolation Prolonged hospital stays following emergency admission. This gives some indication of the work required to develop community services that provide a realistic alternative to care home provision. Engagement Advice, information and comment were sought (either directly or indirectly via other health boards) from: Welsh Government s Equality Officer Stats Wales

25 Public Health Wales Older People s Commissioner Chief Nursing Officer for Wales Care Forum Wales Wales Audit Office Care and Social Services Inspectorate for Wales Public Services Ombudsman for Wales Age Cymru Linc Care Other Health Boards In ABMU Health Board, discussion also continues to take place in many forums and with a wide range of interested stakeholders regarding care within the Community, including Independent Sector provision.