Home and Community Support (Payment for Travel between Clients) Settlement Bill. Report of the Ministry of Health to the Health Select Committee

Transcription

1 Home and Community Support (Payment for Travel between Clients) Settlement Bill Report of the Ministry of Health to the Health Select Committee 9 November

2 Background 1. The briefing by the Ministry of Health to the Select Committee, on 4 November 2015, included the Background to the Bill. The main points are: The Bill implements the November 2014 Settlement Agreement agreed between the Crown, the Public Service Association, the Service and Food Workers Union, providers (represented by Access Homehealth and Healthcare New Zealand), 20 district health boards (DHBs) and the Ministry of Health as funders, for time and mileage payments to home and community support service workers who travel between clients in the course of their work. If the claim before the Employment Relations Authority had proceeded and the union was successful there would have been significant financial implications for the funders and employers. The settlement was to be implemented in legislation and provided for affected employees to be paid at least the minimum wage for their travel time, and to be reimbursed at least 50 cents per kilometre for travel distance [Part A] Cabinet has approved funding to support the funders, and in turn the providers, to meet the ongoing payments under the legislation; they begin on 1 March 2016 (an interim arrangement has been in place for payment of travel time since 1 July 2015) A parallel process is occurring through a Director-General s Reference Group to: conduct a review of home and community support services consider the viability of transitioning to a regularised workforce (that is, one where the majority of workers have guaranteed hours of employment, with the requirement for training and recognition of qualifications in pay rates) [Part B]. Introduction to the Bill 2. The Bill gives effect to Part A of the Settlement Agreement. The proposed legislation is a means to: confirm that the agreed funding will be passed on to qualifying support workers cap the financial liability for providers to pay for in-between travel time based on a nationally consistent formula extinguish retrospective and future claims of a similar nature. Submissions analysis Overview 3. Seven written submissions were received, three from interested parties, three from parties to the Settlement Agreement and one from the Home and Community Health Association who had attended the negotiations. All submissions received support the Bill. 4. The submissions from interested parties include a private individual whose mother receives home support services, and two national women s organisations. No amendments to the legislation were proposed in these submissions. One of these submitters spoke to their submission and we note they emphasised a view that pay equity should be progressed as a matter of some urgency. We note that the Bill is specific to in-between travel and the overall issue of pay equity is outside the scope of the Bill. 2

3 5. Provider and union representatives, who were parties to the Settlement Agreement, (and the Home and Community Health Association) also made submissions and made suggestions for amendments to the Bill as introduced. These parties appeared before the Committee and spoke to their submissions. Their submissions were essentially the same and proposed amendments principally to ensure the wording of the Bill reflects the intent of the Settlement Agreement, and is able to be operationalised. Topics raised in submissions 6. While all the submissions supported the Bill, several recommended amendments to particular parts, including adding sections that are not part of the Bill as introduced. In general terms, any recommended amendments were to improve clarity and workability. The six main topics arising in the submissions include: a desire to see ACC included in the ambit of the Bill as it funds the same workforce to deliver services to its clients refinements to definitions of home and community employees and providers changes to the requirements and positioning of the section on exceptional travel strengthening the wording around the provision around employees not being disadvantaged under the new payment arrangements questioning the need for the section on Employer Zones which was not part of the Settlement Agreement advocating for a review provision to be added to ensure the legislation is working as intended. 7. These issues are examined in detail in the clause-by-clause section below. A summary table of all submissions received with commentary is included as Appendix Some submissions also recommend broadening the Bill s scope in some way, to include Part B of the Settlement Agreement. When presenting their submissions, the providers and unions noted that both parts of the Settlement Agreement needed to be progressed. The Committee requested that officials provide it with a copy of the Settlement Agreement (done at the meeting) and a copy of the Director-General s Reference Group report when it becomes publicly available. Regulations to be replaced by Schedules 9. Parliamentary Counsel suggested that matters such as the qualifying travel time, distance and mileage rate would be better in Schedules to the Bill rather than in separate regulations. 10. Further, if the Committee agrees that the definition of home and community-based support services should be linked to Votes [funding] and not to services, there will also be a need for a Schedule to specify the services that are excluded from coverage by the Bill. Comment 11. The Ministry agrees inclusion of matters in Schedules rather than in separate regulations would be more convenient for parties and persons affected by the Bill. The Bill would effectively be a code incorporating all the legislative legal requirements. 12. The Bill will also need a provision for the Schedule to be amended by Order in Council. Because of the limited nature of the Schedules, it is unlikely that the content of an Order in Council would need consideration by the Regulations Review Committee (for the purpose of drawing any matter to the attention of Parliament under Standing Order 319). 3

4 Recommendation 13. The Ministry agrees with Parliamentary Counsel; two new Schedules are proposed: Schedule 3 specifying qualifying travel time, distance and mileage rate Schedule 4 specifying the services that are excluded from the definition of home and community-based support services for the purpose of the Bill. Clause by clause analysis 14. As indicated in the initial briefing, the submissions from providers and unions focused on the same set of issues. Unless indicated otherwise, the views of the providers and unions that made submissions are presented jointly for ease of reading. 15. It is also important to note that in the time since the written submissions were lodged, the Ministry has been working with the provider and union representatives to develop agreed wording for suggested amendments to the Bill. These collectively agreed suggested amendments are set out in Appendix 2 1. Inclusion of ACC 16. The provider and union representatives all advocate for ACC to be included in the Bill. The rationale is that the home and community workforce also provides services under contract to ACC, and often the same workers will deliver injury-related home support alongside age-related care or disability support. 17. The Settlement Agreement refers specifically to home and community support services funded through vote: Health, but contemplates similar arrangements being made for services funded via ACC. Comment 18. Though ACC was not a signatory to the Agreement, the parties agreed that similar arrangements should be negotiated with it. ACC has agreed to enter into similar arrangements with its suppliers, subject to its usual processes of approval. ACC has also been consulted over the proposed amendments to the Bill and agrees that it should be included in coverage. Recommendation 19. We consider the best way to include ACC is through an amended definition of home and community-based support services that includes a reference to ACC, discussed in the definitions section below. Definition of a Home and community support employee 1 Indicative drafting has been discussed with Parliamentary Counsel, and further changes are likely to be necessary. Accordingly Parliamentary Counsel requests maximum flexibility for drafting the tracked version for consideration by the Committee. This will ensure that the Bill reflects the Settlement Agreement, submissions, negotiated changes to one travel band, and consequential changes. 4

5 20. Provider and union submissions suggested a need to amend the definition of a home and community support employee in Clause 3 to make it clear that only non-salaried staff are intended to be covered by the Bill. 21. The opening clause makes no reference to how an HCS employee is paid. Clause 12(1) includes a specific reference to travel payments going to an employee who is not paid a salary, which is what the Settlement Agreement intended. However Clause 16(5) causes confusion by noting that the section applies whether the employee is or is not paid a salary. Comment 22. The Ministry agrees with the submitters that there is a lack of clarity arising from the inconsistency between the definition of an employee, clause 12 and clause 16. The inclusion of salaried workers would potentially cover managers and co-ordinators and others who either do not travel, or where travel time is included in their salary. This was not the intention of the Settlement Agreement. Recommendation 23. The definition of a home and community support employee does not need to be amended, provided clause 16(5) is deleted, and the definition of home and community support services is amended (as described in the next section). Definition of HCS services 24. Submitters also recommend an amendment to the definition of home and community services. The current definition is limited and does not reflect the variety of services provided by support workers. The definition also needs to be clear about the services that are not included, such as supported living arrangements for people with disabilities, which were not part of the Settlement Agreement. Comment 25. Submitters noted that several DHBs have adopted a restorative model of care for home and community support services. This means that support workers may be involved in activities that might be rehabilitative, or involve monitoring, or engaging in motivational support. 26. In addition concerns were raised that there needs to be sufficient flexibility to allow for future service model changes as the sector responds to the challenges of increasing numbers of older people with more complex needs, together with moves to support as many people as possible in the community. 27. The Ministry agrees that an amended definition of home and community-based services be crafted to address the concerns around improving clarity about who is and who is not included, and to clearly reference the service funders (so as to include ACC). 28. The definition will also need to exclude some disability support services (such as supported living or individualised funding which were not part of the Settlement Agreement). Recommendation 5

6 29. We propose that the definition be amended to link to the funding source and not the description of services as drafted in the introduced Bill. We also propose that the excluded services are prescribed in the proposed new Schedule to the Bill (to be developed in preference to separate regulations). Exceptional travel 30. Clause 4 covers exceptional travel payments for workers who must travel exceptional distances, noting that threshold distances will be set out in a new schedule to the Bill in preference to regulations. Comment 31. Firstly, all parties agreed in discussions subsequent to the introduction of the Bill to reduce the distance threshold from 20km to 15 km. Secondly, all parties agreed that the threshold distance be set out in regulations (now to be set out in a Schedule as agreed at Committee) so that it can be adjusted as appropriate through Order in Council. Recommendation 32. Clause 4(a) be amended to reflect the agreement to replace the regulations with a Schedule, and to delete references to a 20 km threshold in the rest of the clause. Employer Zones 33. Clause 4 also makes reference to employer zones. It appears this provision was intended to allow providers to establish zones that would determine thresholds for exceptional travel payments. Comment 34. Submissions from providers and unions indicate that the employer zones are not practicable, especially for those providers who operate across many geographic regions, and commented that it was not part of the Settlement Agreement. 35. The Ministry notes that employer zones were introduced through the drafting process and agrees they are not part of the Settlement Agreement. It is not opposed to the deletion of employer zones. Recommendation 36. Delete the reference to employer zones in clause 4. No financial disadvantage 37. Clause 10 embodies a principle from the Settlement Agreement that no employee should be worse off under the new arrangements. An interim payment arrangement has been in place since 1 July 2015 at a level consistent with the Settlement Agreement. 38. Union and provider submissions argue for an extra clarification to ensure that comparisons can only be made with the arrangements that were in place prior to the Settlement Agreement coming into force, that is, specifically excluding the interim payment period. 6

7 Comment 39. The Ministry is of the view that Clause 10 is clear enough to exclude the interim payment period, but is not opposed to the addition of a further clause for the avoidance of doubt. Provision for Review 40. Union and provider representatives all strongly supported the inclusion of a formal review mechanism within the Bill. This to ensure that the legislation is working as intended, and is partly driven by a concern that decisions regarding Part B of the Settlement Agreement are yet to be finalised. Comment 41. As noted in the initial briefing and discussion at Committee, the Ministry is of the view that inclusion of a review provision in the legislation is not required as there are adequate provisions for review in the regulations (now Schedule 3) and a requirement for Cabinet to be informed about progress on the implementation of the legislation, in July next year. In addition Cabinet will receive a briefing on the recommendations of the Director-General s Reference Group (Part B) in December. 42. In the Ministry s view, these measures should address the reasonable concerns of unions and providers that there can be some scrutiny of the working of the legislation, without an unnecessarily burdensome legislative review process. Additional issues Coverage of settlement agreement 43. During the Select Committee hearing one submitter raised the issue of coverage and suggested that the legislation as drafted excluded workers who may be employed by the providers included in the Settlement Agreement and legislation but who worked under contracts with agencies other than health and ACC. The Ministry agreed to provide advice in regard to these matters. 44. The settlement agreement covers all non-salaried support workers who provide home and community support services to clients included through Vote Health, Vote ACC plus ACC levies. The providers of the services (and employers of the workers) are listed in Schedule 2 of the Bill. 45. Since the settlement agreement was specific to workers who travelled between one or more clients in each day of work, the settlement agreement excludes services where such travel does not occur such as funded family cares, supported living disability clients and individualised funding client. Application of the Bill to other funders 46. The Ministry consulted with 13 government departments and agencies that fund services that require travel, either through a provider organisation or by their own staff, on the potential implications of a court finding that in-between travel time is work. 47. We found that the risks arising from that outcome were largely confined to the Ministry of Health (i.e. DHBs and DSS), the Accident Compensation Corporation (ACC), 7

8 Veterans Affairs New Zealand (VANZ), the Canterbury Earthquake Recovery Authority (CERA), and the Ministry of Education. 48. Ultimately it was agreed in the settlement agreement that ACC would implement similar arrangements to those agreed in the settlement agreement. The Ministry is now recommending that ACC be included in the legislation. 49. VANZ funds providers for services such as lawn moving, gardening, and home help. Its service specification does not include travel time or a travel component. To date, VANZ has not experienced any issues with service contracts in relation to travel time. 50. CERA advised that there was a potential risk to its agency as it does not have a consistent approach to travel and does not pay for travel time. CERA has a number of contractors and if a contractor receives payment for travel time this would depend on their individual contract. However, it does not pay for travel time for its fixed term staff. As the Act does not apply to independent contractors, it was not expected that contractors would be included in the proposed negotiation. 51. The Ministry of Education s teachers are salaried so travel time is not an issue. However, home care workers/teacher aides (e.g. workers who go into schools to support a student with severe behavioural needs) are on an hourly rate and their agreements state that the hours of work will include reasonable travel time between work locations where the work is continuous. There was a potential risk that, if the Court found that travel time was work, it could be argued that what the Ministry of Education considers to be reasonable travelling time is insufficient. However, since the matter has been settled out of court the risk in regard to Education has been removed. 52. The remaining departments consulted advised that there is no risk of impact from such a Court ruling as their travelling staff receive a salary and travel time is therefore a component of this salary. 53. We note that there is a potential issue relating to cleaners that could have an impact on the entire government sector. Cleaners who are employed by a private company to clean a specific government department s multiple locations are paid wages and are not paid for the time taken to travel between buildings (eg, between the Ministry s premises at Molesworth St and The Terrace). This scenario also highlights a potential risk to the private sector and non-government organisations. It is noted however that to date there have been no further claims. 54. The Ministry provided advice to Government prior to the commencement of negotiations that an agreed negotiated outcome would not prevent an individual from entering similar claims against any of these other agencies for in-between travel time. We considered it important to engage with these agencies and keep them informed during the negotiations, where appropriate. As noted, to date there have been no further claims. 55. It was made clear at the start of the negotiations that any settlement would be a Vote Health settlement. All parties understood that and also understood that the funding appropriated for in-between travel was part of the Vote Health appropriation. We note that the issue of contracts with MSD and Corrections raised by the HHL Group at the hearing had not been raised previously and we do not consider it a significant issue. 56. We understand that although the HHL Group holds contracts with those agencies they do not involve in-between travel. The HHL Group has entered a programme with 8

9 Corrections, Te Aranga Mai, whereby support is provided to prisoners due to be released to assist them reintegrate into the community this service is provided in prisons. We also note that it was never the intention either for the Settlement Agreement or the legislation to cover workers in private agreements with clients and we do not think an amendment is required to preclude such claims. 9

10 Appendix 1: Summary of Submissions Seven submissions were received, three from interested parties and four from parties to the Settlement Agreement. A summary of key points of each submission are set out in the table below, together with the recommended amendment to the text of the bill. For more commentary on the proposed response, please refer to the main body of the paper. Submitter Main points of submission, including any recommended changes to clauses Proposed response 1 Annette Dalziel: 2 National Council of Women of New Zealand (NCW) 3 New Zealand Federation of Business and Professional Women (BPW NZ) Spoke to Mother uses HCSS services Supports the Bill Values workers who support her mother No particular issues raised NCW is an umbrella group for 288 organisations representing and promoting the interests of women. Submission made by the Employment Standing Committee and the Parliamentary Watch Committee Has its own policy statements around recognising support workers, especially through increased wages and allowances Supports the Bill and commends the collaborative approach taken by all parties Particularly support the contribution the Bill will make to improve the sustainability of the workforce Bill acknowledges the significance of travel for rural workers, and therefore for clients BPW NZ lobbies for changes to promote the advancement of women, particularly around equal opportunities and status. It is affiliated to BPW International, which supports the United Nations Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) Supports the Bill Commends the government for working with affected parties No formal response required No formal response required Note:Travel time payments are linked to minimum wages so will reflect any movement in rates (clause 14(b). Finite funding is available through Vote Health. Costings included estimated increases to the Minimum Wage and on-costs for providers 10

11 Submission Sees the Bill as providing some recognition for vulnerable workers Pleased to see a minimum standard set for the industry with appropriate penalties for noncompliance Advocate that travel-time payments be inflation-adjusted, and/or any increases to the minimum wage. No formal response required. 4 Healthcare of New Zealand Holdings (HHL) HCSS Provider, Settlement Agreement Party Spoke to Submission HHL is one of the two largest providers with over 7,000 employees around the country, representing nearly a third of the HCSS workforce (also a significant disability and ACC service provider) Supports the Bill but has concerns about wording of some parts with respects to practical application and properly reflecting the intent of the Settlement Agreement, specifically: That ACC should be included as a funder of services alongside MoH and DHBs (reflects intent of Settlement Agreement) Agree: see proposed definition in Appendix 2 Clause 3: definition of HCS employee does not refer to non-salaried staff (as intended) and clause 16(5) refers to travel payments being made to both salaried and non-salaried staff (does not reflect intent of the Settlement Agreement). Recommend deleting Agree: only non-salaried staff should receive travel time payments Clause 3: definition of home and community based support services does not accurately reflect range of services provided and is not linked to funders. In particular there are concerns that the definition as proposed: Agree, see proposed definition in Appendix 2 o o is limited and out of date, as it refers only to household management and personal care services. As client needs change, a wider range of supports may be provided and there needs to be adequate flexibility to capture future service development does not make it clear which services are excluded, for example where carers are 11

12 directly employed by people with disabilities o does not reference the funders which is a simple way to clarify coverage Clause 4: Exceptional Travel. The clause may fit more appropriately with the associated regulations. In addition the 20km threshold specified in the Bill was revised by settlement parties. Also this clause refers to employer zones which were also not part of the Settlement Agreement, discussed further below Agree: Recommend deleting Recommend deleting Clause 10: No financial disadvantage. The intent of this clause is that those employees who had travel payment arrangements in place prior to the Settlement Agreement that were more generous would not face a reduction when the new payment arrangements come into force. An interim payment arrangement has been in place since 1 July 2015 that has provided payments at a level consistent with the Settlement Agreement however it should be clear that this clause does not apply to payments received under this interim arrangement. Clause 22: Employer zones. Note that this was not part of the Settlement Agreement and the purpose is unclear. The term zone is not defined and providers are of the view that it would be difficult to implement, especially for national providers whose employees are distributed around the country. The Ministry is of the view Clause 10 is clear enough, but is not opposed to the addition of a for the avoidance of doubt clarification Agree: Recommend deleting. Recommend deleting. Review mechanism: not currently part of the Bill, though there may be a provision for review in the regulations. Submitter of the view that a statutory review should occur to ensure the legislation is working as intended. Additionally concerned that clause 10 may cause financial strain for providers as no specific funding was attached to this provision. Issues such as this could be identified through a formal review mechanism. Recommend including a formal review mechanism Link with Part B of the Settlement Agreement the provider notes that the legislation Agree that a simple review mechanism be added to the to enable reports on the operation of the legislation and Schedules. Recommend a review clause be included in the Act and the schedules. Disagree This was not 12

13 5 Access Homehealth Limited (Access) HCSS Provider, party Settlement Agreement Party Spoke to Submission 6 Home and Community Health Association (HCHA) Representative body for HCSS providers Spoke to Submission 7 Public Service Association & Et tū (formerly Service and fulfils only one part of the Settlement Agreement and suggests that the Bill could also include oversight of implementation of Part B of the Settlement Agreement. Other matters of relevance. Submission has also been made on Employment Standards Legislation Bill and notes that the outcome of the negotiations around the Terra Nova case will have implications for the wider sector. Access is a large provider of HCSS contracting with the Ministry of Health, DHBs and ACC throughout New Zealand, with around 3,900 employees providing support to over 17,000 people. Supports the Bill with suggestions for wording improvements. Amendments as above for HHL. In particular, Access is a major provider of service in rural areas and some of its employees would be particularly disadvantaged by a higher travel distance threshold As the umbrella organisation HCHA membership represents approximately 90% of providers affected by the Bill Notes that provision of HCSS sits within a broad context of health sector investment and supports the choice of many older people to stay in their homes and helps decrease or delay the need for aged residential care Notes that the sector faces considerable challenges, with financial sustainability of providers, and therefore their ability to recruit and retain staff, a critical element Supports the Bill but recommends minor wording changes to better reflect the intent of the Settlement Agreement and practical application of the legislation. The concerns and recommended amendments are the same as above. The joint submission by the unions who were party to the Settlement Agreement supports the Bill and highlights areas where it believes amendments are needed to improve clarity or to strengthen provisions. indicated in the Settlement Agreement No change recommended Noted, but no comment as these matters are outside the parameters of the Bill Response as per HHL above Response as per HHL above Comments as per the response to HHL above apply, and in addition: With respect to the exclusion of 13

14 Food Workers Union) Settlement Agreement Party Spoke to Submission The suggested areas for change are similar to those outlined by providers, without the level of detail. Key areas to focus on include: o The definition of home and community based support services: the unions are of the view the services should not be defined except by way of a link to their funding arrangements, and that this should include reference to ACC. Such a move would have the effect of excluding support workers providing services under private arrangements, which may result in some individual employees having different payment arrangements between public and private payers o Clause 4 the meaning of exceptional travel. Consistent with the providers the unions note that the 20km threshold has been revised, and that any such threshold is more appropriately specified in Regulations. In addition the Unions note that discussions are still underway around the thresholds, and any future changes would more easily be made through changes to Regulations, rather than changes to legislation o Clause 22 Employer Zones. Consistent with the providers, the unions submit that the concept of the zones is unnecessary and potentially inconsistent with the Settlement Agreement and therefore should be deleted. o Provision for review. While agreeing that the provisions for review of the legislation are appropriate, the unions advocate for a review mechanism to ensure that the provision intended to ensure that no employee is financially disadvantaged (ie Clause 10) is operating as intended. o Linkage with other parts of the Settlement Agreement Like the providers, the unions note that the Bill gives effect to only one part of the Settlement Agreement and that it is important that the other parts are also implemented. support workers paid under private arrangements: The Ministry is of the view that the Settlement Agreement did not intend support workers operating under privately funded arrangements to be covered. 14

15 Appendix 2: Indicative Changes to the Bill [Subject to Parliamentary Counsel s tracked changes for consideration by Select Committee] Indicative drafting has been discussed with Parliamentary Counsel, and further changes are likely to be necessary. Accordingly Parliamentary Counsel requests maximum flexibility for drafting the tracked version for consideration by the Committee. This will ensure that the Bill reflects the Settlement Agreement, submissions, negotiated changes to one travel band, and consequential changes. 3 Interpretation Delete home and community-based support services, and replace with: home and community-based support services means: (a) home and community-based support services of a kind that are generally funded, directly or indirectly, through: (i) Vote Health: (ii) Vote Accident Compensation Commission: (iii) Levies paid under Part 6 of the Accident Compensation Act 2001: (b) Home and community-based support services does not include any services specified in Schedule 4. Delete mileage rate, and replace with: mileage rate means the mileage rate specified in Schedule 3 Delete qualifying distance, and replace with: qualifying distance means the deemed distance Delete qualifying travel time, and replace with: qualifying travel time means the deemed travel time 4 Meaning of exceptional travel and related terms (1) Delete, from subsection (1), maximum travel distance, and replace with: maximum travel distance means the maximum travel distance specified in Schedule 3 (2) Delete, subsection (2), and replace with: (a) For the purpose of subsection (1), an HCS employee s travel to the first client of the day is exceptional first client travel if the location of the client visit is more than the maximum travel distance, specified in Schedule 3, from the employee s home. (b) For the purpose of subsection (1), an HCS employee s travel from the last client of the day is exceptional last client travel if the location of the client visit is 15

16 more than the maximum travel distance, specified in Schedule 3, from the employee s home. 10 No HCS employee to be financially disadvantaged Insert subsection (6): (6) To avoid doubt, this section excludes any entitlement under the Interim Arrangements provided by the Ministry of Health between 1 July 2015 and 29 February 2016). 15 Minimum amount payable for exceptional travel on and from 1 March 2016 Delete subsection (2)(b) 16 Costs relating to travel between clients Delete subsection (2) and subsection (5) 18 Minimum amount payable towards costs for exceptional travel Delete subsection (2)(b) 22 HCS employer zones Delete 25 Regulations Delete New insert new clause 28 to replace regulations with Schedules 3 and 4 to the Bill: 28 Power to amend Schedule 3 and Schedule 4 (1) The Governor-General may, on the recommendation of the Minister of Health, make an Order in Council to amend Schedule 3 to: (a) change the mileage rate: (b) change the maximum distance before travel is treated as exceptional travel: (c) change the method for calculating or basis for ascertaining an HCS employee s qualifying distance: (d) change the method for calculating or basis for ascertaining an HCS employee s qualifying travel time. (2) The Governor-General may, on the recommendation of the Minister of Health, make an Order in Council, to amend Schedule 4 to exclude a service from the meaning home and community-based support services. (3) Before recommending the making of an Order in Council for the purposes of subsection (1) and subsection (2), the Minister of Health must consult- (a) the Ministry of Health; and 16

17 (b) (c) (d) (e) the Accident Compensation Commission; and all DHBs; and all HCS employers listed in Schedule 2; and any unions representing 1 or more HCS employees. (4) Before recommending the making of an Order in Council for the purposes of subsection (1)(c), the Minister of Health must also be satisfied that any qualifying distance is a fair approximation of the actual distance HCS employees would travel between clients. (5) Before recommending the making of an Order in Council for the purposes of subsection (1)(d), the Minister of Health must also be satisfied that any qualifying travel time is a fair approximation of the actual amount of time an HCS employees would spend travelling between clients. New insert new clause 30 to provide for a review: 30 Annual report to Parliament and review of Schedules 3 and 4 (1) The Minister must: (a) each year report to Parliament: (i) that the parties, specified in section 28(3), have collectively formally reviewed the operation of this Act; and (ii) reported, to the Minister, any issues arising out of the provisions of that Act and its operation (including proposed processes that need to be resolved); and (b) in May each year, for the purpose of deciding whether to make a recommendation to the Governor-General for an Order in Council, review Schedule 3 (Rates, distances and times), and Schedule 4 (Services excluded from home and community-based services). New insert new Schedules 3 and 4: Schedule 3 Rate, distances and times (a) The mileage rate is at least 50 cents per kilometre: (b) The maximum distance before travel is treated as exceptional travel is 15 kilometres for each visit: (c) The deemed distance is 3.7 kilometres: (d) The deemed travel time is 8 minutes 30 seconds: (e) The qualifying distance for each day is calculated as follows: a = b x (c 1) where: a is the qualifying distance b is the deemed distance 17

18 c is the number of client visits during the day 1 is the first client visit (f) The minimum amount payable each day to an HCS employee, for the qualifying distance, is calculated as follows: where: a = b x c a b c is the minimum amount payable is the mileage rate is the qualifying distance (g) The qualifying travel time for each day is calculated as follows: a = b x (c 1) where: a is the qualifying travel time b is the deemed travel time c is the number of client visits during the day 1 is the first client visit (h) The minimum amount payable each day to an HCS employee, for qualifying travel time, is calculated as follows: where: a = b x (c /60) a is the minimum amount payable b is the minimum hourly rate of wage prescribed under section 4 of the Minimum Wage Act 1983 c qualifying travel time Schedule 4 Services excluded from home and community-based support services The following services are excluded from the meaning of home and community-based support services: a. Funded Family Care b. Individualised Funding c. Supported living. 18