NHS Continuing Healthcare Joint Disputes Resolution Policy

NHS Continuing Healthcare Joint Disputes Resolution Policy October 2016 Author: Responsibility: Tony Byrne All Staff should adhere to this policy Effective Date: October 2016 Review Date: October 2018 Reviewing/Endorsing committees Approved by Risk Management Group Executive Team 5 September 2016 Date Ratified by Executive Team 20 October 2016 Version Number Version 2. Related Documents NHS Continuing Healthcare Operational Policy

POLICY DEVELOPMENT PROCESS Names of those involved in policy development Name Designation Email Diana Butterworth Clinical Manager Diana.butterworth@bedfordshireccg.nhs.uk Melanie de la Ford Team Leader Melanie.DeLaFord@bedfordshireccg.nhs.uk Names of those consulted regarding the policy approval Date Name Designation Email Jodi Simpson Head of Older Jodi.Simpson@bedford.gov.uk People and Physical Disabilities, Bedford Borough Council Nikki Kynoch Head of Nikki.Kynoch@centralbedfordshire.gov.uk Integrated Services, Central Bedfordshire Council Kate Walker Bedford Borough Council Kate.walker@bedford.gov.uk Equality Impact Assessment prepared and held by Date Name Designation Email Committee where policy was discussed/approved/ratified Committee/Group Date Status Risk Management Group 14/09/2015 Version 1 NHS Continuing Healthcare Joint Dispute Policy September 2015 Page 2

Equality Impact Assessment Not required. Policy clearly states the best practice guidance specified in the National Framework for NHS Continuing Healthcare and NHS funded-nursing care (Revised, 2012) and is therefore a reaffirmation of national policy. NHS Continuing Healthcare Joint Dispute Policy September 2015 Page 3

Contents Page Introduction 5 Purpose and scope 5 Responsibilities 5 Reducing the number of disputes 6 Principles 7 Informal resolution 7 Dispute process 8 Dispute Panel 8 Scope of Dispute Panel 9 Panel process 9 Panel management 10 Cost of Independent Chair 10 Monitoring 10 References 11 Appendices Role of CCG Representative on Dispute Panel 12 Role of Council Representative on Dispute Panel 13 Role of Independent Chair 14 Key documents: 1. National Framework for NHS Continuing Healthcare & NHS-funded Nursing Care November 2012 (Revised) 2. The NHS Commissioning Board and Clinical Commissioning Group (Responsibilities and Standing Rules) Regulations 2012: NHS Continuing Healthcare Joint Dispute Policy September 2015 Page 4

Introduction Bedfordshire Clinical Commissioning Groups and Bedfordshire Councils are required to agree a Dispute Resolution Policy as directed within the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care November 2012 (Revised). This policy will ensure a clear process that allows disputes to be addressed in a professional and timely manner and within clearly defined agreed responsibilities. Purpose and scope The policy will apply to all NHS Continuing Healthcare eligibility decisions that Bedford Borough and Central Bedfordshire Councils disputes. The reason for the dispute must be clearly stated and the areas challenging the multi-disciplinary recommendation identified and supported by evidence when the dispute is raised. The policy does not apply to individual patients or their representatives who may appeal against a decision on eligibility. Where disputes relate to Local Authorities and CCGs in different geographical areas, the regulations make it clear that it is the responsibility of the relevant Local Authority and CCG to agree a Dispute Resolution Process to ensure resolution in a robust and timely manner. It is expected that this should include agreement on how funding will be provided during the dispute and arrangements for reimbursement to the agencies involved once the dispute is resolved. The disputes procedure is a mechanism to resolve disputes between CCG s and Local Authorities in regard to NHS Continuing Healthcare eligibility and subsequent funding of care, or the apportionment of funding in joint care/ support packages. It is not meant to be used for disputes between individuals applying for NHS Continuing Healthcare and the CCG. A separate appeals and review process should be in place to resolve these cases. Responsibilities Bedford Borough/Central Bedfordshire Councils Stage 1 To notify the CCG of a dispute as soon as possible following the CCG eligibility outcome and no later than 2 weeks following the decision on eligibility/non-eligibility To provide written evidence on the areas that are being disputed with any supporting documents or evidence supporting the areas of dispute To identify the LA team manager who will be the initial officer responsible for resolving the dispute informally To meet with the CCG lead assessor for NHS continuing healthcare to try to reach agreement on the areas disputed within the agreed timescales Stage 2 To identify the Service Lead to lead on the dispute for the Council who may involve other professionals in a meeting to provide guidance or professional advice in a specialist NHS Continuing Healthcare Joint Dispute Policy September 2015 Page 5

To attempt to reach agreement with the CHC Operational Manager/Head of CHC on the areas disputed within 4 weeks of notification of dispute To agree an independent Chair with the Head of CHC and to nominate the Council representative to be a panel member. Agree to abide by the Disputes Panel decision Bedfordshire Clinical Commissioning Group Stage 1 To acknowledge receipt of the dispute submission To arrange the meeting between the identified service manager of the Council and the Lead Assessor for NHS Continuing Healthcare within 2 weeks to try to resolve dispute within agreed timescale To refer to the CHC Operational Manager/Head of CHC should agreement not be reached. Stage 2 To arrange a meeting between the nominated Service Lead of the Council and the CHC Operational Manager/Head of CHC (may also involve other professionals to provide guidance or professional advice in a specialist capacity) To attempt to reach agreement with the CHC Operational Manager/Head of CHC on the areas disputed within 4 weeks of notification of dispute To agree an independent Chair with the Service Head of Council and to nominate CCG representative to be panel member Agree to abide by Disputes Panel decision Reducing the number of disputes. NHS Bedfordshire CCG and Bedford Borough and Central Bedfordshire Councils agree to stay focused on the key objective, which is to ensure that an individual s potential eligibility for NHS Continuing Healthcare is correctly determined. Resources should be directed at that aim rather than being directed into the management of disputes. Recourse to a disputes procedure should be regarded as a failure of collaboration. However, it has to be recognised that this is a complex, high risk area of activity for all the parties and that there may well be issues of disagreement and difference between partners. It is therefore crucial that strategic managers take steps to strengthen joint activity and agreement and thereby prevent conflict. NHS Continuing Healthcare Joint Dispute Policy September 2015 Page 6

Partners will need to work through the following issues: Partnership culture partners should ensure there is a clear and consistent message about the joint responsibility to solve problems and resolve disagreements purposefully and constructively before they develop into disputes. Assessment procedures accurate needs assessment is fundamental to the process of determining eligibility for NHS Continuing Healthcare. Partners should ensure there is a robust and comprehensive joint assessment process in place and that this is adequately resourced to enable a timely and proportionate assessment to be undertaken. Partners recognise that each have statutory responsibilities which are distinct from each other and each have a duty under those responsibilities to carry out their own assessments according to criteria which are either nationally or locally agreed, as the case may be. Accordingly both parties recognise that a dispute can only be raised where one party believes that the other has misinterpreted its own criteria and/or misapplied them to the facts of a case. Decisions on eligibility should be agreed based on the assessed level of need and the multidisciplinary recommendation arising from the assessment and recorded on the Decision Support Tool. The multi-disciplinary team s recommendation would not usually be expected to be challenged if both health and social care staff have been fully included in the assessment and agree the overall recommendation. Principles Bedfordshire Clinical Commissioning Group and Bedford Borough and Central Bedfordshire Councils agree to work towards the following principles: To develop a culture of problem solving and partnership within the national guidance for NHS continuing healthcare To use formal dispute as a last resort The patient should not be involved in the dispute, and should always be cared for in an appropriate environment throughout the process To follow the agreed process within the timescales identified Front line staff should be empowered to resolve issues wherever possible, within agreed policies and procedures When they are unable to reach agreement, staff should have timely and ready access to senior managers who would be expected to negotiate a resolution of the issue between both parties Where senior managers are unable to reach agreement escalation should take place to more senior staff before going to formal dispute. This could be Director level. A decision to invoke the formal disputes procedure should only be made after all the informal steps have been exhausted Informal resolution In the event of a dispute being raised, the matter should initially be referred to respective senior managers to informally resolve the matter. For the Local Authority this will be a nominated service manager and for Bedfordshire CCG this will be the lead assessor for NHS Continuing Healthcare. A joint decision should be reached within two weeks of the case being referred. In the interim, arrangements for the planning, delivery or review of care should not be delayed or disrupted. Reimbursement of any costs will take place in line with without prejudice agreements during this phase if necessary. NHS Continuing Healthcare Joint Dispute Policy September 2015 Page 7

A fast track funding process should always be considered for any individual with a rapidly deteriorating condition that may be entering a terminal phase where deterioration can be reasonably anticipated to take place in the near future, this should also be taken into account, in order to avoid the need for unnecessary or repeat assessments. (National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care November 2012 (Revised) paragraph 105, page 33)). It is not anticipated that there should be many, if any, disputes in relation to NHS continuing health care funding in line with the guidance. In the case of any dispute that cannot be resolved within 24 hours at Stage 1, it will immediately be escalated to Stage 2, where it is anticipated that all such disputes will be resolved. If senior managers cannot resolve the dispute then the case will be referred to a nominated Service Head for the Local Authority and for NHS Bedfordshire CCG this will be the CHC Operational Manager/Head of Continuing Healthcare. A joint decision should be reached within four weeks of the case being referred. If the dispute still cannot be resolved then the matter will be referred for independent arbitration. There is an expectation in the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care November 2012 (Revised) that disputes will be resolved locally. To initiate Independent arbitration, notice will be provided in writing to all partners. Dispute process Where all the informal approaches to dispute resolution have failed it is recommended that these cases are dealt with by the Disputes Panel. This process needs to be robust, fair, speedy and consistent. The Disputes Panel will; Ensure robustness, the process needs to involve individuals with a good understanding of the criteria. For each case, decisions must be based on a high quality of assessment. Ensure fairness, there should be a balance between health and social care perspectives. Members of the disputes panel should act in a professional manner interpreting the eligibility of an individual according to the national framework not just representing the position taken by their own organization Ensure speed of decision making, the process needs to be simple, involving few people and/or use existing mechanisms such as regular meetings. It is in the interest of partner organisations to resolve disputes whether informal or formal as quickly and effectively as possible. It is recommended that whilst the disputes group acts in anadvisory role, partner organisations should agree to accept the advice given by the disputes group and support the judgements made by the group. A Panel decision should be reached within eight weeks of the case having been referred Dispute Panel Panel composition The Panel will comprise of the following standing members: Independent Chair (representative from another Council/CCG/other acceptable to both parties) Representative from Bedfordshire CCG NHS Continuing Healthcare Joint Dispute Policy September 2015 Page 8

Representative of Bedford Borough or Central Bedfordshire Councils Adult Social Care Specialist clinical advisors can be co-opted onto the Panel if deemed necessary. Role descriptions and person specifications for the standing members can be found at Appendix 1. Scope of the Panel The role of the Disputes Panel, in line with the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care), is to determine if all relevant information was considered prior to eligibility for NHS Continuing Healthcare being considered, and that the information used in reaching this agreed outcome supports the multi-disciplinary team s recommendation and subsequent Eligibility Panel s ratification of that recommendation. To consider the Local Authority s dispute of the outcome of the multi-disciplinary recommendation once ratified by the CCG. To ensure that the resolution of disputes have been considered through the informal structures above prior to reaching the formal stage. Panel process Panel members will receive the papers for the case being presented at least one week prior to the panel sitting. This will include a report and rational on the areas being disputed by the Local Authority spokesperson. They are expected to have read them in advance. The Panel Chair will explain how the Panel will be conducted to those present. The CCG officer who ratified the multi-disciplinary team recommendation will present the case to the Panel, going through each domain in the Decision Support Tool and highlighting the evidence that guided the decision. The nurse co-ordinator for the case may also be present. The Local Authority spokesperson disputing the outcome will then present to Panel, highlighting the areas that they dispute and putting forward their evidence for doing so. It is the role of the Panel to elicit such information as to enable them to form a view on eligibility following consideration of the information put forward. It is the aim of this process to allow the Panel members to reach a shared conclusion on eligibility. The Independent Chairs role is to facilitate this. Should the CCG and Local Authority members be unable to reach an agreed position then the Independent Chair will make the final decision, which will be binding for the two organisations. Once a decision has been reached the Panel Chair will be responsible for wording the minutes and decision notification letters. Nothing in this Agreement shall limit or constrain the legal obligations, rights or duties of either of the parties to patients or service users or as between themselves. In the event that any dispute between the parties cannot be resolved using the procedures set out in this Agreement, the parties legal rights shall not be affected nor shall the parties be prevented from asserting those rights in any court of law or other forum. NHS Continuing Healthcare Joint Dispute Policy September 2015 Page 9

Panel management Panel dates and venues will be co-ordinated by the lead officer for NHS Continuing Healthcare via the panel administrator who will also be responsible for minute taking. The Panel administrator will work closely with the Panel Chair to ensure all documentation is collated and distributed and that notes and minutes arising from the panel are checked and signed off by the Chair. All letters following Panel will be approved and signed by the Chair. Additional costs for Panel Chair It is not uncommon for the person appointed to chair the Disputes Panel to require payment of a fee. If this is the case the total costs agreed with the individual will be apportioned on a 50/50 basis between the CCG and BC. Monitoring Annual audit of disputes and outcomes NHS Continuing Healthcare Joint Dispute Policy September 2015 Page 10

References National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care November 2012 (Revised) The NHS Commissioning Board and Clinical Commissioning Group (Responsibilities and Standing Rules) Regulations 2012 Appendices 1. Role description/person specification CCG representative/s on the Disputes Panel 2. Role/description Adult Social Care representative on the Disputes Panel 3. Role description/person specification Independent Panel Chair Disputes Panel NHS Continuing Healthcare Joint Dispute Policy September 2015 Page 11

Appendix 1 Bedfordshire CCG and Bedford Borough and Central Bedfordshire Councils NHS Continuing Healthcare Disputes Panel Role description/person specification CCG representative/s on the Disputes Panel 1. Summary: The role of the CCG representative is to contribute a health perspective and position to the outcome and process of decision making around eligibility for NHS Continuing Healthcare (CHC) funding. The CCG representative, along with their social care colleague, may recommend the consideration of a joint funded package should eligibility for CHC not be met but a clearly identifiable health and/or social care need that would need joint funding is highlighted. 2. Main tasks: To participate in and contribute to the Bedfordshire CCG and Bedford Borough and Central Bedfordshire Councils Disputes Panel To review the assessment/decision Support Tool, gaining clarification from those presenting where necessary and considering all evidence presented To question and, where appropriate, challenge the views of those presenting To make every attempt to come to a jointly agreed outcome with other panel members Where an agreed outcome is not achievable, to state their professional opinion in a clear and evidenced way in order to assist in reaching a casting and binding decision 3. Skills/knowledge/experience/abilities required: Knowledge of The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care November 2012 (Revised) and supporting documents/processes Experience in contributing to multi-agency panels Ability to read, digest and understand detailed clinical information and apply it to the above framework A sound knowledge of the most prevalent conditions managed within community services, in particular, long term conditions Ability to be respectful to the contribution of all involved Ability to be flexible in terms of availability 4. Process/other issues: This role would normally be expected to be held by an experienced healthcare professional operating at nurse consultant/community matron level Staff assuming this role will need to have the agreement of their line manager and it is expected to be written into their job plan in order that time to assume the responsibilities is identified and protected NHS Continuing Healthcare Joint Dispute Policy September 2015 Page 12

Appendix 2 Role description/person specification Bedford Borough and Central Bedfordshire Adult Social Care representative on the Disputes Panel 1. Summary: The role of the Bedford Borough and Central Bedfordshire Councils representative is to contribute a social care perspective and position to the process of decision making around eligibility for NHS Continuing Healthcare (CHC) The Council representative, along with their CCG colleague, may recommend the consideration of a joint funded package should eligibility for CHC not be met but a clearly identifiable health and/or social care need that would need joint funding is highlighted. 2. Main tasks: To participate in and contribute to the Bedfordshire CCG, and Bedford Borough and Central Bedfordshire Councils Disputes Panel To review the assessment/decision Support Tool, gaining clarification from those presenting where necessary and considering all evidence presented To question and, where appropriate, challenge the views of those presenting To make every attempt to come to a jointly agreed outcome with other panel members Where an agreed outcome is not achievable, to state their professional opinion in a clear and evidenced way in order to assist in reaching a casting and binding decision 3. Skills/knowledge/experience/abilities required: Knowledge of The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care November 2012 (Revised) and supporting documents/processes Experience in contributing to multi-agency panels Ability to read, digest and understand detailed clinical information and apply it to the above framework A sound knowledge of the most prevalent conditions managed within community services, in particular, long term conditions Ability to be respectful to the contribution of all involved Ability to be flexible in terms of availability 4. Process/other issues: This role would normally be expected to be held by a qualified Social Worker or Practitioner at Team Manager level Staff assuming this role will need to have the agreement of their line manager and it is expected to be written into their job plan in order that time to assume the responsibilities is identified and protected NHS Continuing Healthcare Joint Dispute Policy September 2015 Page 13

Appendix 3 Role description/person specification Independent Panel Chair Disputes Panel 1. Summary: The role of the Independent Panel Chair is primarily to lead, facilitate and guide the process of reviewing decision making around eligibility for NHS Continuing Healthcare where there is a dispute based on the outcome from the Clinical Eligibility Panel. 2. Main tasks: To formally Chair the Bedfordshire CCG and Bedfordshire Councils Disputes Panel To facilitate appropriate panel discussion To ensure clarity of information To summarise interpretations from others To challenge and question judgment s/interpretations where appropriate To provide advice and guidance to the CCG and the Council, highlighting any gaps in practice/standards To seek shared view/decision and to decide on outcome where no agreement can be reached. The Chairs decision should be binding. To put the decision/outcome into writing 3. Skills/knowledge/experience/abilities required: Detailed knowledge of The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care November 2012 (Revised) and supporting documents/processes Experience in chairing multi-agency panels preferably in a NHS Continuing Healthcare context Ability to read, digest and understand detailed information and apply it to the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care November 2012 (Revised) Skills in facilitating discussion and directing parties with differing opinions/interpretations towards consensus Ability to be respectful to the contributions of all involved 4. Process issues: The Independent Chair will be a person who is acceptable as Chair to both the CCG and Councils The Chair will have delegated responsibility to make a final and binding decision on the outcome of the case should consensus not be reached within the Panel The Chair will be responsible for ensuring the process of assessment and decision making for continuing healthcare eligibility and funding has been followed in line with National Framework Best Practice Guidance. NHS Continuing Healthcare Joint Dispute Policy September 2015 Page 14