Health commissioning blog

Dame Fiona Caldicott is right when she observes confusion and a lack of clarity when it comes to sharing information – often to the detriment of patients. There is a lack of clear systems and agreed processes to facilitate proper and lawful sharing. Will this report, Information: To Share or Not to Share? The Information Governance Review, and the government’s response, deliver the urgently needed changes ? Or will this be an opportunity lost?

Read my latest briefing to find out more: The Caldicott report and the importance of sharing information.

One consequence of the NHS reorganisation has been the issue of the National Health Service (General Medical Services – Premises Costs) Directions 2013 to replace the 2004 Directions. Most of the changes are to reflect the fact that the NHS Commissioning Board (now known as NHS England) has responsibility for administering the Directions.

There has been some speculation that the new Directions have been issued on an interim basis but had this been the case, simply updating to refer to the NHS Commissioning Board with some transitional provisions would have been sufficient. Instead there are a number of small but important changes. Most of these recognise known issues with the 2004 Directions.

For example the new Directions 7 and 31 make it explicit that the Board will not approve any applications for assistance made after contracts have been entered into or works commences. There is now provision for penalty payments on re-mortgaging to be potentially reimbursed so as to remove an impediment to taking advantage of lower interest rates that may be available.

One significant change that has perhaps attracted the most attention is the requirement for rent reviews to be concluded before NHS England will agree a new level of rent reimbursement. Whilst this may simplify the role of the District Valuer in approving a rent review (rather than becoming involved in it) it does place practices at risk in agreeing a rental increase which may not then be supported by full rent reimbursement. This may force practices to attempt to drive a harder bargain and create a saving, but the more certain outcome is that there will be a cost to practices for valuation advice which may in the past have been avoided under the old scheme by simply agreeing to any rent increase that the PCT, advised by the District Valuer, was prepared to accept.

NHS England has published its Interim CCG Assurance Framework (available from here). The framework is designed to help NHS England, patients and the public identify how well Clinical Commissioning Groups (CCGs) are performing in their role as the commissioners of local health services. CCGs are accountable to their local populations and to NHS England for planning and delivering comprehensive and high quality care that meets the needs of their local community. This framework will support CCGs to deliver this and will help them to transform local services and improve outcomes for all patients.

The publication of the Interim Assurance Framework kicks off an engagement process with CCG staff, patient groups and other key stakeholders which will inform a final Framework to be published in the autumn.

Finally there is certainty around the status of the NHS (Procurement, Patient Choice and Competition) (No 2) Regulations 2013. As readers will be aware Lord Hunt, Labour's lead on health in the House of Lords, proposed a motion on 24 April to annul the regulations under Section 75 of the Health and Social Care Act 2012. The vote was won by the government by a majority of 254 to 146 – coalition peers were united in opposing the ‘fatal motion’. You can view a breakdown of votes here.

So what does this mean for commissioners? It means that the NHS (Procurement, Patient Choice and Competition) (No 2) Regulations 2013 will govern how CCGs and NHS England commission services in the NHS. The Regulations state – by implication - that commissioners will be expected to advertise contracts where there is more that one provider capable of providing the services.. Please see earlier blogs dated 22 February, 14 and 23 March for more information.

However, Ministers have promised detailed guidance for commissioners on Monitor’s general approach to using their enforcement powers under the Procurement, Patient Choice and Competition Regulations, and on guidance on how to comply with these regulations. This guidance will, we are told, provide clarity on the extent of flexibility commissioners have, particularly when designing a service and when identifying the provider best placed to provide the service.

Monitor will be consulting on this guidance and it will be important for commissioners to respond to this consultation, particularly if the guidance is not as clear as promised. Against this background it is also important that commissioners develop robust procurement strategies that incorporate the core objectives set out in the regulations, in particular to demonstrate that commissioning decisions secure service users needs, improve quality and improve efficiency.

On 1 April GPs from 38 practices serving a population of 360,000 patients across Ipswich and Suffolk have formed a federation – Suffolk GP Federation. Suffolk Federation is formed from four existing GP practices in the region previously established in the practice based commissioning days. According to its chair Dr Tim Reed the federation will be a not-for-profit community interest company open to all practices and governed by a members’ agreement. Dr Reed commented in a Pulsetoday article that the practices that make up the federation had decided to group together to ‘overcome the weaknesses inherent in the cottage industry model of traditional primary care’.

GP federations are not a new concept – they were first conceived in 2007 by the Royal College of General Practitioners in The RCGP Roadmap. It described a model where practices would work together more closely to share resources, expertise and services either to commission and/or provide services. Later the RCGP published ‘A GP Federation Toolkit’ in 2010 for GP practices thinking about developing a federation.

It is likely that more GP practices will consider the benefits of operating in federations as practices look to reduce costs and increase income. Whilst there are challenges to ‘federating’ there are benefits. These are discussed at length in the ‘toolkit’:

• ‘to strengthen clinical governance and improve the quality and safety of services to develop training and education capacity’.
• ‘strengthening the capacity of practices to develop and tender for new services out of hospital’.
• ‘to make efficiency savings/economies of scale, for example in back office functions or the procurement of practice services’.
• ‘to improve local service integration across practices and other providers’.

To read the full article, ‘How we established a 40-practice federation to compete for bigger contracts’ go to: http://www.pulsetoday.co.uk.

Last month saw the government publish the revised NHS (Procurement, Patient Choice and Competition) (No 2) Regulation 2013. These regulations revoke the version published on 13 February which prompted concerns that the government had reneged on its assurances given by ministers during the passage of the Bill through Parliament that commissioners would be free to decide which services to tender. (Please see earlier blogs dated 22 February and 14 March 2013 for more information).

We now learn that the House of Lords is debating these same regulations on Wednesday 24 April in a motion, which if passed, will lead to their annulment.

So what would be the effect of any such annulment? Well, as the No 2 regulations revoked the earlier NHS (Procurement, Patient Choice and Competition) (No 1) Regulation 2013, the effect would appear to be that the initial version of these controversial regulations would be reinstated!

As the motion calls for the regulations to be annulled “on the grounds that they do not implement the assurances given by ministers”, it seems ludicrous that the effect of the annulment will be to reinstate the earlier version of the regulations (the subject to the same criticism), which, due to the lapse of time, can now no longer be revoked by the House of Lords!

Perhaps the principal intention of this motion is to bring these regulations to wider public attention and pressurise the government to make more changes.

Do check back here for an update on what happens.

NHS England took over the key functions and expertise for patient safety, previously the responsibility of the National Patient Safety Agency, in May 2012. NHSE has now published a revised framework for serious incident management in the NHS. Among the points addressed specifically to commissioners are that they should:

• have a designated member of staff (the officer) and a deputy, who are responsible for receipt of serious incident reports from providers;
• specify clear requirements for responding to serious incidents in contracts with all providers;
• regularly review serious incidents with providers as part of the clinical quality review process and any related arrangements for quality surveillance and assurance;
• ensure that serious incident trend data and other relevant statistical analysis methods inform quality reviews and commissioning decisions;
• publish information relating to all serious incidents, including never events, within annual reports and other public facing documents such as
  governing body reports, including data on the numbers and types of incidents, ensuring patient confidentiality is respected;

Those CCG staff who bear the responsibility for receiving SI reports should ensure that they and all relevant colleagues have read the new framework and are familiar with their obligations.

Readers will probably have seen the last minute scramble that ensured new commissioning bodies are authorised to handle sensitive personal data for purposes other than direct commissioning of patient care. The NHS Health Research Authority granted NHS England a conditional approval to process data for secondary uses on 5 April. The approval is an exemption under section 251 of the NHS Act 2006, and extends the permissions that had previously been in place for the DH, PCTs and SHAs for three months.

Of more immediate concern for CCGs and CSUs is to react to a warning recently issued by NHS England about data sharing in the context of complaints handling. Those CCGs who have arranged for CSUs to provide a complaints handling service for them, and CSUs providing such services, need to be aware of this alert.

CCGs and CSUs are advised to prepare clear information-sharing protocols, and to ensure that patients who make complaints are given full information about which organisations will access their data and why. For more detail, see the following extract from NHS England's latest bulletin for CCGs: http://www.england.nhs.uk/2013/04/12/ccg-bulletin-issue-32/#complaints.

NHS England has issued a contract alert to commissioners of care homes. They have realised that the table of Never Events in the NHS Standard Contract 2013/2014 published earlier this year does not set out which Never Events apply to care homes.

This has been rectified, but new 2013/2014 contracts must be amended; as must 2012/2013 contracts that have been varied.

The exact requirements are set out in the alert, which can be found here.

I am sure readers are aware of the refreshed NHS Constitution which was updated and published at the end of last month by the Department of Health. This followed a public consultation that sought views on a number of proposed changes. The updated NHS Constitution and accompanying Handbook can be viewed here.

The revised Constitution has been strengthened in a number of areas, including:

• patient involvement;
• feedback;
• duty of candour;
• end of life care;
• integrated care;
• complaints;
• patient information;
• staff rights, responsibilities and commitments; and
• dignity, respect and compassion.

Since 2009 all NHS providers, for profit and not for profit, supplying NHS services have been required by law to take account of the NHS Constitution in their decisions and actions.

Now CCGs, NHS England and Health Education England (HEE) have a statutory duty to ‘promote’ the Constitution. Since the publication of the Francis report a system–wide approach is crucial to the improvement of care across the NHS. NHS England are planning to co-develop and implement a joint strategy for promoting the Constitution, including appropriate means of monitoring progress and impact.

NHS England has now launched a number of workshops to discuss how NHS England, CCGs and HEE can help promote the NHS Constitution.

The rules concerning the identification of the responsible commissioner are complex.

Commissioners have the Responsibilities and Standing Rules Regulations 2012, the Disapplication of Responsibility Regulations 2012 and now NHS England's draft guidance, "Who pays? Determining responsibility for payments to providers: Rules and guidance for clinical commissioning groups”.

But where does this leave you? What has changed? Where do you find the familiar rules?

We have produced a briefing to cut through the pages of small print and sets out where CCGs will stand in the new world order when it comes to planning and securing services for patients.

Read our briefing in full.

Thankfully the Department of Health took pity on public health services commissioners when they transferred to local authorities and provided them with a template, ie non-mandatory (as opposed to a model and mandatory), contract (http://www.dh.gov.uk/health/2013/01/phs-contract/) for use when commissioning public health services in accordance with their public health functions under the NHS Act 2006 (as amended) and secondary legislation.

Local authorities are invited to use this template as the basis for commissioning public health services in substitution for their own more general services contracts.

The template is broadly speaking a shorter version of the NHS Standard Contract 2013/14 and contains many of the same or similar provisions. Where it scores over local authority contracts is that it contains the NHS required provisions necessary when commissioning health services.

These include provisions as to safeguarding vulnerable adults and children. Although the contract relies on the provider having a suitable safeguarding policy or using the commissioner's policy instead, commissioners will need to consider how frequently providers' employees should be vetted.

The drafting of the service specification(s) will be key to ensuring that all necessary clinical governance arrangements are in place. Although the contract does provide for regular reporting to the commissioner on service quality performance, commissioners will need to consider what other matters should be reported on.

Commissioners will also need to review information governance provisions carefully to ensure they are up to date in the light of recent developments in this area and that they cover the commissioner's necessary data reporting requirements, specifically around the NHS Care Records Services (which is not covered in the template) where necessary.

Another couple of issues which may need to be explored and supplementary provisions inserted are in relation to TUPE transfers of staff into the service at the start of the contract (guidance produced in relation to the contract includes optional TUPE provisions concerning retendering and handover at the end only) for insertion in the Contract and ensuring that pensions are protected where appropriate.

The Department has invited feedback from users of the contract as it is intended to 'refresh' the template each year. Any comments can be sent to .

NHS England has published a number of interim generic policies, designed to ensure fair and consistent decision-making across its direct commissioning function.

The 14 policies cover all aspects of NHS England’s direct commissioning responsibilities including specialised services, primary care, screening, military and offender health. They set out NHS England’s approach on a variety of funding issues including Individual Funding Requests; access to treatments for patients moving between different sets of commissioners and services providers, and the process that NHS England will adopt for implementing guidance produced by the National Institute of Clinical Excellence (NICE).

The policies are being adopted on an interim basis to enable NHS England to carry out further engagement with patients, carers and the public over the next 6-12 months in refining and agreeing final versions.

NHS England plans to bring together a steering group which will lead development of the policies, working in partnership with a range of stakeholders. This group will test the principles on which the policies are based and will revise them, where appropriate, in order to make them more accessible.

The policies can be accessed here.

The beginning of April saw the implementation of what are largely heralded as the most significant NHS reforms since its foundation in 1948.

This has seen GP-led clinical commissioning groups taking control of local budgets and a new body, NHS England (previously known as the NHS Commissioning Board) overseeing the new commissioning landscape, with the aim of improving health outcomes for the people of England.

The reforms aim to bring clinical expertise to the fore of decision-making by placing GPs in control of a large proportion of the NHS budget (£65 billion): deciding the health services to commission and how best to deliver healthcare.

Yet many are concerned that the reforms may lead to the privatisation of the NHS.

Private companies may cherry-pick the services that they wish to provide and leave only the unprofitable services to be delivered by the public sector. Sceptics are concerned that this may lead to an even more perilous outlook for the financial future of the NHS.

In addition, many are concerned about conflicts of interest, as over a third of GPs in an executive role in the new commissioning structure have a financial interest in a for-profit private provider (beyond their own GP practice).

But so long as mechanisms are in place to prevent any favouritism arising in practice and the NHS remains free at the point of use, does it really matter whether services are provided by the public or private sector? For many, this is immaterial and some even appreciate that private sector providers may help to drive up standards and bring innovation and efficiency. Over the coming months we shall begin to see the impact of the reforms in practice and we can then decide whether their significance is more than surface deep.

PCTs are currently suffering an onslaught of requests for retrospective assessments of CHC eligibility following the announcement of the deadlines for such requests by Sir David Nicholson in March last year. This has been compounded by a policy change by SHAs up and down the country, supported by the Department of Health, requiring PCTs to go beyond their legal duties in accepting requests for assessments of previously un-assessed periods of care, even where they had no knowledge of, and there is no evidence to suggest they should have had knowledge of, the individual at the relevant time. However, if there was no legal obligation on a PCT to conduct an assessment at the relevant time because it did not appear to the PCT that there was a need for such care (which is the position set out in Directions going back to 2004), there is no legal obligation to conduct an assessment retrospectively now. The approach adopted by SHAs in their guidance is imposing an unsustainable burden on both staffing and financial resources of PCTs, as well as posing practical difficulties in seeking the relevant information needed to conduct an assessment, which will soon be passed onto CCGs. This is only guidance, however, and PCTs/CCGs may wish to seek legal advice to clarify their position and challenge the guidance.

Last week (14 March 2013) saw the NHS CB authorise 48 CCGs in the fourth and final wave of authorisation, bringing the total to 211. However, only 20% of all CCGs have been authorised without conditions with only weeks left before they take on their commissioning responsibilities on 1 April. The 211 CCGs will replace the 152 PCTs which are to be abolished along with SHAs on 31 March 2013. They will have a budget of £65million to commission services for their local population.

Of the 211 CCGs authorised, 43 were fully authorised without conditions which means that they met all 119 criteria. The remaining 168 CCGs were authorised with conditions of which 15 were issued with legal directions meaning that the commissioning board or a neighbouring CCGs will exercise some functions for them.

The NHS CB are in the process of re-assessing all the CCGs that were authorised in the previous three waves and the board expects that many of these CCGs to be able to discharge any conditions placed on their authorisation. CCGs authorised in wave four will be reviewed in June 2013.

The big shake up of NHS property ownership reaches its conclusion on 1 April 2013. Transfer Schemes will then take effect and property will vest in new owners. Final preparations are now being made for the signing off of Transfer Orders.

The majority of property will be going to NHS PS and will be managed through Local Area Teams. Those responsible for the day to day running of property will remain largely the same. NHS PS will take on some 3000 existing staff to provide a full range of support functions ensuring a seamless transition.

For those in NHS PS accommodation, there may be little perceptible change immediately. The promised standard for of MOO (Memorandum of Occupation) that CCGs will be expected to sign up to has now been formulated and is expected to be rolled out over the coming weeks. The MOO will, as an interim measure, regulate accommodation rights. It is not anticipated that MOOs will be negotiated documents and are intended to ensure that NHS PS covers the cost of provision of accommodation and any services that are provided in connection with that accommodation.

MOOs will shortly be replaced by formal leases and CCGs will probably want to take advice before signing leases.

A further development has been the decision to transfer NHS interests in some 293 LIFT buildings to Community Health Partnerships (CHP). CHP will manage their estate from three regional offices in London Birmingham and Manchester and will work closely with NHS PS.

The balance of PCT properties will be going to providers. This will then complete the most significant transformation in property ownership within the NHS since the reforms of the Health and Community Services Act 1990 which introduced NHS Trusts.

Whilst CCGs do not assumed their full statutory functions and powers until 1 April 2013, the Government has nonetheless announced that new legal duties are to be placed on CCGs from 2014.

The new duty will mean that by law, CCGs will have to secure services in education, health and care plans for children and young adults with special educational needs. This will include specialist services like physiotherapy, and speech and language therapy.

The rationale behind this new duty is that it will mean that health services work better with education and care services, and will help to ensure that councils, health professionals and volunteers come together to organise services.

In addition, a number of other reforms to the provision of services for children and young people with special educational needs should help to ensure that parents and their children are firmly in control eg through personal health budgets; the extension of support until the age of 25; more comprehensive health, education and care plans and better coordination between all the services that support children and their families. These reforms are being trialled in 31 pathfinder council areas, with up to £600,000 additional funding from the Government to support the measures.
This trial will continue until September 2014. The special educational needs reforms will be discussed at the committee stage of the Children and Families Bill in mid-March, and are set to become law in 2014.

This week saw the government publish the revised NHS (Procurement, Patient Choice and Competition) (No 2) Regulations 2013. These regulations revoke the version published on 13 February which prompted concerns that the government had reneged on its assurances given by ministers during the passage of the Bill through Parliament that commissioners would be free to decide which services to tender.

But do the changes to the controversial secondary legislation covering the contracting out of NHS services really change anything:

• Commissioners must tender services unless this means there is only a single provider that is capable of providing the services.
• The regulations confirm that Monitor – the regulator of the healthcare sector, has no power to force the competitive tendering of services – it is for CCGs to decide how and when to run a competitive tender for a contract. However, if a CCG does not run a tender and enters into a contract, and following a complaint, Monitor declares the contract ineffective, the CCG will have little choice but to run a tender.
• Commissioners must not engage in anti-competitive behaviour unless it “is in the interests of people who use health care services for the purposes of the NHS”. These interests may include “services being provided in an integrated way (including with other health care services, health-related services, or social care services); or by co-operation between the persons who provide the services in order to improve the quality of the services”. This does not, though, sit comfortably alongside regulations 3(3) which requires commissioners to “procure services from one or more providers that are most capable of delivering the objective referred to in regulation 2 in relation to the services, and provide best value for money in doing so.” An integrated service may achieve the commissioners’ objective but a private provider may provide the services at a lower price.

Commissioners are advised to develop a clear procurement strategy that incorporates the challenges of the “revised regulations”.

The revised regulations were laid before Parliament on 11 March 2013 and come into force on 1 April 2013.

The Department of Health has confirmed that soon NHS staff who transfer out of the NHS will be allowed to keep making contributions to their NHS pension scheme.

Under the current “Fair Deal” scheme, where public sector staff transfer out to a new provider of services, the new provider must offer such staff a “broadly comparable” pension scheme. It is argued that this puts independent sector providers at a disadvantage when bidding against public sector providers due to the potential costs of setting up and transferring staff to such a scheme.

No dates have been provided as yet but the policy is being finalized by HM Treasury, which has said the commencement dates for the new scheme may differ across different areas of the public sector.

However, once in place, the Treasury hopes that the new scheme will reduce costs for private providers who, instead of having to provide pension benefits in a separate scheme, will be able to transfer contributions to the public sector pension schemes of any public sector employees who transfer to them. As well as potentially providing a level playing field for independent sector providers, this also provide assurance to transferring staff that their pension arrangements will not change.